Kidner and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 915
•17 November 2016
Kidner and Repatriation Commission (Veterans’ entitlements) [2016] AATA 915 (17 November 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2016/3447
Re
Slade Kidner
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 17 November 2016 Place Brisbane I affirm the decision under review.
...........................[sgd].............................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – application for pension at the special rate – applicant not prevented from continuing to undertake remunerative work because of incapacity from war-caused injury or war-caused disease alone – condition that was not war-caused found to be a factor – ameliorating provisions not satisfied – applicant has not been genuinely seeking to engage in remunerative work – decision affirmed under review
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 19, 23, 24, 28, 120
CASES
Repatriation Commission v Watkins [2015] FCAFC 10
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Butcher (2007) 94 ALD 364
Leane v Repatriation Commission (2004) 81 ALD 625REASONS FOR DECISION
Deputy President Dr P McDermott RFD
17 November 2016
INTRODUCTION
On 21 August 2015, Mr Slade Kidner (“the applicant”) lodged a claim for an earnings-related rate of pension.[1] On 6 February 2016, a delegate of the Repatriation Commission (“the respondent”) made a decision to continue the disability pension of the applicant at 100% of the general rate.[2] On 7 June 2016, the Veterans’ Review Board (“VRB”) affirmed this decision.[3] On 1 July 2016, the applicant made an application to this Tribunal for a review of that decision.[4]
[1] Exhibit A, T-Documents, T30.
[2] Exhibit A, T-Documents, T32.
[3] Exhibit A, T-Documents, T46.
[4] Exhibit A, T-Documents, T2.
BACKGROUND
The applicant served in the Royal Australian Air Force (“RAAF”) from April 1992 until his discharge in May 2014.[5] He has a number of conditions that have been accepted as attributable to his service in the RAAF, namely, Post-Traumatic Stress Disorder (“PTSD”), orthopaedic conditions of his shoulders and lumbar spondylosis.[6] The applicant has not worked since he was discharged from the RAAF.
[5] Exhibit A, T-Documents, T30 at p. 177.
[6] Exhibit A, T-Documents T16, T20.
LEGISLATIVE FRAMEWORK
To be eligible for pension at the special rate, the applicant must satisfy the requirements of s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) which provides:
Special 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) …
(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; …
(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; …
To be eligible for pension at the intermediate rate, the applicant must satisfy the requirements of s 23 of the Act. Subsections 23(1)(b) and s 23(2) of the Act provide:
Intermediate rate of pension
This section applies to a veteran if:
…
(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; ...
(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.
Section 28 of the Act provides:
Capacity to undertake remunerative work
In determining, for the purpose 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).
[Emphasis added]
Section 19(5C)(a) of the Act provides that the rate of pension payable to the applicant has to be determined during the “assessment period”. For the applicant, this period commenced on 21 August 2015 when he made his claim and ends when the claim is determined.
I am required by s 120(4) of the Act to determine any issues to my reasonable satisfaction.
CONSIDERATION
To be eligible for pension at the special rate, the applicant must satisfy certain criteria set out in s 24 of the Act.
Pension
The applicant is in receipt of pension at 100% of the general rate. He therefore satisfies s 24(1)(aa) of the Act because he has a pension which is at least 70% of the general rate.
Whether the applicant is prevented from working for eight hours a week by reason of his accepted conditions
I next consider whether the applicant satisfies s 24(1)(b) of the Act. Having regard to the medical evidence I cannot be reasonably satisfied that the applicant is prevented from working for eight hours a week by reason of his accepted conditions. Dr Gundabawady, Consultant Psychiatrist, in his report dated 12 March 2014 has given his opinion that the applicant should be able to work up to 20 hours a week.[7] Dr Briscoe, General Practitioner, in her report dated 3 December 2015 has also given her opinion that the applicant can work up to 20 hours per week having regard to his accepted conditions.[8] An orthopaedic surgeon from Redhealth Independent Medical Assessments in a report dated 11 December 2015 has given his opinion that the applicant was not prevented solely from undertaking employment by reason of his accepted orthopaedic conditions.[9] This medical evidence has not been contradicted by the evidence before me. I cannot be reasonably satisfied that the applicant satisfies s 24(1)(b) of the Act.
[7] Exhibit A, T-Documents, T19 at p. 112.
[8] Exhibit A, T-Documents, T36.
[9] Exhibit A, T-Documents, T39 at p. 237.
“Alone” test
I next consider whether the applicant satisfies s 24(1)(c) of the Act. This one criterion in contention is often referred to as the “alone” test and requires that "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…".
In Repatriation Commission v Watkins [2015] FCAFC 10, the Full Court of the Federal Court of Australia referred to the decisions of Repatriation Commission v Richmond (2014) 226 FCR 21, Repatriation Commission v Hendy (2002) 76 ALD 47 and Repatriation Commission v Butcher (2007) 94 ALD 364 and reaffirmed the settled principle that:
…if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the “alone” requirement will not be satisfied.
