Lahiff and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 1037
•16 December 2016
Lahiff and Repatriation Commission (Veterans’ entitlements) [2016] AATA1037 (16 December 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2015/0368
Re
Robin Lahiff
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 16 December 2016 Place Brisbane I set aside the decision under review and decide that the applicant is entitled to the payment of pension at the special rate with effect from 21 January 2015.
...................................[sgd].....................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – pensions and benefits – claim for pension at the special rate of pension – whether veteran prevented by incapacity from defence-caused conditions alone from continuing to undertake remunerative work – decision set-aside and substituted
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 5Q, 15, 19, 23, 24, 28, 73, 120, 177
CASES
Repatriation Commission v Watkins (2015) 228 FCR 573
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Butcher (2007) 94 ALD 364
Willis v Repatriation Commission (2012) 202 FCR 323
Flentjar v Repatriation Commission [1997] FCA 1200REASONS FOR DECISION
Deputy President Dr P McDermott RFD
16 December 2016
INTRODUCTION
On 6 November 2013, Mr Robin Lahiff (“the applicant”) lodged a claim for an increase in the rate of his disability pension.[1] On 18 February 2014, a delegate of the Repatriation Commission (“the respondent”) determined that the disability pension of the applicant be increased to 80% of the general rate.[2] On 7 August 2014, the Veterans’ Review Board (“the VRB”) determined that the disability pension of the applicant be increased to 90% of the general rate.[3] On 21 January 2015, the applicant lodged an application with this Tribunal to review the decision of the VRB.[4]
[1] Exhibit A. T-Documents, T6.
[2] Exhibit A, T-Documents, T9.
[3] Exhibit A, T-Documents, T2.
[4] Exhibit A, T-Documents, T1.
BACKGROUND
The applicant served in the Royal Australian Navy (“RAN”) from 1971 until 1982.[5] He has a number of conditions that have been accepted as attributable to his service in the RAN, namely, chronic back strain, seborrheic dermatitis, anxiety state and lumbar spondylosis.[6]
[5] Exhibit B, Statement of Applicant signed 20 July 2015 at [4] and [14].
[6] Exhibit A, T-Documents, at (iii).
LEGISLATIVE FRAMEWORK
To be eligible for a pension at the special rate, the applicant must satisfy the requirements of s 24(1) of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) which provides:
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, torender 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.
To be eligible for a pension at the intermediate rate, the applicant must satisfy the requirements of s 23 of the Act. Subsections 23(1)(b) and (2) of the Act provide:
1) 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; and
…
(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:
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).
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”. Section 19(9) states that the assessment period is the period starting on the application day and ending when the claim or application is determined. For the applicant, this period commenced on 6 November 2013 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 a pension at the special rate, the applicant must satisfy certain criteria set out in s 24 of the Act. There is no issue that the applicant satisfies paras 24(1)(aa) and (aab) of the Act: the applicant made an application under s 15 of the Act for an increase in the rate of pension that he was receiving; and he had not yet turned 65 when the application was made.
Pension
The applicant is in receipt of pension at 90% of the general rate. He therefore satisfies s 24(1)(a) 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
The applicant satisfies s 24(1)(b) of the Act. There is no issue between the parties that the applicant is prevented from engaging in remunerative work for eight hours a week by reason of his accepted conditions. The medical evidence from Dr Jenkins,[7] Dr Winstanley[8] and Dr Burke[9] supports such a finding. I am reasonably satisfied that the applicant satisfies s 24(1)(b) of the Act.
[7] Exhibit F, Medical report of Dr Jenkins, psychiatrist, dated 21 September 2015.
[8] Exhibit E, Medical report of Dr Winstanley orthopaedic surgeon, dated 23 July 2015 at p. 4.
[9] Exhibit H, Medical report of Dr Burke, consultant occupational physician, dated 8 October 2015 at p. 6.
