John Charlton and Repatriation Commission
[2012] AATA 395
•28 June 2012
[2012] AATA 395
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2745
Re
John Charlton
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey and Dr W Isles
Date 28 June 2012 Place Sydney The Tribunal affirms the decisions under review.
...............[sgd].........................................................
Senior Member J F Toohey and Dr W Isles
CATCHWORDS
VETERANS ENTITLEMENT – special rate of pension – whether applicant satisfies s 24(1)(c) of the Veterans Entitlements Act 1986 – accepted lumbar spondylosis – whether applicant ceased remunerative work for reasons other than his war-caused incapacity – whether applicant genuinely seeking to engage in remunerative work – whether incapacity the substantial cause of applicant’s inability to obtain remunerative work – decision under review affirmed
LEGISLATION
Veterans Entitlements Act 1986 s 24
CASES
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission [2000] FCA 328
Fox v Repatriation Commission (1997) 45 ALD 317
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Butcher [2006] FCA 811Repatriation Commission v Hendy [2002] FCFCA 424
REASONS FOR DECISION
Senior Member J F Toohey and Dr W Isles
28 June 2012
BACKGROUND
Mr John Charlton served in the Australian Army from 1967 to 1969 and saw three months operational service in Vietnam as an infantry soldier. He is now aged 67.
Mr Charlton suffers from bilateral sensorineural deafness, post-traumatic stress disorder, alcohol dependence, bilateral tinnitus, diabetes mellitus and lumbar spondylosis, all of which the Repatriation Commission (the Commission) accepts are war-caused and for which he receives a disability pension at 100 per cent of the general rate. He suffers from hip, neck and left knee conditions which are not accepted as war-caused.
On two occasions, Mr Charlton has sought to have his pension increased to the special rate. Both applications have been refused. Both are presently before the Tribunal. He concedes that his first application cannot succeed, and we agree.
By his second application, made on 15 February 2010, Mr Charlton sought to have his lumbar spondylosis accepted as war-caused and his rate of pension increased. The Commission accepted that his incapacity was war-caused but rejected his claim for the special rate of pension on the ground that he did not satisfy ss 24(1)(b) or(c) of the Veterans Entitlements Act 1986 (the Act). On review by the Veterans Review Board (the Board), that decision was affirmed.
The Commission now concedes that Mr Charlton satisfies s 24(1)(b) of the Act. Having heard Mr Charlton’s evidence, and that of specialist occupational physician, Dr Thomas Rosenthal, we agree. It is not in dispute that Mr Charlton satisfies all other relevant provisions in s 24. That leaves before us the question of whether he satisfies s 24(1)(c).
THE LEGISLATION
Section 24(1)(c) requires that Mr Charlton be, by reason of his war-caused lumbar spondylosis alone, prevented from continuing to undertake remunerative work that he was undertaking and that, by reason of that incapacity, he be suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering were he free of that incapacity.
Section 24(2) provides that, for the purpose of s 24(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) (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.
In summary, s 24(2) requires, in relation to his present application, that Mr Charlton have ceased remunerative work on account of his lumbar spondylosis alone; that he have been genuinely seeking to engage in remunerative work; and that his lumbar spondylosis is the substantial cause of his inability to obtain that work.
The standard of proof is the reasonable satisfaction of the Tribunal: s 120(4).
The relevant assessment period is from 15 February 2010, being the date of Mr Charlton’s application, to the present date: s 19(9).
MR CHARLTON’S EMPLOYMENT HISTORY
Mr Charlton provided a written statement and gave oral evidence before the Tribunal. His memory for dates was not always good but he impressed us as a frank and truthful witness. We have no reason to doubt his evidence.
Mr Charlton left school when he was 11 and went shearing with his father. When he was 15, he joined the New South Wales railways and worked there for several years. He left the railways to return to shearing and then found work with what is now known as GrainCorp. After undertaking national service from 1967 to 1969, he returned to GrainCorp but says he “copped flak” from his workmates and his family because he had been to Vietnam, and he moved to the bush where he worked as a jackeroo, in pubs, on the roads, and as a labourer.
