Joseph Andre O'Brien and Repatriation Commission
[2013] AATA 330
[2013] AATA 330
Division VETERANS' APPEALS DIVISION File Number
2012/2397
Re
Joseph Andre O'Brien
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 22 May 2013 Place Melbourne The Tribunal sets aside the decision under review and substitutes its decision that Mr O’Brien satisfies the eligibility criteria for special rate of disability pension, the date of effect being 25 May 2010.
[sgd]........................................................................
Miss E A Shanahan, Member
VETERANS’ AFFAIRS – special rate – profound hearing loss – occupation that of a teacher – profound hearing loss – non-war-caused conditions not contributing to incapacity for work – decision set aside.
Legislation
Veterans’ Entitlement Act 1986 sections 23, 24 and 28
Cases
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Hall v Repatriation Commission (1994) 33 ALD 454
Peacock v Repatriation Commission (2004) 40 AAR 143
Smith v Repatriation Commission (2012) 131 ALD 63
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
Miss E A Shanahan, Member
22 May 2013
Mr O’Brien has the following disabilities for which the Repatriation Commission (the Commission) has accepted liability: bilateral sensory hearing loss; bilateral tinnitus; oesteoarthrosis affecting both knees; lumbar spondylosis with multilevel disc degeneration; depressive disorder and post traumatic stress disorder (PTSD). He has the non‑accepted disabilities of Meniere’s disease and cervical spondylosis with multilevel disc degeneration.
Mr O’Brien has been receiving the disability pension at 100 per cent of the general rate since 25 May 2010. He lodged an application for an increase in his disability pension on 10 September 2010, which confirmed an informal claim received by the Department of Veterans’ Affairs (the Department) on 25 August 2010. On 4 February 2011 a delegate of the Department increased his rate of disability pension to 100 per cent of the general rate. However, the delegate determined that Mr O’Brien did not satisfy the criteria for special or intermediate rate of pension as he had retired from work in 2003, had not sought work thereafter, and the delegate was not satisfied that Mr O’Brien is prevented from working because of his accepted disabilities alone.
Mr O’Brien lodged an application to the Veterans’ Review Board (the VRB) seeking review of the delegate’s decision on 21 February 2011, primarily on the basis of the delegate’s rejection of his cervical spondylosis as being war-caused. The VRB affirmed this aspect of the delegate’s decision. The VRB also considered Mr O’Brien’s application for special rate based on his hearing loss, an accepted disability since 2001 for the right ear and since 2005 for the left ear. The VRB adjourned the hearing in order for the Department to obtain expert medical opinion relating to the impact of Mr O’Brien’s hearing loss on his capacity to work.
A differently constituted VRB reheard the application on 4 June 2012, following receipt of the expert medical opinions of Mr Robin Hooper, Ear Nose and Throat Surgeon, and Doctor Amanda Sillcock, Occupational Physician. The VRB affirmed the delegate’s decision.
Mr O’Brien lodged an application for review of the VRB decision with the Administrative Appeals Tribunal on 18 June 2012. At the hearing Mr O’Brien was represented by Ms Fiona Spencer of counsel, instructed by Williams Winter solicitors and the Commission was represented by Mr Ken Rudge, a solicitor employed by the Department. The Tribunal was provided with the s 37 documents (T‑documents, Exhibit R1) and the parties tendered further documentation which is annexed to this decision. Mr O’Brien attended the hearing and gave evidence before the Tribunal. Mr Gary Miller, a senior teacher at The Farm School in Western Australia, gave evidence by telephone.
BACKGROUND TO THE APPLICATION
Mr O’Brien was conscripted into the Australian Army as a National Serviceman and served between 28 January 1970 and 15 November 1971. His service included operational service in South Vietnam from 20 October 1970 to 16 September 1971. His National Service had been deferred until he completed his Bachelor of Rural Science at the University of New England.
