Higgins and Repatriation Commission

[2006] AATA 327

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 327

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/322

VETERANS’ APPEALS DIVISION		)
Re		RAYMOND HIGGINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date7 April 2006

PlaceBrisbane

Decision The decision under review is set aside. The applicant is eligible to be granted a pension at the special rate under the Veterans Entitlements Act 1986. The date of effect is 5 March 2004.

…………[Sgd]…………

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – special rate pension – alone test – applicant worked as a labourer – veteran unable to work during the claim period due to accepted conditions – applicant satisfies the alone test

Veterans Entitlements Act 1986 s 24

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 58 ALD 394

Peacock v Repatriation Commission [2004] FCA 1449

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Smith (1987) 74 ALR 537

REASONS FOR DECISION

7 April 2006 Senior Member B J McCabe         

introduction

1.      Raymond Higgins is seeking a pension paid at the special rate under the Veterans Entitlements Act 1986 (the VEA). The Repatriation Commission says Mr Higgins does not satisfy the criteria in s 24 of the Act – specifically the criterion in s 24(1)(c) (the provision imposing what has become known as the “alone” test). The respondent’s reviewable decision to that effect was affirmed by the Veterans’ Review Board (the VRB). Mr Higgins has asked the Tribunal to review his case.

the material before the tribunal

2. The Tribunal was provided with the material required under s 37 of the Administrative Appeals Tribunal Act 1975. The applicant’s statement was tendered in evidence, and he gave oral testimony. There were no other witnesses. The respondent tendered a transcript of the proceedings of the VRB, a letter from BM Alliance Coal Operations Pty Ltd and copies of correspondence between the respondent and Dr Boys.

3.      The hearing was held in Townsville. The applicant was represented by Mr Honchin of counsel. Mr Kelly, a departmental advocate, appeared by telephone from Brisbane. (Mr Kelly was excused from appearing at the hearing in person because a cyclone had grounded flights into Townsville.)

the factual background

4.      The applicant was born on 15 March 1944. He was 62 years of age at the time of the hearing. He served in the Army and rendered operational service in Vietnam between May 1969 and May 1970. He has a number of accepted conditions as a result of his service, including hearing problems, post traumatic stress disorder (PTSD) and an alcohol dependence or abuse condition.

5.      Mr Higgins worked for Australia Post as a postman for several years but he has spent the greater part of his career working in mines. He was employed at the Moura mine near Mackay between 1984 and 1998. That was the last occasion on which he worked. Although he was designated as a miner, he essentially carried out labouring tasks throughout his working life in the mines. He would drive vehicles, clean floors, assist the tradesmen – whatever was required. The work did not involve heavy lifting, but it was varied. Mr Higgins said he resisted invitations to be trained in the operation of heavy machinery like cranes and large dump trucks. He says he doubted his ability to concentrate and coordinate the operations of the more complex machines. He says he lacked confidence, and felt he would be unsafe.

6.      The applicant said he would occasionally come to work while still intoxicated. He said supervisors would assign him to work like cleaning on those occasions. He was never formally counselled or disciplined over his drinking. He referred to other instances where he was irritable. In his oral testimony, he noted the state of origin football series was a particularly trying time for him because he hailed from New South Wales, while most of the mine workers were from Queensland. He said he would be the subject of pranks. He became angry, which only encouraged the other workers.

7.      Mr Higgins also served as a union delegate. He was involved in a number of enterprise bargaining processes. He said he became very frustrated and would walk out of meetings. He agreed his attitude was an obstacle to successful negotiations but put it down to the sense of irritability that was a symptom of his PTSD in particular.

8.      Perhaps as a result of his work as a union delegate, the applicant became aware in the late 1990s that the mine operator wished to downsize its workforce. There were several rounds of voluntary redundancies offered to individuals like Mr Higgins. He declined to accept an offer in the first round, but he said he became worried at the prospect of being retrenched on less favourable terms. (Although he had been at the mine for 14 years at that stage, Mr Higgins was still one of the “newer” workers and would be amongst the first to be retrenched under the “last on, first off” approach to redundancies.)

9.      The applicant took a voluntary redundancy package in September 1998. He purchased a unit in Mackay but was unable to move in immediately. He stayed in a caravan park for a while. It was explained to him prior to his departure from Moura that he would not become eligible for Centrelink assistance until around March 1999. He did not seek work until after that period. At that point, he approached Centrelink for assistance in finding a job. He joined the Jobsearch program but did not receive any financial benefits. He was required to maintain a diary in which he recorded his efforts. He said he checked the newspapers for labouring jobs but did not make any applications or go for any interviews.

10.     In the course of his evidence before the VRB, the applicant said he did not expect to get another job when he left Moura. He told the Board he thought he was too old: exhibit four, p 10. He said the same thing in his employment questionnaire (T documents p 14).

11.     Mr Higgins applied for and received a service pension on 21 July 1999. The evidence suggests his efforts to find a new job peaked at around this time. Dr Likely said the applicant was not capable of working from some point within the following six months. (Dr Likely’s report of 4 September 2002 suggests he saw the applicant on 27 January 2000. The applicant says he was told he was incapacitated at the first meeting with Dr Likely. The applicant indicated Dr Graham had said much the same thing earlier.)

