Hamer and Repatriation Commission

[2004] AATA 637

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 637

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/11

VETERANS' AFFAIRS DIVISION		)
Re		ELIZABETH JOYCE HAMER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F  Cunningham (Part-time Member)

Date22 June 2004  

PlaceHobart

Decision The decision under review is set aside and in substitution therefor a decision that the applicant is entitled to the Intermediate Rate of pension with effect from 7 February 2001.

[Sgd A F Cunningham]

Part-time Member

CATCHWORDS

Veterans’ Entitlements – intermediate rate of pension – applicant’s war-caused incapacity not the reason for not continuing in remunerative work – genuinely seeking to engage in remunerative work – incapacity substantial cause of inability to obtain work – not reasonable to expect veteran to move location to seek employment.  

Veterans’ Entitlements Act 1986 – s23

REASONS FOR DECISION

22 June 2004 A F Cunningham (Part-time Member)     

1.      The applicant has appealed a decision of the Repatriation Commission dated 30 June 2001 which was subsequently affirmed by a Decision of the Veterans’ Review Board on 3 December 2002 refusing the applicant’s claim for payment of pension at the Special Rate and continuing her pension at the rate of 100% of the General Rate.  

2.      The applicant was represented by Mr Benson.  Mr Castle appeared on behalf of the respondent Commission.  The applicant gave oral evidence.  Evidence was given by Dr Eric Ratcliffe, Consultant Psychiatrist by telephone link.  Dr Ratcliffe’s report filed with the Tribunal on 23 February 2004 was also tendered in evidence.  The Tribunal also had the benefit of a report from Dr Andreas Ernst dated 4 November 2003 as well as a Job Suitability Analysis dated 23 April 2004 prepared by Dr Ernst.  The T Documents were tendered pursuant to the provisions of Section 37 of the Administrative Appeals Act 1975.

3. At the commencement of the hearing Mr Benson informed the Tribunal that the applicant no longer sought the Special Rate of pension pursuant to the provisions of Section 24 of the Veterans’ Entitlements Act 1986 (“the Act”) but relied on the provisions of s23 of the Act for the Intermediate Rate of pension.

4. The provisions of s23 state:

“(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(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's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(c) the veteran is, by reason of incapacity from 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 from that incapacity; and

(d) section 24 or 25 does not apply to the veteran.”

5.      It was not disputed by the respondent that the applicant met the provisions of the above sub-sections (aa) (aab) (a) and (b).  What was in contention was whether the applicant ‘s war-caused incapacity was the sole reason preventing her from continuing to undertake remunerative work that she had been undertaking and was thereby suffering a loss of wages pursuant  to the provisions of sub-section (c). 

6.      The ameliorating provisions of sub-section 3 provide as follows:

“(3)  For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:

(i) if 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) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.”

7.      Mr Castle submitted on behalf of the respondent that there was no evidence to support a finding that the applicant had been genuinely seeking to engage in remunerative work in accordance with the provisions of sub-section (b) as she had demonstrated a reluctance to move from the area of the west-coast of Tasmania where job opportunities are more limited.

8.      The following facts were not in dispute:

1. that the applicant rendered eligible service within the meaning of the Act between October 1986 and December 1986.

2.   that the applicant suffers from the following accepted disabilities:  post traumatic stress disorder;  panic disorder;  dysthymic disorder and alcohol abuse.

3.    that in addition the applicant suffers from orthopaedic conditions affecting both her right and left knees and left hip.

9.      It was Ms Hamer’s evidence that she ceased her employment with the Australian Army following a medical discharge prior to the completion of her basic training in early 1987.   Ms Hamer’s proof of evidence contained specific examples of verbal and physical abuse which she claimed she had experienced during her period of service.

10.     Following her discharge from the army, Ms Hamer commenced employment as a strapper at Westbury.  She continued in this position for a few months.  Her hours of work were from between 4.00 am and 9.00 am on seven days each week.  She left that employment for two main reasons namely, mistreatment of horses and her inability to ride due to her knee injuries. 

11.     Since ceasing this employment Ms Hamer stated that she had applied for approximately two hundred positions over the past four years.  Despite assistance from the Business Employment Centre during the last three years, the Centre only recommended that she apply for one position.  The position was for a house-maid but again her application was unsuccessful.

12.     Ms Hamer maintained that she had endeavoured to seek alternative types of employment by undertaking several courses.  She has qualified for a fork lift licence, heavy rigid licence and a dangerous goods licence. Approximately two years ago Ms Hamer also obtained a coxswain certificate which allows her to operate vessels up to 3 miles out to sea.   Ms Hamer has almost completed a fire-fighting certificate she is undertaking at the TAFE College.

13.     It was Ms Hamer’s evidence that in almost all instances she was informed that her job application had been unsuccessful because of her medical history.  Her medical file discloses that she suffers from alcohol abuse and has an anger management problem, she maintained.

14.     When Ms Hamer was refused employment with the Tasmanian Ambulance Service on the basis of medical history, she successfully appealed to the Anti Discrimination Tribunal. 

