Hardy and Repatriation Commission (Veterans' entitlements)
[2017] AATA 425
•5 April 2017
Hardy and Repatriation Commission (Veterans' entitlements) [2017] AATA 425 (5 April 2017)
Division
VETERANS' APPEALS DIVISION
File Number
2015/4940
Re
Alfred Hardy
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 5 April 2017 Place Adelaide The decision under review is affirmed.
............. [Sgd] ...........................................................
Deputy President K Bean
CATCHWORDS
VETERANS’ ENTITLEMENTS – Whether veteran aged over 65 entitled to pension at special rate – Whether by reason of incapacity resulting from his war-caused disabilities, veteran incapable of undertaking remunerative work for more than 8 hours per week – Whether veteran had been employed by same person for 10 years prior to ceasing employment – Decision affirmed.
LEGISLATION
Veterans' Entitlements Act 1986, ss 19, 24, 28
CASES
Carter v Repatriation Commission (2001) 66 ALD 139
Elliott and Repatriation Commission (2015) 148 ALD 193
SECONDARY MATERIAL
Explanatory Memorandum, Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth)
REASONS FOR DECISION
Deputy President K Bean
5 April 2017
The applicant, Mr Hardy, entered the Royal Australian Navy on 24 September 1966 when he was only 18 years old.[1] During his service he was sent to Vietnam and undertook operational service from 22 March 1968 to 11 October 1968 and 16 March 1970 to 9 October 1970, discharging from the Navy on 31 December 1973.
[1] Exhibit R1, T3/1.
Unfortunately, his periods of operational service have left Mr Hardy with very significant disabilities, including post-traumatic stress disorder, chronic airflow limitation, tinnitus and alcohol dependence. As a consequence, he is currently in receipt of the disability pension at 90% of the general rate.[2]
[2] Exhibit R1, T2/B3.
Having ceased work in June 2013, on 30 September 2013, Mr Hardy lodged a claim for an increase in his rate of pension, seeking payment of pension at the special rate.[3] However, a delegate of the Repatriation Commission (the respondent) relevantly decided that his disability pension should be continued at 90% of the general rate,[4] and that decision was subsequently affirmed by the Veterans’ Review Board (the VRB).[5]
[3] Exhibit R1, T5/4.
[4] Exhibit R1, T12/60.
[5] Exhibit R1, T2.
On 22 September 2015, Mr Hardy lodged an application with this Tribunal seeking review of the decision to decline his application for pension to be paid at the special rate, giving rise to this matter.
STATUTORY FRAMEWORK AND ISSUES
As Mr Hardy was already 65 years old when he lodged his application for an increase in his rate of pension, in order to be eligible for the special rate of pension, he must satisfy the terms of s 24(2A) of the Veterans’ Entitlements Act 1986 (the VE Act), which are as follows:
24. Special Rate of Pension
…
(2A) This section applies to a veteran if:
(a)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
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war caused injury or war caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking his or her last paid work, the veteran:
(i)if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)section 25 does not apply to the veteran.
Paragraphs (a) and (b) of s 24(1), which are made relevant by s 24(2A)(c), provide as follows:
24(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; …
It follows that, in broad terms, the issue before me is whether Mr Hardy satisfied all of the requirements of s 24(2A) during the assessment period. The assessment period for my purposes begins on 30 September 2013 when Mr Hardy formally lodged his application, and ends on the date of my decision.[6]
[6] Veterans’ Entitlements Act 1986 s 19.
DURING THE ASSESSMENT PERIOD, DID MR HARDY SATISFY THE REQUIREMENTS OF S 24(2A) OF THE ACT?
I will first consider whether Mr Hardy has satisfied s 24(1)(b) of the VE Act (“the 8 hour test”) before turning to the other requirements of s 24(2A), to the extent necessary.
Did Mr Hardy satisfy the 8 hour test: s 24(1)(b)?
In order to satisfy this requirement, Mr Hardy must demonstrate that during the assessment period, or at some point in the assessment period, by reason of incapacity resulting from his war-caused disabilities, he was incapable of undertaking remunerative work for more than 8 hours per week. In applying this test, the VE Act provides that the Tribunal shall only have regard to the following matters:
(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).[7]
[7] Veterans’ Entitlements Act 1986 s 28.
As to the type of work undertaken by Mr Hardy, subsequent to leaving the Navy, the main work he did was as a truck driver.[8] At the time he ceased work, he was employed by Newmont Mining as a truck driver at the Granites Gold Mine (the Granites) in the Tanami Desert.[9] Much of his work involved driving in the underground section of the mine site.
