KEVIN VAN AS and REPATRIATION COMMISSION

[2009] AATA 934

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 934

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4267

VETERANS' APPEALS DIVISION		)
Re		KEVIN VAN AS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date19 November 2009

PlaceMelbourne

Decision For reasons given orally at the hearing the Tribunal affirms the decision in as far as the applicant does not qualify for the Intermediate Rate or the Special Rate of disability pension.  The Tribunal remits the matter to the respondent to reconsider the rate of the General Rate pension.

...................[signed]................

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2008/4267

VAN AS

and

REPATRIATION COMMISSION

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

THURSDAY, 19 NOVEMBER 2009

MR B. TURNER appears for the applicant
MR D. BROWN appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:   The application I have before me is really an application for special rate, which requires that the applicant satisfy all the limbs of section 24 of the Veterans Entitlement Act of 1986 [the Act].  I’ve looked at all the material and heard from Mr Van As today.  In relation to section 24(1)(a) there’s no dispute that the threshold of 70 per cent of the general rate is met.  In relation to 24(1)(b), which refers to how much Mr Van As is capable of working over a week, the medical evidence is really quite varied.  There is evidence to suggest that he can’t work at all; there’s evidence to suggest that he can work 10 to 19 hours and various other assessments given by medical practitioners.

I’m going to put to one side section 24(1)(b) for the moment because really section 24(1)(c) is the key issue in this matter.  And section 24(1)(c) is really the alone test, whether the incapacity from his war-caused injuries or disease or both alone prevented him from continuing to undertake remunerative work that he was undertaking and is by reason thereof suffering the loss of salary or earnings from his own account that he would not be suffering if he was free of that incapacity.  I’ve heard evidence that Mr Van As started off as an electrician.  He completed his apprenticeship and served his national service in the army as an electrician until 1973 [when] he slipped on a floor in a wet canteen and dislocated his hip, and he wasn’t helped by some well-meaning soldier trying to put it back at the time.  I don’t think you’d find anyone trying to do that these days; they probably would be sued if they did.

The unfortunate result of that is that Mr Van As to this very day continues to suffer significantly from his hip, and I accept his evidence that his hip problems have prevented him from doing really what he wanted to do, and that was to get back to working as an electrician.  And it’s for that reason that he took a job with the Melbourne Metropolitan Board of Works as a storeman and became a storekeeper, and then when that job ceased because the MMBW moved, he went back into the building industry as a labourer’s assistant and worked there for a number of years, and during that time worked with Mr Craig Taylor who gave evidence today.

And Mr Taylor said that he worked about two and a half days a week because of his health problems, otherwise he would have worked full time, and he was offered full time employment but was unable to accept because he couldn’t guarantee his attendance every day.  And towards the end of the period – that is, 1999 to 2005 – he was able to do less tasks than were required and Mr Van As and Mr Taylor parted ways, after which, after some period of unemployment Mr Van As bought into a business with his brother and another person.  That business was supplying videotapes to hotels and motels.

I have heard evidence from Mr Van As that his own skills were not really in the business world, and he didn’t have computer skills, and as a result of that the business had to employ another person to do the paperwork and the books, which didn’t really help the profitability of the business, and in fact the business went from 200 to 100 customers and ultimately ceased in about 2006 because it was unprofitable.  Mr Van As told me that he went to Centrelink after that and they put him on a disability support pension, which he has been on to this day.  And he said when asked whether he had looked for work since then he said no.  He said it wouldn’t be much point because he couldn’t work.

I have no reason to disbelieve anything Mr Van As said.  I find him an honest and totally credible witness who is clearly suffering the effects of not only the hip injury but depression, which was not diagnosed originally but has been diagnosed in more recent times.  There’s also a suggestion of alcohol abuse.  Mr Van As says that he hasn’t missed any work as a result of alcohol problems and is more of a binge drinker than an alcoholic, if I can use that term.  In assessing his claims under section 24(1)(c) of the Act, it’s usual to apply the test set out in Flentjar v Repatriation Commission (1997) 48 ALD 1, where the Full Federal Court listed the test as four questions.

And the first question is, what was a relevant remunerative work that the veteran was undertaking within the meaning of section 24(1)(c) of the Act?  In the case of Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J said that decisions regarding section 24(1)(c) have to be made with an eye to reality, and common sense must be used.  And in Banovich v Repatriation Commission (1986) 69 ALR 395, the Full Federal Court said that the phrase remunerative work which the respondent was undertaking should be read as a reference to the type of work that the member previously undertook and not any particular job.

And in Repatriation Commission v Hendy (2002) 76 ALD 47 the Full Federal Court said that the decision maker was 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.

So applying the Flentjar test in this particular case, question one: What was [the] relative remunerative work that the veteran was undertaking?

Well, I would classify his work as being basically manual work involved in employment as a trades assistant and also a small business operator in the video business.  Now, I know the video business was only a relatively short time, and clearly Mr Van As’s general work experience was in the building trade as a labourer’s assistant or a trade’s assistant.

