Hearne and Repatriation Commission
[2006] AATA 117
•10 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 117
ADMINISTRATIVE APPEALS TRIBUNAL № V2004/855
VETERANS' APPEALS DIVISION
Re: VICTOR EDWARD JAMES HEARNE
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date:10 February 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
VETERANS' AFFAIRS - special rate – whether applicant entitled to disability pension at special rate – "alone" test - genuinely seeking to engage in remunerative work
Veterans' Entitlements Act 1986 ss 24(1)(c), 24(2)(b)
Banovich v Repatriation Commission (1986) 6 AAR 113
Giesen v Repatriation Commission (2005) 87 ALD 347
Hendy v Repatriation Commission (2002) 72 ALD 112
Leane v Repatriation Commission (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Flentjar v Repatriation Commission (1997) 48 ALD 1
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
10 February 2006 Mr E. Fice, Member
1. Mr Victor Edward James Hearne, who receives a disability pension at 100 per cent of the general rate, on 16 September 2003 applied for an increase in his pension to either the intermediate rate or special rate of pension. On 23 September 2003 a delegate of the Repatriation Commission (the Commission) advised Mr Hearne that his application for an increase in disability pension was unsuccessful. On 8 October 2003 Mr Hearne applied to the Veterans’ Review Board (VRB) to have that decision reviewed. On 16 June 2004, the VRB affirmed the decision under review. Mr Hearne now seeks a review of the VRB decision, claiming he is entitled to a disability pension at the special rate, as is provided for under s 24 of the Veterans' Entitlements Act 1986 (the Act).
BACKGROUND
2. Mr Hearne was born on 26 July 1947. He was 56 years old at the date of making his application for an increase in the disability pension pursuant to s15 of the Act.
3. Mr Hearne had 20 years service in the Australian Army (the Army) between 1964 and 1984. He had operational service in South Vietnam between 1968 and 1969.
4. Before joining the Army, Mr Hearne worked for the Victorian Railways in 1962; with a side show in 1963; and in the course of 1964, he was employed as a roustabout on a property. I take that description to mean a general farm hand.
5. Mr Hearne enlisted in the Army on 31 August 1964. After completing a trade course, on 22 September 1965 Mr Hearne qualified as a hygiene inspector. He reached the rank of Staff Sergeant. Mr Hearne was discharged from the Army on 10 September 1984, upon his request, after he had completed 20 years of service. In his application for discharge, Mr Hearne made the following statement:
At the end of August [1984] I will have completed 20 years service and my disabilities are deteriorating making it extremely difficult to carry out my employment as I would like it to be done.
The application for discharge also noted that Mr Hearne had limited physical ability because of injury to his legs, back and arms. His discharge was recommended, becoming effective on 10 September 1984.
6. Mr Hearne has the following disabilities which the Commission accepts are service‑related:
· cyst of medial meniscus with posterior erosion medial condyle right knee and meniscectomy
· osteoarthritis right metacarpo phalangeal joint right thumb with arthrodesis
· right lateral epicondylitis
· left iliac crest bone graft donor site
· functional dyspepsia
· chronic urticaria
· seborrhea capitus
· donor graft post‑operative scar right wrist
· post traumatic stress disorder (PTSD) with polyarthralgia
· calluses on feet
Mr Hearne also suffers from the following conditions for which the Commission does not accept liability:
· hypertension
· urethral stricture
CONSIDERATIONS
7. The issue before the Tribunal is whether Mr Hearne qualifies for a disability pension at the special rate, even though, in his application before the VRB, Mr Hearne sought either the intermediate rate of pension or the special rate of pension. In order for him to succeed in his claim, Mr Hearne must first meet each of the requirements set out in s 24(1) of the Act. The Commission conceded that Mr Hearne met all of the requirements for a pension at the special rate set out in s 24(1), except for those in s 24(1)(c), which provides:
…
(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; and
8. Mr Hearne also submitted that s 24(2)(b) applied as he had not been engaged in remunerative work since leaving the Army in 1984. Section 24(2) provides:
24(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, 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; 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.
9. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4‑5, Branson J, with whom Beaumont and Merkel JJ agreed, set out four questions which are relevant to the consideration of s 24(1)(c) of the Act. They are:
…
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?
10. As to the first question posed by Branson J, this issue was not specifically addressed by either of the parties, possibly because the Commission accepted that Mr Hearne has not engaged in any remunerative work since leaving the Army. The Full Court of the Federal Court in Starcevich v Repatriation Commission (1987) 18 FCR 221 at p 224 indicated that the use of phrase "prevented from continuing to undertake" in relation to "remunerative work" did in fact suggest a reference to the last remunerative work undertaken, but that this was not necessarily so. The Full Court set out the relevant parts of the Second Reading Speech introducing the Repatriation Legislation Amendment Bill 1985 in which it was stated (at 224‑225):
…
Since 1920, there has been a special rate of disability pension payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment. The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force.