In considering whether the applicant satisfies s 24(1)(c) of the Act it is necessary for me to consider the Friedreich’s ataxia condition of the applicant. The applicant relied on a report dated 18 April 2016 of the Friedreich Ataxia Clinic concerning the Late Onset Friedreich’s Ataxia (“LOFA”).[10] The authors of that report are a senior occupational therapist and a clinical geneticist and I accept that they have expertise in the Friedreich’s ataxia condition of the applicant. The authors point out that the applicant needs a gait aid for all upright mobility within the home and short distances outside the home and requires a wheelchair for greater distances.[11] In that report they express their opinion that the pre-existing injuries of the applicant have had a profound impact on his capacity to manage LOFA.[12] However, the authors of the report do not challenge the conclusion in the report from Redhealth Independent Medical Assessments that the Friedreich’s ataxia condition gives rise to total and permanent impairment for work. The applicant declined to question the author of that report who was available in case the applicant wanted to question him.
[10] Exhibit A, T-Documents, T45.
[11] Ibid at p. 269.
[12] Ibid at p. 270.
I rely upon the opinion from Redhealth Independent Medical Assessments that the Friedreich’s ataxia condition of the applicant, which is a non-accepted condition, plays a part in preventing the applicant from engaging in remunerative work.[13] Having regard to the decision in Repatriation Commission v Richmond (2014) 226 FCR 21, the applicant does not satisfy the “alone” test because a non war-caused factor plays a part in or contributes to preventing him from engaging in remunerative work.
[13] Exhibit A, T-Documents, T39 at p. 238.
Intermediate rate
While the applicant has not made a claim for payment of pension at the intermediate rate of pension, he is not entitled to pension at that rate as I am not reasonably satisfied that he satisfies the requirements of the “alone” test in s 23(1)(c) of the Act which requires that a veteran was, 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.
Ameliorating provisions
The applicant is under 65 years of age. This has the consequence that I am I required to consider the ameliorating provisions of ss 23(3) and 24(2) of the Act. One condition of satisfying these provisions is that the applicant must have been genuinely seeking to engage in remunerative work. In his email of 2 September 2016 the applicant stated that he had sought part-time work from two gun shops but was advised that because of his skeletal issues and his PTSD diagnosis that the cost of public liability insurance would make his employment unviable. In his email he also states that his muscular skeletal issues would preclude employment at a hospital. The applicant did not provide any statements from these potential employers. Nor did he provide any copies of any job applications that he may have made. In these circumstances I am not reasonably satisfied that the applicant has been genuinely seeking to engage in remunerative work within the meaning of these provisions. There are, for instance, no “objective signs of active pursuit of remunerative employment”.[14] However, I accept that the applicant was truthful in stating that he had made enquiries about part-time work.
[14] See Leane v Repatriation Commission (2004) 81 ALD 625.
Even if I had concluded that the applicant has been genuinely seeking to engage in remunerative work it is necessary for me to be satisfied that the war-caused incapacities must be the substantial cause of the inability of the applicant to obtain remunerative work.[15] The specialists who have reported on the accepted conditions of the applicant have opined that these conditions do not preclude the applicant from working. I am not reasonably satisfied that any of the accepted conditions are the substantial cause of the inability of the applicant to obtain remunerative work.
[15] Veterans’ Entitlement Act 1986 (Cth) ss 23(3)(b), 24(2)(b).
I consider that the main reason why the applicant cannot engage in remunerative work is his LOFA condition. Fortunately, the applicant does not have the symptoms and comorbidities which may occur with patients who present with Friedreich’s ataxia. However, the authors of the Friedreich Ataxia Clinic report have stated that the LOFA condition of the applicant has caused the applicant to adopt a “gait pattern that places considerable force on the lower back, particularly in trying to maintain an upright posture while mobilising”.[16] Dr Briscoe in the work ability report dated 3 December 2015 has pointed out that the gait of the applicant “poses an occupational health & safety risk”.[17] The reason that Dr Briscoe gave for this conclusion was because the gait condition contributes to the risk of falls. After having regard to this medical evidence I consider that the Friedreich’s ataxia condition of the applicant is the main impediment to his capacity to engage in remunerative work.
[16] Exhibit A, T-Documents, T45 at p. 269.
[17] Exhibit A, T-Documents, T36 at p. 204.
I find that the applicant does not satisfy the ameliorating provisions of ss 23(3) and 24(2) of the Act.
CONCLUSION
The applicant is not eligible for the payment of the pension at either the special rate or the intermediate rate. The applicant has recently had to purchase a walking aid which he considers is superior to the walking aid supplied by the Department. I recommend that the applicant, who has rendered distinguished service, should be reimbursed with the cost of his walking aid.
DECISION
I affirm the decision under review.
I certify that the preceding 21 (twenty – one ) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD .............................[sgd]...........................................
Associate
Dated 17 November 2016
Date(s) of hearing 2 November 2016 Applicant In person Solicitors for the Respondent Sparke Helmore
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