[8] Exhibit A1, at [14]-[41].
[9] Exhibit A1, at [34].
The evidence before me with respect to Mr Hardy’s degree of incapacity during the assessment period is limited. Counsel for Mr Hardy, Mr Miller, relied primarily on a handwritten answer to a pro forma medical questionnaire completed by Mr Hardy’s General Practitioner, Dr Ajay Naidu on 23 October 2013, in which in response to the question “Can the veteran work more than 8 hours per week?”, he gave the answer “no”. He also stated in the same form “PTSD/Tinnitus/Chronic Airflow Limitation all affect capacity to work”.[10]
[10] Exhibit R1, T7/28.
However, not all of the other evidence is consistent with this assessment.
At the request of the respondent, Mr Hardy was also assessed by a Consultant Psychiatrist, Dr Shiva Gunapu, who examined him on 25 November 2013. In a report dated 10 December 2013, Dr Gunapu expressed the opinion that Mr Hardy could work 15 hours per week taking into account his PTSD condition, and in a subsequent report of 7 December 2016, he expressed the view that Mr Hardy’s capacity for work had improved to 22–24 hours per week.
Dr Gunapu’s assessments were of course based only on Mr Hardy’s psychiatric conditions and did not take account of his other conditions. However, I have also found it difficult to reconcile Dr Naidu’s assessment with Mr Hardy’s own evidence.
As to his precise reasons for ceasing work with Newmont Mining, the VRB recorded that Mr Hardy’s evidence was as follows:
He told the Board he stopped work in 2013 because he was concerned that he would be a safety problem in an emergency as he would find it difficult to evacuate the underground mine in the event of a fire. He told the Board that in the end ‘that’s the only reason I stopped work’.[11]
[11] Exhibit R1, B7, at [28].
The VRB also recorded the following with respect to other evidence given by Mr Hardy:
Mr Hardy told the Board he did not experience any significant breathing problems when he was driving the trucks in the underground mine as he was sitting down all shift and the cabin was air-conditioned. During his time in the mines he was using his puffer for his breathing condition twice a day at the start and end of a shift. He took Zyloprim for his gout which had not been a problem for him for many years and his blood pressure was well controlled by the medication.
At the time he ceased work he was not particularly troubled by symptoms of post traumatic stress disorder. He was not on any medication for his psychological condition and was not receiving any treatment by a psychiatrist or psychological counselling. His hypertension was well managed by medication. Mr Hardy did not refer to any orthopaedic conditions as contributing to his decision to stop work.
He admitted the 12 hour shifts were starting ‘to get to him’ and it was getting hard physically. The 12 hour shifts under Newmont management meant that he was away from the accommodation for over 13.5 hours each shift with the extra hour and a half on his own time.
…
He agreed that the sick leave record at folio 39 appeared accurate and that he had not taken any significant time off work because of any of his accepted conditions in the years leading up to his resignation in mid-2013.[12]
[12] Exhibit R1, B7, at [23]-[25], [27].
In a written statement provided to the Tribunal for the purposes of this matter, Mr Hardy said:
Due to my chronic airflow limitation condition, I was finding breathing difficult when I was working underground. I was concerned about my safety and the safety of my co-workers. I was concerned I was a liability to them.
An example of this is when we had to do practice emergency alarm exercises. The alarm would sound, and we had to race to the refuse chamber, park our vehicle and walk 15 metres up an incline to the safety zone.
I really struggled to complete this exercise and would find it difficult to catch my breath.
I was worried about how I would manage and how others would help me if there was a real emergency situation.[13]
[13] Exhibit A1, p 4, at [42]-[45].
Both the VRB’s record of Mr Hardy’s evidence and his statement are also consistent with his oral evidence before me. In the course of this he confirmed that the reason he ceased work was because of his “breathing”, in particular because he was concerned that he would be a liability in the event of an emergency underground. He explained that he realised he would have difficulty evacuating quickly, and this may potentially put others in danger.
Mr Hardy was also asked during cross-examination whether he had looked for other truck driving work since he finished work at the mine. He indicated that he had not, and went on to explain that he had subsequently fractured his right ankle, and as a result, he needed to wear a “boot” and was not even able to drive a car. The medical records indicate that this occurred in October 2015, more than two years after he ceased work.[14]
[14] Exhibit R4.
