Holborow and Repatriation Commission
[2013] AATA 666
•18 September 2013
[2013] AATA 666
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0528
Re
Bryan Holborow
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal J L Redfern, Senior Member
Dr I Alexander, MemberDate 18 September 2013 Place Sydney The decision under review is set aside and substituted with a decision that Mr Holborow is entitled to the disability pension at the special rate.
....................[sgd]....................................................
J L Redfern, Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS - special rate of pension – whether applicant satisfies s 24(1)(c) of the Veterans’ Entitlements Act 1986 – accepted post-traumatic stress disorder, psychoactive substance abuse or dependence, lumbar spondylitis and osteoarthritis affecting both knees – whether prevented from participating in remunerative work because of war-caused injuries and/or disabilities alone – whether suffered loss of earnings that would not be suffering but for the war-caused incapacity – decision set aside and substituted with decision that applicant entitled to disability pension at special rate
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth); ss 19, 24, 120
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424
Starcevich v Repatriation Commission (1987) 76 ALR 449
SECONDARY MATERIALS
-
REASONS FOR DECISION
Ms J L Redfern, Senior Member
Dr I Alexander, Member18 September 2013
Mr Bryan Holborow is a 66-year-old Vietnam veteran who served in the Australian Army and had operational service in Vietnam during the period 21 May 1968 to 21 May 1969.
Following his discharge from the Army at the age of 22, Mr Holborow joined New South Wales Police where he worked until his resignation in 1996. He was medically retired on 29 August 1996 following an injury to his knee. Mr Holborow then worked full-time as a farmhand for Hiltour Pty Limited from 1996 until 2000, when he had a knee replacement on his right knee. Thereafter, he worked part-time until 2004 when he had a second knee replacement on his other knee. Mr Holborow has not worked since this time.
Mr Holborow sustained injuries during the course of his operational service and it has been accepted by the Repatriation Commission that these injuries were war-caused. Relevantly, those accepted disabilities include post-traumatic stress disorder, psychoactive substance abuse or dependence, lumbar spondylitis and osteoarthritis affecting both knees.
On 14 May 2010, Mr Holborow made a claim for an increase in his disability pension from 100% of the general rate to the special rate of pension. On 17 June 2010, a delegate of the Repatriation Commission decided that Mr Holborow's disability pension should continue at the general rate. In other words, the delegate determined that Mr Holborow was not eligible for the more for favourable special rate of disability pension. Mr Holborow applied to the Veterans Review Board (the Board) for review of that decision. The Board affirmed the decision of the Repatriation Commission on 29 July 2011 and on 13 February 2012, Mr Holborow applied to this Tribunal for a review of the decision.
LEGISLATIVE PROVISIONS AND ISSUES IN DISPUTE
The relevant legislation is the Veterans’ Entitlements Act 1986 (Cth) (the Act). The criteria for entitlement to the special rate of the disability pension are set out in s 24 of the Act. Mr Holborow was under 65 years at the time of his application and, as such, ss 24(1) and (2) are the relevant operative provisions. They provide as follows:
Special rate of pension
(1) This section applies to a veteran if:
(aa) 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
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(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; and
(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
(d) section 25 does not apply to the veteran.
(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.
To succeed in his claim for the special rate of the pension, Mr Holborow must establish, to the reasonable satisfaction of the Tribunal,[1] that he satisfied all of the requirements of s 24(1) at some point during the assessment period. It is common ground that the assessment period commenced on 14 May 2010 and ends when Mr Holborow’s application is determined.[2] It is also common ground that Mr Holborow satisfies s 24(1)(a) and s 24(1)(b) of the Act. The key issue in dispute is whether Mr Holborow also satisfies s 24(1)(c).
Counsel for Mr Holborow contended that Mr Holborow was incapacitated as a result of his accepted war-caused disabilities. He has not worked since 2004 because of these disabilities alone and, but for this incapacity, it is more likely than not that Mr Holborow would have continued working for Hiltour Pty Ltd until he was 65 years old. Mr Holborow has thereby suffered a loss of earnings that he would not have otherwise suffered. Mr Holborow satisfied all criteria in s 24(1) from 14 May 2010 and is therefore entitled to the disability pension at the special rate. The decision of the Repatriation Commission should be set aside and substituted with a decision that Mr Holborow’s pension be paid at the special rate.
