Hales and Repatriation Commission
[2003] AATA 530
•6 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 530
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/238
VETERANS' APPEALS DIVISION )
Re PETER HALES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date6 June 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd).IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – whether pension is payable at the special rate – whether veteran’s war-caused conditions alone prevent him from working – whether veteran has been making genuine attempts to find work
Veterans’ Entitlements Act 1986 ss 68, 120(4)
Repatriation Commission v Smith (1987) 74 ALR 537
Re Easton and Repatriation Commission (1987) 6 AAR 558Cavell v Repatriation Commission (1998) 9 AAT 539
Forbes v Repatriation Commission [2000] FCA 328Magill v Repatriation Commission [2002] FCA 744
REASONS FOR DECISION
6 June 2003 Mr IR Way, Member 1. This is an application by Peter Hales (“the applicant”) for review of that part of a decision of the Repatriation Commission made on 21 May 2001, and affirmed by the Veterans’ Review Board (“VRB”) on 13 December 2001, which determined that the applicant’s pension should continue to be paid at 100% of the General Rate.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and other documentary evidence as follows:
§Exhibit A1 Statement – Dorothy Ellen Hales dated 3 April 2003
§Exhibit A2 Two photographs and short note from applicant’s wife
§Exhibit A3 Flight Crew Licenses of Peter Hales
§Exhibit A4 Report of Jill Harding-Clark, Clinical Neuropsychologist dated 18 March 1998
§Exhibit R1 Employment Standard Review Report, 13 September 1981
§Exhibit R2 Report of Group Captain B G Grayson, RAAF, dated 27 October 1983
§Exhibit R3 Letter dated 3 January 1985 from G Wroldsen, Solicitor seeking information re motor vehicle accident and reply dated 25 June 1985 from Chief of Air Staff
§Exhibit R4 Report of Dr Landy dated 17 March 1986
3. The applicant’s wife, Mrs Hales, gave oral evidence and Dr I Maxwell gave evidence by telephone.
4. The applicant was represented by Mr J Wall of Gilshenan and Luton and the respondent was represented by Mr J Kelly, Departmental Advocate.
5. The applicant was born on 23 February 1944 and served in the RAAF as a pilot from 13 January 1966 to 23 February 1989, the period from 7 December 1972 to 23 February 1989 being eligible defence service pursuant to section 68 of the Veterans’ Entitlements Act 1986 (“the Act”).
6. The applicant, at the time of application, namely 12 April 2001, was 57 years of age and had accepted service-related disabilities as follows:
§ Bilateral sensori-neural hearing with tinnitus
§ Generalised anxiety disorder
§ Osteoarthritis multiple sites
§ Other specified non-psychotic mental disorder following organic brain disorder
§ Post traumatic stress disorder
§ Unequal leg length (right)
§ Impotence
7. The applicant’s disability of vertigo-benign positional has not been accepted as service-related. The applicant also suffers from Huntington’s disease.
8. This matter is an assessment matter contested solely on the basis of whether or not the applicant should be paid disability pension at the Special Rate. The Tribunal notes that the applicant does not wish to proceed with the matter of vertigo-benign positional as part of this application.
9. The standard of proof applicable in this matter is provided for in section 120(4) of the Act and, pursuant to this section, the matter is to be decided by the Tribunal to its reasonable satisfaction or, in other words, on the balance of probabilities (see Repatriation Commission v Smith (1987) 74 ALR 537).
10. The assessment period in this matter is from 12 April 2001, the date of the applicant’s claim, to the present date (the relevant period).
Legislative Framework
11. The legislative framework in respect to Special Rate of pension is relevantly provided in the Act as follows:
“24 Special rate of pension
(1) This section applies to a veteran if:
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(2) 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; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”
Evidence for the Applicant
12. On 13 September 1981, the applicant was involved in a severe motor vehicle accident in which he suffered multiple serious compound fractures, lacerated liver, ruptured spleen, torn mesentery and head injuries.
13. Following a lengthy period of rehabilitation and recuperation, the applicant was returned to his unit, fit for sedentary duties only, as at 8 March 1982. At this stage the applicant was still unfit for flying duties.