…
... the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension.
11. Quite clearly, from the Second Reading Speech, the reference to remunerative work is a reference to the civil employment in which the veteran is then engaged after his service, or the civil employment he was engaged in prior to commencing his service. Given Mr Hearne's work history prior to joining the Army in 1964, it would seem that the relevant remunerative work must be that of a general hand. Although Mr Hearne's evidence was that he volunteered to do work in a firm in Wodonga which involved computer, radio and television repairs, he found that he was unable to lift the television sets and radios. Consequently, he was unable to continue to do that work. He said that he volunteered to see if he could do the work and therefore it was only for a short trial period.
12. The Full Court in Sheehy v Repatriation Commission (1996) 66 FCR 569 held that the words "undertake" and "undertaking" in s 24(1)(c) of the Act imported the notion of a successful or effective undertaking of that work. Given that Mr Hearne was not successful in undertaking work in radio, television and computer repairs, and that he was not remunerated for it, leads inevitably to the conclusion that this attempt at conducting remunerative work cannot be considered for the purposes of s 24(1)(c) of the Act.
13. It seems that there was no real dispute about whether Mr Hearne was, by reason of his accepted war‑caused diseases, prevented from continuing to undertake work as a general hand. Dr Amanda Sillcock, an occupational physician, examined Mr Hearne on 30 September 2004. She concluded that the most significant conditions preventing Mr Hearne from working were his psychiatric disorder, PTSD, his right knee condition and his polyarthralgia. Mr George Foenander, a clinical psychologist who examined Mr Hearne on 27 September 2004, concluded that Mr Hearne's psychiatric injuries alone (PTSD and depression), would prevent him from undertaking any form of employment. In his report dated 18 October 2005, Dr Charles Castle, an occupational physician, concluded that Mr Hearne's PTSD with polyarthralgia prevented him from undertaking remunerative work.
14. The critical question in this case is whether Mr Hearne's accepted war‑caused diseases are the only factors preventing him from continuing to undertake the remunerative work that he was undertaking. This question raises two discrete issues. The first is whether Mr Hearne was in fact undertaking remunerative work within the meaning of s 24(1)(c) of the Act. If the answer to the first question is in the affirmative, the second question is whether Mr Hearne's war‑causes diseases are the only factors preventing him from continuing to undertake that work.
15. The majority in Starcevich held that the remunerative work referred to in s 24(1)(c) was not necessarily a reference to the remunerative work which the veteran was most recently undertaking. In fact, Jenkinson J was of the view that, taking into account what was said by the Full Court in Banovich v Repatriation Commission (1986) 6 AAR 113 at 120, the Act seemed to contemplate that s 24(1)(c) may be satisfied notwithstanding the intermission of a substantial period between the last time when the relevant work was undertaken and the time when the incapacity from war‑caused injury or disease prevented the veteran from continuing to undertake that type of work. It was not a reference necessarily to the last type of work which was undertaken by the veteran.
16. Accepting what the majority of the Full Court said in Starcevich, the first task for me is to determine whether Mr Hearne’s war‑caused disabilities alone prevent him from undertaking remunerative work, which he was undertaking prior to joining the Army. The very significant problems faced by Mr Hearne now are that he has not been engaged in remunerative work of the kind that he was engaged in prior to joining the Army for some 39 years before making his application and he has not engaged in any form of remunerative work since leaving the Army in 1984, some 19 years prior to making an application for a disability pension at the special rate. Dr Castle's evidence was that these factors would cause Mr Hearne great difficulty in obtaining suitable work. Although Dr Castle was not certain as to whether Mr Hearne had updated his skills as a hygiene inspector, he nevertheless said that, in his experience, the employment of persons of Mr Hearne's age was a substantial problem in the Australian community, despite legislation which forbids discrimination on the basis of age. He said that it was, in his experience, far less likely for a person of Mr Hearne's age to be offered a job ahead of a younger applicant. According to Dr Castle, this problem would be exacerbated by the passage of substantial time since Mr Hearne last engaged in remunerative employment. According to Dr Castle, these factors provided 50 per cent of the reasons why Mr Hearne could not obtain remunerative employment. The remaining 50 per cent was due to his accepted disabilities. Dr Castle's evidence was not contradicted. For that reason, I am of the view that Mr Hearne cannot meet the "alone" test set out in s 24(1)(c) of the Act.