In the event, having regard to the other evidence, I am not satisfied that Dr Naidu’s assessment of Mr Hardy’s working capacity as at October 2013, was accurate. Mr Hardy clearly explained during his evidence that the reason he ceased work was due to his safety concerns. He did not indicate that he was no longer able to do the job, or that he was no longer able to undertake ordinary truck driving work above ground. Further, when he was asked why he did not look for truck driving work after leaving Newmont, the only reason he gave was that he had fractured his right ankle. In my view, this tends to support the proposition that at the time he left Newmont, and until he broke his ankle, Mr Hardy considered that he retained some capacity for truck driving work.
Taken as a whole, in my view, the evidence is to the effect that after ceasing work with Newmont due to safety concerns, Mr Hardy retained the capacity to work more than 8 hours per week as a truck driver, until he fractured his right ankle in about October 2015. It appears that since then he has not been capable of undertaking the type of remunerative work he was previously undertaking (namely truck driving), however, the reduction in his capacity is due to his right ankle condition, which has not been accepted as war-caused.
On my analysis, it follows that between lodging his claim in September 2013, and breaking his right ankle approximately two years later, Mr Hardy retained capacity to work as a truck driver for more than 8 hours per week. In the period since then, it appears he has not had any capacity to work as a truck driver, with the reduction in capacity being due to his fractured ankle rather than his war-caused conditions.
For completeness, I note there is no medical evidence subsequent to Dr Naidu’s report which indicates that the incapacity flowing from Mr Hardy’s war-caused conditions has increased since October 2013. There is a possibility it may have, but there is no medical evidence to indicate this, and the degree of incapacity resulting from his psychiatric conditions appears to have reduced (based on Dr Gunapu’s assessment).
However, in case I am wrong in concluding that Mr Hardy has not met the 8 hour test, I will proceed to consider the 10 year requirement imposed by s 24(2A)(g).
Does Mr Hardy satisfy the 10 year requirement: s 24(2A)(g)?
Mr Hardy will satisfy this requirement if, when he ceased his last paid work (in June 2013)[15] he had been working for the same employer, or “for that person and any predecessor or predecessors of that person” for a continuous period of at least 10 years.[16]
[15] Exhibit R1, T8/37.
[16] Veterans’ Entitlements Act 1986 s 24(2A)(g).
The evidence
In his statement, Mr Hardy described his employment history at the Granites as follows:
When I first joined the mines, Newmont (which was a US company) owned the mine and they subcontracted out the work. Just about everyone onsite was a subcontractor.
I commenced work with Bulkhaul initially for a period of two years who were a subcontractor to Newmont. They carted ore from the mine to the mill.
After two years, I resigned from Bulkhaul and took up a position with HWE.
HWE were also a subcontractor for Newmont and they did all the underground mining contract work. They were subcontractors with Newmont for six years and then Newmont decided to go owner/operator so they gave HWE the flick.
I then became directly employed by Newmont. I did not leave my employment with HWE simply HWE contract finished on the Friday and I commenced with Newmont on the Monday so there was no lay over between the two employers.
All of our long service leave, sick pay and annual leave was transferred to Newmont automatically.[17]
[17] Exhibit A1, at [35]-[40].
In his oral evidence, Mr Hardy confirmed that when he started truck driving at the Granites for Bulkhaul he was truck driving “on the surface” driving ore “from the mine to the mill”. However, once he was employed by HWE, a different contractor, he began truck driving underground.
Mr Hardy was unsure precisely when he started work for Bulkhaul, although he thought this was in 2003. He said he started with HWE on 11 November 2004. He confirmed that Newmont was the owner of the mine but at that stage had contracted out the operations to different companies. He said there was a camp at the mine where everyone who was working at the mine lived. He confirmed that ultimately, Newmont ended their contract with HWE and he was then employed by Newmont directly. He said this was in 2010.
Under cross-examination, Mr Hardy said he thought he was with Bulkhaul for two Christmases, which would mean he commenced with Bulkhaul in late 2002. He also confirmed that prior to leaving Bulkhaul he had a disagreement with his supervisor which led to him resigning from Bulkhaul and applying for employment with HWE. He had a different supervisor once he was working for HWE. He also confirmed that he underwent an induction program with HWE, and the relevant records were tendered. A General Induction Questionnaire was signed by Mr Hardy on 12 October 2004 and a completed Assessment Summary was signed by him on 23 November 2004.[18]
[18] Exhibit R2.