During Mr O’Brien’s South Vietnam tour of duty, he used explosives regularly as a member of the Well Boring Team. During the last two months of his tour, he was again exposed to explosives in the course of his duties as an operator of a rock crusher in the Nui Dat quarry (Exhibit A1). When he returned to Australia Mr O’Brien complained of hearing loss. As part of his discharge on medical examination, he underwent assessment by an Ear Nose and Throat specialist and an audiogram. The latter was said to have been abnormal.
In 1972 Mr O’Brien resumed employment with the New South Wales Department of Agriculture, having obtained his degree in rural science as part of a departmental cadetship. He remained with the department until late 1974. After some short term jobs, including teaching, he studied for a Diploma of Education, which he completed in late 1976. Thereafter, he worked as a teacher, mainly in isolated Aboriginal communities in the Northern Territory, until he ceased work in approximately July 2009. He had resigned from the Northern Territory Department of Employment, Education and Training (the Department of Education) on 23 January 2004 at the age of 55 in order to access part of his superannuation. He subsequently registered and worked as a teacher in Western Australia (Exhibit R5).
Throughout his employment as a teacher, Mr O’Brien established a pattern of working full time for years and then taking extended leave without pay for several months up to one year. In his evidence before the Tribunal, he said he had 1978, 1982, 1984, 1992, 1994, 1998 and 2000 off work without pay and during these periods he travelled widely and/or bought renovated and resold housing properties. Following his resignation in January 2004, it was his plan to return to Sydney and renovate a house he owned in Petersham. The cost of the renovation was $40,000 more than he had planned and as he was then 55 years of age he decided to access his superannuation to pay for the renovations. In order to so, he had to inform the Northern Territory Department of Education that he planned to retire. Despite this, it was his intention to return to work late 2005.
In 1997 Mr O’Brien developed episodic bouts of nausea, vomiting and vertigo occurring every 3 to 4 months. These were diagnosed as Meniere’s disease in 1999 and had resolved without treatment by 2001. In that year, Mr O’Brien noted an appreciable deterioration in his hearing. The Principal of the Katherine High School arranged a hearing assessment for Mr O’Brien, following which he was issued with a hearing aid. He was assessed by the Regional Medical Officer in Katherine, who found him fit to work as a teacher. His hearing continued to deteriorate and by 2003 he was unable to hear conversations in the staffroom, playground or school assemblies. Despite this, he felt he was making a significant contribution as a teacher.
In mid-2006 Mr O’Brien contacted Ms Sue Murphy, the Director of Recruitment in the Northern Territory Department of Education. He advised Ms Murphy of his hearing problems, even though he was considered suitable for teaching and such positions in his areas of expertise included woodwork, metalwork, animal husbandry were available. In late 2006 Mr O’Brien and his then partner Ms Angela Fitzgerald (now his wife) were offered teaching positions at a settlement 450 kilometres north of Alice Springs. They were to start at the beginning of the 2007 school year. Just before they were due to start their teaching positions, Ms Fitzgerald was offered a Fellowship, to enable her to study for her PhD at Edith Cowan University. As a result, they cancelled their teaching contract and relocated to Perth.
Mr O’Brien registered as a teacher in Western Australia. He was well aware that, given the extent of his hearing loss, he could not teach in an ordinary school. He was acquainted with The Farm School situated in the outskirts of Perth. The Farm School accepts at-risk 15 year olds, selected from 13 Western Australian high schools. The students attend the school for one day a week to undertake a rural skills program. The program is practical in nature and the school runs as a farm, occupying 150 acres stocked with cattle, sheep and poultry. As well as animal husbandry, the school provides classes and courses in woodwork and metalwork.
Mr O’Brien was employed as a casual relief teacher, teaching woodwork and metalwork. He commenced in September 2007 and worked variable hours from one day per week to one to two weeks at a time. Mr O’Brien says he ceased working at The Farm School in March 2009. However, his supervising teacher Mr Gary Miller has stated that he ceased work in July 2009. Mr O’Brien did not actually resign his position at The Farm School. He simply made himself unavailable when contacted to work.
