Hoare and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 899
•24 November 2015
Hoare and Repatriation Commission (Veterans’ entitlements) [2015] AATA 899 (24 November 2015)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2014/2603
Re
Peter Hoare
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 24 November 2015 Place Sydney 1. The decision of the Repatriation Commission made 14 August 2012, that Dr Hoare is not entitled to payment of a pension at the special rate, is set aside.
2. In substitution it is decided that Dr Hoare is entitled to payment of a pension at the special rate in accordance with Part II of the Veterans’ Entitlements Act 1986 (Cth), with effect from 23 December 2010.
............................[SGD]............................................
Deputy President J W Constance
CATCHWORDS
Veterans’ entitlements – special rate – whether veteran prevented by incapacity from war-caused conditions “alone” from continuing to undertake remunerative work – whether veteran worked in profession for a period of 10 years – veteran eligible for pension at the special rate – decision set aside
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 23, 24, 28
CASES
Smith v Repatriation Commission [2014] FCAFC 53
Thomson v Repatriation Commission (2000) 61 ALD 58
Chambers v Repatriation Commission (1995) 55 FCR 9
REASONS FOR DECISION
Deputy President J W Constance
24 November 2015
A. INTRODUCTION
Dr Hoare joined the Royal Australian Navy as a 13 year old in 1948. He served for three separate periods between 1948 and 1982.
The Repatriation Commission has accepted that Dr Hoare suffers from a number of medical conditions arising from his military service. As a result, Dr Hoare is currently in receipt of a disability pension of at least 70 per cent of the general rate. This pension is payable in accordance with the provisions of the Veterans’ Entitlements Act 1986 (Cth).
On 21 July 2008, Dr Hoare lodged an application for an increase in his disability pension to the special rate. On 14 August 2012 the Repatriation Commission refused this application but increased the rate of pension to 90% of the general rate with effect from 21 April 2008 and to 100% of the general rate from 18 February 2011.
Dr Hoare then applied to the Veterans’ Review Board to review the Commission’s decision. On 30 April 2014 the Board affirmed the decision and so Dr Hoare’s rate of pension remained at 100 per cent of the general rate.
Dr Hoare has applied to the Tribunal for a review of decision of the Veterans’ Review Board. He continues to press his claim for payment of the pension at the special rate.
For the reasons which follow, the decisions under review will be set aside and it will be decided that Dr Hoare is entitled to payment of the pension at the special rate.
B. BACKGROUND
Unless otherwise stated I have found the following facts on the basis of the evidence of Dr Hoare.
Dr Hoare was born in January 1934. He turned 65 in 1999. On the day he applied for the increase in his pension he was 74 years old. He is now 81 years old.
Following his discharge from the Navy in 1959, Dr Hoare studied medicine. After he graduated he practised as a General Practitioner and as a Medical Officer in the Navy. In 1973 he travelled to England and qualified in the speciality of Dermatology. He returned to Australia and practised as a Dermatologist in Australia and overseas, including further service in the Navy.
Up until 17 December 2008 Dr Hoare was engaged in full time practice. On that day he closed his Sydney practice and shortly thereafter moved to the Central Coast of New South Wales. In April 2009 he commenced practice as a Dermatologist in Toukley, New South Wales. He continued in this practice until he closed it in December 2010.
C. THE APPLICABLE LEGISLATION
Part II of the Veterans’ Entitlements Act 1986, which includes sections 12 to 34 inclusive, provides for “Pensions, other than service pensions, for veterans and their dependants”. The pension which is being paid to Dr Hoare is payable in accordance with this Part.
Section 15 permits a veteran who is in receipt of a pension under Part II to apply for an increase in the rate of the pension on the ground that his/her incapacity has increased since the pension was assessed or last assessed.
In determining whether a veteran is eligible for an increase in the rate of pension payable, section 19 of the Act provides that the veteran’s entitlement is to be assessed with respect to any circumstance that occurs within the assessment period. The assessment period runs from the date of the application for an increase in the pension (in this case 21 July 2008) up to the decision of this Tribunal.[1] As stated by Buchanan J in Smith and Repatriation Commission: [2]
The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.
[1] Subsection 19(9).
[2] [2014] FCAFC 53, [40].
Section 19 sets out the manner in which applications are to be dealt with. In particular, subsection 19(5B) requires applications to be assessed in accordance with the relevant sections, which include:
·Section 22 General rate of pension and extreme disablement adjustment;
·Section 23 Intermediate rate of pension
·Section 24 Special rate of pension.
As Dr Hoare is seeking an increase in his pension from the general rate to the special rate, it is necessary to determine whether he meets the requirements of section 24. If he does not, it will be necessary to decide whether he is entitled to an increase to the intermediate rate in accordance with section 23.
I will set out the relevant provisions of sections 23 and 24 when I come to consider the application of the section or sections.