17. Nevertheless, Mr Hearne submitted that s 24(2)(b) of the Act applied to him. This provision has frequently been described as an "ameliorating provision" for the reason that it sets out a less stringent test for eligibility for the special rate of pension than that set out in s 24(1)(c).
18. Section 24(2)(b) applies to a veteran who not obtained the age of 65 years. In Magill v Repatriation Commission [2002] FCA 744, Drummond J said:
Section 24(2)(b) was correctly described by counsel for the Commission as "an ameliorative provision". If the veteran satisfies the criterion contained in s 24(1)(c) - that the war-related incapacity "alone" has prevented the veteran from continuing to work - it is unnecessary to consider s 24(2)(b). If, however, a veteran has not been engaged in remunerative work at the relevant date, he or she will still be able to satisfy the "alone" criterion in s 24(1)(c) even though the war-related incapacity is not the sole cause of the veteran's inability to obtain work, provided the veteran nevertheless meets the requirements of s 24(2)(b).
His Honour appears to have applied a gloss to s 24(2)(b) by the addition of the words "at the relevant date". Those words do not appear in the section itself. In fact, although his Honour did not explain what was meant by those words, I take it that he was referring to the application day which gives rise to the assessment period, being the period during which an assessment for a special rate of pension must be considered. In coming to this conclusion, I am mindful of the fact that the majority of the Full Court in Starcevich's case, while critical of the way in which s 24(1)(c) is worded, nevertheless accepted that, although no time period is expressed in that section, the remunerative work referred to could be the work which the veteran was undertaking prior to his military service.
19. The Full Court in Leane v Repatriation Commission [2004] 81 ALD 625 at paragraph 18 referred to Drummond J's judgement in Magill. There was no suggestion that the Full Court disapproved of Drummond J's addition of the words "at the relevant date". However, more recently, Gray J in Giesen v Repatriation Commission (2005) 87 ALD 347 adopted a different understanding of the way in which s 24(2)(b) of the Act operated. His Honour also mentioned, at paragraph 23, that the test in s 24(2)(b) of the Act is available only to veterans who have not engaged in remunerative work at any relevant time. I am not certain whether the relevant time referred to by his Honour is the same as that referred to by Drummond J in Magill's case. In fact, Gray J took a contrary view regarding the applicability of s 24(2)(b) to that taken by a number of previous courts, including Magill, Leane, and Hendy v Repatriation Commission (2002) 72 ALD 112. Rather than providing an ameliorative provision, his Honour took the view that s 24(2)(b) provided a substitute test for the "alone test" in s 24(1)(c); and that the substitute test was available only to veterans who had not engaged in remunerative work at any relevant time. However, for the reasons set out in his judgement, his Honour declined to apply his own view in Giesen's case.
20. Although I agree with the alternative views expressed by Gray J in Giesen, the Tribunal is nevertheless bound by the Full Court's decision in Leane. Underlying the Full Court's decision is the assumption that s 24(2)(b) is available to a veteran who has previously engaged in remunerative work. Therefore, in my opinion it is open to Mr Hearne to satisfy the requirements for the special rate of pension if, on balance, the evidence points to Mr Hearne having been genuinely seeking to engage in remunerative work that he would, but for his accepted incapacity, be continuing to seek to engage in; and that that incapacity is the substantial cause of his inability to obtain remunerative work in which to engage. If that is established on the evidence, then Mr Hearne must be treated as having been prevented by reason of his incapacity from continuing to undertake remunerative work that he was undertaking.
21. As the Full Court pointed out in Leane's case, seeking means "attempting to" or "trying to". The Court said that such a meaning involves something more than a mere wish or hope; and it requires that the claimant "do" something. The Full Court said that the word "genuinely" is used in the sense of "sincerely" or "honestly". According to the Court, it involved an assessment of the subjective intention or purpose of a claimant and that what was required was that the claimant honestly be trying to engage in remunerative work (para 28). The Full Court also pointed out that it would be wrong to require objective signs of an active pursuit of remunerative work. It said that the proper course was to ask whether, on the evidence, it [the Tribunal], was satisfied that the veteran was "genuinely seeking to engage in remunerative work" or not. The Full Court also pointed out the effect of s 19(6) of the Act, which was that the rate of pension payable was that which applied most recently during the assessment period which commences on the date of application. In Mr Hearne's case, this date is 16 September 2003. The Full Court said, at 633:
…if the veteran had satisfied the tribunal that he had, at any time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he had been genuinely seeking to engage in remunerative employment) then, at least from that time, the veteran would have been entitled to a pension at the special rate, notwithstanding that at some later time he may not have established that he was genuinely seeking to engage in remunerative employment.
