Jensen and Repatriation Commission

[2009] AATA 353

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 353

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1901

VETERANS' APPEAL   DIVISION		)
Re		IAN PAUL JENSEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B H Pascoe, Senior Member  

Date15 May 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd)  B H Pascoe

Senior Member

veterans’ – application for special rate or intermediate rate of pension – war-caused disabilities – whether capable of undertaking remunerative work – number of hours capable of working – whether war-caused injuries alone prevent undertaking remunerative work – whether ceased for reasons other than incapacity from war‑caused injury – whether genuinely seeking to engage in remunerative work. 

Veterans’ Entitlements Act 1986 s 23, s 24

REASONS FOR DECISION

15 May 2009 Mr B H Pascoe, Senior Member  

1.      This is an application to review a decision of the respondent of 26 June 2006 which refused an application to increase the rate of pension to either the special or intermediate rate.  This decision was affirmed by the Veterans’ Review Board (VRB) on 17 April 2007.

2.      At the hearing, the applicant, Mr I Jensen, was represented by Mr D De Marchi, a solicitor.  The respondent was represented by Ms J McCulloch, an advocate with the Department of Veterans’ Affairs.  Evidence was given by Mr Jensen, his son Mr B Jensen, an occupational physician, Dr C Castle and a psychologist, Mr M Burge.

3.      Mr Jensen has accepted disabilities of alcohol dependence or alcohol abuse, bilateral sensorineural hearing loss, gastro-oesophageal reflux disease, solar keratoses and asthma.  He is entitled to a disability pension at 100 per cent of the general rate.  The issue for the Tribunal is whether he is entitled to an increase in that pension to either the special or intermediate rate pursuant to s 23 or s 24 of the Veterans’ Entitlements Act 1986. (the Act)

4.      Mr Jensen was born on 7 June 1949 and was age 57 as at the date of the decision under review.  He served in the Australian Army and rendered operational service from 9 July 1970 to 8 July 1971.  Prior to him being called up for National Service in 1969 he had commenced employment as a bank clerk with the Commonwealth Bank.  After discharge in 1971 he resumed work with the Commonwealth Bank.  Initially he was at the Coburg branch as a general clerk then became a relieving officer and auditor, savings bank supervisor at Preston, accountant at Ascot Vale, assistant manager Ascot Vale, manager Regent West and Manager Eltham branch.  In 1994 he was offered and accepted a redundancy package.

5.      Mr Jensen maintained that, during the whole of his 23 years service with the bank, he continued to drink excessively both at lunch time and in the evening.  He said that, while his performance may not have been as good as it should have been, the drinking did not create any major problem with the bank.  He said that there had been some exchanges with his regional manager regarding his drinking but Mr Jensen argued that he obtained business at the hotel.  He said that a number of redundancy packages were being offered in 1994 and he made it known that he would accept such a package.  Mr Jensen said that he did not consult with anyone regarding the advisability of accepting the package.  He did acknowledge that he was having conflict at the time with management regarding lending policies of the bank.

6.      In 1994, Mr Jensen’s wife was operating a Post Office sub-agency.  With the proceeds of his redundancy package, Mr Jensen purchased an adjoining shop and established a card and gift shop business which was then combined with his wife’s existing business.  He said that this did not succeed as he continued drinking heavily, slept in the mornings and away from the shop much of the time.  it would appear that Mr Jensen had little or no active involvement in the business after 1995 although he took money from the cash register as he needed it.  The business was subsequently sold.  Mr Jensen thought this happened in about 1998 but Mrs Jensen told the VRB that it was in March 2000. 

7.      There was no apparent effort by Mr Jensen to engage in work until March 2004, when he was appointed as an office administrator by Statesman Builders and Construction Pty Ltd.  This appears to have lasted for some two months.  Two problems were identified by Mr Jensen and it is difficult to determine the primary reason for the shortness of employment.  The first was his inability to process the company’s records on computer where he had no skills.  The second was the interference with his work as a result of his drinking. 

