James Whitney and Repatriation Commission

[2016] AATA 586

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2015/4833
Veterans' Appeals Division  )

Re: James Whitney
Applicant

And: Repatriation Commission
Respondent

CORRIGENDUM TO DECISION

TRIBUNAL:   Egon Fice, Senior Member

DATE:            18 August 2016

PLACE:         Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

1. Delete the words with effect from 11 February 2014 and replace them with effect from 11 November 2013.

2. Delete the words with the effect from 11 February 2014 at paragraph 34 of the decision and replace them with effect from 11 November 2013, in accordance with ss 14, 20 and 177 of the VE Act.

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Senior Member

Whitney and Repatriation Commission (Veterans’ entitlements) [2016] AATA 586 (10 August 2016)

Division	Veterans' Appeals Division
File Number	2015/4833
Re	James Whitney
APPLICANT
And	Repatriation Commission
RESPONDENT

Decision

Tribunal	Egon Fice, Senior Member
Date	10 August 2016
Place	Melbourne

The Tribunal sets aside the decision of the Veterans’ Review Board made on
29 June 2015 and in substitution determines that Mr Whitney is entitled to receive the pension at the special rate with effect from 11 February 2014.

...........[sgd].... ..................................

Egon Fice, Senior Member

VETERANS’ AFFAIRS – disability pension – special rate – prevented from continuing to undertake remunerative work – redundancy – decision set aside

Legislation

Veterans’ Entitlement Act 1986  s 24

Cases

Repatriation Commission v Richmond (2014) 226 FCR 21
Smith v Repatriation Commission (2014) 220 FCR 452

REASONS FOR DECISION

Egon Fice, Senior Member

9 August 2016

1. Mr James Whitney served with the Australian Army between 8 April 1969 and 1 December 1989.  He had operational service in South Vietnam between 21 May 1970 and 26 May 1971.  Mr Whitney has a number of accepted war-caused disabilities, namely:

   ·Malignant Neoplasm of Unknown Primary Site

   ·Post-Traumatic Stress Disorder

   ·Major Depressive Disorder

   ·Generalised Anxiety Disorder

   ·Alcohol Abuse

   ·Sensorineural Hearing Loss

   ·Tinnitus

   ·Erectile Dysfunction

   ·Haemorrhoids

   ·Tinea of the skin

   ·Bilateral Pterygium

   ·Otitis Externa of the right ear

2. On 11 February 2014 Mr Whitney lodged an application with the Department of Veterans’ Affairs seeking acceptance of further disabilities not yet accepted as service related and an increase in the disability pension. He was aged 63 years and 11 months on the day he lodged his application. The reasons stated in his claim for an increase in his accepted disabilities included that his PTSD had become worse and his hearing problems were deteriorating. That accords with s 15(1) of the Veterans’ Entitlements Act 1986 (the VE Act).

3. In a decision dated 6 May 2014 a Delegate of the Repatriation Commission informed Mr Whitney that his claim for generalised anxiety disorder and major depressive disorder were accepted.  The Delegate also determined that Mr Whitney’s claim for benign prostatic hyperplasia was not related to his service.  Mr Whitney’s disability pension was determined to be continued at 100% of the General Rate.

4. On 22 May 2014 Mr Whitney lodged an application with the Department of Veterans’ Affairs seeking review of the Delegate’s decision by the Veterans Review Board (VRB).  The VRB handed down its decision on 29 June 2015 in which it affirmed the Delegate’s decision to refuse his claim for benign prostatic hyperplasia and the decision to pay

   
   

   Mr Whitney the pension at 100% of the General Rate. Mr Whitney then lodged an application with this Tribunal on 15 September 2015 seeking review of the VRB decision. On 28 October 2015 Mr Whitney’s malignant neoplasm of unknown primary site was accepted as war-caused and his pension was assessed at the Extreme Disablement Adjustment Rate (s 22 of the VE Act) with effect from 3 May 2015.

5. The only issue I am required to determine is whether Mr Whitney satisfies all of the criteria in s 24 of the VE Act and therefore his pension should be increased to the special rate.

   Eligibility for special rate of pension

6. Insofar as it is relevant to Mr Whitney’s claim, s. 24 of the VE 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)    …; 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-cause disease, or both; or

   (ii)    the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

   (b)….

