Haffert and Repatriation Commission
[2008] AATA 512
•16 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 512
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3283
GENERAL ADMINISTRATIVE DIVISION ) Re HILLARY HAFFERT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member
Dr D Weerasooriya, Member
Date16 June 2008
PlacePerth
Decision The Tribunal affirms the decision under review.
......(sgd) Mr A Sweidan......
Senior Member
CATCHWORDS
Veteran's pension - claim for special rate pension - whether veteran was prevented from undertaking remunerative work during assessment period by reason of incapacity from WAR - caused injury or war-caused disease, or both, alone - decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (C’th) s 24 (1) (c)
REASONS FOR DECISION
16 June 2008 Mr A Sweidan, Senior Member
Dr D Weerasooriya, Member
History and background to application
1. On 21 September 2004, the applicant’s late husband, Robert Haffert (the veteran) applied for an increase in his disability pension beyond 100% of the General Rate.
2. On 6 April 2005, a delegate of the Repatriation Commission declined the veteran’s application and determined that his disability pension should remain assessed at 100% of the General Rate.
3. On 28 June 2005, the veteran applied for review of the delegate’s decision by the Veterans’ Review Board (the Board).
4.The veteran died on 20 October 2006.
5.On 16 May 2007, the Board affirmed the delegate’s decision.
6.The applicant seeks a review of the Board’s decision by the Tribunal.
Evidence
7. The applicant gave oral evidence and the Tribunal had the following documents before it.
(a) Section 37 statement and T documents numbered T1/1 to T36/169.
(b) Dr John Whitelaw, clinical notes provided on 14 September 2007.
(c) Dr Simon Troon, Oncologist, letter of 24 September 2007.
Issues for the Tribunal
8. Whether, on the material before it, the Tribunal may be reasonably satisfied that the veteran was, during the assessment period, by reason of war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and was, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account that the veteran would not have been suffering if the veteran were free of that incapacity.
Relevant Facts
9. The veteran was born on 25 April 1941. He died on 20 October 2006 from causes certified as metastatic prostate cancer of 2 years duration. The assessment period, which commenced on 21 September 2004, being the date of the veteran’s application for an increase in disability pension, terminated on the date of his death.
10. The veteran received disability pension at 100% of the General Rate in respect of the following war-caused injuries and war-caused diseases:
Cyst right lateral meniscus
Bilateral sensorineural hearing loss
Tinea
Anxiety disorder
11. Malignant neoplasm of the prostate was determined by the Repatriation Commission on 28 July 2004 to be not war-caused.
12. In a claim for service pension submitted on 5 April 2001, the veteran indicated that he had ceased work on 8 October 1996. He was currently in receipt of Newstart allowance. He had either applied for or been granted this allowance on 16 December 1996.
13. In a statement submitted with a claim for disability pension lodged on 15 April 2002, the veteran stated that problems associated with anxiety had resulted in arguments with managers, resulting in his being put off from several jobs.
14. On 16 April 2004, Dr John Whitelaw, the veteran’s local doctor, wrote that the veteran had not worked for the past 5 years as a result of chronic anxiety disorder and PTSD. There had been no improvement in his condition and this was unlikely to occur.
15. In his application for increase in disability pension received on 21 September 2004, the veteran stated that his accepted disabilities had worsened and were responsible for him not being able to continue in the workforce. He left full time work in 1996 but had continued to do casual hospitality work until 2003. This was now out of the question. The veteran wrote that he had ceased work on 31 October 1996 on account of illness.
16. On 3 May 2005, Dr Whitelaw reported that the veteran had given up his last job as a porter/barman because of poor coping mechanism, bursts of anger and loss of concentration. Dr Whitelaw said that the veteran could not work as a result of his psychiatric disability.
17. However, in an undated note, the Veteran stated that for the past 8 or 9 years he had worked as a casual barman at Ascot for the WA Turf Club. This was on their busy days such as the Melbourne and Perth Cups and was for 2 to 5 days a year.
