Hans Kannengiesser and Repatriation Commission
[2012] AATA 443
•13 July 2012
[2012] AATA 443
Division Veterans' Appeals Division File Number(s)
2011/2621
Re
Hans Kannengiesser
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 13 July 2012 Place Sydney The decision under review is affirmed.
................................[sgd]........................................
Senior Member A K Britton
CATCHWORDS
VETERANS' ENTITLEMENTS - pension - special rate - war caused incapacity - "alone" test - remunerative work - decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) - ss 19(5C), 19(9), 24, 24(1)(c), 24(2)(a)
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCAFC 424Repatriation Commission v Butcher (2007) 94 ALD 364; [2007] FCAFC 36
REASONS FOR DECISION
Senior Member A K Britton
July 2012
Veteran Mr Hans Kannengiesser served in the Royal Australian Navy for nearly thirty years. He has made a claim for a pension at the “special rate” under the Veterans’ Entitlements Act 1986 (Cth) (the Act). The Repatriation Commission, the respondent in these proceedings, refused that claim. After unsuccessfully challenging that decision in the Veterans’ Review Board, Mr Kannengiesser now applies for review by the Administrative Appeals Tribunal.
Mr Kannengiesser suffers from a number of “war-caused” conditions including osteoarthritis in a shoulder and knee, Post Traumatic Stress Disorder and alcohol abuse (the accepted conditions).
Mr Kannengiesser will be eligible for a pension at the special rate if he meets the criteria set out in s 24 of the Act. It is agreed, and I accept, that Mr Kannengiesser satisfies all criteria but the so-called “alone test” (s 24(1)(c)). That test will be satisfied if, by reason of his “war-caused incapacity” alone, Mr Kannengiesser was prevented from continuing to undertake the type of work he had been performing with the Australian Naval Cadets up until June 2003. The Commission concedes that Mr Kannengiesser’s “war-caused incapacity” was one of the reasons he was prevented from continuing with the Naval Cadets, but contends that it was not the sole reason. Mr Kannengiesser disagrees.
EMPLOYMENT AND MEDICAL HISTORY
Mr Kannengiesser enlisted in the Royal Australian Navy in 1960 and was discharged in 1989. He then commenced work with a local council and held a number of supervisory positions. In 1997 he relocated from Sydney to Hervey Bay, Queensland, to take up a position with a local Council. That appointment did not proceed because of a Council restructure. He attempted without success to find full-time employment and in September 1997, accepted an appointment with the Australian Naval Cadets. Within six months, he was promoted to the rank of Lieutenant and Commanding Officer of the Cadet Unit TS Krait.
Mr Kannengiesser was employed by the Cadets on a casual basis and his hours of work varied from week to week. His tasks included attending annual and bi-monthly weekend camps and regular training sessions. In addition, he undertook various administrative tasks.
In early June 2003, Mr Kannengiesser’s Commanding Officer announced Mr Kannengiesser’s appointment to the newly created position of Training and Operation Officer, Central Queensland and the appointment of another officer to Mr Kannengiesser’s position as Commanding Officer of the TS Krait. Mr Kannengiesser was taken by surprise at this announcement as he had not been consulted about either appointment.
Over the next few days, Mr Kannengiesser discussed the appointment with his wife, and eventually decided not to accept the new position because of his declining physical and mental health, in particular his bad moods and drinking. He said that among other things, he was worried that he might give the wrong instructions, and those who carried out his instructions would have been blamed for his mistakes. He said he was also concerned because of the significant travel the position would involve that there was a risk, given his history, that he would be left “wide open” to a drink driving conviction. He said while the unexpected appointment had been the trigger for his decision to resign, he probably would have come to that decision “at some point” because his health was “interfering with the safety of young people”.
Mr Kannengiesser had not been briefed on what the new position involved when he made the decision to resign. He understood that it involved overseeing the training provided to the six Naval Cadet units located throughout Central Queensland. He assumed that he would be required to visit each unit on a regular basis to assess whether they were complying with relevant naval regulations and standards. Visits to the units (apart from the TS Krait) would have involved significant travel — up to seven hours each way. Mr Kannengiesser understood that he would be required to visit at least one unit each month and, in addition, undertake a few hours of administrative work each week. As he saw it, the critical difference between his old and new position was the onerous travel and consequent overnight stays.
Mr Kannengiesser testified that a few days after the announcement, he notified three Commander Officers of his decision to resign. In evidence, he was unable to recall the reason he gave each for his resignation but thought it was probably the deterioration in his health. He claims that he provided an official letter of resignation shortly after giving verbal advice of his decision to resign.
Mr Kannengiesser claimed that he could not locate a copy of that letter despite exhaustive attempts. He said that he contacted Lieutenant Commander Baume (or Bohme – he could not recall the spelling) at Naval Cadets headquarters, who undertook to “do his utmost” to locate the letter. Lieutenant Commander Baume was unsuccessful in his efforts and pointed out that the 2010–2011 Queensland floods had caused extensive damage to naval records. In addition, Mr Kannengiesser claimed that at his request, the current Commanding Officer of the TS Krait had undertaken a search of the Unit’s records without success.
