Kelly and Repatriation Commission
[2004] AATA 1000
•24 September 2001
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1000
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/958
VETERANS' APPEALS DIVISION ) Re LESLIE JOHN KELLY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr P Lynch, MemberDate24 September 2004
PlaceSydney
Decision The decision of the Veterans’ Review Board is affirmed. Ms G Ettinger
Senior Member
catchwords
VETERAN - consideration of capacity of Applicant to work - section 23 Intermediate rate claim - credit issues regarding the Applicant - decision affirmed
legislation
Veterans’ Entitlements Act 1986 ss 120(4) & 23
case law
Birtles v Repatriation Commission (1991) 22 FCR 290
Banovich v Repatriation Commission (1986) 69 ALR 395REASONS FOR DECISION
24 September 2004 Ms G Ettinger, Senior Member
Dr P Lynch, Member1. The decision before the Administrative Appeals Tribunal (“the Tribunal”), was the decision of the Veterans’ Review Board dated 22 May 2003 (T2 & T15), which set aside the decision of the Repatriation Commission dated 22 February 2002, and substituted its decision that pension for the Veteran, Mr Leslie John Kelly, be assessed at 90 percent of the General rate from 27 June 2001, and then at 100 percent of the General rate with effect from 12 February 2003
2. Mr Kelly, the Applicant in these proceedings, was represented by Mr B Winship of Fairbairn Lawyers, and the Respondent by its advocate, Mr N Bunn.
ISSUE BEFORE THE TRIBUNAL
3. The issue the Tribunal had to decide was whether Mr Kelly was eligible for Intermediate rate of pension pursuant to section 23 of the Veterans’ Entitlements Act 1986 (“the Act”).
RELEVANT LEGISLATION
4. The relevant legislation in this matter is the Veterans’ Entitlements Act 1986, in particular section 120(4) which deals with the standard of proof in this matter, and section 23 which specifies the criteria with regard to pension at the Intermediate rate.
5. As relevant they follow:
“SECT 120
Standard of Proof
…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…
- SECT 23
Intermediate 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's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
…”
EVIDENCE BEFORE THE TRIBUNAL
6. Oral evidence was given by Mr Kelly and Drs A Hordern and R Haik, both psychiatrists, who gave concurrent evidence. The Tribunal had before it various documents taken into evidence and marked as Exhibits to which it shall refer in the course of these reasons for decision.
evidence of the applicant mr kelly
7. Mr Kelly whose date of birth is 13 June 1949 gave evidence before the Tribunal. He said that he was seeking the Intermediate rate pension pursuant to section 23 of the Veterans Entitlements Act 1986 from the Tribunal on the basis that he can work up to 16 hours per week but not more than 20 hours as a result of his war-caused disabilities.
8. Mr Kelly described drinking six to eight schooners of beer daily to reduce his anxiety, acknowledging in cross-examination that the amount of alcohol ingested was not beneficial to his health. However he was adamant about not taking drugs for his anxiety, as he has a fear of addiction, and of mind altering drugs, he said. He said he had once taken Zoloft for approximately six months.
9. Mr Kelly told the Tribunal that he left school at a young age, and then qualified as a fitter and turner. He joined the Department of Corrective Services as a prison officer and was dismissed from that position in 1999 after some eleven years. From October 1999 he developed his own business, being an agent for fibre glass canopies and aluminium and steel trays for new car dealers. Mr Kelly said that his wife assisted with book keeping but that he did everything else, including dealing with the customers, taking orders and pick-up and delivery. He said that it was heavy physical work, and that his anxiety state which developed further due to the stresses of hearing loss, made dealing with inevitable problems and stresses in the business, as well as the customers, increasingly difficult. He said that he was short tempered and became angry and stressed easily.
10. Mr Kelly also recounted what he understood to have been the incidence of a heart attack in August 2001, after which he said he became even more anxious, particularly as he understood his doctors to tell him he should not undertake such heavy physical labour. He said he feared a stroke, further heart attack or indeed death.
11. Mr Kelly was investigated by ICAC with regard to an offence of which he was later convicted in connection with his work in the corrective services environment, and sentenced to six months home detention. This commenced on 23 January 2003, coinciding with the closure of Mr Kelly’s business. He told the Tribunal that under the terms of the home detention he was unable to continue the business as he did not have a workshop, and the supervision of the outside activities would have made the operation unacceptable to the authorities.
12. However his evidence was also that he was, by then, unable to continue with the business, as since the heart attack in 2001, he had been progressively unable to deal with the heavy lifting, and was becoming more and more anxious and finding it difficult to deal with people.
13. Mr Kelly appeared at the hearing to be very fixated on his blood pressure, describing his monitoring of it at home, and the increase of medication when the blood pressure rose, as discussed, he said, with his general practitioner Dr Conomos.
14. Mr Kelly has not sought work since 2003 on the basis, he says, that if tells an employer of his hypertension and other problems, he does not get the job. He says he is not qualified to do other than heavy work, and gave up the real estate course he commenced because it was too stressful to contemplate giving presentations in the class room, and using computers. Mr Kelly has not sought employment, and claims he is unable to work, stating that even if an employer offered him a position for 16 hours a week, he could not now do that work. He said that his only work skills involved heavy lifting which he cannot now do, and that he cannot interact with people.
