Harmer and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 26

Harmer and Repatriation Commission (Veterans’ entitlements) [2016] AATA 26 (25 January 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/1002
Re	Colin Harmer
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member McCabe
Date	25 January 2016
Place	Brisbane

The decision under review is set aside. I decide in substitution that the applicant satisfies the requirements in s 24 and is entitled to the pension paid at the special rate.

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Senior Member McCabe

Catchwords

VETERANS’ AFFAIRS – benefits and entitlements – special rate pension – whether applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week – qualified maintenance fitter - applicant would be unable to undertake a physically demanding role for more than eight hours per week - decision under review is set aside and substituted

Legislation

Veterans’ Entitlements Act 1986 (Cth) ss 23, 24, 28

REASONS FOR DECISION

Senior Member McCabe

25 January 2016

1. Mr Colin Harmer is currently in receipt of a service pension paid at 70% of the general rate. He seeks an increase to the special rate pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) or, failing that, an increase to the intermediate rate pursuant to s 23. (The intermediate rate is lower than the special rate but higher than the general rate.)

2. A number of matters have been conceded by the Commission. In particular, it was conceded the applicant satisfies the requirements of ss 23(1)(c) and 24(1)(c). Those provisions contain the so-called “alone test”. The Commission has also conceded the applicant is able to satisfy s 23(1)(b) on the basis that he is, at a minimum, unable to undertake remunerative work on a part-time basis. I have no reason to doubt those concessions are appropriate. It follows the applicant is certainly entitled to be paid at the intermediate rate. But is he entitled to be paid at the higher special rate? That would require me to be satisfied the applicant was “incapable of undertaking remunerative work for periods aggregating more than 8 hours per week”: s 24(1)(b).

3. That enquiry is informed by s 28. Section 28 says I must consider only the following factors:

   (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).

   The applicant’s work history

4. Mr Harmer joined the Army in 1969. He studied a maintenance trade and in due course he became an equipment inspector and worked in procurement. He explained in his oral evidence that he became an instructor who taught personnel how to use and maintain equipment. He then moved to a maintenance engineering agency for a three year stint where he wrote specifications for equipment – although he said he was still required to handle equipment that might be heavy. He subsequently spent an extended period providing a maintenance advisory service. During that period, he was required to travel around the country to Army depots where he conducted audits and checked on the maintenance of equipment like weapons and maintenance procedures. He said he would visit a site, inspect the inventory (of weapons, for example), check on the state of the equipment and maintenance processes, and complete reports. He would also undertake minor repairs that could be done on site. He said that while he did not ordinarily deal with really heavy equipment and machinery, he was routinely required to manhandle small but weighty objects like .50 calibre machineguns. Those items might weigh 35 kilos, or more.

5. Towards the end of his Army service, in 1994, the applicant worked at the Directorate of Capital Procurement. He agreed in oral evidence that the work was mainly clerical but he said he was occasionally required to handle equipment and samples that might be heavy. He was discharged from the service in 1995. He said by that point he had been experiencing back problems in particular for about ten years.

6. The applicant said he worked as a cleaner in a shopping centre for around 6-8 months after he left the Army. He then spent 18 months cooking donuts in a shop before he took up a role in a firm providing traffic management services. Part of that work was essentially that of a manager: he said he would organise the rosters, order the equipment and liaise with customers. But he also worked on the road, directing traffic. The role lasted about 12 months. He then resumed work as a maintenance fitter through a succession of labour hire companies. Some of that work was done at defence establishments. In 2005, he was employed as a maintenance fitter at the Kwinana power station. He said in his oral evidence that he found the job increasingly difficult over time because he had to carry tools and equipment, climb ladders and reach out of the way or work in confined spaces. That was a problem because of his deteriorating back, knee and hip conditions. He retired from that role in 2011. He has not worked in paid employment since, although he has done some volunteer work.

