Harbers and Repatriation Commission
[2006] AATA 924
•31 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 924
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/245
VETERANS’ APPEALS DIVISION ) Re WILHELM HARBERS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M Denovan, Member Date 31 October 2006
Place Brisbane
Decision The Tribunal affirms the decision under review
...................[Sgd]...........................
M Denovan
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – rate of pension – special rate – war-caused injuries – generalised anxiety disorder - external factors playing part in decision to leave work - decision affirmed
Veterans’ Entitlements Act 1986 s24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Banovich v Repatriation Commission (1986) 69 ALR 395; (1986) 11 ALN N 142; (1986) 6 AAR 113
Starcevich v Repatriation Commission (1987) 18 FCR 221; 76 ALR 449; 14 ALD 160
Repatriation Commission v Smith (1987) 15 FLR 327; (1987) 74 ALR 537
Repatriation Commission v Van Heteren (2003) 75 ALD 703; (2003) 37 AAR 533; [2003] FCA 888
REASONS FOR DECISION
31 October 2006 Dr M Denovan, Member Introduction
1.The applicant, Wilhelm Harbers is a veteran of Vietnam and Malaysia. He currently has accepted disabilities of anxiety disorder, lumbar spondylosis, osteoarthrosis of the right knee, and osteoarthrosis of the left hip. Mr Harbers also suffers from gastro-oesophageal reflux disease, a shoulder injury and migraine headaches, which are non-war caused disabilities.
2.On 24 March 2005 Mr Harbers lodged a claim with the respondent for pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (the “VE Act”). A delegate of the Repatriation Commission decided on 1 April 2005 to continue pension at 100% of the general rate in relation to lumbar spondylosis, osteoarthrosis of the right knee and osteoarthrosis of the left hip. This decision was affirmed on review by the Veterans’ Review Board (“VRB”) on 30 January 2006. Mr Harbers has applied to this Tribunal for review of the Commission’s decision.
Issue for Determination
3.Mr Smith for the respondent conceded that the requirements in s 24(1)(a) of the VE Act are satisfied given that the applicant is in receipt of pension at 100% of the general rate.
4.Mr Smith also conceded that the requirements in s24(1)(b) of the VE Act are satisfied, having regard to the reports of Dr Carter dated 4 November 2003, and Dr Anderson, dated 31 October 2005. Those report concluded that Mr Harbers was unable to work due to his generalised anxiety disorder.
5.The issue that I must determine is whether s 24(1)(c) of the VE Act is satisfied, that is:
·whether Mr Harbers, by reason of incapacity from his war-caused injuries alone, is prevented from continuing to undertake remunerative work that he had been undertaking, and
·whether, in consequence, Mr Harbers is suffering a loss of wages or earnings on his own account, that he would not be suffering were he free from that incapacity.
Consideration
6.Guidance in the application of s 24(1)(c) has been provided by the Full Court of the Federal Court in Flentjar v Repatriation Commission.[1] In that case Branson J, with whom Beaumont and Merkel JJ agreed, described the issues as being:
(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 answer 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?
[1] (1997) 48 ALD 1 at 4-5.
Her Honour went on to say of question 4 that it threw up for consideration the question of what the veteran would have done if he had none of his service disabilities. And, in approaching that question, I am required to “take into account any factor that plays a part or contributes to the veteran being prevented from continuing to engage in remunerative work”.[2]
[2] See Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 at 47-48 .
7.The decision in Hendy[3] identified time out of work before the assessment period, lack of recent work experience and increasing age as being relevant considerations, saying:
The decision maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period.[4]
[3] Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
[4] Id at 55 [37].
8.In considering the first question in Flentjar[5] I am obliged to consider the type of work that Mr Harbers was undertaking, rather than particular job. The phrase “remunerative work that the veteran was undertaking” refers to the type of work that the veteran was undertaking or his field of remunerative activity.[6]
[5] Supra, note 1.