   Application of eligibility criteria to Mr Whitney

7. The evidence discloses that Mr Whitney has made an application under s. 15 of the
   VE Act for an increase in the rate of pension he is receiving and he had not turned 65 when the claim was lodged. His degree of incapacity at that time in accordance with s. 21A was at least 70%. It is the eligibility criteria set out in s. 24(1)(b) and (c) which are critical to Mr Whitney’s case.

8. To satisfy the eligibility requirement in s. 24(1)(b), Mr Whitney must be incapable of undertaking remunerative work for periods aggregating in excess of 8 hours per week and the reason for that incapacity must be due to a war-caused injury or war-caused disease or both alone.

9. The expression remunerative work is defined in s. 5Q as including any remunerative activity.  Put simply, it includes any work for which a person is paid or rewarded.

10. Mr Whitney was examined by Dr Peter Farnbach, a psychiatrist, on 25 February 2016.  Mr Whitney told Dr Farnbach that he ceased working in 2009 when he was made redundant.  Dr Farnbach’s opinion was that Mr Whitney suffered from post-traumatic stress disorder and associated depression; panic disorder with agoraphobia; and, secondary to this, an alcohol use disorder which was currently in partial remission.  He said Mr Whitney had continuing difficulties with depression, anxiety, poor concentration, attention and other difficulties.  Dr Farnbach described Mr Whitney as not having a current work capacity and he did not anticipate this would change in the foreseeable future.  Dr Farnbach was of the opinion that Mr Whitney was unable to work for more than 8 hours a week.  As for his reason for Mr Whitney ceasing work, Dr Farnbach said:

    … Mr Whitney reduced his hours of work from five days a week to 3 days a week because of his worsening difficulties with mood and anxiety symptomology.  He ultimately stopped work because of the company he was working for folding, however, he gives the entirely credible history that he would have resigned in any event.  In this regard I note that he was offered a job some weeks later by a former employer, and turned this down because of his difficulties with mood and anxiety.

11. Dr Nazmul Hoque, a General Practitioner at Emerald Medical Centre, completed a Work Ability Report for the Department of Veterans’ Affairs on 22 May 2015.  Dr Hoque said:

    His severe anxiety disorder makes him homebound – difficulty on encountering people, continuation of communication precipitates stress & panic attack.  These symptoms are preventing him to resume his work.

    He is not suitable for any type of work.  On top of his newly diagnosed metastatic lung disease will make him more vulnerable.

12. Dr Collin Wong, also from the Emerald Medical Centre, provided a medical certificate dated 24 April 2010 in which he said:

    Mr Whitney is suffering from depression and post-traumatic stress disorder and is not fit for employment for indefinite period.

13. Dr Brian Dunn also provided a medical certificate on 4 June 2010 in which he stated:

    This is to certify I have examined James Whitney today, and I confirm that [he] is unfit for work activities indefinitely

14. Mr Whitney was also examined by Dr Robyn Horsley, an occupational physician, on 18 February 2016.  She was asked for her opinion regarding whether Mr Whitney’s accepted disabilities prevented him from undertaking remunerative work for more than 8 or 20 hours per week.  She noted that the question was addressed specifically to the assessment period from 11 February 2014 until he was diagnosed with metastatic squamous cell carcinoma in May 2015.

15. Doctor Horsley referred to a certificate from Mr Whitney’s General Practitioner dated 24 April 2010 which stated he was suffering from depression and post-dramatic stress disorder and was not fit for employment for an indefinite period.  She also noted correspondence from Emerald Medical Centre, GP Mental Health Treatment Plan dated 18 November 2014 which diagnosed profound post-traumatic stress disorder.  She referred to the report from Ms Leni Foster, a psychologist, dated 29 August 2014 and correspondence from Dr Kumar dated 19 March 2014 describing Mr Whitney’s psychiatric symptoms at that time.

16. Doctor Horsley concluded:

    It appears that throughout this period, Mr Whitney’s psychiatric status was still a significant issue and on the basis of the materials attached, he had no capacity for work either for more than 8 or more than 20 hours per week.  However, I am not a Psychiatrist, I rely upon my Psychiatrist colleagues for expert opinion in this area.

17. I also had in evidence an earlier report provided by Dr Norbert W Pomorin, a psychiatrist, who examined Mr Whitney on 6 May 2009.  Dr Pomorin diagnosed Mr Whitney as suffering from chronic post-traumatic stress disorder and also alcohol abuse disorder.  Dr Pomorin said that while Mr Whitney maintained that his ability to concentrate on tasks was difficult, he noted the problem had not affected his capacity for remunerative employment.  Dr Pomorin recorded Mr Whitney at that time was not working because he was laid off from his job in March 2009.

