Horsington and Repatriation Commission (Veterans’ Entitlements)
[2016] AATA 223
•8 April 2016
Horsington and Repatriation Commission (Veterans’ Entitlements) [2016] AATA 223 (8 April 2016)
Division
GENERAL DIVISION
File Number(s)
2015/0182
Re
Anthony Horsington
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mrs J C Kelly, Senior Member
Date 8 April 2016 Place Sydney The decision under review dated 12 November 2014 is set aside and the decision made that the applicant is entitled to the intermediate rate of pension. The date of effect is 4 January 2011.
................................[sgd]........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
VETERAN’S ENTITLEMENTS – rate of pension – whether Applicant eligible for special rate – whether Applicant eligible for intermediate rate – alone test – Applicant entitled to payment at intermediate rate – decision set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 ss 23, 24
CASES
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Watkins [2015] FCAFC 10
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
8 April 2016
Introduction
The applicant, Mr Horsington, seeks the review of the decision made on 12 November 2014 by the Veterans’ Review Board, affirming the 12 November 2013 decision made by the Repatriation Commission to continue the disability pension at 100 per cent of the General Rate from 4 January 2011 and at 100 per cent of the General rate from 16 July 2013.
The applicant claims that he satisfies the criteria for a pension at the special rate, or alternatively, a pension at the intermediate rate under the Veterans’ Entitlements Act 1986 (Cth) (the Act), sections 24 and 23 respectively.
The issues in this case
In summary, the issues in this case are whether the applicant’s incapacity from war-caused injury or war-caused disease, or both, is of itself alone, of such a nature to render him incapable of undertaking remunerative work for more than 8 hours per week (the special rate of pension) or more than 20 hours or more per week (the intermediate rate of pension) and whether he is 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. This is referred to as the “alone test”.
The law
Relevantly, s 24 of the Act provides:
(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.
….
(4) Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $919.40 per fortnight.
Relevantly, s 23 of the Act provides:
(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’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
The most recent authorities on the interpretation of the “alone test” expressed in each of sections 23 and 24 are Repatriation Commission v Watkins [2015] FCAFC 10 and Repatriation Commission v Richmond [2014] FCAFC 124. On 4 November 2015 the High Court dismissed an application for special leave in Watkins.
Background
The following findings are not contentious.
The applicant was born in 1948. He served in the RAAF. His period of service from 7 December 1972 to 5 February 1990 is considered to be eligible defence service under the Act. He was 63 years of age on the application day, 4 April 2011. The earliest possible date of effect is 4 January 2011.
The applicant’s accepted conditions are sensorineural hearing loss, tinnitus, lumbar spondylosis, solar keratosis, osteoarthrosis of the right knee, dysthymic disorder, and nerve hyper-excitability disorder, generalised, superimposed upon chronic polyradiculopathy.
The conditions that have not been accepted are loss of teeth, metatarsalgia of the right foot, osteoarthrosis affecting both hands, disturbances of sensation of smell and taste, scoliosis, internal derangement of the left knee and plantar fasciitis of the left foot.
The respondent concedes that the applicant warrants a general rate of pension at a rate of at least 70% and therefore satisfies s 24(1)(a)(i) and s 23(1)(a)(i).
Consideration of the evidence and findings
I find on the evidence of Mr Horsington, including his statement of 2 April 2015 and his evidence given at the Tribunal hearing, that he currently runs a mortgage broking business from his home in a rural town in New South Wales. He moved there from Sydney in about January 2010 as a consequence of a new relationship. He claimed that he works about five or six hours a week. Some weeks he does nothing. It varies.
The applicant claimed that the last time he worked more than eight hours a week was a long time ago, probably in 2009 when he was employed by Jacobs Australia generating computerised training material for aircrew training at RAAF Base Richmond. He described the difficulties he suffered arising from sitting in a cold environment operating a computer. He had cramping in his legs, and his knees and back were very stiff and sore. He was unable to sand without assistance after an hour or so at his work station. Those difficulties added to his “recognised anxiety, depression and stress levels – particularly when” his “services were terminated in May 2009”. He said that his annual salary was $89,000 although he only worked in that job for six weeks.
The applicant claimed that as he appeared unemployable in 2009, he commenced a mortgage broking business from an office at his then Windsor home, working an hour or two a day. He claimed that he had previously worked as a mortgage broker from 2002 to 2009 receiving a minimum payment of $35,000 plus commission.
The applicant’s other qualifications and experience include the following. He undertook photographic duties in the RAAF, ran a commercial photograph company for about a year in 1990, worked in real estate from 1991 to 1994 and gained his real estate licence, was the photo media co-ordinator at the University of Technology Sydney from 1994 to 1995, worked in real estate sales in 1995 and 1996, and then managed a commercial photographic business from 1997 to 1999. From 1999 to 2002 he was a licensee in charge of a real estate business.
It was not in dispute that relevantly, the remunerative work that the applicant was undertaking was mortgage broking.
The applicant provided a detailed account in his statement of the difficulties he suffered in his employment over the years arising from his various conditions.