[6]See Banovich v Repatriation Commission (1986) 11 ALN N142; (1986) 6 AAR 113; (1986) 69 ALR 395 at 402; Starcevich v Repatriation Commission (1987) 76 ALR 449; (1987) 14 ALD 160; (1987) 18 FCR 221 at 225.
9.To determine the relevant remunerative work in which Mr Harbers was engaged, it is necessary now to consider Mr Harbers’ work history. After he left the Army in 1969 he worked as a courier for a printing company. He then assumed many positions as a cook throughout Queensland, both in coastal regions and in the mines (exhibit 1). The evidence suggests that the applicant ceased work in 1991. He has not been employed on a full time basis since that time. The parties are agreed that the type of remunerative work engaged in by Mr Harbers was as a cook, kitchen hand, food preparation assistant and general hand in the catering/hospitality industry.
10.With respect of the second question set out in Flentjar[7]– that is, is Mr Harbers prevented from continuing to undertake work by reason of his war-caused injury or war-caused disease – the evidence of Dr Carter (exhibit 3, T6, folio 18), Dr Anderson (exhibit 3, T6, folio 145) and Dr Tan (exhibit 3, T6, folios 31, 35, 102, 117) supports the conclusion that he is indeed prevented from working due to his anxiety condition. I accept this evidence and I am of the opinion that the second question can be answered in the affirmative.
[7] Supra, note 1.
11.I am now able to consider the third question - that is, whether the war-caused injury or war-caused disease is the only factor preventing Mr Harbers from continuing to undertake that work.
12.It is not in dispute that Mr Harbers’ migraine headaches and gastro-oesophageal reflux are conditions that would have a minimal impact on his capacity to work.
13.Mr Harbers has been diagnosed with left grade II AC joint dislocation. The oral evidence of Rehabilitation and Sports Medicine consultant, Dr S Geffen was that this condition, the result of an injury in 1990, would have caused only temporary interference with Mr Harbers’ ability to work. Dr Geffen opined that Mr Harbers would have been incapacitated for no more than 12 weeks. In his report of 23rd August 2006, Dr Geffen said that on examination Mr Harbers’ left shoulder was as strong and as able as his right.
14.In light of Dr Geffen’s evidence the Respondent conceded that this injury would not have caused any permanent impairment in Mr Harbers' capacity to work. I agree.
15.Mr Harbers has not worked for approximately 15 years. Whilst it is the case that time out of the workplace can in some cases impair a person’s ability to re-enter the workforce, I accept that this would not likely be a factor for the applicant given his work history as a cook, kitchen hand or food preparation assistant.
16.Another reason a person is sometimes not able to work is due to the lack of availability of suitable jobs. In support of his claim for special rate pension, Mr Harbers submitted a list of 39 establishments from which he unsuccessfully sought work, and 9 letters declining his application (exhibit 3, T6, folios 66-76). None of these employers have indicated that Mr Harbers was personally unsuitable for a position. This at face value would not help Mr Harbers' case, as it suggests that one of the reasons Mr Harbers was not working was due to an unavailability of jobs in the arena for which he is skilled. I am not convinced that is the case however, for the following reasons.
17.All applications were made between December 2004 and February 2005. Mr Harbers told the Tribunal he had not applied for any positions prior to December 2004, however was advised by his psychiatrist that applying for jobs would assist his claim.
18.Further, all but one of the job applications were of the nature of a general enquiry, and only one appears to have been to an actual advertised vacancy. Mr Harbers was clearly not genuinely seeking work when he lodged these enquiries. I accept Mr Harbers’ evidence that his anxiety condition prevented him from actively seeking employment, and I am therefore satisfied that Mr Harbers’ war-caused conditions are the only factors preventing him from continuing to undertake that work.
19.The fourth question in Flentjar[8] is whether, if the veteran has been prevented by his war-caused conditions alone from undertaking remunerative work, he has suffered a loss of wages or earnings that he otherwise would not have suffered. This question must be considered by reference to s 24(2)(a)(i), which provides in effect that in order to suffer a loss of wages or earnings, a veteran must not have ceased to engage in remunerative work for some reason other than the veteran’s incapacity from war-caused conditions.
