Ian Nation and Repatriation Commission
[2014] AATA 905
•8 December 2014
[2014] AATA 905
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6665
Re
Ian Nation
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 8 December 2014
Place Brisbane The Tribunal affirms the decision under review.
.............................[Sgd]...........................................Dr M Denovan, Member
CATCHWORDS
VETERANS’ AFFAIRS – Service pension – Special rate of pension – Whether applicant ceased remunerative work for reasons other than his war-caused incapacity – Intermediate rate – Whether war-caused injury or disease is sole or substantial cause of applicant’s inability to obtain work – Effect of age and time out of the workforce – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 21A, 23, 24
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Leane and Repatriation Commission [2003] AATA 125
Repatriation Commission v Hendy [2002] FCAFC 424
REASONS FOR DECISION
Dr M Denovan, Member
8 December 2014
Mr Nation (“the applicant”) served in the Royal Australian Navy from 7 December 1972 to 4 July 1984. In a decision of the Repatriation Commission dated 28 September 2012 the applicant’s disability pension was continued at 100% of the general rate for incapacity of his war-caused conditions. These conditions include depressive disorder, torn left medial meniscus with menisectomy, osteoarthritis of the left knee with total knee replacement, lumbar spondylosis and osteoarthritis of the right knee.
Mr Nation sought review of that decision as he believes he is entitled to pension at the above general, or special, rate. On 20 November 2013 the Veterans’ Review Board (“VRB”) affirmed the decision of the Repatriation Commission. Mr Nation applied for review of the decision by this Tribunal on 13 December 2013.
STATUTORY FRAMEWORK
The requirements, which must be satisfied before the special rate of pension can be paid, are set out in s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The eligibility criteria are different for applicants who are under 65 years of age, and are dealt with under s 24(1) of the Act. For Mr Nation, who was under 65 years of age when he lodged his claim, to be eligible for special rate he must, amongst other things:
·have a degree of incapacity due to a war-caused injury or disease, or both, of at least 70% (s 24(1)(a) of the Act);
·be incapable of undertaking remunerative work for more than eight hours per week (s 24(1)(b) of the Act); and
·
the war-caused injury or disease, or both, alone, prevented him from continuing to undertake remunerative work that he was undertaking, and because of this, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his service related incapacity
(s 24(1)(c) of the Act).
A veteran who ceased to engage in remunerative work for reasons other than a war-caused incapacity, or is unable to engage in remunerative work for some other reason, will not regarded as suffering loss of salary, wages or earnings (s 24(2)(a) of the Act).
Section 19(5C) of the Act adds a further qualification for assessment. An applicant must meet all of the above criteria at some time within the “assessment period”. The assessment period runs from the date the application was received and ends on the date of determination of this application by the Tribunal. Mr Nation’s application was received on 6 September 2012, so that is the first day of the assessment period in this case.
Section 24(2)(b) of the Act is an ameliorating provision that creates a beneficial easing of the impact of the word “alone” in s 24(1)(c) of the Act. That provision applies where the veteran has not been engaged in remunerative work and, if he or she satisfies the
Repatriation Commission of these matters, the veteran is deemed to have met the second criterion in s 24(1)(c) of the Act; namely he or she is prevented solely by the effect of the
war-caused injury from engaging in remunerative work. To meet that test the Tribunal must be reasonably satisfied that he or she has been genuinely seeking to engage in remunerative work, and that but for the effect of the war-caused injury, he or she would be continuing to seek to engage in remunerative work; and the effect of the war-caused injury is the “substantial cause” – and not the sole cause – of the veteran’s inability to obtain such work.
If a veteran who has applied for an increase in the rate of pension under s 15 cannot satisfy the requirements of s 24(1) of the Act, he or she may still be eligible for a lesser increase under s 23 of the Act. That section operates in respect of a veteran who is not totally and permanently incapacitated within the meaning of s 24(1)(b) of the Act, but whose incapacity has resulted in him or her being only able to undertake part time or intermittent remunerative work. The relevant subsections in s 23 are ss (1)(b)-(d),
(2) and (3) of the Act.