18. In his witness statement which was taken into evidence Mr Whitney said that it had been his intention to work beyond the age of 65 years but for his emotional state.  He said he enjoyed his craft.  Furthermore, he and his wife were not in a financial position to retire when he ceased working in 2009. Mr Whitney said that when he was retrenched on 4 March 2009 he realised he was unable to continue working because he could not contemplate resuming work due to his emotional state.  He said he did not seek further work after being retrenched.  At that time his work was sourced through a labour hire company called Nu Stream.  Mr Whitney also said that in about May or June 2009 his former boss at Nu Stream, Mr Chris Churchill, telephoned him enquiring whether he wished to obtain further employment.  He said he refused the offer because he was incapable of undertaking work as a consequence of his anxiety and depression.

19. Mr Whitney’s statement was supported by a statement from his wife who said when her husband was retrenched, they discussed the possibility of him resuming work.  Mrs Whitney said that her husband told her, and that it was obvious to her in any event, that he was unable to cope with work any longer.  She also repeated that her husband never attempted to resume work after retrenchment in March 2009.

20. Given that Mr Whitney was aged 59 years in 2009, and I have no reason to doubt his statement regarding his financial position at that time, there is some weight in his contention regarding the reasons for ceasing to seek remunerative work at that time.  There was no evidence to the contrary.

21. Accordingly, I find that while Mr Whitney was retrenched or made redundant in March 2009, by that time his capacity to continue to conduct remunerative work had reduced considerably.  In fact the weight of evidence supports his contention that he was unable to undertake remunerative work for periods aggregating more than eight hours per week.

22. In addition to the eligibility criterion set out in subsection (1)(b), to be eligible for the special rate of pension, the veteran must also be prevented, by reason of incapacity from a war-caused injury or a war-caused disease or both, alone, from continuing to undertake remunerative work that he or she was undertaking; and is, for that reason, suffering a loss of salary or wages or of earnings on his or her own account that they would not be suffering if they were free of that incapacity.

23. Section 24(1)(c) has been the subject of much judicial commentary. The Full Court of the Federal Court of Australia (Middleton, Murphy and Rangiah JJ) in Repatriation Commission v Richmond (2014) 226 FCR 21, at 27, adopted the description provided by Buchanan J in Smith v Repatriation Commission (2014) 220 FCR 452 where his Honour said, at [47]:

    … Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (ie not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires the loss of earnings would not be suffered but for the incapacity.

24. The first question which must be addressed relates to the remunerative work which the veteran was undertaking.  Some guidance may be obtained from the reasons given by Rares J in Smith at 458:

    The importance of the words “remunerative work that the veteran was undertaking” in s 24(1)(c) is to connect the incapacity to the relevant loss of income by creating a before and after test or frame of reference.  The veteran can satisfy that test, regardless of whether he or she genuinely seeks remunerative work after suffering the incapacity.  Such attempts may be relevant, but they are not necessary, however, to demonstrate that the incapacity prevented the veteran from continuing to undertake that remunerative work.

25. It seems to me it is important to understand that the reference to remunerative work which the veteran was undertaking is not a reference to his last paid work. The reference to a veteran’s last paid work is found in s. 24(2A) which applies to a veteran who had turned 65 before the claim application was made. It does not apply to Mr Whitney. The expression with which we are concerned in this case is broader than that. It is the general description of remunerative work which a veteran had previously undertaken but was now prevented from undertaking.

26. According to Mr Whitney’s evidence, prior to enlisting in the Australian Army, he had completed an apprenticeship as a boilermaker.  Following discharge from the Army, he resumed his trade as a boilermaker.  Following retrenchment from the company for which he worked for about 18 months, he had a number of what can probably be described as temporary jobs working as a security guard and driving a taxi.  He then gained employment with an employer he described as Oxford Medical which involved assembling medical equipment using, essentially, his welding skills.  Following that employment, he was employed as a welder/assembler/truck driver/leading hand by MINWA, a company which manufactured beds and equipment used in the gas industry.  He ceased that work in 2008 because of anxiety and depression.  He said he was unable to cope with the demands of his work.  In particular, he had a problem supervising a team of between 8 and 10 welders.