From 1979 until 2001, Mr Charlton was again employed by GrainCorp. He worked in various positions including as a bunker supervisor, which involved travelling to inspect bunkers around the State, and as a wheat operator. Much of the work was heavy, and involved climbing high ladders, lifting buckets of wheat and tarpaulins, and shovelling wheat.
Medical reports show that Mr Charlton had suffered from back pain from time to time since an accident at work in 1986. In 1995, he was restricted indefinitely to working at ground level only with minimal lifting, although his evidence was that there were still occasions when he had to climb ladders and lift heavy weights.
In June 2001, GrainCorp terminated Mr Charlton’s employment. A copy of the letter of termination is in evidence. It refers to a “functional assessment” completed on 5 June 2001. A copy of that assessment is in evidence. It states that Mr Charlton was “not capable of working in general duties at a grain site”; he could work for short periods with rests, and “no resistance, strength or work which requires sudden mobility is possible”; desk duties were an option, as were sweeping or mopping but only within specified limits. Ultimately, it states, if the “extreme allowances” for Mr Charlton were not successful, then a “review of him remaining in this type of employment at all is necessary”.
In its letter of termination, dated 15 June 2001, GrainCorp stated it was unable to provide the “suitable duties” recommended in the assessment. It concluded that, given a report from his orthopaedic specialist in November 2000 indicating that he suffered from a degenerative spinal condition, it was not prepared to risk exposing Mr Charlton to possible aggravation of that condition and had no option but to terminate his employment.
Mr Charlton next worked for approximately 18 months to two years as a part-time driver for a carpet-layer who was unable to drive himself to his carpet-laying jobs. The dates of this employment are not altogether clear: it may have been from 2004 or from 2006. The earlier date is probably correct but nothing really turns on the precise dates.
Mr Charlton did not like standing around doing nothing so helped out “smoothing edges”, handing tools to the carpet-layer and putting underlay down. The work was not constant; he would work a couple of weeks at a time, when no one else was available. He estimates he worked approximately 20 weeks in a year, sometimes 12 to 13 hours a day if they had to travel to work but generally five to six hours a day. He was paid cash of $80 to $100 a day. His employment came to an end when the carpet-layer moved to Queensland. Mr Charlton has not been employed since.
IS MR CHARLTON PREVENTED BY HIS LUMBAR SPONDYLOSIS ALONE FROM ENGAGING IN REMUNERATIVE WORK THAT HE WAS UNDERTAKING?
Section 24(1)(c) requires that Mr Charlton’s inability to work be due to his war-caused incapacity alone. If some other factor plays a part in preventing him from continuing to undertake remunerative work, he will not satisfy this provision. This is so even if it is “far away the more dominant of the causes of the preventative effect”: Forbes v Repatriation Commission [2000] FCA 328, per Nicholson J at [40].
The matter should be approached in a “practical, common sense fashion”: Repatriation Commission v Butcher [2006] FCA 811 at [39] per Bersanko J. See also Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 where he said that to characterise “alone” as “the sole, unique and absolute cause” of a veteran’s inability to work had a tendency:
… to distract the tribunal from its true task – to make a practical decision whether a 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.
Why did Mr Charlton cease to engage in remunerative work?
“Remunerative work” for the purposes of s 24(1)(c) does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. It is not limited to the last employment that the veteran actually undertook: Banovich v Repatriation Commission (1986) 69 ALR 395; Starcevich v Repatriation Commission (1987) 18 FCR 221.
Mr Charlton firmly believes that he was still capable of performing his (restricted) duties at GrainCorp when his employment was terminated. He planned to keep working to age 65 to increase his superannuation. He believes the real reason his employment was terminated was his union activities. However, the medical evidence in reports from his general practitioner, orthopaedic surgeon and others, as well as the functional assessment, show that he had long-standing back problems consistent with GrainCorp’s letter of termination.
