Inwood and Repatriation Commission
[2000] AATA 1024
•22 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1024
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1998/555
VETERANS' APPEALS DIVISION )
Re MAXWELL HARRY INWOOD
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member
Date22 November 2000
PlaceBrisbane
Decision The Tribunal affirms the decision to refuse payment of disability pension at a rate higher than 100% of the General Rate.
...............(Signed).......................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
VETERAN'S AFFAIRS – Special Rate pension – inability to obtain remunerative work – war-caused injury or disease
Veterans' Entitlements Act 1986: s.24 (1)
REASONS FOR DECISION
Mr. D.W. Muller, Senior Member
This is an application to review a decision to refuse payment of disability pension at a rate higher than 100% of the General Rate.
The applicant, Maxwell Harry Inwood, seeks payment of disability pension at the Special Rate pursuant to the provisions of s.24 of the Veterans' Entitlements Act 1986 (the Act). The relevant parts of s.24 are as follows:
"24 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)…… ; 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."
At all times relevant to this review, the applicant's degree of incapacity from war-caused injury or war-caused disease or both has been determined to be 100% pursuant to the Act. The applicant has the following war-caused disabilities:
1. Sensori-Neural hearing loss of the left ear
2. Sensori-Neural hearing loss of the right ear
3. Tinnitus of the left ear
4. Tinnitus of the right ear
5. Other isolated or simple phobias
6. Post traumatic stress disorder
7. Irritable bowel syndrome
8. Chronic airflow limitation
9. Aortic athersclerotic disease
The applicant also has a significant degree of incapacity in his right shoulder. This disability has not been accepted as having been war-caused.
The applicant was born on 21 July 1933. The relevant date of application so far as this review is concerned is 26 June 1997, at which time the applicant was aged 63 years 11 months.
The advocate for the respondent, Mr. Kelly, conceded that subsections 24(1)(a) and (b) have been satisfied by the applicant. The question for determination by the Tribunal is whether the applicant satisfies subsection 24(1)(c) of the Act. In particular, whether the applicant ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or disease or both, or whether the applicant is incapacitated, or prevented from engaging in remunerative work for some other reason.
The applicant served in the Navy from 21 January 1951 to 17 January 1957. He had operational service in Korean waters in 1953/54. During his Navy career he served on aircraft carriers as a "hook man".
The applicant was married in 1956.
After his term in the Navy, the applicant worked as a labourer for the Frankston City Council, for about six months. He then decided to try to rejoin the Navy. He was told by his examining medical officer that he would not be passed for the Navy but he would be passed if he decided to join the Army. He joined the Army.
The applicant initially entered the Army with a view to being a signalman. After about six months in the Army, he transferred to the cooking school when he did a course in Army cooking. He spent the rest of his working life as a cook. The applicant's time in the Army spanned the period 15 July 1957 to 14 July 1961.
From 1961 until 1976, the applicant worked as a cook for numerous employers and at many different locations in Australia. For example, he worked at:
Shearer's cook on Eyre Peninsula, South Australia.
Hotel cook at Victor Harbour, South Australia.
Hotel cook in the Ballarat, Lorne and Warrandyte areas, Victoria.
Bakery, Ballarat, Victoria.
Portsea Cadet School, Victoria.
Restaurant at Warrandyte, Victoria.
Channel 9 cafeteria, Melbourne, Victoria.
Miner's camp, Western Australia.
Miner's camp, Groote Eylandt, Northern Territory.
University College, St. Lucia, Queensland
From 1961 to 1976, the applicant and his wife produced ten children. The applicant's wife and children were not always able to follow the applicant to his job locations, especially when he was cooking for shearers and miners. However, they were able to live as a family unit at many of the locations.
In 1976, the applicant's family was based at Beenleigh, Queensland, whilst the applicant worked at Groote Eylandt. The applicant became ill with severe stomach pains. He was flown to Darwin for medical treatment, where he was advised to fly to Brisbane to get specialist treatment. In Brisbane the applicant was diagnosed as having bowel cancer and told that he had about six months to live.
Upon being told that he would not live long, the applicant decided that he did not want his family to see him waste away and that he would return to Groote Eylandt to work until his death. He returned to Groote Eylandt but after about five months the abdominal pain became so severe that he could not continue working. He returned to Beenleigh.
According to the records at the Princess Alexandra Hospital in Brisbane, the applicant refused to undergo treatment for bowel cancer.
In 1976, the applicant was granted a social security invalid pension on the ground that he was about to die from bowel cancer. As time went by, the applicant had survived and considered getting back into the work-force. However, he was discouraged from getting paid employment by his contacts at the Department of Social Security. He was told that if he took up paid employment he would lose his pension. He worked to keep himself active, but for no pay, at a fish restaurant, a pecan nut farm and a bakery.
In 1986, the applicant had his Department of Social Security invalid pension transferred to a Department of Veterans' Affairs (DVA), permanently incapacitated, pension.