D. IS DR HOARE ENTITLED TO PAYMENT OF THE PENSION AT THE SPECIAL RATE (S.24)?
Paragraphs 24(2A)(a),(b),(c) and (d) set out some of the requirements which Dr Hoare has to meet to be entitled to an increase to the special rate of pension. These include:
·that the veteran has made an application under section 15 for an increase in the rate of pension he or she is receiving;
·the veteran had turned 65 before the application for an increase was made; and
·the degree of incapacity of the veteran from war caused injury or war caused disease has been determined to be at least 70%;
·section 25 of the Act does not apply to the veteran.
In this case the Commission concedes that Dr Hoare meets the above requirements. I am satisfied that this is correct.
Further requirements for eligibility for payment at the special rate are set out in subsection 24(2A). The Commission submits that Dr Hoare does not meet these requirements.
D1. Does Dr Hoare meet the requirements of subsection 24(2A)(c) which incorporates the provisions of subsection 24(1)(b)?
Subsection 24(2A)(c) provides:
(2A) This section applies to a veteran if:
……
(c) paragraphs (1)(a) and (1)(b) apply to the veteran ....
It is not in dispute that the provisions of paragraph (1)(a) apply to Dr Hoare.
Paragraph (1)(b) provides:
(1) This section applies to a veteran if:
……
(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.
Section 28 of the Act – capacity to undertake remunerative work
This section sets out the only matters to be taken into account in applying the provisions of subsection 24(1)(b). The section provides in part:
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work …… the Commission shall have regard to the following matters only:
(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 effect of s 28 is to exclude all other factors from consideration in determining whether the Applicant satisfies subsection 24(1)(b).[3]
[3] Chambers v Repatriation Commission (1995) 55 FCR 9 at [39].
Dr Hoare has suffered several war-caused injuries and diseases including Bronchiectasis and Chronic Obstructive Pulmonary Disease with Emphysema. The Commission accepted these conditions as being war-caused on 21 April 2008. He also suffers from medical conditions which are not war-caused, namely:
(a)spinal stenosis with laminectomy performed in 1993;
(b)lumbar spondylosis.
Dr Hoare argued that his accepted conditions render him incapable of working more than eight hours per week. He says that his back conditions do not affect his ability to work.
The Respondent contended that Dr Hoare is capable of working 8 hours or more per week, but less than 20 hours per week. The Respondent further argued that Dr Hoare is not prevented from working by his accepted conditions alone.
The evidence of Dr Hoare
Dr Hoare provided a statement dated 21 November 2014[4] and gave evidence.
[4] Exhibit A1.
By December 2010 Dr Hoare was unable to continue his practice as a Dermatologist. His breathing problems associated with his accepted respiratory conditions made it difficult for him to consult with his patients and prevented him from performing surgical procedures. At times he suffered from hyperventilation. Had it not been for his respiratory problems he believes he would have continued working as a Dermatologist for some years. He said that despite his age, he would have kept working as he loved his work and wished to continue. It was not unusual for specialist doctors to continue to work into their 80’s.
Dr Hoare said that he now suffers from continuous breathlessness, he cannot garden and goes out for social occasions rarely. He says that he could not perform other work, such as preparing medico-legal reports or teaching. In his words, “I am a prisoner in my own home.”[5]
[5] Transcript 03/08/15.
Evidence of Dr Burns, Occupational Physician
Dr Burns assessed Dr Hoare in September 2010 and May 2011 at the request of the Department. He provided reports dated 16 September 2010, 12 May 2011 and 23 September 2014[6] and gave evidence.
[6] Exhibit R1 p.85, exhibit R1 p.111 and exhibit A2 respectively.
In his report of 12 May 2011 Dr Burns stated:
With respect to his work capacity, I have no doubt that he could not work even eight hours per week at the current time due to his moderately severe shortness of breath. I do not believe that his back condition has played a major role in his decision to cease work or his inability to work as it has been present for at least the last 20 years. This was since he had his back operation. He has grown used to the back problems over time and has continued to work irrespective. I also note no major increase in his back condition over the last five or ten years.
Dr Burns provided his report of 23 September 2014 after Dr Hoare’s bronchiectasis had been accepted as a war-caused condition. In that report he expressed the opinion that Dr Hoare had ceased working in December 2010 as a result of his accepted conditions alone.
He considered emphysema to be a major component of the conditions preventing Dr Hoare from continuing to work.
Evidence of Dr Chase, Occupational Physician
Dr Chase assessed Dr Hoare on 27 November 2014 at the request of the Commission. He provided a report dated 21 December 2014[7] and gave evidence.
[7] Exhibit R4.