The medical reports also show that Mr Charlton suffers from a number of non-accepted conditions. He has had a painful left knee since an injury in 1969 which, for the past ten years, has made him “a bit wobbly” and causes him to fall occasionally. He does not think it affects him a great deal but it hurts more with age. He gets a stiff neck sometimes which he attributes to sleeping in an awkward position, although a CT scan of his cervical spine in 1996 showed “spondylosis with large osteophytes compressing the spinal cord at C4/C5, C5/C6 and C6/C& levels; and bilateral neural foramina narrowing the entrapment of exiting nerve roots at described”.
Mr Charlton gave evidence that his hips are “not good”. He has suffered from hip pain since he was about 44, when it forced him to stop playing cricket. He gets a lot of pain in his lower back and into his hips. At the time he left GrainCorp, he was experiencing severe pain daily and, at times, the pain in his back and his hips was intense.
Dr Thomas Rosenthal, specialist occupational physician, saw Mr Charlton for assessment on 8 November 2011. He reported that Mr Charlton's deafness, tinnitus and diabetes should not have any significant impact on his labouring ability. However, the loss of range of movement caused by his lumbar spondylosis “has a significant impact on his ability to perform his labouring duties”. There was also “some minor contribution from his neck, right hip and left knee in his ability to perform labouring work”.
Importantly, however, Mr Charlton did not want to stop working after he left GrainCorp and he actively looked for employment. He did not consider himself restricted by his back condition. .
In about 2004, Mr Charlton found employment with the carpet-layer. That position involved duties broadly similar to the restricted duties he had been performing at GrainCorp for some years, in that they were of a labouring kind, although they were lighter. His employment continued for 18 months or so. There is nothing to suggest it could not have continued indefinitely, had the carpet-layer not moved away. We find that it was remunerative work for the purposes of s 24(2)(a).
Mr Charlton’s evidence is that he ceased that remunerative work because the carpet-layer moved away. There is nothing to suggest that his lumbar spondylosis, or any other reason, was a cause.
As Mr Charlton ceased to engage in remunerative work for reasons other than his accepted incapacity, he cannot be taken to satisfy s 24(1)(c) and his claim must fail.
Was Mr Charlton genuinely seeking to engage in remunerative work?
Mr Charlton gave evidence that he actively looked for work after he left GrainCorp. He went out “day after day” looking for work; he answered advertisements and asked at different work sites. We accept his evidence. We accept that he wanted to work and was highly motivated. As he put it, he wanted to prove to GrainCorp that he could.
Since his employment with the carpet-layer ended, Mr Charlton has looked for work, but his efforts became more occasional. He gave evidence that he would ask people in the course of a conversation if there was any work going but, over time, his attempts became more occasional and informal. He says he never gave up hope of working again and is always willing to have a go, but he stopped “a couple of years ago”; he got tired and disappointed. He thinks he “probably” looked for work during the assessment period but he could not say for sure.
The last time Mr Charlton looked for work appears to be around February and March 2010 when he approached two potential employers for labouring work. Their letters advising that his applications were unsuccessful are in evidence.
The transcript of the Board’s hearing shows that Mr Charlton’s then advocate suggested he apply for these positions so that he would have evidence of his genuine attempts to find employment. The advocate told the Board that Mr Charlton was “prepared to have a go” and so he suggested Mr Charlton “formalise” matters by approaching some businesses, which he did.
We do not take the advocate’s statement to the Board to suggest anything improper on his, or Mr Charlton’s parts. We accept that, at that time, Mr Charlton still wanted to work. However, the advocate’s explanation – which Mr Charlton does not dispute – shows the real nature of these particular attempts.
For an applicant to be genuinely seeking to engage in remunerative work “involves something more than a wish or a hope. It requires that a claimant ‘do’ something … It involves an assessment of the subjective intention or purpose of the claimant”: Leane v Repatriation Commission (2004) 81 ALD 625 at [28].
