Jones and Repatriation Commission

[2008] AATA 637

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 637

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2007/4192 &

VETERANS' APPEALS DIVISION		)          2007/4193
Re		DENNIS JONES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member

Date22 July 2008

PlaceBrisbane

Decision The decision under review is affirmed.  

................[Sgd].....................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – special rate of pension – naval officer for over twenty years – veteran suffers from multiple war-caused diseases and conditions – veteran incapacitated from work in mid 2004 – veteran prevented from continuing to undertake work – war-caused diseases are the only factor in preventing the veteran from continuing to undertake work – veteran did not genuinely seek to engage in remunerative work – not entitled to special rate of pension – decision under review affirmed.

Veterans’ Entitlements Act 1986 ss 19, 24(1)(b), 24(1)(c), 24(2)(a)(i), 24(2)(b)

Flentjar v Repatriation Commission (1997) 48 ALD 1

Moorcroft v Repatriation Commission (1999) 58 ALD 143; [1999] FCA 862

Smith v Repatriation Commission [2004] FCA 743

Banovich v Rapatriation Commission (1986) 69 ALR 395

Starceich v Repatriation Commission (1987) 14 ALD 160

Hall v Repatriation Commission (1994) 33 ALD 454

REASONS FOR DECISION

22 July 2008	Dr K S Levy RFD, Senior Member
INTRODUCTION

1.      The applicant, Dennis Jones, has sought the special rate of pension under the Veterans’ Entitlements Act 1986 (“the Act”).  On 19 January 2007, the Repatriation Commission increased his disability pension to 90% of the general rate.  On 24 July 2007, the Veterans’ Review Board set aside that decision and substituted a decision that granted Mr Jones 100% of the general rate with effect 30 June 2005.  He now seeks review to this Tribunal of that decision.

ISSUE

2. Does Mr Jones satisfy s 24 of the Act in relation to eligibility for the special rate of disability pension?

EVIDENCE

3.      Documentary and oral evidence was provided to the Tribunal.  This included a number of reports by medical specialists as well as the applicant’s general practitioner covering the period 2005 to 2008.  The applicant gave oral evidence as did his general practitioner.

4.      Mr Jones was commissioned as an officer of the Royal Australian Navy (RAN) and served from 1 March 1965 until 23 July 1987 on a full time basis.  That service included several periods of operational service in Malaysia and Singapore in 1966 and also in South Vietnam in 1967 and 1968.  He also had eligible defence service from 7 December 1972 to 23 July 1987.  Following completion of his full time naval service, he had served in the RAN Reserve.  In that latter service, he has undertaken two periods of continuous full time service in Indonesia – the first period during 1999 and the second period, an extended period commencing in 2000 and being completed in June 2002.  Following the completion of that last period of continuous full time service in Indonesia, he was led to believe that he would be offered a third contract to serve there again.  The applicant said that he was on standby for seven months in the second half of 2002 and the first quarter of 2003.  In March 2003, he was advised that the third tour would not eventuate.

5.      Mr Jones provided evidence that he had not sought work for 12 months (approximately) because of that expectation of getting a third tour of Indonesia.  However, he stated that he did look for work and there is evidence of him applying for positions in March 2004, June 2004, January 2005, July 2005 and November 2007.  The latter application resulted in the only position which the applicant secured at a golf club and that position lasted only one week.  It is noted that the applicant also in November 2006 applied to have his compulsory retirement age in the RAN extended.

6.      The medical evidence comprised a number of reports.  Briefly, the chronology and conclusions of those reports are as follows:

·     On 29 June 2005, Dr Stephenson diagnosed Mr Jones as having a major depressive disorder; 

·     On 6 November 2005, Dr L. Ding, a psychiatrist, concluded that Mr Jones was incapacitated at that date;

·     On 7 November 2006, Dr P. Morris reported that Mr Jones was incapacitated due to anxiety and depression although indicated that he may have subsequently recovered sufficiently to undertake work for 10 to 15 hours per week;

·     On 5 December 2006, Dr P. Trott, a treating psychiatrist for the applicant from June 2006 to January 2008, opined that due to deteriorating mental health, Mr Jones’ ability to seek meaningful employment in the years 2003 and 2004 was “greatly impeded”;

·     On 11 May 2007, Dr Litherland, a general practitioner, reported that Mr Jones was permanently unfit for work for which he is qualified;

·     In February 2008, Dr Sowby, a specialist in occupational medicine, determined that the applicant was incapacitated from 30 September 2005 and that he had been medically capable of undertaking remunerative work from 31 May 2002 until a period between mid-2004 and early 2005.