Following searches undertaken by the Commission, in December 2012 a letter of resignation addressed to Commander CA Gould ANC was filed in these proceedings. Dated 31 August 2003 it read:
Sir
RESIGNATION
I tender my resignation, to date 31st August 2003, as an Appointed Officer in the Australian Navy Cadets for the following reasons:
Continuation of deteriorating health (after 2nd Specialist Consultation)
Sudden changes in Family circumstances; and
Moving interstate
I wish the Australian Navy Cadets all the best in the future with smooth seas and fair winds.
I have the honour to be
Sir
Your obedient servant
H.P. Kannengiesser, ANC
Lieutenant
Regional Activities Coordinator – Central Queensland
Mr Kannengiesser testified that this was not the letter of resignation he wrote in early June 2003. As he recalls, he wrote the 31 August 2003 letter at the request of a member of Commander Gould’s office. In oral evidence, he stated he could not recall why he was asked to provide a second letter of resignation but thought it was probably because the original had gone astray. According to Mr Kannengiesser two of the reasons given in the second letter:
·sudden change in family circumstances; and
·moving interstate
did not factor into his decision to resign. He said it was only after he had decided to resign that he and his wife decided to move to Gunnedah. He said the reason for that decision was to be closer to children and grandchildren (who lived in Sydney) and the reduction in his wife’s employment, which was expected to cease in the near future. In addition he said that after resigning from the Naval Cadets, he felt there was nothing holding him in Hervey Bay.
Mrs Sandra Kannengiesser corroborated her husband’s claim that his decision to resign was made in early June. She said she recalled it was around the time of her birthday. On her account, towards the end of his time with the Cadets he was “short fused”, easily agitated and drank more than he ought.
According to Mr Kannengiesser he and his wife moved to Gunnedah around the end of October or early November 2003. He said that the Hervey Bay property was put on the market in early August and sold within a matter of weeks.
Mr Kannengiesser testified that on moving to Gunnedah he applied for a number of jobs and heard back from only one prospective employer, the local brickworks. He claimed that after learning that he would be required to submit to a medical assessment and, among other things, demonstrate proper lifting techniques, he decided to withdraw his application as he believed he would be incapable of doing so on account of his shoulder.
In cross-examination, Mr Kannengiesser said that had it not been for the transfer decision made by the Naval Cadets he probably would have continued in his position on TS Krait but “not for much longer”. He said when he resigned he did not want to stop work and for that reason had (unsuccessfully) looked for work. Later in evidence he said that when he resigned he felt that he was at “the end of my working life” and unable, because of his health, to continue. When asked to reconcile that comment with his attempts to find work on moving to Gunnedah he said he had been “trying to prove something” but, at the time thought that he was incapable of undertaking any of the jobs for which he had applied.
According to Mr Kannengiesser he has not worked in any capacity since June 2003. His income tax return shows income of about $1,500 for the tax year ending 30 June 2004. He thought this amount was probably back pay from the naval cadets. At the request of the Tribunal, the Commission made enquiries of the Department of Defence about this payment but no information was able to be obtained.
In Mr Kannengiesser’s opinion, of his accepted conditions, those that caused him the most problems in terms of fitness for work were the osteoarthritis in his left shoulder and right knee, PTSD and alcohol abuse. According to Mr Kannengiesser, in 1998 he started drinking “quite heavily” and on most days would drink six to eight schooners of beer in an afternoon and three to four glasses of wine in the evening. He claimed that after being charged with drink driving in 2000, he managed to curb his drinking to a degree but by early 2003 had stared “really heavily again”. He claimed that this pattern continued until 2005 when he commenced seeing a psychiatrist and he has now moderated his drinking.
Psychiatrist Dr Lavina Schmidtman, in a report dated 18 October 2005, wrote:
In my opinion, due to his Chronic service related PTSD, Mr Kannengiesser is no longer able to work in any form of paid employment.
Despite psychiatric treatment including antidepressant medication over the past 6 months his mental state has not improved.
His incapacity from PTSD is permanent.
…
The main factors preventing Mr Kannengiesser from seeking or working in paid employment are his fragile mental state, ongoing intrusive recollections and ruminations, high arousal levels, irritability and inability to relate to people, social withdrawal, tension and agitation.
… Considering his skills, qualifications and experience, he does not have the capacity to work in any form of paid employment be it full time or part time.
CRITERIA FOR A PENSION AT THE SPECIAL RATE
Section 24 of the Act sets out several criteria that must be satisfied before a pension is payable at the “special rate”. It is agreed that all but the criteria specified in s 24(1)(c) are satisfied. It provides:
(1) This section applies to a veteran if:
...
(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 ...