14. On 6 June 1984, the applicant was declared “fit to fly as or with co-pilot” and on 28 February 1986 he was declared “fit to fly solo”.
15. Mrs Hales, the applicant’s wife, said she first met the applicant in 1998 and married him in July 1999. She said she was aware that the applicant left the RAAF in February 1989 because he wanted to get back in the air. She said that after leaving the RAAF he had worked for a short time flying helicopters for private concerns but stopped flying in 1990 because his co-pilot (whom he had known in the RAAF) said he “was not handling flying mentally”.. She said that he had then bought into management rights of a Gold Coast building complex (along with his then wife and another couple) and retired after selling the rights in 1996. Since selling the management rights she said he has not been employed nor has he sought work.
16. In her written statement Mrs Hales said:
“3.When I first met Peter he was no longer working for remuneration but was doing voluntary work as radio operator for the coast guard.
4.In the year 2000, we saw fit to go over to the United Kingdom on a tour so that we could go and see London, Dover, Cambridge, Duxford Air Museum, the Cathedral in Ely, Leeds, Inverness, Edinburgh, Wick, then to John O’Groates, the Lakes District, Bristol, and then went to Ireland where we toured that area, Waterford, Cork, Blarney, Killarney, Ring of Kerry, Galway, and then back to Dublin.
5.It should be noted, that to my knowledge, from Peter’s log book, that the last time that he worked for remuneration was when he worked for Lloyds in the Timor Sea as a co-pilot.
6.I personally do not know what type of work that Peter would be expected to do since his motor vehicle accident considering that all his life up to that point that he only ever wanted to be a pilot.
7.He’s only deteriorated mentally since about 2001 in September when he wanted to commit suicide but didn’t know how to go about it.
8.We returned from the United Kingdom in June 2000, he was quite happy at that time, and he did not show any of the horrible signs of Huntington’s that showed later.
9.Having looked back in retrospect, it would seem that the first symptom of what was later positively identified as symptoms relating to the Huntington’s only first appeared in the beginning of 2001.
10.This was that he had far more Choreatic movement in his body, and he tended to get things a bit mixed up when he started to talk about them, and the focus of his conversation started to wane.
11.Up to that time there was nothing that indicated that he had any problem other than the old injury or the traumas were statically with him since the motor vehicle accident in 1981.
12.It would seem however, since these movements and speech problems first started at the beginning of 2001, he has deteriorated to his present state.
13.There is no doubt in my mind that in his present state that his Huntington’s overshadows all the other organic brain problems that he has.
14.He can no longer speak and he stopped speaking in approximately September 2001.
15.I was told by the nursing staff that they were amazed at the rate of deterioration in his present Huntington’s disease as compared to others that they had nursed.
16.At the time that Peter attended at the Veterans Review Board Hearing in December 2001, Peter was then treated with the drug Tetrabenozene which had been given for the purposes of his Chorea but which had a paradoxical effect upon Peter in as much that it made him worse at that time.
17.I was assured by the treating specialist that the reason why he was bad at that time would have been because of the existence of Huntington’s but, I persisted in having Peter weaned off that drug which resulted in a great deduction in these Choreatic movements from which he had been suffering.
18.This, in my mind, clearly indicated firstly that the Doctors were willing enough to blame Huntington’s Chorea unnecessarily and further that, that particular drug had an adverse effect upon him.
19.I remember quite well in June 2000, after we had returned from overseas, that Peter drove the car from Mt Tamborine to Brisbane on my son’s wedding day with no trouble at all.”
17. Mrs Hales said that when she first met her husband socially in 1998 she found him to be a “nice guy”, easy to talk to and someone who got on well with people. She said she first noticed that he had problems in March 2001 while they were on a trip to Alice Springs, where he seemed different altogether as though he had had a stroke. She said that he stopped speaking in September 2001 and was now, as from January 2002, severely disabled and not able to take care of himself. In respect of managing the building complex on the Gold Coast, she said his duties were of the handyman kind and that he had eventually found these duties too difficult to perform because of problems with this legs and his feet and toes. Mrs Hales said she was aware her husband’s previous marriage had broken down in 1997.
