Hudson and Repatriation Commission
[2005] AATA 1238
•15 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1238
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/8
VETERANS' APPEALS DIVISION ) Re DOUGLAS WILLIAM HUDSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell Date15 December 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – special rate – accepted conditions of sensorineural hearing loss, non-melanotic neoplasm of the skin, post-traumatic stress disorder, chronic solar skin damage to the arms and face, tinea, psychoactive substance abuse or dependence involving alcohol and depressive disorder – non-accepted disabilities impacting on ability to work – alone test – decision affirmed
Veterans’ Entitlements Act 1986 ss 19, 24, 120, 124
Flentjar v Repatriation Commission (1997) 48 ALD 1
Cavell v Repatriation Commission (1998) 9 AAR 534
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
15 December 2005 Senior Member L Hastwell 1. Douglas William Hudson (the applicant) was born on 7 February 1942. He served in the Australian Army (the Army) from 1964 until he was discharged on 8 March 1991. He currently receives a Disability Pension at 100 percent of the general rate, and has the following accepted war-caused disabilities:
·sensorineural hearing loss
·non-melanotic neoplasm of the skin
·post-traumatic stress disorder
·chronic solar skin damage to the arms and face
·tinea
·psychoactive substance abuse or dependence involving alcohol
·depressive disorder
2. On 27 July 2004 the applicant lodged an application for increase in Disability Pension payable for his war-caused conditions. On 5 August 2004 a delegate of the respondent (the Commission) rejected the application and decided to continue the applicant’s pension at 100 percent of the general rate. The applicant sought a review and on 26 November 2004 the Veterans’ Review Board (VRB) affirmed the decision. The applicant has applied to this Tribunal for a review of the Commission’s decision.
3. The applicant claims that he is prevented from continuing to undertake remunerative work by reason of incapacity from his defence-caused conditions alone. He contends that as a consequence, he is suffering a loss of wages or earnings on his own account, and is entitled to pension at the special rate.
statutory framework
4. The applicant’s entitlement to the special rate of pension is to be determined under s 24 of the Veteran’s Entitlements Act 1986 (the VE Act), which provides as follows:
“(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; …”
5. If s 24(1) of the VE Act applies to the applicant, he will be entitled under s 24(4) to a pension at the special rate.
6. The standard of proof is that of reasonable satisfaction in accordance with s 120(4) of the VE Act which provides:
“(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
7. Neither party has an onus of proof (s 124(6) of the VE Act) and the Tribunal must act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities (s 19(1)(g)).
8. It was common ground that the first two criteria as set out in ss 24(1)(a) and (b) of the VE Act are satisfied in this case. The applicant already has an entitlement to a pension at a rate higher than 70 percent of the general rate (s 24(1)(a)), and he suffers incapacity from war-caused conditions of such a nature, of themselves alone, prevent him from working for periods aggregating more than 8 hours per week (s 24(1)(b)).
issues for determination
9. The issues for the Tribunal to determine in this case are:
·whether the applicant satisfies s 24(1)(c) of the VE Act, that is whether he is, by reason of incapacity from war-caused conditions alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering were he free of that incapacity.
10. In considering these issues the Tribunal must also consider s 24(2)(a) of the VE Act and look to the applicant’s reasons for ceasing to engage in remunerative work and to any other factors that may be impacting on his ability to engage in such work during the assessment period. The assessment period commences on the day of his application, which in this case is 27 July 2004.
11. In particular in this case the Tribunal must determine whether a number of other factors, including disabilities that are not accepted as war-caused, contribute to the applicant’s inability to work.
12. It is common ground that the applicant has not sought to engage in remunerative work since ceasing work, and the ameliorating provisions of s 24(2)(b) of the VE Act are not relied on in this case.
hearing and discussion of the evidence
13. The applicant gave evidence on his own behalf, as did Dr Edwards, his general practitioner. The Tribunal received the T documents into evidence. A statement of the applicant dated 22 June 2005 was also received into evidence as Exhibit A2.
14. The applicant gave his evidence in a straightforward manner. He was at times very forgetful and could not recall events in the past, and at other times he exhibited a clear recall of events.
15. Before joining the Army at the age of 22 the applicant described his work as being that of a painter’s aide and an electrician’s assistant. He was retrenched because of lack of work. He did not undertake an apprenticeship.