The question arises whether Mr Charlton’s genuine attempts to find employment in the period from 2001 to approximately 2004 will satisfy s 24(2)(b), or whether he is confined to attempts made during the assessment period.
Section 24(2)(b) refers to a veteran satisfying the Commission that “he or she has been genuinely seeking to engage in remunerative work” (emphasis added). In contrast the rest of s 24 is in the present tense. For Mr Charlton it is submitted that s 24(2)(b) may be construed as meaning that attempts at a time before the assessment period are relevant.
As we read it, the term “has been” in s 24(2)(b) reflects that at least more than one attempt would usually be required to show a veteran “has been genuinely seeking” work. “Has sought” would be more in keeping with Mr Charlton’s submission that attempts at any time may be relevant.
We prefer the construction contended for by the Commission, that relevant attempts are those made during the assessment period. In Leane (above), the Full Court at [32] said:
As the commission properly conceded, if the veteran had satisfied the tribunal that he had, at any time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he had been genuinely seeking to engage in remunerative employment) then, at least from that time, the veteran would have been entitled to a pension at the special rate, notwithstanding that at some later time he may not have established that he was genuinely seeking to engage in remunerative employment.
We note that, at [27], the Full Court citedthe decision in Repatriation Commission v Sheehy (1995) 133 ALR 654 in which Sackville J referred to the policy in s 24(2)(b) as set out in the second reading speech of the Bill by which it was inserted:
In that speech the relevant minister made the point that “special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work” (emphasis added).
The question was not itself in issue in Leane and so it is not authority on point but the decision strongly suggests that only attempts made during the assessment period will be relevant.
The assessment period runs from 15 February 2010. Based on Mr Charlton’s evidence that he has not been looking for work in the past “couple of years”, we are not satisfied that he has been genuinely seeking to engage in remunerative work during the relevant period.
Is Mr Charlton’s accepted condition the substantial cause of his inability to obtain remunerative work?
Section 24(2)(b) requires that Mr Charlton’s accepted condition be the substantial cause of his inability to obtain remunerative work. It must be more than a substantial cause; it must be “the operative factor which, more than any other, explains it”: Fox v Repatriation Commission (1997) 45 ALD 317 per Kiefel J at 317.
In Repatriation Commission v Hendy [2002] FCFCA 424, the Full Federal Court said at [37]:
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 there is a lapse in time 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). The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of these factors during the assessment period.
Mr Charlton was just short of 65 at the start of the assessment period. He was close to what is commonly retiring age. He had been out of work for up to three or four years. Those factors, especially in combination, will themselves tend to impair a person’s ability to re-enter the workforce. Mr Charlton gave evidence that employers repeatedly told him he was “unsuitable” and one said he was looking a bit “wobbly” in the hips. Moreover, by his own evidence, he has had increasing pain over the years, and, more recently, a heart condition. We find that these factors have played a substantial part in his inability to obtain remunerative work.
The letters obtained from employers at the suggestion of Mr Charlton’s former advocate support this finding. They show that one position entailed “physical labour”; it required “a much younger and more robust” person and would not suit a person of Mr Charlton’s “age and fitness”. The other letter states that a “more suitable person” had been taken on for the position because it sometimes involved “intense physical work”.
Taking all of these matters into account, we are not satisfied that Mr Charlton’s lumbar spondylosis was the substantial cause of his inability to obtain remunerative work.
CONCLUSION
We are not satisfied that Mr Charlton satisfies s 24(1)(c) of the Act. It follows that he is not entitled to the special rate of pension. We affirm the decisions under review.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr W Isles. .............[sgd]...........................................................
Associate
Dated 28 June 2012
Date(s) of hearing 25 June 2012 Counsel for the Applicant Mr C Colborne Counsel for the Respondent Mr K Rudge
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