Analysis
As the parties acknowledged, it is apparent on the evidence that during the time Mr Hardy worked at the Granites, a period of about 10½ years, technically he had three different employers. As Mr Hardy’s employer at the time he ceased work, Newmont, was not his employer throughout the previous 10 years, in order to satisfy the 10 year requirement, he must show that the previous two employers were predecessors of Newmont.
With respect to the change of employer from HWE to Newmont, I acknowledge there may be an argument to be made that as HWE was a contractor to Newmont, HWE could be regarded as a predecessor of Newmont.[19] However, the real difficulty in my view arises with respect to Mr Hardy’s change of employment from Bulkhaul to HWE.
[19] This would arguably be consistent with the approach taken by the Tribunal in Elliott and Repatriation Commission (2015) 148 ALD 193.
The evidence is that Bulkhaul and HWE were quite separate companies which existed at the same time and were each contracted to Newmont to carry out different aspects of Newmont’s operations at the Granites. Although Mr Hardy lived at the camp throughout his time at the mine, he carried out different duties while he was working for Bulkhaul than he did with HWE, he had a different supervisor and underwent an induction at the commencement of his employment with HWE. Perhaps even more significantly, he acknowledges having resigned his employment with Bulkhaul before commencing with HWE. There is little doubt on the evidence that he ended one contract of employment with Bulkhaul, and commenced a new one with HWE.
Both parties acknowledged that there was no Federal Court authority directly on point with respect to construction of s 24(2A)(g), although Branson J made the following observation in Carter v Repatriation Commission:
…
Moreover it is to be observed that s 24(2A)(g) is not concerned with whether a veteran had at the crucial time been undertaking the same remunerative work for a continuous period of at least 10 years, but merely with whether the veteran, if employed, had been working with the same employer or, if self-employed, in the same profession, trade etc., for a continuous period of at least 10 years. …[20]
[20] Carter v Repatriation Commission (2001) 66 ALD 139, at [22].
With respect to the meaning of “predecessor” in this context, the respondent has pointed out that the relevant Explanatory Memorandum contains the following explanation of the intended meaning:
Where the veteran was an employee in his or her last paid work, he or she must have been employed by the same person or a predecessor or predecessors of that person for a continuous period of at least 10 years that began before the person turned 65 years of age. In this context, a predecessor of a person means the person was previously the veteran’s employer and whose position as employer of the veteran was taken over by a legal successor to the position as the veteran’s employer, for example, by a takeover or sale of the business enterprise in which the veteran was employed.[21]
[21] Elliott and Repatriation Commission (2015) 148 ALD 193, at [38]; Explanatory Memorandum, Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) 23.
Having carefully considered whether it may be open to me to regard Bulkhaul as a predecessor of HWE, I have ultimately concluded that that would not be a permissible application of the provision.
I acknowledge that the outcome of the proper application of the provision in Mr Hardy’s circumstances appears somewhat harsh, given that he did work at the same location carrying out similar duties for the requisite 10 year period. However, in my view, properly construed, the provision is only satisfied in circumstances where a person has the same employer, or more than one employer but the later employer is a legal predecessor to the former one. That was not the case in Mr Hardy’s situation as, in my view, Bulkhaul and HWE were separate legal entities and HWE cannot be regarded as a legal successor to Bulkhaul.
It follows that, in my view, Mr Hardy also does not satisfy the 10 year requirement imposed by s 24(2A)(g).
CONCLUSION
I have therefore concluded that Mr Hardy has not satisfied the requirements of s 24(1)(b) or s 24(2A)(g) at any time during the assessment period, and therefore does not qualify for the special rate of pension under s 24(2A). In these circumstances, there is no need for me to address the other issues arising from the application, and I am obliged to affirm the decision under review.
I should add that, although it was not discussed at the hearing, I have also considered whether Mr Hardy may qualify for the intermediate rate of pension, pursuant to s 23(3A). However, as Mr Hardy did not meet the 10 year requirement, I am satisfied that he also did not qualify for the intermediate rate of pension.[22]
[22] Veterans’ Entitlements Act 1986 s 23(3A)(g).
DECISION
The decision under review is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean
......... [Sgd] ...........................................................
Associate
Dated: 5 April 2017
Date of hearing: 13 December 2016 Date final submissions received: 13 January 2017 Counsel for the Applicant: Mr J Miller Solicitors for the Applicant: Tindall Gask Bentley Lawyers Counsel for the Respondent: Mr M Hawker Solicitors for the Respondent: Australian Government Solicitor
1