In support of his claim, the applicant provided tax returns for the years ending June 2011, June 2012, June 2013 and June 2014. He gave oral evidence about the sources of his income. He claimed that on average over that period, he earned $6,000 gross from his mortgage broking business, or $4,000 net, per year.
The applicant was cross-examined about his wife’s statement recorded in the report of Dr Chase dated 10 July 2015, that the business has never been busy and that one week there might be no work at all and another week they night get 10 or 12 hours’ work. The applicant said that was not accurate. He explained that while a client might ring up and you might think that there would be 10 or 12 hours of work from that client, he would not do it “in one hit”. During re-examination, the applicant said that he cannot predict how much work he can do in a week, because his cramps may be not as frequent for a couple of weeks but then are much more frequent. He was also asked about his statement to Dr Chase that another broker had asked him to help her but he declined. He said that she asked him on a couple of occasions over the last six years. He has helped her when she has gone on holiday. It just involved making a couple of telephone calls and making sure a file was processed by a lender.
The medical evidence in contention in this case were the reports of two occupational physicians, Dr Chase and Dr Le Leu. Dr Chase’s report is dated 10 July 2015 and Dr Le Leu’s report is dated 17 August 2014. The applicant and his wife attended a consultation with both doctors. Both reports were obtained on behalf of the respondent. The applicant’s representative cross-examined Dr Chase.
The applicant’s representative relied on the opinion of Dr Le Leu in support of the submission that the applicant qualifies for a pension at the special rate. Dr Le Leu stated in his report:
In my opinion, due to his range of physical conditions setting aside his psychiatric condition which will be commented on by somebody expert in that field, he cannot work eight hours a week. Further it is my opinion that he cannot work at all and that results from his level of pain, reduced mobility and in particular is unpredictable and severe cramping resulting from the nerve excitability disorder.
Dr Le Leu’s consideration of the applicant’s accepted and non-accepted conditions make it clear that his opinion is based on accepted conditions alone.
The respondent relied on the evidence of Dr Chase. His conclusion in the report was:
As he presented at this consultation I see no reasons why he could not work in some capacity provided he observed an 8-kg lifting limit, that he was able to sit or stand according to pain tolerance and was able to move around and perform minimal bending. With this proviso he would be capable of working four hours per day, five days per week i.e. he would be capable of working more than eight and up to 20 hours per week though it may be prudent that he not work more than 20 hours per week.
Dr Chase’s conclusion related to the applicant’s accepted disabilities alone. Dr Chase found that the applicant is physically capable of continuing to work as a mortgage broker.
In his report, Dr Chase said that the applicant had not been genuinely seeking remunerative employment or alternative remunerative employment, that he was capable of doing so but has no motivation to do so, “in other words he does not want to”.
In evidence-in-chief, the respondent’s representative sought to clarify what Dr Chase meant by the last comment in his conclusion: “though it may be prudent that he not work for more than 20 hours per week”. Dr Chase said that the applicant’s back pain was the major barrier to his working. If the applicant’s duties were appropriate and within his capacity, he could work more than 20 hours a week. In relation to working as a mortgage broker, there was an argument that the applicant could do more than 20 hours per week. If he could pace himself, he could work more than 20 hours per week. If the work was appropriate, he could work “full hours” subject to some limitations.
In cross-examination, Dr Chase said that he has no doubt whatsoever that the applicant could work more than 20 hours per week. It was a matter of the applicant being persuaded that he could work more than 20 hours a week without causing damage to himself. In response to the applicant’s representative asking if it was realistic for the applicant to move from working less than eight hours a week since the middle of 2009 to working 20 hours a week, Dr Chase said that there is a big difference between how long one wants to work and how long one can work.
The respondent’s representative questioned Dr Chase about several conditions suffered by the applicant which were not accepted conditions, referred to in various medical reports. Those conditions included carpal tunnel syndrome, the applicant’s left knee. Dr Chase’s opinion did not alter in response to that questioning.
In response to questions from the applicant’s representative, Dr Chase said that the applicant’s back condition and his hyper-irritability (cramping) interact.
I prefer the evidence of Dr Chase to that of Dr Le Leu for the following reasons.
Dr Le Leu’s opinion was based on “the history provided at interview, evaluation of objective findings identified on examination and, where appropriate, referral to the documentation supplied”. That documentation was: a set of medical impairment assessment forms, a list of accepted and non-accepted conditions, the decision of the Veterans’ Review Board of 29 May 2014, a request for further information pursuant to s 152 of the Act, the referral from a departmental medical officer, and the referral from a Deputy Commissioner of the Department of Veterans’ Affairs.
The history the applicant gave to Dr Le Leu about his mortgage broking business was different from his account in his statement of 2 April 2015 and his evidence at the hearing. He told Dr Le Leu that he has only one or two clients who still ring him and ask for advice and the business activity is not enough to earn an income. I do not accept that that level of business activity is consistent with his evidence at the hearing that he worked five or six hours a week and earned a net income of $4,000 from the business. The account the applicant gave Dr Le Leu resulted in the doctor stating under the heading “Current Work” “He is not working”.