The advocate for the Repatriation Commission contended that Mr Holborow does not satisfy either limb of s 24(1)(c). Mr Holborow must first establish that he was prevented from undertaking remunerative work as a result of his accepted war-caused disabilities alone. There were other factors relevant to this consideration during the assessment period that were likely to impact on the question of whether Mr Holborow was prevented from undertaking remunerative work, such as Mr Holborow’s age and his length of time off work. As such, the Tribunal cannot be satisfied that the accepted disabilities alone prevented Mr Holborow from remunerative work. Secondly, Mr Holborow must establish that he suffered a loss of earnings by reason of incapacity from his accepted war-caused disabilities. It was contended that Mr Holborow had ceased to engage and/or was prevented from engaging in remunerative work for some other reason than his accepted disabilities, namely because he did not need to work and had adopted a ‘retirement lifestyle’. He was therefore not entitled to a disability pension at the special rate and the decision of the Repatriation Commission should be affirmed.
There is no dispute about Mr Holborow's medical conditions, his incapacity for work or that those conditions are war-caused for the purposes of the Act. There is also no dispute that remunerative work that Mr Holborow was undertaking for the last eight years of his working life was as a general farmhand. The Repatriation Commission contended that there is evidence non-medical factors contributed to Mr Holborow's decision to cease working in 2004 and that this continued to be the case at the commencement of and throughout the assessment period.
The questions for determination by the Tribunal are:
(a)Was Mr Holborow prevented from participating in remunerative work because of his accepted war-caused disabilities alone?
(b)If the answer to (a) is yes, did Mr Holborow suffer a loss of earnings by reason of being prevented from continuing to undertake remunerative work that he would not have suffered but for the war-caused incapacity?
In this regard, it should be noted that the relevant time for making this assessment is at some point during the assessment period which started on 14 May 2010 and ends when Mr Holborow’s application has been determined.
THE EVIDENCE
There is no dispute about the background facts in this matter or the medical evidence about incapacity.
Mr Holborow was conscripted to the Australian Army in 1966 and served in Vietnam from 1968 to 1969. He joined the New South Wales Police soon after leaving the Army, where he worked for about 27 years. He resigned in 1996 and from 1996 until 2000 Mr Holborow worked full-time as a farmhand for Hiltour Pty Ltd. His duties initially involved renovating a property to prepare for an impending sale and maintenance of an acreage at Bensville, in the Central Coast region of New South Wales. After this, Mr Holborow worked on a nearby property at Palmdale as a general farmhand, maintaining the property and tending horses.
Mr Holborow had a knee replacement on his right knee in 2000. It was accepted that this knee replacement was as a result of osteoarthritis affecting both knees, which was a war-caused injury. According to Mr Holborow, after his first knee replacement he found it difficult to undertake his previous duties involving manual work and tending the horses. He worked part-time on his return, mostly working on the tractor slashing the grass to maintain the property. He also undertook ad hoc projects as required from time to time. Mr Holborow worked up to three days a week during summer but usually only about one, possibly two, days a week during the winter months. Sometimes he would work a few days in a row to complete a particular project which he was requested to do by the owner of Hiltour Pty Ltd, Mr Neill Darlington.
After his second knee replacement in 2004, Mr Holborow said that he attempted to return to work at Palmdale but had difficulties sitting on the tractor for lengthy periods because it jarred his back and knees. He could no longer work with horses. He discussed the matter with Mr Darlington and agreed to resign “by mutual agreement”. In Mr Holborow’s written statement dated 22 June 2012, which was adopted by him when he gave evidence, Mr Holborow stated that he was dismissed from work because of his lack of mobility and the ongoing effects of his post-traumatic stress disorder.
When asked why he worked at Hiltour Pty Ltd after he was medically retired, Mr Holborow said that he enjoyed working because it kept him occupied and he enjoyed working with the horses. He was left alone to do his work and there was no confrontation. His remuneration was not significant but he was not really doing it for the money. According to Mr Holborow, if he had not had problems with his back, knees and his psychiatric conditions, he would have continued to work for Hiltour Pty Ltd until he was 65 years old. Mr Holborow was about 56 years old when he stopped working for Hiltour Pty Ltd.
Mr Holborow's wife was diagnosed with cancer in 2004 and Mr Holborow provided care to her until her death in 2007. He was questioned about whether this was a full-time caring role. According to Mr Holborow, he took his wife to medical appointments and chemotherapy and cooked for her but she was able to look after herself and he did not need to stay at home all the time. He said that his wife's illness would not have prevented him from working if he had been able to do so.