The respondent accepts that Mr Nation was under 65 years of age at the beginning of the assessment period, and that he satisfies s 24(1)(a) of the Act. Mr Nation referred me to the evidence of Duty Harbour Master, Captain Peter Marchbank (“CPT Marchbank”), and orthopaedic surgeon Dr Mark Byrne, which he said shows that he ceased work as a result of his war-caused knee condition. On that basis, he believes he is entitled to special rate of pension. The respondent contends that, whilst Mr Nation may have been unfit to work for a period of time following his resignation in 2003, he is not prevented from continuing to undertake work during the assessment period. Therefore, it is contended, he does not satisfy s 24(1)(b) of the Act.
CONSIDERATION
Do Mr Nation’s defence related conditions, alone, render him incapable of undertaking remunerative work for more than eight hours a week, during the assessment period (s 24(1)(b) of the Act)?
Since his discharge from the Navy, Mr Nation has worked in the maritime industries. From 1994 until 2003 he was employed as a casual Vessel Traffic Safety Officer (“VTSO”). Mr Nation explained that this job is similar to a flight controller; it involves controlling the flow of vessels in the port.
Mr Nation’s contract was renewed regularly. His response was evasive and vague when I asked how often his contracts were renewed. He gave me the impression it was yearly, however I note the VRB were of the impression his contracts were renewed twice a year. Mr Nation told me he applied for a full time position on more than one occasion, but was never successful – he advised me the competition for the full position was very strong. He said that there were two occasions when his applications for a part time/casual positions were unsuccessful. On each occasion, after a short period of time, he was contacted and asked if he could resume work. He worked when the full time employees were on leave or absent due to apparent illness. He was often given very little notice that he was needed for work. He was a reliable employee and had little time off work, other than that required for the treatment of his knee. He estimates he averaged 72 hours a week when he was working as a VTSO. He admits there were periods, sometimes weeks, when he was not working.
Although this position was predominantly a desk job, Mr Nation claims that during his employment it was a requirement that he be able to board a ship, in the event of an emergency, such as an oil spill. It was therefore necessary that he had the capacity to climb up the side of a ship using a rope ladder. During the nine years he worked as a VTSO, Mr Nation was never required to attend an emergency which required him to board a ship in such a manner; however he claims the requirement to be able to do so was the reason he was unable to continue work after his knee surgery in October 2003.
Mr Nation ceased work approximately one month before the end of his last contract, on 18 October 2003. He underwent a knee replacement operation the next day. He told me that, irrespective of the need to climb a ladder, he would still not have been able to work following the procedure. In addition to the need to undergo rehabilitation after the procedure, Mr Nation said the knee replacement operation as not completely successful. He had a number of follow up procedures, the last being in July 2004. He remained on crutches for a few months after the procedure. In his report dated 19 June 2006, Dr Byrne provided a history of the treatments Mr Nation has undergone on his left knee. The history provided by Mr Nation is consistent with that provided in Dr Byrne’s report.
I accept that Mr Nation ceased work because he was unable to complete his contract, and also unable to apply for a further contract until 2005, because of his knee replacement and subsequent surgery and rehabilitation required to treat his war-caused left knee condition.
There are two brief letters from CPT Marchbank dated 15 October 2003, and
24 February 2005 respectively. In the earlier letter, the author stated Mr Nation would not be on the roster after 18 October 2003 due to his ongoing medical and rehabilitation process. In the later letter, CPT Marchbank states that due to limitations caused by a physical condition Mr Nation is unable to perform all of the duties required in the position of casual VTSO.
The evidence before me indicates that by July 2005, but for his inability to climb onto ships in the event of an emergency, Mr Nation was capable of returning to his usual duties in the role of VTSO. In his report dated 15 July 2005,[1] orthopaedic surgeon
Dr Stephen Fine opined that Mr Nation would not be able to work even eight hours a week (as a VTSO), because of his inability to climb onto ships. Dr Fine opined
Mr Nation would be able to work in a more sedentary desk job.