SUBMISSIONS AND CONCLUSIONS
15. The Tribunal had to take into account the evidence, submissions, case law and legislation to make the correct and preferable decision regarding Mr Kelly’s entitlement to pension at the Intermediate rate.
applicant’s submissions
16. Mr Winship’s submissions were in summary:
·The Applicant is only capable of part-time and intermittent work up to 16 hours per week due solely to his war-caused injuries, and not for any other reason.
·Mr Kelly has a war-caused anxiety disorder, hypertension and ischaemic heart disease, and is cautious as to his health.
·He understood Mr Kelly’s credit could be of concern to the Tribunal, adding that the real issue in this case was the Applicant’s inability to work due to his accepted war-caused medical conditions.
respondent’s submissions
17. Mr Bunn’s submissions were in summary:
·That the Respondent did not dispute Mr Kelly has an anxiety condition accepted as war-caused, which however does not prevent him from working.
·The evidence for his cessation of work was overwhelmingly the detention which took place from 23 January 2003.
·Accordingly Mr Kelly could not satisfy the tests in section 23(1)(c) of the Act because his inability to work did not arise from war-caused disabilities alone, rather it was the home detention order which was at least partly responsible for the cessation of work; that the Applicant was not suffering salary loss.
·Mr Bunn referred to the medical evidence, relying on that of Dr Haik.
·Mr Bunn referred to Exhibit R4, and a report of the home detention officer in which he wrote (on 24 July 2003), that Mr Kelly was now in a much more stable financial situation than that referred to in the pre-sentence report, and that he had indicated an aim to enjoy a recreational early retirement rather than consider a new career path.
·That Mr Kelly had given inconsistent answers to questioning in the Tribunal.
the tribunal’s deliberations
18. The Tribunal considered the situation of the Applicant, whose date of birth was 13 June 1949, and who has the conditions of mixed hearing loss, laceration tip of middle finger, anxiety state (reactive), hypertension and ischaemic heart disease accepted as war-caused.
19. The Tribunal applied the principles as enunciated in well known cases such as Birtles v Repatriation Commission (1991) 22 FCR 290 and Banovich v Repatriation Commission (1986) 69 ALR 395.
20. The Tribunal took into account the evidence before it to make the decision whether Mr Kelly was eligible for pension at the Intermediate rate. Pursuant to section 23 of the Act, it was satisfied he had made an appropriate claim; that he was under the age of 65 at the time of the claim, and that his degree of incapacity from war-caused injury was at least 70 percent.
21. Accordingly the only issue was, whether Mr Kelly was by reason of his incapacity from war-caused injury, alone, prevented from continuing to undertake remunerative work that he was undertaking, and that by reason thereof, he is suffering a loss of earnings which he would not be suffering if he were free of that incapacity. The standard of proof in this matter is to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act.
22. The Tribunal has summarised the evidence of the Applicant in the paragraphs above which it had given orally to Drs Haik and Hordern before they gave their concurrent evidence. Essentially, it details Mr Kelly’s evidence that he drinks six to eight schooners of beer daily to reduce his anxiety because he does not want to take medication for that condition. He also told the Tribunal that he understood he suffered a heart attack in August 2001, and that he became more anxious after that, particularly as he understood his doctors’ advice that he not undertake heavy physical labour. He expressed fear of a stroke, further heart attack or indeed death.
23. There was some doubt expressed in the medical evidence about whether Mr Kelly had actually suffered a myocardial infarct. Bowral Hospital’s discharge summary of the 24 hour admission on 8/9 August 2001 indicated Mr Kelly had elevated cardiac enzymes and a history of chest discomfort. Dr Quinn, cardiologist, found mild hypertension, but no evidence of cardiac disorder. However the Tribunal did not query the incident further because ischaemic heart disease had been accepted as war-caused.
24. The Tribunal noted that Mr Kelly was employed by the Department of Corrective Services as a prison officer for 11 years, and was dismissed in 1999, after which he developed his own business, becoming an agent for fibre glass canopies and aluminium and steel trays for new car dealers. The Tribunal noted Mr Kelly’s evidence that the business involved heavy physical work, and that Mr Kelly’s anxiety state, which developed further due to the stresses of hearing loss, made dealing with inevitable problems and stresses in the business as well as the customers, increasingly difficult. The Tribunal was mindful that Mr Kelly has some transferable work skills, having qualified as a fitter and turner.
25. The Tribunal was satisfied that Mr Kelly’s business ceased when he was sentenced to six months home detention which commenced on 23 January 2003. Notwithstanding his evidence that he was unable to operate the business from home, which may also have been correct, the Tribunal was satisfied that the business had been unprofitable, (Exhibit R5, Tax Returns for 2002/3 & Exhibits A3 & A4). The Tribunal was also satisfied that the cessation of the business was not due to Mr Kelly’s war-caused disabilities, but due to his home detention situation.