CONSIDERATION

7. I have considered all of the facts and the relevant law in relation to this matter. In considering the evidence in making a determination about the special rate of pension for Mr Jones, it is noted that in determining the legal issues, the Tribunal must be satisfied to its reasonable satisfaction, ie., to the civil standard of proof in accordance with s 120(4) of the Act.

8.      I make the following findings of fact:

(a)Mr Jones was a naval officer from 1965 to 1987 in the permanent navy and was on the standby reserve until he turned 60 years of age.

(b)He ceased employment with the RAN on 29 June 2002.

(c)He has a number of medical disabilities which have been accepted as being service related.  These are bilateral sensorneural hearing loss with tinnitus; ischaemic heart disease; anxiety disorder not otherwise specified; erectile dysfunction; dysthymic disorder; and is entitled to treatment for a depressive disorder and post traumatic stress disorder.

(d)He had an expectation that he would be called up for a period of overseas service for seven to eight months after 29 June 2002.  That expectation ceased following official advice in March 2003.

(e)He has applied for some remunerative employment since 29 June 2002.  He applied for six full time positions commencing in March 2004 to November 2007 and also made oral enquiries about other potential jobs.  He commenced one position in November 2007 and he ceased in that role approximately one week after commencement.

legislative provisions

9.      At the outset, I would mention a submission made by the respondent’s advocate Mr Stoner, where he referred the Tribunal to the Acting Minister for Veteran’s Affairs Mr Scholes’ speech[1] when introducing the Repatriation Legislation Amendment Bill 1985 in the context of the special rate of pension.  There, the Acting Minister said:

“… was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age.  It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian workforce.

…

If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable.”

[1] This speech was delivered on the 16/17 May 1985.

10. In addition to those legislative objects, s 19 of the Act is also relevant in determining the special rate of pension for Mr Jones and that must be determined in relation to the “assessment period” which extends from the date of the application for the special rate of pension until the date of the decision by this Tribunal[2]. 

[2] See Forbes v Repatriation Commission [2000] 171 ALR 131.

11. The relevant legislation in this application is concerned essentially with s 24 of the Act. I am satisfied that the applicant complies with subsections (aa), (aab) and (a) of s 24(1). In respect of s 24(1)(b), the question arises as to whether Mr Jones is totally and permanently incapacitated in that he cannot undertake remunerative work because of his war-caused incapacity. In making that determination, the factors mentioned in s 28 of the Act are to be taken into account. I note that an applicant cannot be expected to undergo extensive training so that he could undertake remunerative work[3].  The Repatriation Commission says that the type of remunerative work for which he is qualified is that of a naval officer or advisor.  I would add to that that given Mr Jones’ long and eminent naval career as an officer in command positions, then the work for which he is qualified must also include positions which would require judgment and communication skill and this could include positions in sales or management. His evidence indicates that he applied for positions which generally fell within these additional categories.

[3] Chambers v Repatriation Commission (1995) 129 ALR 219; (1995) 55 FCR 9.

12. In relation to s 24(1)(c), a consideration of the requirements must be based upon a finding as to the medical evidence, and in particular, as to the applicant’s capacity for work and whether he made diligent efforts to find work. But fundamentally, it is firstly of importance to determine whether he was incapacitated as at his cessation of work on 29 June 2002 and/or any subsequent time. The medical evidence is summarised above. It is noted that Dr Litherland, his general practitioner in Cairns, gave oral evidence and indicated that his report of October 2005 was wrong in part. Overall, Dr Sowby is the most definitive about the time period when Mr Jones was capable of work and when he was incapacitated. I accept his report as being the most informative and factual and also as he was a specialist in occupational medicine. Based on that evidence, I accept Mr Jones was incapacitated for work from the middle of 2004.

13. In making an assessment under s 24(1)(c), this requires a demonstration of:

(i)That the applicant was prevented from continuing to undertake remunerative work because of war-caused injury or disease alone; and

(ii)As a result of (i), that he is suffering a loss of salary or wages.

14. This second limb of s 24(1)(c) is amplified in s 24(2) where that limb is not satisfied if:

(a)Either –

(i)He ceased to work for reasons other than his incapacity for war-caused injury; or

(ii)Some other reason.

and

(b)Not having turned 65 years of age and not being engaged in remunerative work, he has not been generally seeking to engage in remunerative work.

15.     A resolution of the legislative provisions will be determined by answering four questions set out in Flentjar v Repatriation Commission[4]:

“(1)What was the relevant “remunerative work the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?