16. The applicant was in the Army for 25 years, initially as a rifleman and later as a section commander. He was actively deployed in the field and responsible for a group of men. He was then moved to stores in the Infantry Division. His last posting was at Port Augusta, where he looked after and maintained stores at three depots. He was also involved in training reserves. This was an isolated posting, and he indicated that his problems with alcohol abuse began to affect his ability to properly carry out the tasks of his employment at that time. He had to do a lot of driving between Port Augusta and Adelaide, and submit regular reports. He found himself falling behind with this work. When the applicant was discharged from the Army in 1991 he was classified as fit in his exit medical.
17. After leaving the Army the applicant did not work for 6 years. His wife died shortly before his discharge, and he went to live in Kadina for a few years in a caravan. He looked for work, but he was unsuccessful as, in his view, he had no real experience. He was quite happy to live on the DRFDB pension that he became eligible for upon leaving the Army.
18. The applicant moved to Clare in 1996 where he did some grape picking for a few days, but he did not get on well with the other pickers. He then obtained a casual position collecting rubbish in the caravan park where he lived. He held that casual position for 3 to 4 years. His recall was that he started that work in or around 1996 or 1997 and it continued to around June 2001 when wheelie bins were introduced. This work paid him a very modest sum which covered his site rental fees. It took him around 5 hours or more per week to carry out this job, depending on his pace, and he was paid $80.00 per week.
19. When the caravan park introduced wheelie bins, the applicant was offered a job as a groundsman, which he rejected. His evidence was that he was not comfortable using a ride-on mower, and that in any event by then he had decided to move to Port Broughton to build a house and he did not look for work in Clare after that time. He says that he stopped work 7 months before he moved to Port Broughton.
20. The applicant also obtained a part-time job at the Army Reserve depot in Clare in July 1997 as caretaker, and he worked there on his account until March 2001 when the Army outsourced the work. This job required him to work 4 hours per day for 4 days a week. The people who took over the caretaking of the depot offered him work, but in his statement (Exhibit A2) he stated that he:
“… declined to keep doing the work because the 4 hours I spent at the depot on Monday, Tuesday, Wednesday and Thursday was something I couldn’t hack. An example was when I chucked the broom away one day and went home”.
21. In his oral evidence the applicant also commented that:
“prior to that I wanted to give it away – as there is not that much to do and when I did clean up – Kay would have to come and give me a hand … I said no to the job offer as I said I have a drinking problem and cannot focus on work …”.
22. The applicant did not look for work after that point in time. He did not elaborate on his reasons.
23. As to the other conditions from which the applicant suffers, and in particular ankle and back problems, he denied that they hindered him in his job. He said that he still did his work around the house without too much of a problem, although he acknowledged those physical problems do persist.
24. The applicant was shown an application for pension lodged in 1998 which stated that he suffered from a number of conditions, including upper back and shoulder problems and problems in his ankles and feet. The applicant pointed out that the application was not in his writing and that he thought that it had probably been completed by someone from the Vietnam Veterans’ Federation. He acknowledged his signature on it. His recall was that he had told the person that his shoulders were bad and his ankles were bad, but he recalls saying to that person that those disabilities did not really stop him from working.
25. The applicant confirmed the accuracy of a report by Dr McArthur at T10 dated 16 March 1998 which referred to him having problems with his ankles and feet and problems with his upper back and shoulder.
26. The applicant confirmed that in an application for a service pension dated 24 March 1999 there was again reference to his shoulder, ankle and back problems. He was referred to a report by Dr Ewer dated 29 April 1999 (T17/116) where Dr Ewer commented:
“… There were occasions when he was unsteady on his feet due to alcohol abuse. He also had difficulty performing his duties because of back, ankle and shoulder pain.
…”
27. The applicant’s response was that he did give that information to the treating doctors. Again he confirmed as accurate his statement on an application dated 21 February 2001 (T22/159) where he commented:
“My ankles and shoulders cause me a lot of pain.”
28. The applicant held a policy with AMP which matured in late 2001. He said that on an impulse he purchased a block of land in Port Broughton in October, although it was not clear from his evidence as to whether this was 2000 or 2001. He purchased it jointly with another person. He cashed in his AMP shares in July of that year and received a payment. When he received a final payout on his AMP policy in November 2001, he had a Rivergum home built on that block. He now resides in that house at Port Broughton with his partner/carer, which he moved to at the end of 2001.
29. Dr Edwards, the applicant’s general practitioner, gave evidence on his behalf. She described various consultations that she has had with the applicant since 2001 when he became one of her patients upon his arrival in Port Broughton.