Section 24(2)(a) provides that for the purposes of s 24(1)(c), a veteran 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; …
In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, Branson J — with whom Beaumont and Merkel JJ agreed — formulated four questions to be answered in applying s 24(1)(c):
(1) What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
(2) Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(3) If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
(4) If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
Whether Mr Kannengiesser satisfies s 24(1)(c) must be assessed by reference to the “assessment period” — that is, the period commencing on the day on which his claim was received (29 August 2005) and ending on the day his claim is ultimately determined (ss 19(5C) and 19(9) of the Act). If, at any time during that period, Mr Kannengiesser satisfies all criteria, he will have an entitlement to the special rate pension from that time, notwithstanding that he later fails to do so: Leane v Repatriation Commission (2004) 81 ALD 625 at 634.
DOES MR KANNENGIESSER MEET THE CRITERIA FOR A PENSION AT THE SPECIAL RATE?
There is no argument that the type of work Mr Kannengiesser had been undertaking with the Naval Cadets constitutes the relevant “remunerative work” for the purpose of s 24(1)(c). Nor is it in issue that by reason of his accepted conditions Mr Kannengiesser was prevented from continuing to undertake that work throughout the assessment period. The central issue in dispute is whether that was the only factor preventing Mr Kannengiesser from continuing to undertake that work.
I accept, as claimed, that Mr Kannengiesser resigned in June not August of 2003. I also accept that as a result of his deteriorating health he was unfit to cope with the demands of the new position to which he had been appointed. However, as the Commission points out, the question to be answered is not whether Mr Kannengiesser’s war-caused disabilities were the sole reason for his decision to resign but whether throughout the assessment period they were the sole factor preventing him from continuing to undertake the remunerative work he had been undertaking.
Throughout the assessment period, Mr Kannengiesser resided in the inland town of Gunnedah. There is no argument that Gunnedah neither has, nor is within a reasonable distance of, a Naval Cadet unit. I cannot accept the argument put by Counsel for Mr Kannengiesser and conceded by the Commission, that the decision to move to Gunnedah did not constitute a disentitling factor, as it was merely the sequelae to, or a result of, the decision to resign. While Mr Kannengiesser’s resignation was the trigger for his decision to move to Gunnedah, it was but one of a number of factors. Even if accepted that but for the decision to resign Mr Kannengiesser would have remained in Hervey Bay, it does not follow that the decision to move to Gunnedah, as opposed to some other place, was the inevitable consequence of his resignation from the Naval cadets. As the evidence given by the Kannengiessers revealed, the desire to be closer to their family, together with Mrs Kannengiesser’s dwindling employment, also factored into that decision. That the decision to resign and the subsequent decision to move interstate were interrelated does not conflate the two. In my opinion, residing in an area which did not offer the opportunity to undertake the type of remunerative work Mr Kannengiesser had been undertaking must be seen as a factor that prevented him from undertaking that work.
While I accept that Mr Kannengiesser’s war-caused disabilities prevented him from continuing to undertake relevant remunerative work throughout the assessment period, in my opinion, that factor alone did not prevent him from undertaking that work.
Broader characterisation of remunerative work
It goes without saying that the identification of the “remunerative work the veteran was undertaking” is critical to the assessment of whether the veteran satisfies s 24(1)(c). This task requires regard to be had not to the particular tasks and duties involved in specific jobs, but rather to the type of substantive work undertaken by the veteran considered at a higher level of generality: see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225; Repatriation Commission v Hendy (2002) 76 ALD 47 at 54; and Repatriation Commission v Butcher (2007) 94 ALD 364 at 367.
The parties agree that Mr Kannengiesser was undertaking remunerative work for the purposes of s 24(1)(c) as a lieutenant with the Naval Reserves. For present purposes, I will assume that the relevant “remunerative work” also includes civilian work similar to the type undertaken by Mr Kannengiesser in the Naval Cadets.
Mr Kannengiesser gave evidence that despite his misgivings about his fitness for work on moving to Gunnedah he applied for a number of positions and heard back from only one employer. While the evidence given is of a general nature it points to a shortage of employment opportunities for a person with Mr Kannengiesser’s experience and qualifications as a further factor preventing him from continuing to undertake remunerative work throughout the assessment period.
It follows that Mr Kannengiesser does not satisfy s 24(1)(c) even if the relevant remunerative work is more broadly characterised.
CONCLUSION
There is no question that since the commencement of the assessment period, Mr Kannengiesser has been significantly disabled because of his accepted conditions. However for the reasons as given he does not satisfy s 24(1)(c) and therefore I must affirm the decision under review.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton .............................[sgd]...........................................
Associate to Senior Member A K Britton
Dated 13 July 2012
Date(s) of hearing 27 March 2012 Date final submissions received 26 April 2012 Counsel for the Applicant Mr C Colbourne Solicitors for the Applicant Mr G Isolani, KCI Lawyers Advocate for the Respondent Mr A Crowe
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