Llewellyn and Repatriation Commission (Veterans' entitlements)
[2019] AATA 5290
•10 December 2019
Llewellyn and Repatriation Commission (Veterans' entitlements) [2019] AATA 5290 (10 December 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/7079
Re:Ron Llewellyn
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:10 December 2019
Place:Brisbane
The Decision under review is affirmed.
........................................................................
Deputy President J Sosso
Catchwords
VETERANS’ AFFAIRS — Disability pension — Where the veteran is in receipt of the pension at 100% of the general rate — Special rate pension – Whether s 24(1)(b) met – Whether veteran totally and permanently incapacitated as to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week – Decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission (1986) 6 AAR 113
Chambers v Repatriation Commission (1995) 55 FCR 9
Fox v Repatriation Commission (1997) 45 ALD 317
Repatriation Commission v Smith (1987) 15 FCR 327
Smith v Repatriation Commission (2014) 220 FCR 452
Watkins v Repatriation Commission (2014) 142 ALD 106
Wright and Repatriation Commission (2005) 144 FCR 302Secondary materials
Guide to the Assessment of Rates of Veterans’ Pensions – Fifth Edition
REASONS FOR DECISION
Deputy President J Sosso
10 December 2019
INTRODUCTION
Mr Ron David Llewellyn (the veteran) lodged an Application for Increase in Disability Pension (Exhibit 1 T36 pp. 306 – 317) which was received by the Repatriation Commission (the Commission) on 27 July 2015.
The veteran was born in 1950 and was 64 years old when his Application was lodged.
The veteran performed National Service in the Australian Army from 7 July 1971 until 23 January 1973 and served in the Australian Regular Army from 24 January 1973 until his discharge on 28 July 1981, having attained the rank of Captain – Exhibit 1 T8 p. 42. The veteran rendered eligible service as a Member of the Forces during this time with the Australian Regular Army. It is not contested that the veteran did not render any periods of operational service for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the Act).
Whist serving in the Army, the veteran rendered much of his service in military parachute training, instructing and researching – Exhibit 1 T37 p. 321.
During the course of the veteran’s military career he made 538 military parachute jumps (of which 31 were made carrying combat equipment) and a further 427 were made during Routine Order approved activity with civilian sport parachute clubs and with the Australian Army competition team. After completing his service the veteran made a further 500 jumps – Exhibit 1 T24 p. 111, T25 p. 114.
For the first thirteen years after leaving the Army (1981 – 1994) the veteran operated the Australian Air Sports Centre at Byron Bay. The veteran was responsible for the training of approximately 4000 students in ultralight aircraft flying and tandem parachuting – Exhibit 1 T37 p. 320.
Whilst still engaged at the Australian Air Sports Centre, the veteran undertook a series of marine studies and engaged in extensive yacht cruising around the east coast of Australia and the Western Pacific – Exhibit 1 T37 p. 320.
After undergoing security industry and weapons training conducted by the East Point Security Academy (1992 – 1994), the veteran was engaged as a Senior Security Officer at Great Keppel Island Resort (1994 – 1995) – Exhibit 1 T37 p. 320.
The veteran next moved to the Philippines where in the period March – August 1995 he was employed as the Manager of the Badian Diving Centre which serviced an “up-market” 42 room resort (Badian Island Beach Hotel). The role of Manager involved not only the daily operation of the Dive Centre, but associated financial and administrative duties – Exhibit 1 T37 p. 320.
On returning to Australia, the veteran was next engaged as a Diving Instructor/Coxswain with Quicksilver Diving Services at Port Douglas during the August 1995 – 1996 period – Exhibit 1 T37 pp. 319 – 320, and from this point of time onwards the veteran was continuously engaged in maritime pursuits, with a focus on solo-sailing around the world (1999 – 2002) and taking up associated jobs (skippering vessels and a range of professional yacht services) – Exhibit 1 T37 p. 319. Amongst these various jobs was Tug Master for Jardine Shipping, Heron Island, for three months in 1999 – Exhibit 1 T10 p. 51.