[1] Exhibit 1, folio 1.
In his report dated 19 June 2006,[2] orthopaedic surgeon Dr Byrne opined that Mr Nation was totally incapacitated for work indefinitely as a result of his knee. Dr Byrne did not state why he considered Mr Nation was incapable of working, however, it is reasonable to assume his reasoning was similar to that of Dr Fine.
[2] Exhibit 1, folio M.
The respondent does not accept it was an essential requirement of the VTSO employment that Mr Nation had the capacity to climb onto ships. The respondent contends that from July 2005 Mr Nation was capable of returning to his work as a VTSO, however he choose not to, as he was in receipt of regular payments of approximately 70% of his usual salary, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) provisions.
The respondent asked Mr Nation to provide verification that climbing onto ships was a requirement of his employment. Mr Nation provided a copy of the Queensland Government VTSO job description.[3] Mr Nation accepts the current description of the role, which appears to be effective from at least 2009, does not specify the need to climb onto ships, and he surmised that the role to do so has been outsourced. Mr Nation did not provide any proof that prior to 2009 climbing onto ships was a requirement for the role of VTSO.
[3] Exhibit 4.
Mr Nation accepts that the role of VTSO no longer includes the necessity to be able to climb onto ships. Although he said that he would not want his old job back, he admitted he was currently capable of performing the work he previously performed as a casual VTSO.
In response to his claim for special rate, Mr Nation was sent to consultant occupational physician Dr Blair Christian, and also to Consultant Psychiatrist Dr Bradley Ng. In his report dated 20 March 2014,[4] Dr Christian noted that Mr Nation reported the VTSO job:
Suited him well in terms of his back, as he was able to move between standing and sitting and walking through the day, and there was little or indeed no requirement for a forceful or repetitive bending or lifting or twisting.
Dr Christian noted that the role of VTSO currently has no requirement for undertaking anything other than sedentary office duties. Dr Christian opined that, from a purely physical medical viewpoint, Mr Nation is able to undertake the VTSO work. Dr Christian qualified his opinion on the basis that he is unable to comment on Mr Nation’s psychological state.
[4] Exhibit 7.
In his report dated 8 May 2014, Dr Ng provided a diagnosis of adjustment disorder with depressed mood and anxiety. Dr Ng stated Mr Nations’ adjustment disorder is essentially in remission. Dr Ng also gave evidence at the hearing. He explained that on the basis of the history provided by Mr Nation, he erred on the side of the worst case, and opined that Mr Nation may suffer from recurrences of his adjustment disorder from time to time. Even so, Dr Ng opined such recurrences would not be severe, and would not prevent him from working in his role as a VTSO for more than eight hours a week. Dr Ng opined that if and when he suffered symptoms as a result of his adjustment disorder, Mr Nation would still be capable of working up to 32 hours a week in his usual job.
The evidence of Mr Nation is consistent with that of Dr Christian and Dr Ng. In summary, I find that Mr Nation was unable to work as a result of his left knee condition until approximately July 2005. From July 2005 he was capable of returning to the duties he performed in his usual employment which, with the exception of possible emergencies, was predominantly sedentary. It is clear that because the doctors who examined Mr Nation accepted climbing onto ships was a requirement of his VTSO employment, they determined he was unfit to work in his usual role as a VTSO subsequent to July 2005. It is unclear as to whether that actually was the case.
During the assessment period, Mr Nation’s situation has been reviewed and it is clear that, as there is certainly currently no need for a VTSO to climb onto ships, he is medically and psychologically capable of performing his usual VTSO role for at least
32 hours a week.
He therefore does not satisfy s 24(1)(b). Although there is no need to address s 24(1)(c), I will briefly do so for the benefit of Mr Nation’s understanding of the legislative requirements in relation to special rate.
Does Mr Nation’s defence related conditions alone prevent him from continuing in the work he was previously undertaking during the assessment period (s 24(1)(c) of the Act)?