In about 2000, Mr Holborow started working as a strapper for Gosford Rugby Union Club. This was a voluntary role. He attended training two nights a week and the game on Saturday. There were three grades but he was principally concerned with supporting the first grade team. Mr Holborow had undertaken a Level 1 Trainers and Strapping Course through New South Wales Sport and Recreation. As part of this role, Mr Holborow provided advice about injuries, stretching and strapping of injuries. He has been doing this for about 13 years.
In 2007, a former police colleague approached Mr Holborow about taking on the role as strapper of the New South Wales Police Rugby Union team. The team toured every two years. Mr Holborow agreed to take on the role and he travelled with the team to the United Kingdom in 2007, New Zealand in 2009, Fiji in 2011 and Hong Kong in 2013. The first tour was four weeks in total and the other trips were about two weeks in duration. Mr Holborow’s commitment was confined to a trial match before the tour and accompanying the team on each trip. His flights and accommodation were subsidised and he paid a nominal contribution of about $1000 to assist with the cost of travel with the team. He also paid for most of his meals. Mr Holborow said that he did not propose to continue in this role given the rigours of the travel and his advancing age.
Mr Holborow is a member of various veterans’ associations and the Retired Police Association but is not an active participant and attends meetings or social gatherings infrequently.
As a result of being medically retired from New South Wales Police, Mr Holborow receives a superannuation pension. He also receives his veterans’ pension. He has not worked since 2004 but maintained that he would have continued to work for Hiltour Pty Ltd but for his incapacitating war-caused injuries. Mr Holborow gave evidence that he saw Mr Darlington about 18 months ago and Mr Darlington asked him if he was able to work on the property. Mr Holborow responded that he could not.
CONSIDERATION
The Board found that the reason why Mr Holborow ceased work with New South Wales Police was because of a knee injury which was work related rather than war-caused. The Board concluded that s 24(1)(c) was not satisfied because Mr Holborow could not work because of this work related injury and his capacity to work would also have been affected by “his age at the time of the application combined with his amount of time out of the workforce”. The Board proceeded on the incorrect basis that Mr Holborow’s knee injury was not an accepted war-caused injury. It was common ground that this injury was war-caused and that the key issue in dispute was whether non-medical reasons were a factor that prevented Mr Holborow from continuing to engage in remunerative work.
Section 24(1)(c) focuses on whether there are reasons other than war-caused injuries or diseases preventing the veteran from working. There are two limbs within the subsection but both are linked to the incapacity of the veteran to undertake the remunerative work that he had been undertaking. The remunerative work is not confined to the last engagement in work undertaken and includes the main or chosen work of the veteran.[3]
As noted by Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 2, there are four questions that must be considered when assessing entitlement under s 24(1)(c) which are as follows:
(i)What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
(ii)Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(iii)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?
(iv)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?
In respect of the first and second questions posed, the remunerative work that Mr Holborow was undertaking was as a general farmhand but could equally have been policing. It is clear from the medical evidence, and this is not in dispute, that Mr Holborow was prevented from continuing either role by reason of his accepted disabilities at the time he ceased work, first in 1996 and later in 2004, and this continued to be the case at the commencement of the assessment period and until the time of the hearing. Question 2 is therefore answered in the affirmative.
The task to be undertaken in respect of the third question was described by the Full Court (Whitlam, Emmett and Stone JJ) in Repatriation Commission v Hendy [2002] FCAFC 424 at [37] as follows:
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to 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 for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the Tribunal is determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.
The Repatriation Commission contended that Mr Holborow’s age (he was 63 the time of the application and 66 at the time of the hearing) together with his lengthy time out of the workforce, were factors that the Tribunal should find would have been relevant considerations in preventing Mr Holborow from continuing remunerative work.
The Tribunal must be satisfied that Mr Holborow was prevented, by reason of war-caused incapacity, from undertaking remunerative work as at 14 May 2010 and that there was no other reason, either medical or non-medical, for him to be so prevented. The first limb of s 24(1)(c) focuses on the incapacity of the veteran.
This is an unusual set of circumstances because Mr Holborow ceased working in 2004 but did not make his claim for the special rate of pension until May 2010.