22. The assessment period in relation to a claim or application relating to a pension is defined, in s 19(9) of the Act, as the period starting on the application day and ending when the claim or application is determined. An application is defined as an application made in accordance with s 15 of the Act, which is an application for increase in pension. The application day in relation to an application under s 15 is the day on which the application was received at an office of the Department of Veterans' Affairs in Australia. As far as Mr Hearne is concerned, that day is 16 September 2003. Therefore, the assessment period commences on 16 September 2003 and ends on the date that this decision is delivered. Under s 19(5)(C), the matters which the Commission must assess when dealing with applications under s 24 of the Act are:
(a)the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b)subject to sub‑section (6), the rate at which the pension is payable.
23. Accordingly, I am required to determine whether Mr Hearne had genuinely been seeking to engage in remunerative employment at some time prior to the assessment date. As the Full Court in Leane said, the test is neither objective nor subjective, but rather the Tribunal had to ask itself whether, on the evidence before it, it was satisfied that the veteran was genuinely seeking to engage in remunerative work. In dealing with an assessment or re‑assessment of the rate of pension granted under Part II or Part IV of the Act, I am required to decide the matter to my reasonable satisfaction or, on the balance of probabilities. I am also mindful of s 120(6) of the Act, which provides:
120(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
24. Mr Hearne's evidence was that he did apply for work after leaving the Army, including work in storehouses. He also said that he applied to work with the Australian Taxation Office, Wilson Transformers and Uncle Ben's. He said that every time a job was advertised with those firms in the newspaper, he would apply for them. He said he also applied for work through Workforce firms such as ACE and Workforce. He also said that he did apply for a health inspector position after leaving the Army, within a few years of discharge. He said he got as far as an interview, but did not get the position. However, in his evidence before the VRB, he simply said that there were no vacancies in his area of speciality, which was a hygiene inspector. Mr Hearne also said that he had been registered with the CES, but he produced no evidence of that. In his evidence to the VRB, he also referred to the firm Ferguson Transformers rather than Wilson Transformers. He said that he did get interviews with some of those firms. However, once again, Mr Hearne produced no evidence of the fact that he had applied for a job or that he had been rejected. One would, ordinarily, expect there to be some documentary evidence of those attempts. None was produced to the Tribunal. This is despite the fact that he told the VRB that he had received rejection letters.
25. Mr Hearne also said that he "volunteered" to work with a firm in Wodonga doing computer, radio and television repairs. Although Mr Hearne said that he was unable to do that work because of the lifting involved, he nevertheless did not produce any documentary evidence from the firm or its principal, regarding the fact that he had attempted to take on remunerative employment in that field.
26. Mr Hearne was not discharged from the Army because of his medical conditions. However, in his application for discharge which was lodged on 28 April 1984, Mr Hearne noted his limited physical ability due to injury to his legs, back and arms; and he said: “At the end of August I will have completed 20 years service and my disabilities are deteriorating making it extremely difficult to carry out my employment as I would like it to be done".
27. The documents available to me also indicate that Mr Hearne made a claim for an invalid pension in February 1986. Mr Hearne indicated that he did not recall having made that application. He did not recall why it was rejected either. In his application, Mr Hearne said that he stopped work because of his physical condition, which caused him to apply for the invalid pension.
28. Having regard to the evidence which was before me, on balance, I do not accept that Mr Hearne genuinely sought to obtain remunerative work after discharge from the Army. I would have expected there to be some documentary evidence of him having made such attempts and his claims that he did so seem to be at odds with the fact that he left the Army because he believed he could not continue to do his work properly as a hygiene inspector; and that he had made a claim for an invalid pension. Also, in evidence, Mr Hearne said, in answer to a question regarding his circumstances when he decided to leave the Army that "I just couldn't work any more".
CONCLUSIONS
29. In my opinion, Mr Hearne does not satisfy the requirements of s 24(1)(c) of the Act; which a veteran seeking the special rate of pension must satisfy.
30. Although Mr Hearne relied on s 24(2)(b) of the Act, on balance, the evidence does not disclose that Mr Hearne genuinely sought to engage in remunerative work following his retirement from the Army. In coming to that conclusion, I have taken into account Mr Hearne's evidence to the contrary.
31. In my opinion, the decision of the Commission made on 23 September 2003 was the correct decision and should be affirmed.
I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
(sgd) Catherine Thomas
Clerk
Dates of Hearing: 21 October 2005
19 December 2005
Date of Decision: 10 February 2006
Solicitor for the applicant: Mr D. De Marchi, De Marchi & Associates
Advocate for the respondent: Mr R. DouglassSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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