15.     Whilst Ms Hamer agreed that most of her job applications had been for positions on the west-coast, she had also applied for a position with the Tasmanian Fire Service stationed at Campbell Town but was unable to get a medical clearance.  Ms Hamer said that she was unsuccessful in her application for a position with Tassal Sea Farm because of her lack of experience and fitness, both qualities were possessed by the successful applicant.

16.     Ms Hamer informed the Tribunal that she would be prepared to undertake any type of employment even that of cleaning toilets.  She also said that she was prepared to sell her house and move out of the Strahan area.  It was her belief however, that her employment prospects are restricted because of her medical history. 

17.     Ms Hamer recounted the many various jobs for which she had unsuccessfully applied in recent years.  They included a horse riding position in Launceston,  positions with Aquarius Sea Farms in Launceston and Hobart, a bus driving job with GIE, a truck driving job with Henty Gold Mine, positions with the West Coast Council, positions with various mining companies and a position as a taxi driver in Strahan.

18.     It was Dr Ratcliffe’s opinion that Ms Hamer is incapable of working for more than eight hours per week because of her current incapacity.  It was Dr Ratcliffe’s evidence that Ms Hamer’s incapacity for work due to her current accepted disabilities was for no more than twenty hours per week. 

19.     Whilst Dr Ratcliffe agreed that it would not be impossible for Ms Hamer to work outside the west coast area,  he stated that it was not in the best interests of her health for her to move from the familiarity of the west coast area.   Due to her incapacity, it was preferable, Dr Ratcliffe noted, for Ms Hamer to undertake work of a solitary nature and avoid contact with other people.

20.     The Job Suitability Analysis established that out of one hundred jobs analysed, more than two-thirds were ideally suited to Ms Hamer.  The report noted that she suffers from a knee injury which restricts her physical fitness for work and is only fit to perform tasks which pose low to mild loadings to the knee.  There were no jobs that were not suitable given Ms Hamer’s restrictions and there were other jobs suitable with certain modifications. 

21.     Mr Benson submitted that the Tribunal could conclude from the above Analysis that it was not Ms Hamer’s non-accepted disability namely her knee condition that was the reason for her not obtaining employment.

22. The appropriate standard of proof under Section 120 of the Act is as set out in sub-section 4 requiring the Tribunal to make any finding “to its reasonable satisfaction”.

23.     The Tribunal is reasonably satisfied that Ms Hamer is not prevented from continuing to undertake remunerative work that she was previously undertaking solely because of her accepted disabilities.  Her evidence was that she ceased her employment as a strapper partly because of her knee injury and also because of the mistreatment of horses and further, that it has been her knee condition that has prevented her from continuing with this line of work.  Dr Ratcliffe stated in his report that work as a strapper was limited because of Ms Hamer’s problems with her knee and her hip.   He noted that the job as a strapper had only lasted some six months.

24. In considering the ameliorating provisions of sub-section 3 of Section 23, the Tribunal is reasonably satisfied that Ms Hamer meets the requirements of this sub-section in that (i) she ceased her part-time work as a strapper because of her knee injury and has been unable to continue in this line of work but (ii) has been genuinely seeking to engage in other types of remunerative work and (iii) that the substantial cause of her inability to obtain remunerative work is her accepted disabilities.

25.     The Tribunal heard evidence that over the last few years Ms Hamer has applied for a variety of jobs, that she has undertaken training certificates and has been prepared to move outside of the Strahan area in order to obtain employment.  Whilst the vast majority of the jobs got which Ms Hamer applied were located in the Strahan area where she resides, the Tribunal accepts the evidence of Dr Ratcliffe in that it would not be in her interests to relocate from the Strahan area given the state of her (mental) health.  The Tribunal therefore concludes that it would be unreasonable to conclude that because Ms Hamer had not consistently sought work outside of the Strahan area that she had therefore not been “genuinely seeking to engage in remunerative work” within the terms of sub-paragraph 3(b). 

26.     On the basis of the evidence the Tribunal is reasonably satisfied that the reason why Ms Hamer has been unsuccessful in her many job applications is because of her medical history which details her accepted disabilities namely post traumatic stress disorder, panic disorder, dysthymic disorder as well as alcohol abuse.  The Tribunal accepted Dr Ratcliffe’s advice that Ms Hamer’s medical history would be fairly well known in the west-coast area and would have severely limited her employment opportunities.

27. The Tribunal having concluded that Ms Hamer satisfies the relevant provisions of Section 23 of the Act, thereby determines that Ms Hamer is entitled to payment of pension at the Intermediate Rate.

28.     The decision of the Tribunal is that the decision appealed against be set aside and replaced with a determination the applicant is entitled to the Intermediate Rate of pension payable from 7 February 2001.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Member A Cunningham

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  29 April 2004
Date of Decision  22 June 2004
Counsel for the Applicant         Mr Raymond Benson
Solicitor for the Applicant          Ogilvie Jennings
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Department of Veterans' Affairs