In June 1988, the applicant was informed by an officer of DVA that he was able to do some remunerative work whilst on a DVA pension but that income received would have the effect of reducing his pension. The applicant told the DVA officer that he had been offered a job, starting on 1 July 1988, and that he would earn (gross) about $400 to $600 per week. The applicant was told to advise DVA of his starting date and to then advise DVA of his average earnings over a 12 week period.
The applicant started work as a shearer's cook in the St. George district of Queensland on 1 July 1988. He duly notified DVA of his starting date.
On 26 September 1988, the applicant informed DVA that he had earned the following gross amounts for the following corresponding periods.
10 July 1988 to 13 July 1988 $ 249.83
7 August 1988 to 22 August 1988 $1,141.40
23 August 1988 to 24 August 1988 $ 134.92
28 August 1988 to 5 September 1988 $ 544.11
The applicant had been using a specific pain killer while working at St. George but he ran out of supplies in early September 1988. He went to a general practitioner in St. George to get the same pain killers that he had been using. He told the general practitioner that he was suffering from bowel cancer. The general practitioner at St. George refused to treat him and told him to go to Toowoomba (approximately 400 kilometres from St. George) to get the prescription for the pain killer he wanted. The applicant travelled to Toowoomba by bus, picked up his supply of pain killers and returned to St. George. By the time he got back to the shearer's camp, his position as cook had been filled by someone else. He was then out of a job.
On 7 October 1988, the applicant wrote to DVA to say that he was no longer working, that he was having "too many pains" and he requested that his pension be re-adjusted accordingly.
In October 1989, the applicant claimed disability pension, pursuant to the provisions of the Veterans' Entitlements Act 1986, for bowel cancer. Upon medical examination it was revealed that he had a normal colon with no growths. Apart from some problems with repeated diarrhoea, for which no cause was apparent, there was nothing wrong with the applicant's alimentary canal. His abdominal pain was later diagnosed as irritable bowel syndrome. His irritable bowel syndrome was eventually accepted by the respondent as war-caused.
In the early 1990's, the applicant and his son began a bakery business at Yelarbon (approximately 200 kilometres west of Toowoomba). There was not enough money in the business for two wages. The applicant's son took a wage and the applicant relied on his DVA pension.
At the same time as the bakery business was being conducted, the applicant was in the process of engaging in litigation against the doctor who had wrongly diagnosed bowel cancer in 1976. The applicant lost the case and was ordered to pay $11,000 in costs. The applicant thereupon declared himself bankrupt and closed down the bakery.
In 1993, the applicant worked for about six weeks at the Inglewood bakery for three days per week. He received petrol money and bread for his labour. He was unable to continue due to abdominal pain.
The applicant has not worked for remuneration since he worked as a shearer's cook at St. George in 1988. He says that he has tried to get work in the Yelarbon/Goondiwindi area but jobs are very scarce. He also says that he is severely restricted by his post traumatic stress disorder and by the pains in his abdomen due to his irritable bowel syndrome. He says that the severe abdominal pain prevents him from lifting heavy objects.
The Tribunal notes that in 1989 the applicant made a claim for disability pension in respect of his right shoulder. On his claim form he said:
"Loss of use of Right Shoulder
very stiff and painful"
and
"Unable to do part-time work
owing to severe pains in right shoulder"
The applicant's claimed shoulder disability was never accepted by the respondent as having been war-caused.
As at the date of application, 26 June 1997, the reasons for the applicant's failure to be engaged in remunerative work are combinations of the following factors in varying degrees:
The mis-diagnosis of bowel cancer in 1976 which resulted in his leaving the work force and receiving a Department of Social Security invalid pension.
His acceptance of the bowel cancer diagnosis and refusal of treatment or any follow up medical examination until he was examined by a specialist in 1990, following his application for disability pension, fourteen years after the initial diagnosis.
His belief that the Department of Social Security rules for invalid pension continuing, precluded him from working.
His misfortune at having his job replaced at the St. George shearer's camp.
His post traumatic stress disorder and irritable bowel syndrome which he finds most debilitating.
His bankruptcy following his failed litigation and consequent closing of the bakery.
His bad shoulder which apparently prevents him from lifting heavy objects.
His time out of the work force, over twenty years (except for 11 weeks in 1988).
The job market in the Yelbarbon/Goondiwindi area is mainly restricted to seasonable farm and labouring work.
His age - 63 years 11 months.
The applicant does not satisfy subsection 24(1)(c) of the Act in that he ceased remunerative work and has continued to remain out of remunerative work for a number of reasons other than his incapacity from war-caused injury or war-caused disease, or both.
The decision to refuse disability pension to the applicant at a rate higher than 100% of the General Rate is affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
Signed: .....................................................................................
R. Hayes, Associate.Date/s of Hearing 14 November 2000
Date of Decision 22 November 2000
Counsel for the Applicant Mr. M. Byrne
Solicitor for the Applicant Noel Woodall & Associates
Respondent Mr. J. Kelly, departmental advocate
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