In the opinion of Dr Chase “the only barrier to him working full-time is his respiratory function and shortness of breath, therefore his limitations on work were due to his accepted disabilities alone. … He would be capable of performing some remunerative work but it would be in an extremely limited capacity.”[8] It is also the opinion of Dr Chase that Dr Hoare is capable of working two sessions of four hours per week.
[8] Exhibit R4 pp.5-6.
Dr Chase suggested that Dr Hoare would be able to carry out assessments and prepare medico-legal reports. However he acknowledged that this work involves travelling for the purposes of giving evidence and that this would be difficult for Dr Hoare. Dr Chase described Dr Hoare as having “terrible lung function”.[9]
[9] Transcript 03/08/15.
Consideration
Having listened to and observed Dr Hoare give evidence I am satisfied that he was an honest witness who gave his evidence to the best of his recollection. I accept his evidence.
Guided by the requirements of section 28, I am satisfied that Dr Hoare is a qualified and highly experienced medical practitioner specialising in dermatology. A person with his skills and qualifications might reasonably undertake remunerative work as a general practitioner, a specialist in dermatology, a teacher of medicine and work in the medico-legal field.
Dr Hoare's evidence that he is unable to undertake any remunerative work as a result of his respiratory conditions which have been accepted as war-caused is supported by Dr Burns. The evidence of Dr Chase also supports the view that Dr Hoare capacity to work is, at least, significantly restricted and that he is unable to work full-time.
I have taken into account that Dr Chase assessed Dr Hoare as being able to work two four-hour sessions per week. It is to be noted that even Dr Chase’s assessment is consistent with a conclusion that Dr Hoare is incapable of undertaking remunerative work “for periods aggregating more than eight hours per week” [emphasis added] as required by paragraph 24(1)(b). Nevertheless I accept Dr Hoare's evidence that it is not practical to practise as a Dermatologist for two four-hour sessions per week.
I accept also Dr Chase’s evidence that Dr Hoare is not capable of working as a general practitioner. On the basis that Dr Hoare has only produced one medico-legal report and that this work would involve him in travelling and giving evidence in Courts and Tribunals, I am satisfied that he is not capable of undertaking this work. In the light of Dr Hoare's description of the effects of his breathlessness and the need for him to breathe through his mouth, I am satisfied that he does not have the capacity to be engaged in any form of teaching role.
I prefer the evidence of Dr Burns that Dr Hoare is incapable of undertaking any remunerative work.
I am satisfied that Dr Hoare meets the requirements of paragraph 24(1)(b) and therefore the requirements of paragraph 24(2A)(c).
D2. Does Dr Hoare meet the requirements of paragraph 24(2A)(d)?
Paragraph 24(2A)(d) provides:
(2A) This section applies to a veteran if:
……
(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;.
Dr Hoare made his application for an increase in his rate of pension on 21 July 2008. On the basis of his evidence I am satisfied that the last paid work he was undertaking before that was the work of a Dermatologist. This is not in dispute.
It was argued on behalf of the Commission that Dr Hoare’s age was a significant factor in his decision to cease working. However I accept Dr Hoare’s evidence that his age did not influence his decision to stop working and that had he been physically able to do so he would have continued to work indefinitely.
I have taken into account also the opinion of Dr Burns that Dr Hoare ceased working in December 2010 as a result of his accepted conditions alone.[10] This opinion is supported by Dr Chase who stated that the limitations on Dr Hoare’s work were due to his accepted disabilities alone.[11]
[10] See para. 32 of these reasons.
[11] See para.36 of these reasons.
For the reasons I have stated above, I am satisfied that because of incapacity from his war-caused diseases, alone, he is prevented from continuing to undertake that work.
D3. Does Dr Hoare meet the requirements of paragraph 24(2A)(e)?
Paragraph 24(2A)(e) provides:
(2A) This section applies to a veteran if:
……
(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… .
I am satisfied on the basis of the evidence of Dr Hoare that following the time he ceased work in December 2010 he suffered a loss of earnings on his own account that he would not have been suffering if he had not had the respiratory conditions which have been accepted as war-caused. I accept his evidence that he was earning an income from his practice before that time. This is not in dispute.
D4. Does Dr Hoare meet the requirements of paragraph 24(2A)(f)?
Paragraph 24(2A)(f) provides:
(2A) This section applies to a veteran if:
……
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65 … .
Dr Hoare turned 65 in 1999. On the basis of his evidence I am satisfied that he was undertaking his last paid work as a dermatologist after he turned 65.
D5. Does Dr Hoare meet the requirements of paragraph 24(2A)(g)?
Paragraph 24(2A)(g) provides, in part:
(2A) This section applies to a veteran if:
……
(g) when the veteran stopped undertaking his or her last paid work, the veteran ….. 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 … .
Based on the evidence of Dr Hoare I am satisfied of the facts set out in the following eight paragraphs.