During the veteran’s circumnavigation of the globe, he found employment in the West Indies in circa 2001. In 2009 the veteran again sailed his yacht to the West Indies seeking employment, and remained there during the 2009 – 2010 period “picking up various jobs, mainly maintenance, within the marine industry. However, the situation in the Caribbean had changed and working on a tourist visa was not permitted.” – Exhibit 1 T57 p. 388.
Before arriving in the West Indies, the veteran lived for a time in Brazil and, in 2008, was granted a “Permanent (Retirement) Visa”. The veteran claimed that he sought this Visa so that he could remain in Brazil beyond the 180 day per year maximum allowed to visitors – Exhibit 1 T57 p. 388.
When the veteran appeared before the Veterans’ Review Board (the Board) on 12 November 2018, he claimed that he had not retired in 2008 but had used that term to describe the type of visa he obtained to reside in Brazil. The Board quoted from an email the veteran sent to the Delegate of the Commission on 26 September 2016 – Exhibit 1 T65 p. 437:
“Regarding our phone conversation on 5th August where I told you I regarded myself as ‘retired’, I believe you have taken this advice out of context. My retirement status was a purely administrative requirement in order to obtain a permanent residency visa to remain in Brazil.”
The full contents of the email are contained in Exhibit 1 T54 p. 382. In addition to the above statement, the veteran went on in the email to make the following comments:
“In 2011 I purchased a house in an area frequented by visiting cruising yachts in order to develop my business, “Professional Yacht Services”, which I have operated since around 2000. I maintain a well-equipped workshop and advertise on sites via the internet. Over the last 5 years I have concentrated my employment more to the maintenance, procurement and training side of the marine industry as my disabilities worsened making the seagoing side of my business, charters, deliveries etc, impossible to perform.”
This email was sent following the preparation of a Minute by Mr Charles Caruana, a Delegate of the Commission, on 5 August 2016. Mr Caruana, made the following contemporaneous notes of his conversation with the veteran – Exhibit 1 T48 p. 342:
“I took the opportunity to ask a bit more about the veteran’s employment. I explained that the ESO has presented the situation as the veteran running a charter business up and down the South American coast line. I asked does he lodge tax returns in Oz or Brazil.
The veteran said he lodges all his tax returns in Australia, but has not been operating a business. He explained that he retired in 2008 and has been sailing along the South American coastline. He says that he may pick up a bit of work here or there, but he is not operating a business. In his eyes he feels that he is retired.”
The veteran contends (Closing Statement (CS) para 3) that he operated a business, “Professional Yacht Services”, from 2000 to 2018, and that the above Minute of Mr Caruana was false (CS para 4).
In 2011 the veteran sailed to Brazil, purchased a house situated in front of anchorage and close to a marina, constructed a workshop and advertised his “Professional Yacht Services” for the foreign yacht community – Exhibit 1 T57 p. 388.
In a CV of the veteran which was supplied to the Commission in September 2015, the veteran provided the following information about his employment status in the 2003 – 2015 period – Exhibit 1 T37 p. 319:
“Professional Yacht Services – yacht deliveries, instruction, maintenance, laundry service. Day charter, scuba diving and sailing instruction. Article writer for international yachting magazines. General construction, landscaping and painting. Yacht currently based in Brazil.”
Whilst living in Brazil the veteran met a Brazilian citizen and they later got married in Grenada. Their son was born in Trinidad and Tobago in October 2010 – Exhibit 1 T57 p. 388, T64 p. 428. The veteran was divorced in 2015 but supported his ex-wife until 2017. The information before the Tribunal is that the veteran has full custody of his nine year old son and that his ex-wife contributes no child support – CS para 22.