[8] Supra, note 1.
20.In Repatriation Commission v Smith[9] Beaumont J, with whom Northrop and Spender JJ agreed, said at 337; 548: “As has been said, the question posed by s 24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities”.
[9] (1987) 15 FLR 327; (1987) 74 ALR 537.
21.In Repatriation Commission v Van Heteren[10] Finn J considered the relevance of the deeming provisions of s 24(2)(a)(i). His Honour said, at [25]:
“This question is not answered simply by finding that, in the assessment period, the veteran is unable to engage in any remunerative work. It in fact presupposes that he or she may well not be: cf 24(1)(b). And because of the deemed ‘no loss’ provisions of s 24(2)(a)(i) which apply where the veteran has ceased to engage in remunerative work for reasons other than his or her war-caused conditions, it requires an examination of the reasons why the veteran ceased work.”
[10] (2003) 75 ALD 703; (2003) 37 AAR 533; [2003] FCA 888.
22.Mr Harbers advised the Tribunal that he resigned from his job as a cook/kitchen hand because of stress. Mr Harbers claims that after he resigned from his final position, he decided to seek custody of two of his children. After that time he did not go back to work.
22.Mr Harbers provided the Department with a detailed list of the positions that he held prior to ceasing work in 1991, demonstrating a long history of intermittent, short term casual work. Mr Harbers said that he was never sacked from any of his jobs, and he experienced no difficulty gaining re-employment when he wished to do so. He said that he was in the habit of working for a few weeks, and then having a few weeks off when the stress of the work became too much. Specifically Mr Harbers said that he found the people that he worked with stressful.
23.Psychiatrist Dr J Carter reported that Mr Harbers had about 100 jobs in his working life, the longest being 15 months. In her report dated 4 November 2003 Dr Carter said in reference to Mr Harbers’ work in the hospitality and mining camp kitchens,
‘….he didn’t necessarily walk out on jobs, they were just short term jobs. He said that by the time he left a job though he was finding a lot of pressure in the job, and also pressure with the people.’[11]
[11] Exhibit 3, T 6, Folio 21.
24.In his report dated 31 October 2005 treating psychiatrist Dr B Anderson indicated that Mr Harbers reported having difficulties in his work place at the time he ceased work in 1991. It is clear from the body of his report, that even though this may have been the case, Dr Anderson understands that Mr Harbers left work permanently when he gained custody of his children.
25.When appearing before the Veterans Review Board Mr Harbers indicated that he did not apply for any jobs after he gained custody of his two children, as he did not think he had time to go back to work.
26.I conclude that after discharge from the Army in 1969, Mr Harbers worked intermittently in a series of jobs, many of which were short term. It was the norm for Mr Harbers to have some time off in between jobs. I accept that Mr Harbers may have left some of his positions due to his subjective stress, however there is no medical evidence which points to Mr Harbers leaving the work force permanently due to his accepted condition of generalised anxiety disorder. That condition was not diagnosed until 2003 when Mr Harbers consulted a psychiatrist for the first time.
27.Around the time of him leaving his final position in 1991 he separated from his wife and gained custody of this two young children. I conclude that, were it not for the fact that Mr Harbers gained custody of his children, his pattern of intermittent short term work would have continued. Mr Harbers’ parenting responsibilities were at least one of the reasons that he left the work force permanently in 1991.
28.It follows that, in my view, the criteria in s 24(1)(c) is not satisfied and that the application for a pension at special rate ought to be refused.
Decision
29.The Tribunal affirms the decision under review
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: ……………………………………………..
Legal Research OfficerDate/s of Hearing 28 September 2006
Date of Decision 31 October 2006Counsel for the Applicant Mr D O’Gorman, instructed by Terence O’Connor Lawyer
For the Respondent Mr M Smith, Departmental Advocate
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