Section 24(1)(c) of the Act requires the decision maker to consider what the veteran would have probably done, absent of his service caused illnesses or injuries. As Whitlam, Emmett and Stone JJ said in Repatriation Commission v Hendy [2002] FCAFC 424 at [37]:
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 work force and increasing age will be relevant for consideration under s 24(1)(c) of the Act.
In response to my questions, Mr Nation said that he believed he was now capable of returning to his VTSO job, as there was no longer a requirement to climb onto ships. He said that if offered the job, he would not accept because the office has relocated to Pinkenba, and the drive from his house to work would be impractical. He currently lives at Alexandra Hills.
Mr Nation said that even if the job were closer to home, he would not accept the job unless the length of the shifts was shortened. He explained that when he last worked he was often required to perform three 12 hours shifts consecutively. He would now find this work impossible as it is too fatiguing. He said that he and he is colleague had been lobbying his employer to shorten the shifts. He likened driving home after three consecutive 12 hour shifts to driving drunk.
When I asked if, hypothetically, he was offered the same job with shifts that were of a more reasonable length, Mr Nation asked in reply, “who would offer him a job?”.
Mr Nation indicated he thought due to his age he was unlikely to gain employment.
Mr Nation said he still has contact with a couple of friends who worked with him as VTSOs; they have retired. He has no contact with any of the current employees because they are all younger. He was unaware if there was an age restriction associated with the VTSO role however he conceded that it was unusual for anyone over the age of 65 years to be working in the job.
Having an eye to reality, had he been free of his war caused injuries or illnesses, I consider it unlikely that Mr Nation would be working at any time in the assessment period. Mr Nation was nearly 65 years old at the beginning of the assessment period, and was therefore close to the usual retirement age. He had not worked since 2003, that is nine years prior to the beginning of the assessment period. The combination of his age and his time out of the work force, means it is most unlikely that he would be able to successfully apply for casual employment contracts with Maritime Safety Queensland. I note that not all Mr Nation’s previous applications for work were unsuccessful, even when he was younger and recently experience, as he explained there was often fierce completion for the position he occupied. Competition by others younger and with more recent work experience would disadvantage Mr Nation’s chances of further employment at this point in time. Therefore Mr Nation does not meet the legislative requirements of
s 24(1)(c) of the Act, nor does he satisfy the legislative requirements for intermediate rate pension under ss 23 (1)(b)-(d), (2) and (3) of the Act.
Does Mr Nation satisfy the ameliorating provisions in s 24(2)(b) of the Act?
To meet the test the Tribunal must be reasonably satisfied that he or she has been genuinely seeking to engage in remunerative work; that but for the effect of the war-caused injury or disease he would be continuing to seek to engage in remunerative work; and the effect of the war-caused injury is the “substantial cause” – and not the sole cause – of the veteran’s inability to obtain such work.
Mr Nation has not attempted to regain a position the same or similar to that which was previously employed. He told me that he has applied, unsuccessfully, for three jobs: a lolly-pop person, an assistant for a pest control worker, and a position which involved sorting rubbish.
There is no evidence pertaining to why Mr Nation was unsuccessful in his applications for these jobs. I agree with the submission of Mr Williams, for the respondent, that even if the reason he was unsuccessful was as a result of his war-caused conditions, the nature of these jobs is far more strenuous than that of his usual employment. In light of the finding in the matter of Leane and Repatriation Commission [2003] AATA 125, the applicant cannot be regarded as having genuinely seeking employment. The ameliorating provision at s 24(2)(b) of the Act does not apply to this case.
DECISION
Mr Nation does not satisfy s 24(1)(b) or s 24(1)(c) of the Act; nor does he satisfy the ameliorating provisions in s 24(2)(b) of the Act. He therefore does not qualify for above the general rate, and does not qualify for special or intermediate rate of pension. The decision under review is affirmed.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ............................[Sgd]............................................
Associate
Dated 8 December 2014
Date of hearing 28 October 2014 Applicant In person Solicitors for the Respondent Bruce Williams, Department of Veterans' Affairs
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