The veteran claims that most, if not all, of the work he performed in Brazil and the West Indies involved “black” money – Exhibit 1 T64 pp. 428 - 430:
“All of this work was carried out without a working visa and for cash, usually US dollars (ie ‘black’). I had to be extremely careful that my work activities did not encroach on any local operation, as had the authorities been alerted to my activity I could have been fined, ordered out of the country or had my yacht impounded…
I arrived in the Caribbean with my Brazilian partner in 2010… In both these countries (Grenada and Trinidad and Tobago) I worked with the large number of foreign boats that frequent this area. Again the work was done without a working visa. Unfortunately the ‘black’ work situation was now being policed by the authorities and so the associated risks were greater…
I trust that this explanation will demonstrate that my claim is not a desperate attempt to get in before the 65 year old cut-off date -something that I was not even initially aware of.
I also hope that it shows the extreme difficulty of trying to apply Australian standards and practices in a 3rd world society. Australian ‘ticks’ do not fit in Brazilian ‘boxes’.”
The veteran informed the Board that by 2016 he was no longer able to maintain his yacht and sold it for US$25,000 – Exhibit 1 T65 p. 438, CS para 32. The funds from the sale of the yacht were deposited into the veteran’s Australian bank account – CS para 24.
The veteran is afflicted by a number of medical conditions which have been accepted as service-related by the Commission – Exhibit 1 T59 pp. 396 – 399:
(a)Osteoarthritis of the left knee;
(b)Chondromalacia of the right knee;
(c)Lumbar Spondylosis;
(d)Sensorineural hearing loss and tinnitus; and
(e)Osteoarthritis of the right elbow.
The veteran initially lodged a Claim for Disability Pension on 13 May 2003 for right elbow, left knee and lower back conditions and hearing loss – Exhibit 1 T10 pp. 44 – 58.
A Delegate of the Commission on 1 September 2003, accepted the veteran’s claim for osteoarthrosis of the right elbow and bilateral sensorineural hearing loss with tinnitus and granted a disability pension at 40% of the General Rate effective from 13 February 2003. The Delegate did not accept that the veteran’s osteoarthrosis of the left knee and lumbar spondylosis were service-related – Exhibit 1 T16 pp. 73 – 80.
The veteran sought a review of this decision by the Board, who, on 22 September 2004, affirmed the decision not to accept that the claimed conditions of osteoarthrosis of the left knee and lumbar spondylosis, but increased the pension to 50% of the General Rate – Exhibit 1 T26 pp. 147 – 156.
On 23 February 2005, Deputy President G D Walker, with the consent of the veteran and the Commission, set aside the decision of 1 September 2003 and in substitution decided that the claimed osteoarthritis of the left knee and lumbar spondylosis were defence-caused with effect from 19 February 2003 – Exhibit 1 T33 p. 294.
Following this decision, the Commission reassessed the rate of pension payable to the veteran and determined he was entitled to disability pension at 60% of the General Rate effective from 19 February 2003 – Exhibit 1 T34 pp. 295 – 299.
On 2 September 2003, the veteran made a further disability claim, and on this occasion the disability claimed was an injury to the right knee – Exhibit 1 T17 p. 85.
The veteran was examined and assessed by Dr John Ashwell, Orthopaedic Surgeon, who, in a reported dated 16 February 2004, made the following diagnosis – Exhibit 1 T24 pp. 112 – 113:
“He suffered a right knee injury as a result of stepping off a high landing from a Shenook [sic] helicopter in 1980. This appears to have caused chondral damage to the patello-femoral joint of the right knee. There were no signs of meniscal tear or ligament damage. The injury is consistent with the history stated. He stated that he had had numerous injuries to the knee joint with parachute jumping and football over the years since joining the Army in 1971. The main injury occurred in 1980 when he stepped off a ramp of a Shenook [sic] helicopter and severely jarred and twisted his knee.
There were no signs of osteoarthritis present in his knee joint on x-ray, however he has clinical signs of chondral damage around the patella which may progress to osteoarthritis in future years.
He does not require specific treatment other than analgesics as required. He has mild disability and interference with social and recreational activities as a result of his right knee symptoms.”