After Dr Hoare closed his Sydney practice on 17 December 2008, he and his wife moved to rented accommodation in Nelsons Bay on the North Coast of New South Wales. He regarded himself as being on sabbatical leave and always intended to continue practising as a Specialist Dermatologist.
Within a few weeks of moving from Sydney Dr Hoare began enquiring as to the feasibility of setting up practice. He met with staff at Charlestown Medical Centre, Wyoming Medical Centre and Toukley Medical Centre for this purpose. He decided that the most suitable location was on the Central Coast so he and his wife purchased a home in Toukley. They chose a property which was suitable to house Dr Hoare’s professional library.
Whilst searching for suitable premises Dr Hoare maintained his registration as a medical practitioner, his Provider Number, his memberships of his professional associations and his medical indemnity insurance. Although he gave away part of his professional library, he maintained that part most relevant to his practice. He continued his subscriptions to five professional journals and kept the microscope which he used in his practice.
After making further enquiries, Dr Hoare commenced to practise at premises leased by him in Toukley on 28 April 2009. He worked full-time, conducting the same practice as he had previously.
In November 2008, shortly before closing his Sydney practice, Dr Hoare applied to the Department of Veterans Affairs for a service pension.[12] In cross-examination it was put to him that his reference to “retirement” in his application and in accompanying documents indicated that at that time he did not intend to return to practise as a Dermatologist. It was put further that after he had retired in December 2008 he changed his mind and commenced to practise at his new premises.
[12] Exhibit R2 pp.68 and 71.
On 18 March 2009 Dr Hoare wrote to the Delegate of the Secretary of the Department of Veterans’ Affairs.[13] In that letter Dr Hoare again referred to his decision to “retire” to the Central Coast.
[13] Exhibit R2 p.57.
In a letter dated 24 June 2009[14], Dr Hoare referred to his having previously considered “going back into Practice from retirement”. It was put also that this language suggests a retirement followed by a change of heart and subsequent decision to resume practice.
[14] Exhibit R2 p.63.
Dr Hoare said that he applied for the pension as he would not have an income immediately after he closed his Sydney practice. Dr Hoare said that he had used the word “retirement” inappropriately and that at the time he did not intend to retire. He described its use as “doctor talk”.
Although Dr Hoare's explanation for referring to “retirement” was unclear, I accept his evidence that despite what he had written he did not intend to retire after he closed his Sydney practice. His description of his situation in the documents referred to must be considered in the context of his actions in maintaining his registration, his membership of organizations, his insurance, his library and his microscope.
In Thomson v Repatriation Commission[15] the Full Court of the Federal Court said:
Thus, the inquiry mandated by the subsection in the present case required consideration of whether the appellant had been working as a medical practitioner on his own account for a continuous period of at least 10 years prior to his cessation of work during July 1996. Continuity of the appellant’s medical work throughout the period is relevant to, but not determinative of, that matter. Continuity of a doctor’s work as a self-employed medical practitioner in a case such as the present would also, usually, be expected to involve consideration of whether indemnity insurance, medical registration, AMA membership, medical journal subscriptions and the requisite medical equipment continued to be maintained throughout the relevant period.
Furthermore, if there were gaps in the continuity of work during the relevant period the reason for the gaps will be relevant. For example, if the gaps occurred solely as result of the temporary unavailability of work, that could not, probably, lead to the conclusion of lack of continuity under s 24(2A)(g)(ii). This is particularly the case if the doctor had been actively, but unsuccessfully, seeking work during the relevant period. However, if the gaps occurred because the doctor had decided to retire, or the unavailability was more permanent, that would support a conclusion that he was she had ceased to continue working as a medical practitioner on his or her own account. Plainly, questions of fact and degree will be involved.
[15] (2000) 61 ALD 58 at paras 11 and 12.
I am satisfied that the period from December 2008 until the end of April 2009 was a period of sabbatical during which Dr Hoare actively researched and set up a new place from which to practice. I am satisfied that when Dr Hoare ceased practice in December 2010 he had been working in the profession of dermatology for a continuous period of at least ten years which began before he turned 65.
CONCLUSION
In view of the conclusion I have reached it is unnecessary that I consider whether Dr Hoare is eligible for payment of the pension at the intermediate rate.
For the reasons stated above the decision of the Repatriation Commission made 14 August 2012, that Dr Hoare is not entitled to payment of the pension at the special rate, will be set aside.
In substitution it will be decided that Dr Hoare is entitled to payment of a pension at the special rate in accordance with Part II of the Veterans’ Entitlements Act 1986 (Cth), with effect from 23 December 2010.
I certify that the preceding 69 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ...........................[SGD].............................................
Associate
Dated 24 November 2015
Date(s) of hearing 3 August 2015 Counsel for the Applicant Ms C Mudge Solicitors for the Applicant Legal Aid NSW Advocate for the Respondent Mr T O’Reilly, Department of Veterans’ Affairs
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