Mr O’Brien’s stopped working at The Farm School because of a disturbing event. One day he was teaching three students, the normal teacher to student ratio in this setting. They had been repairing the left hand fender of a 30 year old Holden utility. Mr O’Brien and two students were sitting in the work shed welding when the utility driven by the third student hit the door post to the building some two metres from where Mr O’Brien and the two students were sitting. The student driver of the utility was greatly distressed by the accident and began crying. Mr O’Brien was extremely angry and started berating the student.
Mr O’Brien was then informed by the other two students that he had given the third student permission to drive the utility. Mr O’Brien realised that he had misheard the student’s request to drive, as he would never have given permission for a 15 year old to drive unaccompanied. Mr O’Brien fixed the door post and the door runner himself. Mr Miller confirmed these events. Mr O’Brien said I knew then my career was over. I couldn’t teach because I couldn’t hear.
It had been Mr O’Brien’s intention to continue to work at The Farm School and to increase his hours to those of a full-time teacher. Mr Miller had made him aware of the possibility that such a position would shortly be available and that his prospects for attaining it were high. The then senior teacher, Ms Lynn Wilkinson had taken six months of long service leave and a relief teacher was needed to replace her. It was also understood that Ms Wilkinson intended to retire at the expiration of her long service leave. Mr Miller had suggested to Mr O’Brien that he should apply for a full-time position when Ms Wilkinson resigned.
In early 2010 Mrs O’Brien (nee Angela Fitzgerald) was appointed as a lecturer at Monash University in Victoria and commenced duties on 31 May 2010. Mr O’Brien informed the Department that he would be moving to Victoria and that he had no intention of working as a teacher. Nor would he be performing any of the handyman-type work he had undertaken intermittently over several years, which had included short-term painting jobs (for which he earned $20 per hour), labouring and welding for a friend in Exmouth.
Following their relocation to Victoria, Mr O’Brien spent his time establishing a vegetable garden, playing golf once a week, performing domestic duties and, as a hobby, making Windsor chairs. He also undertook a course in information technology at the Chisholm Institute of Technology, obtaining a Certificate I with a High Distinction. Had he been free of his hearing defect, Mr O’Brien said he would have pursued a position in teaching in Victoria, as teaching was not only his livelihood and career but his vocation. His eldest brother is a teacher, was a school principal and then worked in the Catholic Education Office until the age of 70. Another brother aged 67 is still teaching full time.
On reaching the age of 60 in 2008, Mr O’Brien qualified for the service pension. The amount he has been paid has varied in accordance with the work he has undertaken. His tax returns for the year 2008-2009 show an income from teaching of $3,470 and a business income (handyman activities) of $6,679. In 2009-2010 he earned $3,646 from labouring and the remainder of his income was derived from his service pension. In r 2007-2008 his teaching income was $6,116 and his business income $5,800.
In 2009 Mr O’Brien suffered an acute exacerbation of back pain which radiated to his left leg. This episode lasted for a period of three weeks and has not recurred. At the same time, he experienced cervical spinal pain. On investigation with MRI he was found to have degenerative changes throughout the cervical spine. He was seen by a neurosurgeon in Perth, who referred him to a pain specialist. On the pain specialist’s recommendation, Mr O’Brien underwent facet joint injections of local anaesthetic and steroids, with an excellent result. He was instructed to exercise on a regular basis and now follows a 40 minute program, three to four days per week. He does not receive any other treatment for the degenerative disease of his back and knees both of which are accepted as war-caused conditions. His cervical spine degenerative disease remains asymptomatic. Similarly, his war-caused depression and PTSD have not interfered with his capacity to teach or his ability to perform handyman tasks.
On 25 December 2012 Mr O’Brien climbed the highest accessible peak on Mount Kilimanjaro. He produced a certificate to that effect (Exhibit A2). In 2011 he suffered a right retinal detachment which was treated by laser therapy and lens replacement in September 2012. He does not have any visual defect as a result of the detachment.
On 25 January 2013 Mr O’Brien and his wife moved to Jordan. Mrs O’Brien is working on a two-year contract as a teacher arranged by Australian Volunteers International and Mr O’Brien is classified as an accompanying dependant.