Alone test
The applicant satisfies s 24(1)(c) of the Act. This one criterion in contention, often referred to as the “alone” test, 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) 228 FCR 573, the Full Court of the Federal Court of Australia referred at [41] 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.
The Federal Court of Australia in Flentjar v Repatriation Commission [1997] FCA 1200 (“Flentjar”) has held that s 24(1)(c) of the Act requires the consideration of the following questions:
1. What was the relevant “remunerative work that 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 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?
I will consider the first Flentjar question. The term “remunerative work” is defined in s 5Q(1) of the Act as including “any remunerative activity”. It was submitted that the applicant has had a variety of occupations since his discharge in 1982. On behalf of the applicant it has been pointed out that he has worked in a variety of occupations prior to ceasing work in 1995, including that of a machine operator, plant operator and a labourer.[10] The applicant also has experience in operating a forklift as he has a forklift licence.[11] I am reasonably satisfied that each of those occupations would constitute remunerative work in the case of the applicant.
[10] Transcript of proceedings at pp. 13 and 23.
[11] Transcript of proceedings at p. 23; Exhibit B, Statement of Applicant signed 20 July 2015 at [30].
I answer “yes” to the second Flentjar question which reflects the first limb of s 24(1)(c) of the Act. I rely upon the report of Dr Jenkins, psychiatrist, dated 21 September 2015 who has given his opinion that the anxiety disorder condition of the applicant prevented him from working in remunerative employment in any capacity.[12]
[12] Exhibit F, Medical report of Dr Jenkins, psychiatrist, dated 21 September 2015.
The third Flentjar question is central to what is often referred to as the “alone test” in s 24(1)(c) of the Act. In Willis v Repatriation Commission (2012) 202 FCR 323, Bromberg J has recognised that different judicial views have been expressed on the “alone” test. His Honour has provided guidance on the proper application of the “alone” test at [23] to [24]:
The question raised by the “alone test” is not whether, on its own, the war-caused incapacity prevents the veteran's continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.
Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran's inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.
I mention that the reference to “war-caused’ in s 24(1)(c) of the Act is, by reason of the application of s 73 of the Act, to be read as a reference to a defence-caused injury.
In applying the “alone” test I am conscious that there must be no other factor, apart from the accepted disabilities of the applicant, which prevent the applicant from undertaking remunerative work during the assessment period. I have to consider if there is another reason which, independently of the defence-caused reason, is preventing the applicant from working. If there is such a reason, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.
In 1995 the applicant had a motor vehicle accident in which his face, right shoulder and leg were injured.[13] The applicant returned to work after the accident but left after twelve weeks at work.[14] Dr Winstanley, orthopaedic surgeon, in giving evidence was referred to his report of 18 April 1997 in which he reported on the right shoulder condition that the applicant “experiences discomfort within his shoulder associated with heavy-type use and activity. He has discomfort with lifting and carrying type of duty”.[15] The applicant has submitted that this report refers to the state of affairs extant in 1997. However, while under cross-examination Dr Winstanley was referred to this report and was asked whether the applicant had an ongoing incapacity from his right shoulder injury, to which he answered: “He has incapacity in his right shoulder. That’s right, yes.”[16]
[13] Exhibit B, Statement of Applicant signed 20 July 2015 at [25].
[14] Exhibit A, T-Documents, T2, p. 8.
[15] Exhibit J, WorkCover materials; Transcript of proceedings at p. 38.
[16] Transcript of proceedings at p. 38.
Dr Winstanley in his later report of 23 July 2015 has reported that the shoulder condition now causes minimal incapacity for remunerative employment. Dr Winstanley in that report has opined that the applicant has minimal incapacity associated with his right shoulder.[17] In giving evidence before this Tribunal he stated that the applicant has a minor loss of range of movement.[18] In his latest report Dr Winstanley has given his opinion that the reduction of the range of movement will not cause the applicant restriction or prevent him from continuing labouring work activity of greater than eight hours per week.[19]
[17] Exhibit E, Medical report of Dr Winstanley orthopaedic surgeon, dated 23 July 2015 at p. 4.