27. Mr Whitney then sought the services of a labour hire company (Nu Stream).  Through that company he again obtained employment as a boilermaker/welder/handyman.  He eventually obtained work at a company called Cargotec (HIAB Australia).  He described this as hands-on work and avoided a supervisory role.  This role required a high standard of precision welding work.  He had difficulty meeting those demands but, after about two weeks, his employment was terminated on the grounds of redundancy after Cargotec failed to secure a contract with the Department of Defence.  He has not worked in remunerative employment following that position.

28. It is clear that Mr Whitney’s remunerative work which he was undertaking before ceasing that work is properly described as using his skills as a welder.  He was plainly capable of conducting that work in relation to a number of different products, including precision made tools or implements.

29. Because Mr Whitney made it clear in his evidence that after being made redundant by Cargotec he did not again engage in remunerative work, Mr K Rudge, a lawyer with the Advocacy Section of DVA, submitted that the reason for Mr Whitney ceasing to undertake the remunerative work he had been undertaking was because he was made redundant.  In fact, in an Employment Questionnaire provided to DVA on 7 April 2009, in answer to a question which asked why he ceased work, Mr Whitney wrote: made redundant.  He said he ceased employment 4 March 2009.  Mr Whitney also indicated that before ceasing work, he was working 8 hours per day and about 38 hours per week.  Curiously, there is another question on that same questionnaire which asks: If you are not currently working, why did you cease employment?  In answer to that question Mr Whitney wrote: vision impairment, hearing, back condition, nervous condition, panic attacks.

30. In my opinion, the different answers given to what appears to be essentially the same question, where the cessation of employment occurred some four weeks prior to his lodging the Employment Questionnaire with DVA, indicates Mr Whitney understood each question in a different context.  That is, his last employment ended because he was made redundant but he was not capable of continuing with the type of remunerative work he was engaged in prior to being made redundant.  That is, work as a welder.  Furthermore, in answer to a question regarding the attempts he had made to find work since becoming unemployed, Mr Whitney answered: none.  All of those answers are consistent with Mr Whitney’s evidence regarding the underlying reason for him ceasing remunerative work.

31. Given the above evidence, which was uncontroverted, I find that Mr Whitney’s incapacity from war-caused injury or war-caused disease, or both, alone, prevented him from continuing to undertake the remunerative work that he was undertaking.

32. The final question which needs to be answered is whether, because Mr Whitney was prevented from continuing to undertake the remunerative work that he was undertaking, he was suffering a loss of salary or wages or earnings on his own account that he would not be suffering if he was free from his incapacity. Section 24(2)(a) sets out the circumstances under which a veteran incapacitated from war-caused injury or war-caused disease or both, will not be taken to be suffering a loss of salary or wages or earnings on his or her own account by reason of that incapacity. It includes where the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from the war-caused injury or war-caused disease or both; or the veteran is incapacitated or prevented from engaging in remunerative work for some other reason.

1. As I have already found above, Mr Whitney ceased to engage in remunerative work because of his incapacity from war-caused injuries or war-caused diseases, or both, alone.  There were no other reasons for that cessation.  Being made redundant was simply the reason why he ceased his last employment.  In fact, that finding is supported by his evidence and his wife’s evidence that following his redundancy, he was nevertheless contacted by a prospective employer asking if he was prepared to work for that employer.  He declined.  That evidence also supports Mr Whitney’s claim that he was not prevented from engaging in remunerative work for some other reason, such as inability to find remunerative employment.  There being no evidence to the contrary, I find that Mr Whitney is and has been, since ceasing employment, suffering a loss of salary or wages or earnings on his own account that he would not have suffered if he were free from his war-caused incapacities. 

   Conclusion

2. I have found that Mr Whitney satisfies all of the eligibility criteria set out in s. 24 of the VE Act regarding the special rate of pension. Therefore, I find that the decision made by the VRB on 29 June 2015 regarding the rate of pension which should be paid to Mr Whitney was incorrect. I set aside that decision and in substitution determine that Mr Whitney is entitled to receive the pension at the special rate with the effect from 11 February 2014.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of:
Mr Egon Fice, Senior Member

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Associate

Dated   10 August 2016

Date of hearing	9 May 2016
Counsel for the Applicant	Ms Fiona Ryan
Solicitors for the Applicant	Williams Winter
Advocate for the Respondent	Mr Ken Rudge - Department of Veterans' Affairs Review Section