Medical Evidence
18. Dr IC Maxwell, Consulting Neurologist, provided two written reports (T4/39-41, 74-75) and gave evidence by telephone.
19. In his written report dated 28 August 2000 (T4/40) Dr Maxwell said:
“1.Memory Loss
A significant part of his memory loss could be directly related to his head injury since there was a significant deterioration in his performance post-traumatically, resulting in a degrading of his pilot’s status. There would not appear to have been a progressive loss of memory since the diagnosis of Huntington’s disease.
2.Diagnosis of all Neurological Conditions Suffered by Veteran
I think he has Huntington’s Disease which is sporadic in origin. This has been a more recent onset over the last four or five years.
3.The Degree that Huntington’s Disease Contributes to Veteran’s Inability to Work
Huntington’s Disease contributes significantly to his disability at present. It should be noted however that there was a significant reduction in his ability to work in his capacity as a pilot following his head injury and this preceded Huntington’s Disease by many years and eventually led to his restriction of activities and probably eventually, with frustration, to his retirement from the Services and to his subsequent difficulties with flying in the commercial sphere and eventual retirement from that activity.
4.Current Symptoms – Frequency and Severity
The current symptoms would seem to have changed little over the period of assessment. He still has significant disability.
5.Effects of Conditions
He has remarried and has a very understanding relationship with his present wife. He accepts that his problems following his head injury affected his social life and eventually the progressive symptoms, in particular his movement disorder, were probably the final cause for the breakdown in his first marriage.
6.Full Reasons why these Conditions affect his Ability to Work
He is unable to work at present. He has not really been able to work very effectively for many years, related to his problems post-head injury. I think the recent onset of Huntington’s Disease has merely added to these problems.
7.If the veteran is Able to Work Full-time or Part-time
He could not work full-time or part-time for any number of hours per week.
8.If Severity is Temporary or Permanent
The condition is permanent.”
20. Dr Maxwell said in his report that it was difficult to differentiate between the effects of his previous head injury and his Huntington’s Disease and, in his oral evidence, said that while both conditions were significant the applicant’s Huntington’s Disease was of such significance that it was sufficient on its own “absolutely” to stop him working. He described the applicant’s Huntington’s Disease as sporadic in nature, there being no evidence of hereditary symptoms. He said that the symptoms of Huntington’s Disease were involuntary movements, progressive loss of intellectual facilities, slowness, difficulties with speech and dementia.
21. Dr Maxwell said that it may take many years from the first symptoms of choreic movement (1993 in this case), for other symptoms to develop and that in this case it would be very unlikely that such choreic movements would be from a condition other than Huntington’s Disease. Dr Maxwell agreed that choreic movements could be accentuated as a result of stress and anxiety.
22. In answer to questions from Mr Wall, Dr Maxwell said that if the applicant did not suffer from Huntington’s Disease, his other conditions were such that it was unlikely that the applicant would be able to continue with work activities. Dr Maxwell also said that if the applicant had only Huntington’s Disease he would be unemployable.
23. Further, in relation to the connection between Huntington’s Disease and the effects of the applicant’s motor vehicle accident, Dr Maxwell said that neurological damage was cumulative and conjectured that the effects of the motor vehicle accident, namely significant neurological problems including hydrocephalus, could make him more prone to choreic effects.
24. Dr Harding-Clark, Consultant Clinical Neuropsychologist, saw the applicant on numerous occasions in November 1997 and provided a report dated 18 March 1998 (Exhibit A4). In her report, Dr Harding-Clark stated:
“All things considered, it is likely that Mr Hales did suffer some degree of brain injury as a result of the motor vehicle accident in 1981. It is possible that he may be still be experiencing some residual cognitive and emotional difficulties; however, the degree of cognitive impairment demonstrated on current testing is significantly disproportionate to what would be expected, given his apparent ability to cope with his return to work following his accident, as implied by medical examination records indicating psychiatric assessments as ‘normal’, and the amount of time since injury. It is highly unlikely that Mr Hales would have been able to return to the capacity of work which he did if he was demonstrating deficits of the severity demonstrated on current testing. If the indication that Mr Hales’s cognitive status had returned to ‘normal’ is accurate then it would seem from current assessment results that he has undergone a decline in functioning which is not consistent with the usual course of head injury recovery.”