[18] Transcript of proceedings at p. 36.
[19] Exhibit E, Medical report of Dr Winstanley orthopaedic surgeon, dated 23 July 2015 at p. 4.
This opinion of Dr Winstanley is supported by the report of Dr Burke, consultant occupational physician, which was commissioned by the respondent. Dr Burke in his report of 8 October 2015 considers that the shoulder condition is relatively minor in severity and that the applicant would be limited to working for less than 20 to 28 hours per week if he was required to do prolonged sustained overhead or reaching activities.[20]
[20] Exhibit H, Medical report of Dr Burke, consultant occupational physician, dated 8 October 2015 at p. 7.
The opinion of Dr Winstanley was supported by the evidence of Ms Franz who ran a steel fabrication business. Ms Franz verified that the shoulder condition did not impede the applicant in undertaking voluntary work at the business, rather it was his back condition that caused “some pain, some distress”.[21]
[21] Transcript of proceedings at p. 31.
Having regard to the evidence I am satisfied that while the shoulder condition of the applicant does cause him some incapacity, this condition does not prevent him from engaging in remunerative work.
On my review of the reports of medical specialist evidence, which are not contradicted and which I accept, I am reasonably satisfied that the accepted conditions of the applicant prevent him from engaging in remunerative work.
Dr Jenkins in his report of 21 September 2015 has given his opinion that the accepted anxiety condition of the applicant prevents the applicant from being employed.[22] Dr Burke considers that the anxiety condition limits the applicant to work of less than eight hours per week.[23]
[22] Exhibit F, Medical report of Dr Jenkins, psychiatrist, dated 21 September 2015.
[23] Exhibit H, Medical report of Dr Burke, consultant occupational physician, dated 8 October 2015 at p. 7.
The lumbar spondylosis condition of the applicant is an accepted condition. After his discharge from the RAN in 1982 the applicant sought consultation with Dr Dupre, an orthopaedic surgeon. Dr Dupre diagnosed the applicant with having lumbar spondylosis. The applicant was prescribed a back brace in 1984.[24] Dr Winstanley in his report of 23 July 2015 has reported on the deterioration of the lumbar spine condition. Dr Winstanley considers that the severe lumbar spine symptomatology prevents the applicant from working as a labourer for more than eight hours a week.[25] Dr Burke considers that the lumbar condition would result in significant symptoms if appropriate restrictions were not put in place even if the applicant worked for less than 20 hours per week.[26]
[24] Exhibit E, Medical report of Dr Winstanley orthopaedic surgeon, dated 23 July 2015 at p. 2.
[25] Ibid 2015 at p. 4.
[26] Exhibit H, Medical report of Dr Burke, consultant occupational physician, dated 8 October 2015 at p. 7.
I answer “yes” to the third Flentjar question.
The respondent quite properly accepts that if questions two and three are answered in the affirmative then the applicant meets the fourth Flentjar step.[27] This is an appropriate concession to make as the applicant is a person who has worked hard all of his life and has endeavoured to obtain employment whenever possible.
[27] Respondent’s post-hearing submissions dated lodged on 4 August 2016 at [18].
CONCLUSION
The applicant is eligible for the payment of the pension at the special rate. The date of effect of this decision is 21 January 2015 in accordance with s 177(3) of the Act.
DECISION
I set aside the decision under review and decide that the applicant is entitled to the payment of pension at the special rate with effect from 21 January 2015.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD .............................[sgd]...........................................
Associate
Dated 16 December 2016
Date(s) of hearing 23 June 2016 Date final submissions received 17 August 2016 Counsel for the Applicant Mr A Harding Solicitors for the Applicant Terence O'Connor Solicitor Solicitors for the Respondent Department of Veterans' Affairs
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