30. The first consultation was shortly after the applicant moved to Port Broughton on 15 December 2001. On the very first presentation it appeared to her that he had a significant drinking problem, and his complaints were of swelling to his feet and lower legs for a period of 6 months. Blood tests showed that his liver was “struggling”, and subsequent consultations over the next few months dealt with trying to manage and reduce his drinking.
31. Over the next year the applicant’s management of his alcohol problem improved with Dr Edwards’ assistance. She recorded a presentation in late 2002 when the applicant complained of pain in the right wrist and some arthritic changes showed under x-ray. In 2003 she reported inflammation of his heel and she prescribed anti-inflammatory medication. The reference in her notes suggest that this was not the first time she had prescribed this type of medication.
32. Dr Edwards was of the view that the applicant’s other non war-caused disabilities were not factors in preventing him from working, and that the overall problem was his psychological disabilities and his depression. She acknowledged that she had not noticed Dr McArthur’s report nor had she seen a report of Dr Graham Wright, Occupational Physician dated 6 March 2002 (T28).
33. Dr Edwards was supportive of her patient, and clearly has helped him manage his psychological and physical problems. Her evidence was of assistance to the Tribunal. It was clear that she did not have some of the background history and records of the applicant’s prior complaints of his ankle, feet and upper back and shoulder pain so she was limited in her ability to comment about those aspects of his presentation.
34. Dr Edwards first saw the applicant after he had actually retired and ceased work. She acknowledged in evidence that she did not physically examine him for the purposes of her report of 18 October 2004 (T2/16).
35. The Tribunal had regard to all other information available to it as contained in the T documents.
36. Various medical documents were contained in the T documents. There were reports attached to the applications for a pension or increase in pension, and there were three reports from Dr Ewer in the T documents and a report from Dr Wright dated 6 March 2002. The Tribunal took into account the contents of those reports as part of its consideration.
37. The T documents contained a number of the applicant’s taxation returns for the years ended 30 June 1990 to 30 June 2002.
findings of fact
38. The Tribunal having considered all the evidence, makes the following findings of fact:
·The applicant served in the Army between 1964 and 1991. He suffers from a series of accepted war-caused disabilities, namely sensorineural hearing loss, non-melanotic neoplasm of the skin, post-traumatic stress disorder, chronic solar skin damage to the arms and face, tinea, psychoactive substance abuse or dependence involving alcohol and depressive disorder.
·The applicant has been in receipt of a service pension for a number of years and he is currently being paid at 100 percent of the general rate.
·The applicant also suffers from a number of non war-caused conditions, namely nasal polyposis, dermatitis, sprain or strain of the left ankle, sprain or strain of the right ankle, rotator cuff syndrome of the left and right shoulder, localised osteoarthritis of the right ankle and foot, and lateral laxity of the left ankle and lumbar spondylosis.
·The applicant has had significant periods of unemployment since leaving the Army. When he has been employed he has been employed as a painter’s aide and electrician’s assistant; infantry soldier; store person; caretaker and cleaner.
·The applicant has no capacity to do clerical work or work with computers. He is suited only to semi-skilled or unskilled work in the categories set out above.
·From at least 1998 onwards the applicant was suffering with problems with his feet and ankles and with his upper back and shoulders. By 1998 he was suffering from disability in his shoulders and his ankles. He had a significant loss of movement in both shoulders. Some loss of movement in both ankles was reported, his ability to walk and stand was impaired.
·He lodged an application for an increase in pension in 1998, and for these conditions to be included as accepted disabilities. His ankle and shoulder problems are documented in a medical assessment prepared by his general practitioner (T10/68-71). From 1998 onwards he was experiencing difficulty with lifting, raking and sweeping in his role as caretaker at the Army Reserve depot.
·His ankle and shoulder disabilities were rejected as being war-caused, and have continued to be rejected as war-caused despite subsequent applications by the applicant to have them included as accepted disabilities.
·His ankle problems continued to deteriorate during his period in the work force. His shoulder problem was reported as being chronic, but stable by his general practitioner in a medical assessment in 1999. His ankle problem was reported as continuing to deteriorate.
·The applicant has been diagnosed with rotator cuff syndrome in each of his shoulders. His shoulders ache and create difficulties with him working with his arms above his head. His right and left ankle disabilities limit his ability to stand and limit his walking tolerance. These are all non war-caused disabilities.