8.      In early 2005 he entered into an arrangement with Fishley Financial Services operated by Mr Fishley who Mr Jensen met at the hotel.  The arrangement was for Mr Jensen to receive a commission on referrals of clients.  Mr Jensen said that he did get leads but, compared with his role at the bank, he was not able to provide instant approval for loans and no income was generated.  Subsequently in 2005, Mr Jensen entered a similar arrangement with Owen Judd and Associates who arranged loans for equipment.  Again he had the same problem and the arrangement was terminated.  Later in 2005, Mr Jensen was employed by Greenmeadows Construction and Landscaping Pty Ltd as a book‑keeper.  Again he was unable to cope with the problem of computer illiteracy and drink.  It would appear that all of these short term employment roles came about through contracts met at the hotel either pre or post his employment with the bank.  There is no evidence of any organised or specific effort to obtain employment.

9.      In May 2007, Mr Jensen’s son, Brett, who operates a financial services business, asked his father to work in the business.  He said that he regarded his father as an outgoing character, good at networking, who knew a lot of people who could be potential clients and one with 27 years experience in the banking industry.  He said that he felt it would keep his father occupied during the day and limit his opportunities to drink.  In his written statement of 15 October 2008, Brett said that his father was working three hours per day Monday to Friday.  In his oral evidence at the hearing, Brett said that his father averages about eight hours per week, less then than it had been.  He said that he asks his father to be in at 10.00am but cannot rely on him complying, with him frequently turning up after lunch.  Brett acknowledged that his father had done a course as a prerequisite to becoming accredited as a financial advisor but has not proceeded with becoming accredited.  He had done a short course in insurance products and was an authorised representative of Australian Life Insurance Distribution Pty Ltd to offer Loan Protection Insurance to customers.  Brett maintained that his father’s concentration levels were not good.

10.     In his statement of 14 May 2008 prepared for these proceedings, Mr Jensen stated that, in working with his son, there is little pressure and I can work approximately two hours per day, about three days per week.  In his oral evidence he said that he currently works three hours per day, five days per week.  He thought that he had regularly worked those three hours per day for at least a year.  He said that he can cope with that and he is better, probably, with not drinking all day.  He would like to feel that he could work full time but is unsure whether he has the skills for a steady full time job with alcohol still a problem.

11.     Mr Jensen was examined by Dr C Castle, an occupational physician, on 29 January 2008.  In his report of 8 February 2008, Dr Castle concluded:-

In my opinion, Mr Jensen is unable to work for more than eight hours per week.  I do not consider his inability to work is solely due to his accepted disabilities.  Certainly, his alcohol dependence and alcohol abuse is a major factor, not so much because of his alcohol dependence of itself, but due to its secondary effects, such as his memory problems and his high blood alcohol readings in the mornings.

I consider that Mr Jensen has what for him is a comfortable lifestyle.  That lifestyle of heavy drinking suits him.  Although he said that he regretted the effect this has had on his family, I detected no motivation to change.  I formed the impression that he has established his lifestyle to suit his personality, and his drinking is a reflection of this.

In a subsequent report dated 10 November 2008, Dr Castle noted that statements of Mr Jensen, Mr Brett Jensen and Mr M Burge, a clinical psychologist prepared for the purpose of the hearing.  After commenting that Mr Jensen had not told him of being employed by his son despite detailed and repeated questions of him about his employment, Dr Castle stated:

Given the new information provided to me, I have changed my opinion.  Mr Jensen is working 15 hours a week, according to your letter and his son’s statement.  Given that employment by his son may well be a social and family service by his son, Mr Jensen is currently able to work 15 hours a week.  I do not think he is able to work any more than that.  Brett Jensen’s description of his father’s drinking is very significant to me.

I do not consider Mr Ian Jensen would be able to work in open employment, based on all the information provided to me.  The comments of Michael Burge about the tolerance of contemporary workplaces for alcohol abuse are relevant and I agree with them.

Having reviewed all the new information, I now consider that his inability to work is the consequence of his alcohol dependence or abuse and the cognitive decline this has caused.  His asthma is a contributing factor to his inability to work in open employment, but not the major one

In his oral evidence, Dr Castle accepted that he was not aware of the extent to which Mr Jensen had been actively seeking work and that age, years out of the workforce and lack of computer skills can be a factor in obtaining work. 

12.     Mr Burge interviewed Mr Jensen on 12 November 2007 and 16 January 2008.  In his report of 9 February 2008, Mr Burge concluded:

… I am of the opinion based on my interviews of Mr Jensen that due to his alcohol abuse that he is unlikely to be able to maintain employment.  it is quite apparent that Mr Jensen has been drinking heavily since his service in Vietnam and that his drinking has increased to high risk health levels, especially in recent years.  Mr Jensen reports to having increasing difficulties with his memory and concentration.  he apparently has memory blanks – report to be intoxicated in the mornings and often at night of days of drinking whisky, wine and beer.  Mr Jensen has apparently a history of interpersonal conflict at home and work.