EVIDENCE BEFORE THE TRIBUNAL
Mr Joseph O’Brien
Mr O’Brien’s evidence has been summarised under BACKGROUND TO THE APPLICATION. During the course of giving evidence it was apparent that he was profoundly deaf. He uses a hearing aid in his left ear and this functioned quite well provided there was little background noise. When being questioned he tended to turn his left ear toward the speaker. The hearing room contains a hearing loop in the vicinity of the witness box and this assisted Mr O’Brien greatly. The Tribunal noted that he also employed lip reading when giving his evidence. On completion of his oral evidence Mr O’Brien resumed his seat behind counsel. The Tribunal asked him several questions, seeking confirmation of the evidence in part that he had given in the witness box. He was unable to hear the Tribunal’s questions, even though the distance separating Mr O’Brien from the Tribunal Member was only five or six metres.
Mr Gary Miller
Mr Miller is a senior teacher at The Farm School in Western Australia. He provided a statement dated 26 June 2012 (Exhibit A4). Mr Miller described the functions of the school, which were the teaching of general farming, welding and agriculture. Mr O’Brien had worked in all three areas. There are five full-time teachers at The Farm School. He said the majority of Mr O’Brien’s time was spent in the workshop, instructing in welding and fabricating. Mr Miller had noted that Mr O’Brien was extremely deaf in the right ear and had difficulty hearing conversations. It was often necessary to tap him on the arm to attract his attention. Mr Miller described Mr O’Brien as being very highly respected by the staff and the students, liked by the kids and overall that Mr O’Brien was a lovely bloke.
Mr Miller confirmed that he had spoken with Mr O’Brien about the possibility of him working in a full-time position once Ms Wilkinson formally resigned, and Mr O’Brien had said he would think about it. It was Mr Miller’s opinion that Mr O’Brien would have been very suitable for the position and likely to have been successful had he applied for it.
Mr Miller said that he had not observed the accident when the Holden utility was driven into the workshop door but was told about it. He said that he helped Mr O’Brien fix the damage to the post and the door. He described Mr O’Brien as being very shaken by the event, apologetic regarding the damage to the door but primarily being concerned for the welfare of the students. Mr Miller was quite certain that these events took place in July 2009, as this was the time when Ms Wilkinson had commenced her long service leave and he was acting in her role. According to Mr Miller, Mr O’Brien had told him the day after this event that he would not be continuing in the role of a relief teacher.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Department of Education, Western Australia
The Department of Education, Western Australia provided documentation regarding Mr O’Brien’s employment as a relief teacher at The Farm School (Exhibit R5). These documents included the dates of Mr O’Brien’s actual employment which was between 10 September 2007 and 30 March 2009. The documents record that Mr O’Brien worked for a total of 45 days as a relief teacher at The Farm School. The Tribunal notes that Mr O’Brien and Mr Miller considered these figures to be inaccurate. They were of the opinion that Mr O’Brien had worked for a period longer than 45 days in total.
Prior to commencing work, Mr O’Brien had been assessed by an occupational physician who seems to have undertaken a very cursory examination, as evidenced by five short lines of notation, which indicates that Mr O’Brien’s testing consisted of Able to hear conversational voice. It appears to declare Mr O’Brien was fit for employment as a teacher.
The Department of Education also obtained a teacher appraisal/reference regarding Mr O’Brien from Mr Ken Barnes of the Katherine High School in the Northern Territory. Mr O’Brien had worked for many years at the Katherine High School. Mr Barnes completed the appraisal, which was a tick the boxes form, declaring Mr O’Brien as being satisfactory in all aspects of teaching but commented that Joseph performed at a level much higher than satisfactory in all areas identified. The Departmental documents also contain confirmation of Mr O’Brien having completed training modules and therefore being qualified in eight areas relating to metals and engineering.
Dr Nigel Strauss, psychiatrist
Dr Strauss assessed Mr O’Brien’s accepted conditions of depression and PTSD at the request of the Department (Exhibit R3). Dr Strauss agreed with the diagnosis of PTSD and a depressive disorder but found that neither condition would prevent Mr O’Brien from undertaking remunerative work.