The veteran informed Dr Ashwell that he suffered from a dull ache on the medial side of his right knee most of the time and experienced discomfort with increased activity. Dr Ashwell was also informed that the veteran’s right knee was swollen most of the time and he had difficult squatting and prolonged sitting and getting on and off his yacht, but did not have trouble with short stair cases or inclines or cleaning his yacht – Exhibit 1 T24 pp. 111 - 112.
In a Lifestyle Questionnaire dated 6 October 2004, the veteran stated that he was suffering from constant back pain as well as pain in both knees. The veteran also claimed that he had problems hearing people, was irritable and rarely socialised – Exhibit 1 T27 p. 158. In the section dealing with recreational and community activities, the veteran stated that he had given up parachuting, diving and rock climbing and rarely went out or played any sports – Exhibit 1 T27 pp. 160 – 161. The veteran summarised the impact that his disabilities had on his lifestyle as follows – Exhibit 1 T27 pp. 162 – 163:
“My back & both knees as well as my right elbow & my loss of hearing make it impossible to instruct in parachuting or diving or to participate in those activities due to the heavy loads required to lift. My back goes out on me very easily & people get annoyed when I ask them to repeat themselves.
I am now currently employed as a Skipper of a boat sailing people on fishing trips & sight seeing tours in South America. I am having difficulty doing this job but will persist with it as long as I can & I find I can live cheaper here than in Australia. The contract is for 12 months & then I’ll be back in Australia looking for other work. I’m not interested in the Pension at the Special Rate as I want to continue working.”
On 14 June 2015 the veteran applied for an Increase in the Disability Pension – Exhibit 1 T36 pp. 306 – 317. His residential address was given as Brazil and his next-of-kin was stated to be his Brazilian wife – Exhibit 1 T36 pp. 306 - 307. The reason given for seeking an increase in the pension rate was that his “back and knee and other accepted disabilities have severely worsened, to the point of me having to give up work very recently, as a Marine Officer carrying out fishing and Whale Watching Expeditions and Scuba Diving Instructor” – Exhibit 1 T36 p. 310.
Attached to the Application was an undated statement of the veteran in which the following information was provided – Exhibit 1 T36 p. 316:
“Since departing Australia in Nov 2004, apart from a 2 week transit stop in New Zealand, I have been residing in South America and the Caribbean.
During this time I have had no injuries or ailments requiring the services of a doctor.
The health systems in these countries are quite different from those available in Australia. In the State where I currently reside I have been unable to find an English speaking doctor, even after availing myself of the use of social media.
Other than for pain management of my service related injuries there is nothing a doctor can do to reverse or heal these injuries.
On departing Australia I took a large supply of pain relief medication in the form of ‘Codalgin Forte’, prescribed at the time by Dr J. Holmes of Ocean Shores.
I have found that in this part of the world similar pain relief medication can be purchased over the counter without prescription. Hence, I have had no need of a doctor.
To supplement the management of my Lumbar Spondylosis I use a back brace.
To manage the pain of my right elbow, which is very sensitive to a cold environment, I moved to a warm, all year round, climate. I generally reside on Latitude 13 degrees South, which is equivalent to Darwin, N.T.
I fully agree to submit to any medical examinations required on my return to Australia.”
On 9 September 2016, Mr Caruana, Delegate of the Commission, accepted the veteran’s application for increased disability pension, and decided to increase the pension to 100% of the General Rate effective from 27 July 2015 – Exhibit 1 T52 pp. 367 – 371.
Mr Caruana, using the Guide to the Assessment of Rates of Veterans’ Pensions – Fifth Edition (GARP), determined that the veteran had an impairment rating of 75 points and a lifestyle rating of 4, which resulted in an incapacity rating of 100%.
In reaching this conclusion, Mr Caruana stated that no lifestyle election was provided by the veteran. Mr Caruana made the following comments– Exhibit 1 T52 p. 370:
“On 9 October 2015 and 15 April 2016, the veteran was asked to complete and return a lifestyle questionnaire. Nothing has been returned. In the absence of any other information the average lifestyle allocated under the Guide by the Repatriation Medical Authority based on the level of his medical impairment has been applied.