(2)Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

(3)If the answer to (2) is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

(4)If the answer to (2) and (3) are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”

[4] (1997) 48 ALD 1 at 4-5.

16.     The respondent accepts the answers to questions (1) to (3) are:

“(1)     Naval officer or advisor;

(2)       Yes;

(3)       And yes.”

17. Thus the first limb of s 24(1) is met. I am satisfied that these are valid answers to the first three questions of Flentjar although, as stated earlier, I would add to that, work where a degree of judgment and communication skill such as sales or management roles would also be appropriate work for the applicant in this case.

18. Therefore, the only remaining question in contention is question (4). This involves a consideration of s 24(1)(c) and this assessment is affected by s 24(2)(a)(i) ie. he shall not be taken to be suffering a loss of salary of wages if he “… ceased to engage in remunerative work for reasons other than his … incapacity”. This provision was intended to identify “supervening causes” or “factors preventing a veteran from working, other than his war-caused conditions and that s 24(1)(c) is not concerned with those matters”[5].  That is, it is concerned with the reasons which clearly elucidate why a veteran ceased to engage in remunerative work[6].

[5] Moorcroft v Repatriation Commission (1999) 58 ALD 143 at 148; [1999] FCA 862 at [21].

[6] Re Reilly and Repatriation Commission (1987) 12 ALD 533.

19.     It is clear Mr Jones ceased work on 29 June 2002 on the expiry of his contract.  He stated that he orally applied for jobs and that he applied for jobs until November 2007.  But I have found he was not capable of working after mid-2004.  The real issue therefore is whether he made a genuine effort to look for work in the intervening period ie. from 30 June 2002 to 30 June 2004 (approximately).

20.     The evidence shows that the applicant did not apply for positions until March 2003 as up to that time, he thought he might get another contract to Indonesia with the RAN.  While that of itself is not sufficient exculpation from demonstrating an intention to seek work, even if one accepted that as being a reasonable time period for which he had justification for not seeking work, then one must ask what efforts were made at least for the balance of that period between March 2003 and June 2004.

21.     In considering the effort made during that period, the applicant said that he applied orally for certain positions.  I accept that he did so.  However, I consider that in the light also that the only firm evidence is that he applied for a position in March 2004 and in July 2004, that is, two positions in a period of approximately 15 to 16 months.  That must be viewed in terms of whether any non-engagement in remunerative work is attributable solely to his war-related incapacity[7] which was adopted in Starcevich v Repatriation Commission[8] and Hall v Repatriation Commission[9]. As the respondent puts it, it is a continuing test and he submits that s 24(2)(a) only explicates the second limb of s 24(1)(c). This test might be assessed by the veteran’s behaviours and whether that behaviour indicates whether he has genuinely sought to re-enter the workforce during that period. That, says the respondent, requires the applicant to show that he was actually and honestly endeavouring to engage in remunerative work[10].

[7] Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 to 403.

[8] (1987) 14 ALD 160.

[9] [1994] 33 ALD 454.

[10] Leane v Repatriation Commission [2004] FCAFC 83 [at 28].

22.     The respondent submits that seeking to return to active employment after a break of some time might, if he did not act quickly, lead to an inference “that he had retired from gainful employment”[11].  If that inference can be drawn then, the applicant could not succeed in accordance with the purpose or objects of the legislation.

[11] Smith v Repatriation Commission [2004] FCA 743 [at 18] per Dowsett J.

23. Based on the best medical evidence available, Mr Jones was not incapacitated until the middle of 2004. He cannot therefore satisfy s 24(1)(c)(i) before that time, which means he was not prevented from continuing to undertake remunerative work because of his war caused injury alone, until the middle of 2004. Given the pattern of seeking employment over the period from March 2002 to June 2004, or in any event, from March 2003 to June 2004 (i.e. two positions in 15 or 16 months and some unspecified telephone enquiries), that does not, on the balance of probabilities, reveal that he was actually looking for work in that period, or what effort there was, that he was “genuinely seeking to engage in remunerative work” as amplified by s 24(2). As a result, he is not entitled to the ameliorating provision in s 24(2)(b). Consequently, question (4) of Flentjar is not satisfied.

DECISION

24.     The decision under review must therefore be affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed: ........................[Sgd]....................................................
           Elizabeth Young, Research Associate

Date/s of Hearing  25 June 2008
Date of Decision  22 July 2008
For the Applicant  Mr Ron Coxon, Advocate
Solicitor for the Respondent     Mr John Stoner, Departmental Advocate