Dr Robyn Horsley, Occupational Physician
Dr Horsley assessed Mr O’Brien’s work capacity at the request of the Department (Exhibit R4). Having taken a detailed medical history and performed a thorough physical examination, Dr Horsley concluded Mr O’Brien’s primary disability was his hearing deficit which in her opinion prevented him from working safely in the workshop environment as a teacher. She considered him to be totally and permanently disabled. Dr Horsley did not believe that Mr O’Brien’s cervical spondylosis prevented him from working as a teacher although it could limit his teaching style. The only other non‑service related factor that she raised was the fact that at the time of the consultation Mr O’Brien was 64 years old and had been out of the workforce for three years.
As directed by the VRB, the Department obtained further opinions from Dr Sillcock, Occupational Physician and Mr Hooper.
Dr Amanda Sillcock
Dr Sillcock obtained the medical history reported above. On examining him, she found a slight reduction in Mr O’Brien’s neck movement in all directions. The range of movement in his lumbar spine was normal. Dr Sillcock did not believe that any of Mr O’Brien’s physical complaints prevented him from working as a teacher but his severe hearing loss rendered him permanently unfit for teaching duties. She did not consider that he had the capacity to do any other type of work.
Mr Robin Hooper, Consultant Ear Nose and Throat Surgeon
Mr Hooper’s clinical assessment was limited to Mr O’Brien’s hearing loss. He noted the history of Meniere’s disease and reported that this had commenced with episodes of severe dizziness with nausea and vomiting in 2001. These dates are in conflict with Mr O’Brien’s evidence, that these symptoms commenced in 1997 and the diagnosis of right Meniere’s disease was made in 1999.
On examining Mr O’Brien, Mr Hooper detected exostosis in the right external auditory canal and normal tympanic membranes. Pure tone audiometry revealed a severe to profound right sensorineural hearing loss and a moderate to severe left sensorineural hearing loss, predominantly in the high frequency range. Mr Hooper reported that Mr O’Brien had 87 per cent speech discrimination of the left ear at the appropriate levels of amplification; and 33 per cent speech discrimination in the right ear.
Mr Hooper concluded that Mr O’Brien has a severe hearing handicap and is unable to work in any occupation which involves social interaction. Mr Hooper attributed this hearing loss, at least in part, to Mr O’Brien’s service in Vietnam.
The Tribunal was provided with the clinical notes of the Wembley Family Medical Practice (Exhibit R6) and those of his general practitioner Dr Rick Lowther, while Mr O’Brien was resident in Victoria. These records do not contribute any new or conflicting medical data but do confirm that Mr O’Brien suffered an acute episode of lumbar back pain in June 2009 which responded to physiotherapy; and that he had an episode of severe neck pain in April 2009 which responded extremely well to facet joint injections. The Wembley Medical Centre notes contain a letter from a Mr Stewart Miller, Ear Nose and Throat Surgeon, who had assessed Mr O’Brien for a cochlea implant in his left ear in May 2009, but advised that his level of hearing loss on the left side at that time was above the threshold for qualification for this procedure. CT scanning of Mr O’Brien’s lumbar spine, performed in June 2009, revealed a subtle left posterolateral disc extrusion at L3/4 level with L4 nerve root compression.
RELEVANT LEGISLATION
The relevant legislation is contained in s 24, s 23 and s 28 of the Veterans’ Entitlement Act 1986 (the Act). Section 24 states:
24Special 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.
Section 23 has similar provisions that apply to a Veteran whose incapacity renders them capable of only working part time or intermittently.
Section 28 provides that:
28Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
SUBMISSIONS
The parties agreed that Mr O’Brien satisfied s 24(1)(a) and (b) of the Act and that the only issue before the Tribunal was whether he satisfied s 24(1)(c). The Respondent formally accepted that Mr O’Brien could not perform manual work.
The Applicant
Ms Spencer for Mr O’Brien submitted that the assessment period should be taken to have started on 25 August 2010. On that date, a written but informal application for a disability pension had been lodged with the Department. The formal application form was lodged on 10 September 2010.