The applicant told Dr Chase that his business is still trading and he currently does “a little bit”, which he estimated as a couple of hours per week. His wife said that one week there may be no work and another week they might get 10 or 12 hours of work.
I find that the applicant has tended to minimise his capacity to work, as is reflected in his account to Dr Le Leu and to Dr Chase.
I find that the applicant’s account of his business activity led Dr Le Leu to conclude that the applicant cannot work at all which is not consistent with the applicant’s evidence in his 2015 statement and at the Tribunal hearing. Dr Le Leu’s assessment was based on an inaccurate account provided by the applicant. I therefore give his opinion little weight and prefer the opinion of Dr Chase.
By the end of the hearing, Dr Chase’s evidence was that the applicant:
(a)could work up to 20 hours per week, provided he observed an 8 kg lifting limit, was able to sit or stand according to pain tolerance and was able to move around and perform minimal beings; and
(b)could work more than 20 hours a week if his duties were appropriate and within his capacity;
(c)could work “full hours” subject to some limitations, if the work was appropriate.
I have carefully considered Dr Chase’s evidence about the applicant being able to work more than 20 hours per week or “full hours”. He did not make that assessment in his written report dated 10 July 2015 after he had seen the applicant and his wife on 4 June 2015. He gave qualified evidence about the applicant’s capacity to work more than 20 hours or “full hours” at the hearing. He said that in relation to working as a mortgage broker, there was an argument that the applicant could do more than 20 hours per week. If he could pace himself, he could work more than 20 hours per week. In cross-examination, he went further and said that he could work “full hours” as set out above.
I accept the opinion of Dr Chase as expressed in his report which was prepared shortly after seeing the applicant and his wife. The doctor gave his evidence by telephone more than eight months after preparing his report. He may have had access to his notes, report, and to material provided to him for the preparation of that report, however, I find that his assessment shortly after seeing the applicant was more carefully considered and reliable than his reconsideration during the hearing in response to questioning from the representatives of the applicant and response. In making those findings, I also take into account that Dr Chase’s evidence during the hearing about the applicant’s capacity to work more than 20 hours per week or “full hours” was qualified in various ways as set out above.
I have taken into account Dr Roberts’ psychiatric assessment of the applicant and his conclusion that there was “no evidence of a mental illness namely a disease of the mind”. However, because I accept the assessment and opinion of Dr Chase about the applicant’s capacity to work which relates to his physical incapacity, Dr Roberts’ report does not alter the outcome of this case.
I accept Dr Chase’s opinion as to the applicant’s capacity to work, which was based on accepted conditions alone, despite attempts during examination-in-chief to have Dr Chase consider other factors. I do not accept the respondent’s submission that there is a non war-caused factor which prevents or contributes to preventing the applicant from continuing to undertake the relevant remunerative work, “even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing” such that the “alone” test will not be satisfied (see Richmond at [65]).
Because I accept Dr Chase’s opinion, set out in detail above, I find that the applicant is, by reason of the accepted war-caused injury or war-caused disease, or both, prevented from continuing to undertake the remunerative work of mortgaging broking for more than 20 hours a week. In making that finding, I have taken into account a muted suggestion from the respondent’s representative that the applicant’s move to the country with his new partner was a reason for his not working longer than the six or so hours he claimed he was working at the hearing, rather than war-caused injury or war-caused disease. I do not accept that submission.
The applicant’s accepted conditions, that is, his war-caused injury or war-caused disease, or both, is the only factor or factors preventing the veteran from continuing to undertake mortgage broking more than 20 hours per week.
I accept the applicant’s evidence about his previous earning capacity in various jobs. I accept that the applicant is, by reason of being prevented from continuing to undertake mortgage broking more than 20 hours per week, 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.
The applicant does not satisfy s 24 of the Act because he is able to undertake remunerative work for periods aggregating more than 8 hours per week. However, for the reasons given above and because I accept that he is capable of undertaking mortgage broking for between eight and 20 hours per week, I find that the applicant does satisfy all the criteria in s 23 of the Act.
In making that finding, I have taken into account an email received from the respondent after the hearing. The respondent advised that, contrary to a submission made at the hearing, there was no authority in relation to the interpretation of s 23(2)(a) and its applicability to over-time and there is no case authority as to the hours ordinarily worked by a mortgage broker. The respondent did include a hyperlink to a Western Australian government web-site that indicated that “usual” hours worked by a mortgage broker are 38. However, that information does not alter the conclusion I have reached.
The decision under review dated 12 November 2014 is set aside and the decision made that the applicant is entitled to the intermediate rate of pension. The date of effect is 4 January 2011.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member .................................[sgd].......................................
Associate
Dated 8 April 2016
Date(s) of hearing 17 - 18 March 2016 Date final submissions received 24 March 2016 Advocate for the Applicant Mr T Latimore, RSL Veterans' Centre Solicitors for the Respondent Mr N Bunn, Department of Veterans' Affairs
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