This results in a lifestyle rating of 4.”
In addition, Mr Caruana gave consideration to whether the veteran was eligible for pension at either the Special or Intermediate Rate. In finding that the veteran was not eligible for pension at either the Special or Intermediate Rate, Mr Caruana provided the following reasons – Exhibit 1 T52 p. 371:
“The claim was lodged just prior to the veteran turning 65. On the original claim it was reported that the veteran ceased work on 14 July 2015.
However, when I spoke to the veteran on 5 August 2016, the veteran advised me that this was incorrect. The veteran reports that he retired in 2008 and has been sailing along the South American coastline but is based mainly in Brazil. The veteran reports that occasionally he would pick up some work, but he was not operating a business. The veteran stated that in his personal point of view he regarded himself as retired.
Given the time out of the work force, I cannot be reasonably satisfied that it is the accepted disabilities alone that prevent the veteran from working.
I am satisfied that Mr Llewellyn is not eligible for the Extreme Disablement Adjustment as his lifestyle rating is less than 6.”
The veteran contested Mr Caruana’s claim that he had not forwarded a completed lifestyle election. In an email of 26 September 2016, the veteran responded to Mr Caruana in the following terms – Exhibit 1 T54 p. 382:
“I was surprised that you stated that I had not provided the lifestyle election. This was sent to your office on 28 August by my representative and is forwarded with this letter.
On the 6th September I sent you an e-mail asking if you had received all the information you required.”
On 7 October 2016 a Request was made, on behalf of the veteran, for Reviews under ss 31 and 36 of the Act. The stated grounds for seeking review were as follows – Exhibit 1 T55 p. 384:
“The Delegate Charles Caruana in his decision stated he never received the Applicant’s Lifestyle Questionnaire, when in fact it was sent to him on 25 August 2016. He was also sent the Applicant’s CV that clearly shows he ceased work because of his accepted disabilities alone in 2016, NOT 2008, as stated in his decision.”
The veteran’s request for reconsideration pursuant to s 31 was rejected by Mr Ian Allison, Review Officer, in a letter dated 3 November 2016 – Exhibit 1 T56 pp. 385 – 386. Mr Allison gave the following reasons for this refusal:
“My reason for not conducting a review is the decision is in accordance with the material before me.
The application for increase in disability pension was lodged on 27 July 2015, nineteen days before you turned 65. On the original claim it was reported that you ceases [sic] work on 14 July 2015. A delegate of the Repatriation Commission spoke directly to you on 5 August 2016 and you advised that this was incorrect and you retired in 2008 and had been sailing along the South American coastline, based mainly in Brazil. You stated that occasionally you would pick up some work but you were not operating a business and that you regarded yourself as retired.
The Lifestyle questionnaire received on 20 October 2016 has different employment information stating you were a full time sailor working 40-60 hours per week as a captain of your ship, running fishing and diving courses and was forced to cease work in 2016 and sell your boat due chronic pain in back, knees and elbow and now can only work as a deck hand. An email from you dated 31 October 2016 stated you were returning to Brazil on 21 November 2016. I also not[e] the resume you provided on 15 July 2015.
The employment information is conflicting and the material available is incomplete, I do not have the evidence before me to be reasonably satisfied that you meet the criteria for Special Rate. I note you are still able to travel overseas (to Brazil), drive and shop and clean your house and you have stated you have recently been working as a deck hand. I therefore am not reasonably satisfied that your average Lifestyle Rating is a 6. You therefore are not eligible for the Extreme Disablement Adjustment rate.
Please note that the law provides no right of review against my decision to not conduct a review of your case.”