12.     Dr Boys, an orthopaedic surgeon, also examined the applicant. He concluded the applicant’s (non-accepted) back condition was not an obstacle to work.

the law

13.     The criteria governing the grant of a special rate pension are set out in s 24 of the VEA. The respondent concedes the applicant satisfies the requirements imposed in ss 24(1)(a) and (b). I accept that concession. The respondent says Mr Higgins cannot satisfy the “alone” test in s 24(1)(c). The Commission also says the applicant is not entitled to take advantage of the ameliorating provision in s 24(2).

14.     The alone test requires that the applicant’s accepted conditions be the sole explanation for his cessation of work. It is not enough for him to show the accepted conditions on their own would have caused him to stop work if other non-accepted conditions would also have had that effect, or if the non-accepted conditions in combination with accepted conditions would have caused him to cease work: see Forbes v Repatriation Commission (2000) 58 ALD 394 at 401 per RD Nicholson J.

15.     The correct approach to the application of the alone test was discussed by the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5. I will follow that approach here.

16.     The decision-maker must first identify the relevant “remunerative work” the veteran had been undertaking. That is easy enough in this case: he carried on labouring work in a mine. The work did not involve heavy lifting, but it was manual, semi-skilled work which involved the operation of some machinery and other physical tasks.

17.     The second task is to determine whether the veteran’s accepted conditions prevent him from continuing to undertake the work he was doing. It is important to note one does not simply ask why the applicant left his last employment. The decision-maker must focus instead on why he cannot work during the claim period which commenced on 5 March 2004 when the applicant applied for an increase in the pension to the special rate: see Peacock v Repatriation Commission [2004] FCA 1449 at paragraph 33 per Dowsett J

18.     I accept the applicant remained able to work when he took the voluntary redundancy package at the end of 1998. But something happened to the applicant in the year that followed. Dr Likely told the applicant in early 2000 that he was unable to work from that point because of his accepted conditions. That evidence is uncontradicted and I accept it. It follows the applicant is unable to work during the claim period because of his unaccepted conditions.

19.     The next step in the Flentjar analysis requires the decision-maker to consider whether the accepted conditions were the only factor or factors preventing him from working during the claim period. In this case, the claim period commences on 5 March 2004 when the applicant applied for an increase in his pension to the special rate. As Beaumont J explained in the Full Federal Court in Repatriation Commission v Smith (1987) 74 ALR 537 at 548 (Northrop and Spender JJ agreeing), one must ask: What would the applicant be doing if not for his war-caused difficulties?

20.     In the course of answering this question, the Full Court in Repatriation Commission v Hendy (2002) 76 ALD 47 (at 54 per Whitlam, Emmett and Stone JJ) said one must:

“…take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant…”

21.     In this case, the evidence does not all point one way. The applicant was in reasonable physical condition throughout the assessment period, notwithstanding his age and his (non-accepted) back condition. I do not accept the applicant’s absence from the workforce prior to the assessment period would have degraded his generic skills in such a way that he could not have obtained further remunerative work if he sought it out. He was still physically capable of doing the work. But the applicant’s testimony before the VRB suggests he had effectively retired because he was not confident he would ever work again due to his age. While I am not satisfied the applicant’s age was an obstacle to continuing work, it appears he may have thought so at the time. The respondent pointed out the applicant did not seek interviews during the period that followed his departure from Moura. That evidence counts against him because it tends to suggest he was retired. Mr Kelly suggested the applicant had reconciled himself to retirement when he became eligible for a service pension (although, as Dowsett J pointed out in Peacock, identifying an incentive to retire is not the same thing as finding a reason that prevents the applicant from working: at paragraph 33). On the other hand, I note he enrolled in a program at Centrelink designed to assist in finding work. He was not merely doing so in order to qualify for a benefit; he says he knew he was not eligible for welfare assistance. That evidence is not consistent with the retirement thesis. I accept his failure to persist in those efforts (such as they were) is explained by his doctors’ advice that he was not fit to work.

22.     After considering all of the evidence, I think the answer to the question posed in Smith (ie, What would the applicant be doing if not for his war-caused difficulties?) during the assessment period is: Undertaking remunerative work as a labourer. The applicant may have entertained thoughts about retirement soon after his departure from the Moura mines, but his later conduct in approaching Centrelink suggests he had second thoughts and wanted to rejoin the workforce.

23.     The fourth step in the Flentjar analysis requires that the decision-maker be satisfied the veteran has suffered a loss of salary, wages or earnings that he would not be suffering if he were free of the war-caused incapacity. There does not seem to be any dispute on this point: the veteran would presumably still be working in the mines and drawing a salary but for his accepted conditions. It follows I am satisfied the applicant is able to satisfy s 24(1)(c).

conclusion

24.     I am satisfied the applicant is able to satisfy the criteria set out in s 24(1). He is therefore eligible to be granted a pension at the special rate. The decision under review is set aside. The date of effect is 5 March 2004.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         Adam Ryan
  Associate      Adam Ryan

Date of Hearing  21 March 2006
Date of Decision  7 April 2006
The applicant was represented by Mr Honchin of Counsel.
The respondent was represented by Mr Kelly, a departmental advocate.