As it was agreed that the only question before the Tribunal was whether Mr O’Brien satisfied s 24(1)(c), Ms Spencer submitted that the approach to be taken was that as outlined by Gordon J in Smith v Repatriation Commission (2012) 131 ALD 63, where Her Honour said (at paragraph 48):
[48] Before turning to consider the AAT’s approach and consideration of the questions, some principles are worth restating:
(1)In applying s 24(1)(c), the task is “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well”: Cavell v Repatriation Commission (1988) 9 AAR 534 at 539; Repat Com v Hendy at [37] and Forbes v Repatriation Commission (2000) 101 FCR 50 ; 171 ALR 131 ; 58 ALD 394 ; [2000] FCA 328 at [32].
(2)In Flentjar at 4–5 Branson J propounded four questions designed to address the s 24(1)(c) issue:
1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the [VE] 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 question 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 answers to questions 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?
(3)Consideration of the “remunerative work” is not limited to the last job undertaken by the veteran; regard should be had to the types of work performed by the veteran: Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 ; 76 ALR 449 at 454 ; 14 ALD 160 (Starcevich) and Repat Com v Hendy at [36].
(4)The phrase “remunerative work” is not focused upon the particular tasks and duties involved in specific jobs. In identifying the relevant “remunerative work”, the decision-maker must look “to the type of substantive work undertaken by the veteran at a higher level of generality”: Repatriation Commission v Butcher (2007) 94 ALD 364; [2007] FCAFC 36 at [7] (Butcher); Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 and Starvcevich at FCR 225; ALR 454.
Adopting the approach of Gordon J in Smith, and addressing Question 1 of Flentjar v Repatriation Commission (1997) 48 ALD 1,Ms Spencer submitted that the relevant or substantive work that Mr O’Brien was undertaking was teaching.
Ms Spencer submitted that given the severity of Mr O’Brien’s hearing loss, as documented by audiometry, and supported by Mr Hooper, Dr Horsley and Dr Sillcock as to this loss of hearing on Mr O’Brien’s capacity to work, the answer to Question 2 of Flentjar was yes.
Ms Spencer submitted that the only factors that were relevant to Question 3 of Flentjar, in that they might contribute to preventing the veteran from continuing to work as a teacher, were the lifestyle he had followed, his age at the time of his application (62), his qualification for the service age pension at age 60, and his decision to relocate (in Australia and overseas) according to his wife’s study and employment. Ms Spencer argued that these considerations went to s 24(2)(a)(1)of the Act, that is, he had ceased work for reasons other than his incapacity. Ms Spencer referred to the decision in Peacock v Repatriation Commission (2004) 40 AAR 143 where Dowsett J, considered that access to superannuation at the age of (in that matter) 55 may be an incentive to retire, but it cannot prevent work.
On the question of any impact of Mr O’Brien’s age and time out of the workforce, Ms Spencer contended that while Mr O’Brien was 62 when he lodged his application for the pension, it had been his intention to work up to the age of 70. Had he obtained a full time job in Western Australia, his wife would have stayed at the Edith Cowan University. Even though his wife eventually shifted to Monash University, Mr O’Brien would have sought to teach in Victoria had he not suffered from his hearing defect and at such time would have only been out of the workforce for one year, which it was submitted was not a significant factor. Ms Spencer relied on the opinions of the experts regarding Mr O’Brien’s other health issues, submitting that they made no impact on his capacity to work. She contended that the answer to Question 3 of Flentjar was yes.
In relation to Question 4 of Flentjar, Ms Spencer submitted that it had been Mr O’Brien’s intention to work until the age of 70 and he was clearly suffering a loss of wages or earnings because of his substantial incapacity related to his profound hearing loss. She said that the answer to Question 4 of Flentjar was therefore yes.
Ms Spencer contended that the ameliorative provision (24(2)(b)) was not attracted as Mr O’Brien did not apply for any other remunerative work after mid-2009 because of the impact of his hearing loss on all forms of employment.