Submission
25. Mr Wall, for the applicant, agreed that while the applicant’s Huntington’s Disease would of itself prevent him from working, it was not a clear-cut matter in that, on the evidence of Dr Maxwell, the applicant’s accepted service-related conditions of post traumatic stress disorder, generalised anxiety disorder and his organic brain damage could have accelerated his choreic movements and choreic condition and that if he were free from these conditions, his Huntington’s Disease would not have accelerated as it had done. Nor would his intellectual capacity have deteriorated as quickly as it has.
26. Mr Wall contended that Dr Maxwell had given evidence that the applicant’s neurological injuries from the motor vehicle accident could not be discarded as it was his evidence that neurological damage was cumulative and the brain damage from the motor vehicle accident would make the applicant more prone to suffer from Huntington’s Disease.
27. It was submitted, therefore, that the applicant met the “alone” test and in so submitting Mr Wall referred the Tribunal to Re Easton and Repatriation Commission (1987) 6 AAR 558.
28. Mr Kelly, for the respondent, submitted that even though the applicant had suffered an horrific motor vehicle accident, after a long rehabilitation process, he had been able to return to work, initially RAAF non-flying duties and subsequently back to flying duties including command of 9 Squadron (Helicopters). After resigning from the RAAF it was submitted that the applicant continued to engage in flying duties for private concerns and subsequently bought and exercised management rights for a building complex on the Gold Coast.
29. It was submitted that the evidence of Dr Maxwell was that the applicant, even if he were free of his accepted disabilities, was, at the time Dr Maxwell saw him (August 2000), unemployable because of Huntington’s Disease.
30. Furthermore, it was submitted that Mrs Hales’ evidence that the applicant had not sought employment after selling his management rights in 1996.
31. As such, it was submitted that the applicant did not meet the criteria of section 24(1)(c) of the Act or the ameliorating provisions of section 24(2)(b) of the Act.
32. In respect of consideration of the “alone” test, Mr Kelly referred the Tribunal to Cavell v Repatriation Commission (1998) 9 AAT 539 and Forbes v Repatriation Commission [2000] FCA 328.
33. It was submitted that, although the respondent conceded that the applicant met section 24(1)(a) and section 24(1)(b) of the Act, because the applicant did not meet the criteria of section 24(1)(c) the decision under review should be affirmed.
Consideration
34. In considering Special Rate of pension the Tribunal is mindful of what his Honour Justice Burchett stated in Cavell v Repatriation Commission (supra):
“...to distract the tribunal from its true task – to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”
35. It is common ground in this matter that the applicant satisfies section 24(1)(a) and section 24(1)(b) of the Act and, in view of this and on the material before it, the Tribunal so finds.
36. Turning then to the question as to whether the applicant satisfies section 24(1)(c) of the Act.
37. In the matter of Magill v Repatriation Commission [2002] FCA 744 the Federal Court recently addressed the approach that must be taken in the application of the provisions of section 24(1)(c) of the Act. A summary of what his Honour Justice Drummond said in respect of the first limb of that section is set out below.
38. Section 24(1)(c) consists of two limbs, each of which must be satisfied. The first limb of the subsection provides:
“(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking…”.
This must be read with section 24(2)(b).
39. The facts in respect of a particular veteran may be such that this first limb is clearly satisfied. However, there may be circumstances where a veteran’s war-caused incapacity, while not being the sole cause of his inability to obtain work, nevertheless is the substantial cause, and section 24(2)(b) provides for these circumstances. It is an ameliorating provision which sets out criteria which, if satisfied, allows the veteran to meet the alone criteria of section 24(1)(c).
40. In summary, section 24(2)(b) allows the veteran to meet the alone test if the veteran has been genuinely seeking to engage in remunerative work, that the veteran but for his war-caused incapacity would be continuing to seek to engage in remunerative work, and the veteran’s war-caused incapacity is the substantial cause of his inability to obtain remunerative work in which to engage.