The veteran emailed Mr Allison on 20 November 2016 with the stated aim of making clear his position which he claimed had been misrepresented by Mr Caruana. The email contains information about the veteran’s work history and also deals with his version of the Lifestyle Questionnaire. Outlined below are relevant extracts from the email – Exhibit 1 T57 p. 389:
“On the 5th of August I did indeed mention my status of ‘retired’ to Mr Charles Caruana as this was something that he could easily have checked himself. I did not, however, have the opportunity or inclination to explain my situation in full. The purpose of the call was to find out why I had not received the Lifestyle Questionnaire required for processing my claim. I was not prepared for or interested in being interrogated by Mr Caruana.
Mr Caruana apologised for failing to send the Questionnaire – a delay I was not impressed with considering that I had requested my claim to be expedited due to the limited time I was able to spend in Australia.
Mr Caruana stated during this call that he was going to give me 100% General Rate and a Gold Card, but that he would ‘make it difficult’ if I wanted to proceed to ‘Special Rate’. This was before he had even sent me a ‘Lifestyle Questionnaire’, which as you correctly noted was not received by your office until the 20 September, 11 days after the official decision was made and in which Mr Caruana states that ‘No lifestyle election was provided’. (The purpose of my call to him on the 5th August.) The Lifestyle Questionnaire eventually provided was obtained by my advocate as, to date, I have still not received the Questionnaire from DVA.
How Mr Caruana was able to have made his decision without having received all the information required should be a matter for your Department to investigate…
I am returning to Brazil to comply with the visitation rights of my son with his mother. I will also be commencing the process of returning to Australia to resume permanent residency…”
During the process of reviewing the decision of the Commission’s decision of 9 September 2016, the Board obtained copies of the veteran’s individual tax returns for the financial years 2011-2017 – Exhibit 1 T61 pp. 404 – 418. The tax returns for all but the 2016-2017 financial year documented the veteran’s disability pension as his sole source of income. The tax return for the 2016-2017 documented the veteran’s income as comprising his disability pension, age pension and interest payments.
The veteran provided a “medical report” which bears the stamp of Dr Luiz Carlos Noguetra and is dated 21 February 2018. The “report” appears to have been typed out with both the Questions and Answers included. It is not clear from a perusal of this report if, in fact, the answers are those given by the Doctor, or even if the Doctor understood English sufficiently that he could consciously affirm it.
The Board issued its decision on 12 November 2018 and affirmed the decision of the Commission – Exhibit 1 T65 pp. 433 – 439.
In reaching this conclusion, the Board was not reasonably satisfied that the veteran’s accepted conditions alone rendered him incapable of working more than eight hours a week. Accordingly, the Board found that the requirements of s 24(1)(b) were not met – Exhibit 1 T65 p. 436:
“15. The medical evidence concerning Mr Llewellyn’s incapacity is scant. In a medical report dated 20 July 2016 Dr J Holmes GP describes the nature of Mr Llewellyn’s accepted conditions (ff. 6 – 13). There is no Work Ability report available to the Board for consideration. At the hearing Mr O’Neill tendered documents marked Exhibit 1 which comprise an email dated 22 February 2018 from Mr Llewellyn to the Department which refers to a medical report. With the email is a document stamped on each page ’21 Fev (sic) 2018, Dr Luiz Carlos M Noguetra, ORTO. TRAUMA’ and a signature. Mr O’Neill asserts that the document is a medical report from a Brazilian specialist. The document has no heading or details of Dr Noguetra’s qualifications or contact details and contains no signature block. The document includes reference to Mr Llewellyn’s service in the Australian Army, certain requirements of the Act, a reference to Australian case law, Mr Llewellyn’s work history and, in response to a question whether he is incapable of working more than eight hours per week due to his accepted conditions alone, says, ‘Yes’. The Board asked Mr O’Neill who authored the document. Mr O’Neill affirmed that it was authored by Dr Noguetra. He said that Dr Noguetra provided answers to questions asked. Mr Llewellyn said that he spent a day with an interpreter obtaining the document from Dr Noguetra.
16. Exhibit 1 is devoid of details about Dr Noguetra and the Board is unable to place weight on the reliability of this document.”