The Respondent
Mr Rudge agreed that the only issue for the Tribunal was the satisfaction of s 24(1)(c) of the Act. He contended that the other factors that had contributed to Mr O’Brien continuing his role as a teacher were his age, the recency of work, his time out of the workforce and the various moves he undertook around Australia which were dictated by his wife’s career and study. Mr Rudge argued that while none of these factors prevented Mr O’Brien from undertaking remunerative work, they could contribute in the sense espoused by the Full Court of the Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47.
The Applicant’s Reply
In response, Ms Spencer submitted that Mr O’Brien would have continued to teach in Western Australia and then in Victoria as he accompanied his wife in the various moves to further her study and career. Ms Spencer rejected Mr Rudge’s contention that the decisions in Hendy and Peacock were not in accord.
TRIBUNAL’S DELIBERATIONS
The Tribunal agrees with the parties that the only question for determination is whether Mr O’Brien meets the requirements of s 24(1)(c) of the Act.
Doctors Sillcock and Handley and Mr Hooper agreed that Mr O’Brien cannot work because of his profound deafness. The Tribunal notes Mr Hooper’s wording, adopted by Dr Sillcock, that: Mr O’Brien is unable to work in any occupation which involves social interaction. The event that precipitated Mr O’Brien’s retirement in 2009 disturbed him greatly, as he realised his hearing deficit posed a hazard to others as well as to himself. While he was aware of his deteriorating hearing from approximately 2001 onwards and reported it to his employers, including the Western Australian authorities in 2008, he was reassured after medical assessments that he was fit to work.
The Tribunal accepts the evidence of Doctors Sillcock and Handley and Mr Hooper. Accordingly, the Tribunal finds that Mr O’Brien has been totally and permanently incapacitated from teaching since 2009 and that he would not meet Workplace Health and Safety requirements as a handyman, welder or in similar occupations.
The Tribunal finds that Mr O’Brien’s other accepted conditions and those rejected as not being war-caused would not incapacitate him from working. He assiduously follows an exercise program and has availed himself of all recommended medical treatment. At the age of 64 he climbed Mount Kilimanjaro to a height of 5,895 metres. .
The remunerative work that Mr O’Brien has undertaken for more than the past 30 years is that of teaching at a secondary level, predominantly in vocational education. He has renovated houses for himself and undertaken house painting, welding and labouring work for remuneration. The Respondent has accepted that Mr O’Brien cannot or should not perform manual work. The Tribunal agrees, since by doing so, in either a part-time or full-time capacity, Mr O’Brien would probably aggravate and render symptomatic his accepted conditions of oesteoarthrosis of the spine and knees and ankles and also his unaccepted condition of cervical spondylosis. The Tribunal agrees with Ms Spencer that the answer to the first question from Flentjar is teaching. The Tribunal also agrees with Ms Spencer that the answer to the second question from Flentjar is yes; the disease preventing him from continuing in remunerative work being his profound war-caused deafness.
Question 3 from Flentjar requires the Tribunal to consider whether there are other factors in preventing Mr O’Brien from continuing to undertake his previous employment as a teacher. The factors raised by the Respondent are:
·Mr O’Brien’s age;
·his absence from the workforce since 2009;
·the influence, if any, of his wife’s career moves;
·his receipt of the service pension;
·his accessing of superannuation; and
·his prior pattern of work, wherein he has ceased working for periods throughout his career.
When he lodged his application for the pension Mr O’Brien was 62. He is now 64. It was his stated intention to continue working as a teacher until the age of 70. His two older brothers, also teachers, have followed such a course.
Tribunals and courts have considered 65 to be the normal age of retirement for males; that being the age when men qualify for the old age pension, as provided in legislation enacted in 1908, when male life expectancy was 55 years. The Federal Government has already legislated to incrementally increase the pensionable age to 67, given male life expectancy is now of the order of 80 to 81. Mr O’Brien’s age would not prevent him from obtaining remunerative employment as a teacher.
Mr O’Brien has now been absent from the workforce for almost four years. Given his lengthy experience in this profession, the Tribunal does not consider this a contributory factor. He has taken steps to improve his teaching qualifications by obtaining a TAFE level certificate in computer skills.