41. In Re Easton and Repatriation Commission (supra), his Honour Justice Davies said (at 570):
“Of the word ‘alone’ in par 24(1)(c), which requires that the loss flows from the accepted disabilities only, the Court said in Lucas v Repatriation Commission (1986) 6 AAR 122 at 12-124:
‘…The whole purpose of para 6(c) [now para 23(1)(c)] is to limit the payment of benefits under the Schedule to those who have not only suffered such an incapacity as would prevent full-time work but who have, in consequence, been prevented from continuing to undertake work which they would otherwise have undertaken and, by reason thereof, have suffered a loss of salary, wages or earnings: cf the extract from the second reading speech of the Acting Minister quoted by us in Banovich. The relevant question under para 6(c) – it first having been determined under para 6(b) that the applicant has suffered the requisite incapacity – is whether that incapacity has caused a loss of remunerative work, and so income, which would not otherwise have occurred. It is obviously relevant, in relation to that matter, to determine whether the applicant would, in any event, have been debarred from work because of a factor such as age…’
See also Re Apthorpe and Repatriation Commission (1986) 9 ALN N157 where the Tribunal said:
‘…In our view, ‘alone’ must mean exclusively. One must be able to say that if the applicant were free of the accepted incapacities, he would still be working. One must be able to say that on the balance of probabilities his cessation of work can be attributed only to his service related incapacities and to nothing else. Those incapacities must in fact prevent him from continuing to undertake remunerative work. They must ‘forestall, balk or baffle’ (Shorter Oxford English Dictionary) such work. They must be the only factors standing between him and such work’.”
42. In Forbes v Repatriation Commission (supra) to which authority the Tribunal was referred to by the respondent, his Honour Justice Nicholson said:
“33. Burchett J also referred to a statement by the Tribunal in Cavell that it followed from the use of the word “alone” in s 24, that any factor having employment consequences which played a part in the applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant’s case for pension at the special rate. Burchett J regarded that statement as revealing clearly an application of the statutory test in an unexceptional manner to the material in evidence before that Tribunal. Those remarks address the third question identified in Flentjar and are, correctly in my view, relied upon for the respondent in this application. They do not provide support to the applicant’s contentions. Nor do I consider that reference to Repatriation Commission v Strickland (1990) 22 ALD 10 at 18 assists the applicant’s case. …
39. The applicant’s case requires the Tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the Tribunal in the light of the words used in the first limb of s 24(1)(c). The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptual environment identified in the applicant’s case. Furthermore it is consistent with the application by a Tribunal of a common sense approach “with an eye to reality”.
40. As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made. To date, the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration.”
43. The Tribunal is of the view that the approach taken in Easton is entirely consistent with that taken in Forbes.
44. In order to meet the full rigour of section 24(1)(c), to quote from Easton, “one must be able to say that if the applicant were free of the accepted incapacities, he would still be working”.
45. In this case, on all of the material before it, the Tribunal is satisfied that it cannot be said that the applicant would be capable of working at the relevant time if he were free of his accepted disabilities.
46. This conclusions still leaves open consideration of whether the applicant meets the ameliorating provisions of section 24(2)(b).
47. The Tribunal is mindful that the applicant has not contended that the ameliorating provisions can be met in this case. However, in fairness to the applicant, the Tribunal has considered whether section 24(2)(b) can be applied as outlined above in paragraph 40.
48. While the evidence before the Tribunal would allow the Tribunal to consider whether the applicant’s accepted disabilities are the substantial reason for his ceasing work in order to satisfy section 24(2)(b) the applicant must be genuinely seeking work. On the evidence before it, the Tribunal is satisfied that the applicant, at all material times, has not sought work and therefore he cannot satisfy the ameliorating provisions of section 24(2)(b).
49. The Tribunal is therefore satisfied that the applicant does not meet the “alone” test provided for in section 24(1)(c) and therefore the applicant’s application for assessment at the Special Rate of pension must be refused.
50. The Tribunal affirms the decision under review.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: .......................................................................................
AssociateDate of Hearing 21 May 2003
Date of Decision 6 June 2003Solicitor for the Applicant Mr J Wall, Gilshenan and Luton
Solicitor for the Respondent Mr J Kelly, Departmental Advocate
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