And the second question: Is the veteran by reason of war-caused injury or war-caused disease or both prevented from continuing to undertake that work?

In my view the answer to that question would be yes, because clearly his hip injury and the depression prevented him from working as a trades assistant any more, or as a manual labourer, and contributed also to him not being able to work as a small business person in the way that he was.

In relation to question three, which is: If the answer to question two 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?

Well, there was a number of reports prepared:  Dr Sillcock, Dr Hunt, Dr Strauss, that all refer to various aspects of Mr Van As’s ability to perform those type of jobs.  It seems to me that the hip condition, the depression, are certainly the major reasons why he can’t do that type of work any longer, but there’s also – I can’t make a definitive decision about the alcohol abuse.  It may well be a factor, but there are also other factors such as age and lack of computer skills for the business side of things, the general work environment situation that I think would all probably contribute to Mr Van As not being able to go back to either the building industry as a trades labourer or from operating a small business such as the one he had been operating.

So I think there are probably a number of factors which make a contribution to that inability to perform that work, even though the main ones are depression and the hip injury.  So in my view the answer to question three is no, that they’re not the only factors, even though they are the major factors.

Therefore, I don’t need to consider question four, which is: If the answer to questions two and three are in each case yes … 

Now, even though that’s my findings in relation to the Flentjar test, I’m also required to consider section 24(2)(a) and (2)(b) of the Act, which state:

For the purpose of paragraph (1)(c) …

And then section (a) talks about suffering loss of salary or earnings.  Mr Brown on behalf of the respondent submitted that it’s very difficult to make a finding on whether Mr Van As suffered a loss of earnings as a result of not being able to do the jobs because he hadn’t lodged any tax returns since 1996.  And so the business operated – well, it closed basically because it wasn’t making any money.  I’ve been handed a letter from the Tax Office that was sent to Mr Van As in relation to his failure to lodge tax returns for the years 1996 to 2009.  And that letter said you don’t have to lodge a tax return unless anything applies to you, and that is your income is more than the threshold taxes being deducted, you’ve commenced business and we ask you to – that is the Tax Office asks you to – lodge a tax return or changes to the tax laws require you to lodge a tax return.

Mr Van As did concede in cross-examination that the business was receiving money during the times it was operating, and presumably, even though Mr Van As didn’t really have a clear understanding of his obligations at the time, being a business presumably it did have a requirement to lodge some kind of return with the Tax Office.  On the material available to me, I’m not in a position to say whether he suffered a loss of salary, wages, of earnings on his own account by reason of the incapacity alone.  Mr Van As did say, and I don’t think there’s any real doubt, that the business lost money because it wasn’t really a viable business for various reasons – having to employ somebody else, and maybe changes in the videotape market.

I didn’t hear evidence on it, but I’m – I suspect that it just wasn’t a particularly viable business, and Mr Van As himself said that he didn’t really have the skills that would be required to make that business a successful one.  So to me the reasons that the business lost money were not as a result of Mr Van As’s accepted disabilities, and as a consequence of that, on the material before me, I can’t find that section 24(2)(a) applies in this case that would assist Mr Van As.

And now 24(2)(b) is the other factor that applies to clarify section 24(1)(c), and that basically says that where a person is under 65, and has not been engaged in remunerative work, and satisfies the Commission that he or she has been genuinely seeking to engage in work, that he would, but for the incapacity, be continuing to do so and the incapacity is a substantial cause of the inability, the veteran will be treated as having been prevented because of that incapacity from continuing.

In other words, if the accepted conditions are the major reason, if not the only reason, then there’s a concession in the Act that says if a person has genuinely been looking for work and has been unsuccessful, then if you accept the conditions are a substantial reason for them not being able to work then they will still be successful at a special rate.  Now, we’ve heard evidence from Mr Van As this morning that he – when the business ceased he went along to Centrelink and they put him on disability pension, and when he was asked specifically, Did you look for work? he said quite candidly, No, I can’t work.  And I accept that and – but what it really means is that I can’t really find that that section, section 24(2)(b) applies, because that’s the words that are said in the Act, that has been genuinely seeking to engage in remunerative work.

Mr Van As will probably say that’s a bit of a nonsense If I can’t work, how can I genuinely seek work?  It’s not for me to comment on the Act; I can only apply the Act.  But given the wording of the Act, I can’t find that that applies in this case, so if 24(2)(b) doesn’t apply and (2)(a) doesn’t apply, then in relation to section 24(1)(c) I find that Mr Van As doesn’t satisfy section 24(1)(c) and as a consequence there’s no need for me to consider the number of hours he’s able to work because if he doesn’t satisfy 24(1)(c) then he can’t succeed.  And similarly, he can’t succeed in the intermediate rate because the criteria are similar to that.

So I’m left in a position where I can’t find for special rate or intermediate rate but I will remit the matter to the Commission for consideration of the payment at the general rate, given that depression is now an accepted condition.

END OF EXTRACT