In 2008, on reaching the age of 60, Mr O’Brien qualified for the service pension. He continued to work part-time or on casual basis in 2008 and 2009, advising the Department of his earnings as a teacher. His service pension was adjusted accordingly. The Tribunal does not consider his accessing of a service pension as an indication of his desire to retire.
Having taken leave from the Northern Territory Department of Education without pay in 2008, in order to renovate a residential property he owned in New South Wales, Mr O’Brien found he had underestimated the costs of these renovations and sought to access his superannuation monies. He was advised he could not do so unless he had retired. He therefore resigned from the Northern Territory Department of Education, despite his intention to resume work when the renovations were completed. In Peacock, Dowsett J said [at 33], in relation to Mr Peacock retiring in order to access his superannuation benefits, such access may be an incentive to retire, but it cannot “prevent” work. In Mr O’Brien’s case the incentive to access his superannuation benefits was to obtain funds to complete the renovations he was undertaking; funds which could only be accessed if he stated an intention to retire.
The Respondent has submitted that Mr O’Brien’s work pattern and relocation to Perth and then Melbourne was dictated by his wife’s career moves. Mr O’Brien does not deny that this was a factor in their decision as to where they lived and worked. But again, this does not prevent work. Mr O’Brien informed the Tribunal of the reciprocity that exists in relation to registration of teachers in various states throughout Australia. His application for registration in Western Australia had required the lodging of a form, the provision of one reference and a somewhat cursory medical examination. Mr O’Brien had already been registered in Northern Territory and New South Wales and his extensive experience would most likely be appreciated in Victoria. Mr O’Brien has 30 years of experience in teaching, including teaching Aboriginal students, and he speaks six Aboriginal languages.
Mr O’Brien has not sought employment since he resigned from the Western Australian Department of Education as his profound deafness precludes him from working in any position that requires social interaction. He is a hazard to himself and others in the workplace (s 28(c)). The Tribunal does not consider sections 28(a) and 28(b) of the Act to be relevant given the limitations of the kinds of remunerative work an individual with Mr O’Brien’s profound deafness could undertake. His skills, qualifications and experience are limited to vocational teaching and handyman-type work (Chambers v Repatriation Commission (1995) 55 FCR 9). Mr O’Brien does speak six Aboriginal languages and has taught English to adults in remote Aboriginal communities but his deafness would preclude such work, despite the existing needs for such services.
The Tribunal finds that Mr O’Brien satisfies all the criteria of s 24 of the Act. Therefore, the Tribunal sets aside the decision under review and substitutes its decision that Mr O’Brien qualifies for payment of the disability pension at the special rate. The date of effect is 25 May 2010, in accordance with s 20(1) and s 20(2) of the Act.
I certify that the preceding 64 (sixty‑four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member. [sgd].......................................................................
Associate
Dated 22 May 2013
Dates of hearing 6 & 7 March 2013 Counsel for the Applicant Ms Fiona Spencer Solicitors for the Applicant Ms Meghan Hammond,
Williams Winters Solicitors
Solicitors for the Respondent Mr Ken Rudge, Department of Veterans' Affairs
ANNEXURE
EXHIBITS
THE APPLICANT
A1 Mr O’Brien’s Statement dated 7 June 2012
A2Certification of Mr Joseph O’Brien successfully climbing Mt Kilimanjaro to reach the summit on 25 December 2012.
A3Transcript of the Veterans’ Review Board dated 19 October 2012.
A4Statement of Gary Miller dated 26 June 2012 with attached letter dated 28 May 2011.
THE RESPONDENT
R1T- Documents (s 37 Documents)
R2Claim for Service Pension documents (61 pages)
R3Medical report of Dr Nigel Strauss dated 2 October 2012
R4Medical report of Dr Robyn Horsley dated 1 November 2012
R5Government of WA, Department of Education documents under covering letter dated 25 July 2012.
R6Clinical notes of Dr Di Camillo in relation to Mr O’Brien
R7Southwood Surgical Pty Ltd – several authors (23 pages)
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