18. In evidence before the Board, the applicant said that the veteran had full time work for about 2 years in 2002/2003. In evidence to this Tribunal the applicant said this was in 2001.
19. On 28 June 2005, Dr Whitelaw wrote that the veteran was incapable of any work at that time. He was 64 years old and had advanced prostate cancer for which he was undergoing treatment.
20. On 2 May 2006, Dr Whitelaw wrote that the veteran’s prostate cancer had contributed to his overall illness in the past 2 years, but was not the main reason for his inability to work for the past 10 years.
21. Dr Troon’s report of 24 September 2007 makes it clear that the veteran was unable to work after 30 March 2005 due to his prostate cancer and the effects of chemotherapy treatment for the condition.
Tribunal’s Findings
22. Subsection 24 (2) (c) of the Veterans’ Entitlement Act 1986 (the Act) requires that, as a result of service-related conditions alone, the veteran is prevented during the assessment period from continuing to undertake remunerative work of the kind that he was previously undertaking, with the result that he is suffering a consequential loss of income.
23. When interpreting this subsection it is necessary to have regard to subsection 24 (2) of the Act which provides relevantly as follows:
“For the purpose of paragraph (1) (c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease or both;
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason.
24. It is clear that the Act requires that a person’s incapacity shall be assessed throughout the whole of the assessment period, which is defined in the Act as starting on the application day, in this case 21 September 2004 and ending when the veteran died.
25. The Tribunal must therefore have regard to the circumstances of the veteran having prostate cancer and the applicable medical evidence is as follows:
(i)The veteran first sought treatment for prostate cancer on 12 August 2002;
(ii)At folio 102 in a report dated 28 June 2005 Dr Whitelaw states:
“Mr Haffert is incapable of any such work (refers to work as a barman) at this time. He is 64 years old and has advanced prostate cancer and undergoing treatment.”
(iii)At folio 156 in his report dated 22 May 2006 Dr Whitelaw states:
“Mr Haffert is appealing for a TPI pension. This is a consequence of chronic anxiety and post traumatic stress disorder related to his service in the Navy. Mr Haffert has been unable to work since 1996 for these reasons.
In May 2004 (?) Mr Haffert was diagnosed with prostate cancer and is still currently undergoing treatment for this condition. His inability to work is still a consequence of his chronic anxiety disorder and post traumatic stress disorder. The prostate cancer has contributed to his overall illness in the past two years but it is not the main reason for inability to work for the past 10 years.”
26. Having regard to the above evidence, it is clear that the veteran was suffering from prostate cancer prior to commencement of the assessment period. The Tribunal accordingly agrees with the findings of the Board that:
“Even the most sympathetic reading of the reports of Dr Whitelaw does not enable the Board to conclude that during the assessment period it was the veteran’s anxiety disorder (while Dr Whitelaw also refers to post traumatic stress disorder that condition was not diagnosed by Dr Maunder (sic)) alone that prevented the veteran from working. The Board also notes that although Dr Whitelaw states the veteran was unable to work since 1996 the evidence at the hearing was that he worked full time in 2002/2003”.
27. The Tribunal accepts the evidence that the veteran constantly sought work from the time of his leaving Telstra until early 2004 when his health declined to the point where he was no longer able to work. However, there is no evidence that the veteran sought work during the assessment period or that it was only his anxiety disorder that prevented him from obtaining work. On the contrary, the evidence clearly shows that the veteran’s prostate cancer contributed to the veteran’s inability to work during the assessment period. Unfortunately for the applicant, the evidence shows that the veteran did not meet the requirements of subsection 24 (1) (c) of the Act.
DECISION
28.The Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member and Dr D Weerasooriya, Member
Signed: ….(sgd) T Freeman....
AssociateDate/s of Hearing 10 June 2008
Date of Decision 16 June 2008
Applicant’ Representative Brian F Cooper
Regular Defence Forces Welfare AssociationRespondent’s Representative Carl Ponnuthurai
Department of Veterans Affairs Advocate
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