It appears that for a return to work to be successful for Mr Jensen, the workplace would have to accommodate drunken employees, which is highly unlikely in contemporary work cultures.  It is unlikely that given Mr Jensen’s declining memory, interpersonal difficulties and poor concentration that he would be highly unlikely to be able to operate simple computer functions, or perhaps any functions which is a requirement in most contemporary work environments.

In conclusion, given the above, I am of the opinion that Mr Jensen is unlikely to be able to work more than 8 hours per week, as a result of his alcohol dependence or alcohol abuse and he is likely to be intoxicated every day, which would obviously limit his enduring employability in a contemporary workplace.

In his oral evidence, Mr Burge accepted that Mr Jensen had not mentioned that he was working for his son but noted that there was likely to be a higher tolerance of the alcohol problems by a son than by any independent employer.  While also accepting that lack of computer skills, education and time out of the workforce would have an impact on obtaining employment. Mr Burge retained the view expressed in his report. 

13.     Section 24 of the Act provides (insofar as is relevant to this matter):

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)     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.

14.     Section 23 is in virtually identical terms but applies where the veteran is incapable of undertaking work for more than 50 per cent of the time ordinarily worked by persons engaged in work of that time or more than 20 hours per week.

15.     In this case notwithstanding the variances in the evidence of both Mr Jensen and his son relating to the actual time worked in the son’s business, I am satisfied on the balance of probabilities that Mr Jensen has been working at least 15 hours per week on a regular basis and continues to do so.  Consequently, while he satisfies s 24(1)(a) he does not satisfy s 24(1)(b).  However, on the basis of the evidence, I am satisfied that he meets the requirement of s 23(1)(b) in that he is incapable of undertaking remunerative work for 20 hours or more per week.

16.     Having arrived at that conclusion, it is necessary to consider s 23(1)(c) the wording of which is virtually identical to s 24(1)(4).  Sub-section (1) of s 23 is virtually identical to sub-section (2) of s 24.  It is clear that prior to 1984 he had been a full time employee of the Commonwealth Bank for some 23 years after his operational service.  I am satisfied that he ceased to be engaged in that remunerative work that he was undertaking for reasons other than his incapacity from his war-caused injury or disease.  The evidence of Mr Jensen was clear. He applied for and was offered a redundancy package together with many other employees in 1994.  At the time he was in disagreement with some of the bank’s policies.  While he may have been drinking excessively, this had not created any major problems with the bank.  He said that, if not for the redundancy package, he believed that he could have continued with the bank, likely until retirement.  At the time it is clear that the redundancy package suited Mr Jensen, providing him with a substantial lump sum with which the property adjoining his wife’s existing business could be purchased to expand that business.

17.     From the evidence of Mr Jensen it would seem more likely than not that Dr Castle was correct in his view that Mr Jensen then adopted what, for him, was a comfortable lifestyle.  It was clear that there was both conflict with his wife in relation to the business and a failure by Mr Jensen to be able to carry out a role in the business which he had envisaged in 1994.  This failure, in my view, was unlikely to have been the result of his alcohol problem alone.  Subsequent to his ceasing direct involvement in the business, it could not be said that he was genuinely seeking to engage in remunerative work.  Each of his abortive attempts resulted from meeting someone at the hotel and being offered either employment or commission for referring clients.  Mr Jensen was clear that the commission opportunities failed because of his inability to provide instant loan approval.  The two short term employment opportunities failed as much a result of his inability to perform the work required with no computer skills as his drinking problem.

18.     As a consequence of the foregoing, I am satisfied that Mr Jensen does not meet the requirements of either s 23 or s 24 of the Act to qualify for the intermediate rate or special rate of pension.  It follows that the decision under review should be affirmed.

I certify that the eighteen (18) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B H Pascoe, Senior Member

Signed:        Dianne Eva
  Clerk

Dates of Hearing  21 October 2008 & 27 July 2009
Date of Decision  15 May 2009
Solicitor for the Applicant          Mr D De Marchi, De Marchi & Associates 
Advocate for the Respondent   Ms J McCulloch, Department of Veterans' Affairs