7. Mr Harmer says almost all of the roles he performed during his working life involved a physical component. Even donut-making required him to stand for lengthy periods – and that was increasingly difficult because of his back condition. Most of the work was connected to his qualifications as a maintenance fitter, but he did engage in other semi-skilled work like traffic management and donut making. He also did engage in a limited amount of clerical or managerial work in the Army and while he worked with the traffic management firm, but he indicated in his oral evidence that he was also required to stand for long periods or man-handle equipment in those roles. He says he has subsequently applied for a number of roles, including as a storeman and a sales assistant on the floor at Bunnings, but the physical demands of those roles – the need to handle heavier objects and the long periods of standing – were a problem because of his back, hip and knee conditions.

   What the medical experts say

8. Professor Nusem was called to give evidence at the hearing. He is an orthopaedic surgeon. He prepared two reports at the request of the Commission. Professor Nusem opined that the applicant’s service-related health problems did not prevent him from working in a sedentary office environment for around 16 hours per week in four-hour blocks provided he was able to alternate between sitting and standing. Professor Nusem accepted the applicant could not work as a storeman; he speculated the applicant might work in a sales role if he were not required to stand all the time. Professor Nusem was under the impression the applicant had undertaken office and clerical work in the past.

9. Dr Hadwen gave evidence at the request of the applicant. Dr Hadwen holds qualifications in occupational medicine. In his report dated 16 September 2015 (exhibit 8), Dr Hadwen concluded the applicant’s conditions:

   …make Mr Harmer permanently unfit to perform heavy or moderately heavy manual handling, or to work in cramped or confined spaces, for eight or more hours per week. Such tasks are fundamental requirements for a fitter and turner or a maintenance fitter.

10. Dr Hadwen went on to note the applicant takes strong pain medication which would make it dangerous for him to continue the work he was doing.

11. There is not much difference in the views expressed by the experts. Each of them agrees Mr Harmer could not work for more than 8 hours in a role that involves any heavy lifting or which imposed physical demands or required him to stand for any length of time. Dr Hadwen’s evidence did not squarely address the question of whether the applicant could work for more than eight hours in a sedentary role – most obviously because Dr Hadwen assumed the applicant’s qualifications and work history only equipped him to work in a maintenance fitter’s role.

    Is Mr Harmer incapable of undertaking remunerative work for periods aggregating more than 8 hours per week?

12. I have already reproduced the terms of s 28. That section informs my analysis of the requirement in s 24(1)(b).

13. The applicant is qualified as a maintenance fitter, and the bulk of his working life - in particular, his working life in the decade before he retired - involved the exercise of those skills. He undertook other semi-skilled roles during interludes between maintenance fitting jobs, but he was properly characterised as a maintenance fitter.

14. The applicant undertook a number of maintenance fitter roles for the Army and for other employers. Virtually all of those roles required that he man-handle equipment, and – especially in later years - he was required to stand for long periods, kneel, climb ladders and work in awkward spaces. He undertook some other unrelated semi-skilled work, including making donuts and working in traffic management, but the former role had a physical dimension and the latter role also assumed he would work on the road – which involved standing - when he was not in the office performing administrative functions. While there was a clerical component to some of his work, the clerical functions were usually connected with the physical roles.

15. I am not persuaded the applicant has the qualifications or experience to take on an administrative or clerical role that is not integrally connected to his physically demanding work as a maintenance fitter. A person with his background, skills and experience might reasonably undertake physical work, even if there is also an administrative component to the role. But that is not the same thing as saying he would start what is, in effect, a whole new career as an administrator or clerk.

16. The medical experts agree the applicant would be unable to undertake a physically demanding role for more than eight hours per week. In those circumstances, I can be satisfied he is able to meet the requirement in s 24(1)(b) of the Act. It follows the applicant is entitled to be paid a pension at the special rate.

    Conclusion

17. The decision under review is set aside. I decide in substitution that the applicant satisfies the requirements in s 24 that apply to special rate pensions. The date of effect is 25 August 2013.

18.     I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 25 January 2016

Date of hearing	12 November 2015
Advocate for the Applicant	Mr K Cullen, Samford RSL
Advocate for the Respondent	Mr B Williams, Department of Veterans’ Affairs