As observed by the Full Court in Hendy, s 24(1)(c) requires the decision-maker to speculate, albeit based on all of the evidence, as to whether a veteran would, at a given date, have still been engaged in remunerative work but for his war-caused incapacity.
Mr Holborow’s uncontradicted evidence is that, but for his war-caused injuries, he would have continued to work for Hiltour Pty Ltd until he was 65 years old. He was forced into early retirement at 56 years old because of these injuries. According to Mr Holborow, and we accept this evidence, the job at Hiltour Pty Ltd was a role that he could have continued to undertake for many years. We therefore find that it is unlikely Mr Holborow’s age would have prevented him from working at the relevant time. We are also satisfied, taking into account Mr Holborow’s evidence about his recent discussion with Mr Darlington, that his time out of the workforce was unlikely to have impacted on the availability of remunerative work as a general farm hand .
We are therefore satisfied that Mr Holborow’s incapacity from accepted war-caused disabilities alone prevented him from continuing in remunerative work as at 14 May 2010.
The fourth question posed in Flentjar is whether Mr Holborow was suffering from a loss of earnings by reason of his war-caused incapacity that he would not be suffering if he were free from this incapacity. This provision must be read in conjunction with s 24(2)(a) which provides that a veteran who is incapacitated from war-caused injury or disease should not be taken to be suffering a loss if the veteran ceased to engage in remunerative work or is prevented from engaging in remunerative work for some other reason. The second limb of 24(1)(c) focuses on the question of whether there are ‘other reasons’ for the veteran ceasing to engage in remunerative work or being prevented from so engaging where the veteran is incapacitated because of a war-caused injury or disease.
The Repatriation Commission submitted that Mr Holborow was living a ‘retirement lifestyle’ and had been doing so since at least 2004 and arguably 2000. He did not need to work and his lifestyle was being maintained through his superannuation and veterans’ disability pension. He had other interests which took up his time from 2004. In other words, one of the reasons Mr Holborow had ceased to engage in remunerative work from 2004 was because he wanted to pursue a ‘retirement lifestyle’. This had continued until at least the commencement of the assessment period. Mr Holborow denied this and maintained that he wanted to work and would have continued to work but for his accepted disabilities until he was 65 years old. Mr Holborow was cross examined extensively on his activities since 2004 and while he agreed that he had pursued a number of other activities, his evidence was that none of these activities would have impacted on his work with Hiltour Pty Ltd if he had continued in his role.
Counsel for Mr Holborow contended, and we accept, that Mr Holborow was forced into an ‘early retirement’ and but for his war-caused injuries, he would have worked until he was 65 years old. Mr Holborow’s evidence about this was tested under cross examination and was consistent with evidence given by Mr Holborow at the hearing before the Board and information provided to doctors. Mr Holborow’s explanation is consistent with his history. Even though Mr Holborow was receiving income from his superannuation and disability pension from 1996, he continued to work full time until he was no longer able to do so after the first knee replacement. Furthermore, Mr Holborow continued to work part-time after this, while pursuing other interests as a strapper. There is no reason why this interest could not have been pursued in combination with remunerative work from 2004 until Mr Holborow determined to retire when he was 65 years old. It is unclear why Mr Holborow did not make a claim for the special rate of pension until May 2010 but there was no evidence to suggest that Mr Holborow’s claim was disingenuous and nothing can be inferred from his delay.
In summary, we are satisfied that as at 14 May 2010 it is more likely than not that Mr Holborow would have suffered loss in earnings that he would not have suffered but for his war-caused incapacity.
Having regard to our reasons, the reviewable decision should be set aside and substituted with a decision that Mr Holborow is entitled to the disability pension at the special rate.
I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of J L Redfern, Senior Member.
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Associate
Dated 18 September 2013
Date(s) of hearing 7 August 2013 Counsel for the Applicant Mr C Colborne Solicitors for the Respondent Mr T O'Reilly [1] Veterans Entitlement Act 1986 s 120(4)
[2]Section 19 of ibid sets out the provisions dealing with the determination of claims and applications, including, relevantly, applications in relation to the rate of pension payable. The Repatriation Commission must assess the rate of pension that would have been payable during the assessment period (ss(5C)) and the rate at which the pension is payable must not be lower than the rate provided during the assessment period (ss(6)). Under ss (9) the assessment period means the period starting on the application day and ending when the claim or application is determined.
[3] Starcevich v Repatriation Commission (1987) 76 ALR 449
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