26. The Tribunal was concerned regarding credit issues which arose as a result of Mr Kelly’s evidence, including:
·his answers regarding his reaction to the home detention which varied from an expression of great distress about it, to a situation of it not having affected him greatly;
·his wishes to have recreational early retirement after the home detention as recorded by the Home Detention Officer (Exhibit R4);
·and details of how the incorrect quote for which he was ultimately charged and convicted, came to light.
27. The Tribunal was also concerned in regard to the reasons Mr Kelly gave for not seeking further employment after the end of his home detention in July 2003, in particular whether it was his war-caused disabilities which prevented that, or, whether as recorded in Exhibit R4 by Mr Morphett, the Home Detention Officer, presumably as a result of a conversation with Mr Kelly, that Mr Kelly was, by July 2003 in a much more stable financial situation than that referred to in the pre-sentence report, and that he aimed to enjoy a recreational early retirement rather than consider a new career path. The Tribunal preferred the contemporaneous report of the Home Detention Officer, and considered that it more accurately reflected Mr Kelly’s situation and his reasons for not seeking re-employment.
28. The Tribunal was also mindful that Mr Kelly gave evidence that the quote for the repair of damaged property for which the implicated prisoner had to pay, was an error which was discovered during a routine audit, whereas at Exhibit A4/10 a lawyer of the DPP recorded in its Statement of Facts that Mr Kelly was overheard by the Commissioner of Corrective Services discussing the so-called error in the quote at a work function on 19 July 1998. It is very likely that the DPP version was the more accurate one.
29. Dr R Haik and Dr A Hordern, psychiatrists, whose reports were before the Tribunal as Exhibits R7 and A6, gave concurrent evidence, after a summary of the evidence Mr Kelly gave before the Tribunal had been given. In his report, Dr Hordern stated that Mr Kelly is suffering from a severe chronic anxiety state together with alcohol dependence. He opined that there had been an upsurge in his anxiety symptoms since the coronary thrombosis in August 2001, and agreed that the so-called heart attack may have been a hypochondriac reaction. He opined that the Applicant was not capable of working 16 hours a week. In his oral evidence, Dr Hordern said also that Mr Kelly had been cautioned not to do heavy lifting work after his heart attack, and accordingly could not work. He also opined that the Applicant would benefit from taking antidepressants.
30. Dr Haik, on the other hand, stated that there was no clinical evidence of anxiety or depression; further that there was no clinical impairment of memory, cognitive impairment, speech disorganisation, disorder of affect or other psychiatric phenomena. He opined that Mr Kelly had reacted to the psychosocial stressor (the charge and conviction) with which he was confronted in 1998/9, with a worsening of the anxiety disorder (GAD). Dr Haik indicated that Mr Kelly had worked after the heart attack of 2001 until his home detention, and considered he could work between 16 and 20 hours a week. Dr Haik noted that the ECG Mr Kelly had undergone in 2001 in connection with the so-called heart attack was normal, and it was Mr Kelly’s attitude to his health which was to his detriment. Dr Haik also said that Mr Kelly’s health was the same as it had been before his home detention, and he could therefore do work if he were motivated to do so. Dr Haik also said that the Applicant had told him he was drinking the same amounts of alcohol as he had been since the age of 21. He had also been overweight for many years.
31. The Tribunal has accepted that notwithstanding the acceptance of ischaemic heart disease as a war-caused disability, Mr Kelly continues to drink large amounts of alcohol, which he has done for at least the last twenty years. The Tribunal was satisfied to the requisite standard that Mr Kelly’s business was unprofitable at the time of closing it down, the date of closure coinciding with the commencement date of the home detention on 23 January 2003. The Tribunal preferred Dr Haik’s opinion that Mr Kelly can work more than 16 and in fact 20 hours a week, noting that his alcohol consumption has been long term, and that the date of the so-called heart attack was 2001. The Tribunal was mindful that Mr Kelly has suffered with, and worked full-time with GAD for many years, and that none of those conditions stopped him working previously. The Tribunal accepted Dr Haik’s explanation that the GAD is an innate type of genetically-based disorder the course of which is chronic, and which often worsens in times of stress, such in reaction to the difficulties Mr Kelly had in regard to the conviction.
32. The Tribunal was also satisfied that the reason Mr Kelly does not seek work now, is his attitude to work. It accepted the view expressed by the Home Detention Officer, that Mr Kelly’s financial situation is now more secure than previously (R4). Accordingly, the Tribunal concluded he was not suffering a loss of income within the terms of section 23 of the Act.
33. The Tribunal, therefore, having decided that Mr Kelly can work 20 hours a week, and is not by reason of his war-caused injuries alone, prevented from undertaking work at his former occupation, was satisfied that he has not suffered a loss of earnings. Therefore Mr Kelly cannot meet the tests in section 23(1)(c) of the Act, and is not eligible for the Intermediate rate of pension.
DECISION
34. The decision of the Veterans’ Review Board is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Dr P Lynch Member
Signed: .....................................................................................
AssociateDate of Hearing 6 July 2004
Date of Decision 24 September 2004
Solicitor for the Applicant Mr B Winship, Fairbairn Lawyers
Respondent’s Advocate Mr N Bunn
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