·The applicant purchased an interest in a block of land at Port Broughton in either late 2000 or 2001. He sold his AMP shares in or around July 2001 and received a sum of money from that sale. He then received the payout of his AMP superannuation policy in late 2001. These were the funds used by him to acquire his interest in the Port Broughton property and to then build on that property.
·When the applicant was working for the caravan park and as a caretaker for the Army Reserve depot at Clare he was receiving an income that appears in his taxation returns.
·Although there is some conflicting evidence about the applicant’s actual dates of ceasing employment, he was last employed in Clare in early to mid 2001. He was offered ongoing casual work at the caravan park where he had been collecting bins, but he rejected that job. He was also approached by the people who took over the caretaking of the Army Reserve depot with a view to him doing some ongoing work for them, but he was not interested in working for them.
·From around mid 2001, if not earlier, the applicant was planning to move to Port Broughton and build a house. He had an insurance payout due to him and this was one of the factors on his own account as to why he did not take up offers of further work.
·From approximately June 2001 the applicant has not worked nor has he sought work.
·The applicant is now retired at Port Broughton.
consideration and application of the law
39. Sections 24(1)(a) and (b) of the VE Act are satisfied in this case. The sole issue for the Tribunal to determine is whether the applicant satisfies s 24(1)(c) of the VE Act. In making that determination the Tribunal must have regard to s 24(2)(a) of the VE Act.
40. In considering the application of s 24(1)(c) of the VE Act, I refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9 Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
“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 account that he would not be suffering if he were free of that incapacity?”
41. In response to the first question the Tribunal is satisfied that the type of remunerative work that the applicant has previously undertaken is as set out in paragraph 38 of this decision.
42. The Commission has conceded that the applicant meets the criteria in s 24(1)(b) of the VE Act, namely that incapacity from his accepted conditions is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
43. The Tribunal now turns to the “alone” test in s 24(1)(c) of the VE Act. In Cavell v Repatriation Commission (1998) 9 AAR 534 Burchett J referred to the true task of a decision maker as being:
“To make a practical decision whether the veteran’s loss of remunerative work is attributable to his service- related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide …”
.
44. The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] - [37] as follows:
“[36]The tribunal’s task was to assess what the veteran probably would have done, if he had none of the service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
[37]The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise. The language of s24(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 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. … (H)aving 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.”
45. The Tribunal must determine whether any other factors other than war-caused disabilities contributed to the applicant’s decision to cease to engage in remunerative work and refuse offers of further work.
46. The Tribunal has sympathy for the applicant in that he clearly suffers significant war-caused disabilities that have impacted on his life and on his ability to function well in the work force at any level. He is a person of limited education who left the Army suffering from a significant alcohol abuse problem that has taken its toll on his health over the years. He has managed to do some work since leaving the Army, however it is unlikely that he would have been capable of maintaining full-time employment, and he has had long periods of unemployment. The only sort of work to which he is suited is unskilled or semi-skilled manual work such as a cleaner, a caretaker or a storeman.
47. The applicant suffers from significant shoulder and ankle problems in addition to his accepted disabilities. From 1998 onwards it is clearly documented that these other conditions were impacting on his ability to work. He attempted on more than one occasion to have these conditions accepted as being war-caused, but he was not successful. Dr McArthur and Dr Ewer both comment on the shoulder and ankle problems impacting on his ability to work, as did the applicant himself in prior applications for a pension.
48. By 2001 the applicant had also decided he had had enough of the work force. He also had the knowledge that he was about to receive a payment that would enable him to move to Port Broughton and retire. That is exactly what he chose to do.
49. The Tribunal is satisfied that the applicant has disabilities of his shoulders and ankles that impacted on his ability to work and were ultimately also part of his reason for wanting to retire. Both accepted and non-accepted disabilities influenced that decision. He also knew that he had a sum of money coming to him which, although modest, allowed him to house himself securely and retire in a place where he wanted to live.
50. Despite the applicant’s evidence with respect to his shoulder and ankle problems, the Tribunal is satisfied that those problems are ongoing medical problems that were and continue to be, a factor affecting his ability to work during the assessment period. It is also acknowledged that he has not sought work during the assessment period, nor is he interested in working.
51. In the circumstances the applicant does not satisfy the test set out in s 24(1)(c) of the VE Act, and he is not entitled to the pension at the special rate. The Tribunal affirms the decision under review.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ............J Coulthard .........................................
AssociateDate of Hearing 15 August 2005
Date of Decision 15 December 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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