The Board’s finding on s 24(1)(b) meant that the veteran’s claim failed, however the Board went on to consider the operation of s 24(1)(c).
First, the Board pointed out that the evidence of when the veteran ceased work was vague and it then set out the contradictory evidence before it. After dealing with the dispute about the accuracy of Mr Caruana’s Minute of 5 August 2016, the Board made the following observations – Exhibit 1 T65 p. 437:
“23. Whether or not the Departmental delegate misunderstood the context of their conversation it remains the case that Mr Llewellyn represented himself to the Australian Taxation Office and to the Brazilian government in 2008 that he had retired. Relevantly, Mr Llewellyn told the Board that he has not revalidated his Master Class 5 and Marine Engine Driver Class 3 qualifications since 2008. The Board showed Mr Lewellyn a screen shot of his Myspace social media page, dated 13 August 2013 (Exhibit 2), in which he refers to himself as ‘Retired Soldier, Sailor. Living in hell in paradise.’”
The Board then outlined the veteran’s work history, and, in particular, the work he performed in Brazil. As to the work in Brazil, the Board made these observations – Exhibit 1 T65 p. 438:
“27. On Mr Llewellyn’s evidence, he then conducted charter trips on his yacht for cash, issued no receipts, had no insurance, never registered a business name, maintained no bank account, paid no tax and kept his work carefully hidden from local rival yacht operators. Mr Llewellyn was fearful that if he was caught working in Brazil he would be fined or have his yacht impounded (f.80)…
29. Mr Llewellyn said his work involved maintenance, repairs and sailing instruction. He said he was still advertising his services this year. He last paid employment was in August this year repairing a number of chairs for a local bar.”
The Board reached the following conclusion – Exhibit 1 T65 p. 439:
“32. On this evidence the Board is reasonably satisfied that in 2004 Mr Llewellyn decided to leave Australia seeking a lifestyle he enjoyed of sailing in South America living off his disability pension and subsidising his income by unlawful cash-in-the-hand work as he could arrange.
33. For these reasons, the Board is not reasonably satisfied that, by reason of his incapacity from service-related conditions alone, Mr Llewellyn is prevented from continuing with remunerative work that he was undertaking. Neither is the Board satisfied that Mr Llewellyn is suffering a loss of salary or wages on his own account that he would not be suffering if he were free of that incapacity.
34. The Board is satisfied that Mr Llewellyn does not meet the requirements of subsection 24(1)(c).”
The veteran, it should be noted, claims that he in fact filed tax returns in Brazil and attached to the veteran’s Closing Submissions are what appear to be pages comprising a Brazilian tax return for 2017 and which is dated 5 April 2018 – CS para 31, Attachment 1.
LEGAL OVERVIEW
A veteran who is in receipt of a pension can apply for an increase in the rate of pension on the ground that the incapacity has increased since the rate of pension was last assessed – s 15(1).
Section 19 prescribes the way in which, inter alia, an application for an increase in the rate of pension is determined. Subsection 19(5B) directs that an assessment of such an application must be made in accordance with whichever of s 22 (General Rate of pension), s 23 (Intermediate Rate of pension) or s 24 (Special Rate of pension) applies. Further, s 19(5B) directs attention to ss 25, 27 and 30; which provisions are not relevant to the disposition of this matter.
In determining eligibility, a veteran’s entitlement is determined in respect of any circumstance within the “assessment period”. This period starts on the “application day” and ends when the claim or application is determined – s 19(9), definition of “assessment period”.
An application is “made” on the day on which the claim or application is received by the DVA – s 19(9), definition of “application day”.
The veteran’s Application for Increase in Disability Pension was received on 27 July 2015 and, accordingly, that is the application day for the assessment period.
In Smith v Repatriation Commission (2014) 220 FCR 452 (Smith), Buchanan J made the following observations about the assessment period ([40]/462):
“The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time when the application is made. The position is assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable. Because this arrangement applies to applications for increase in pension, it commences from the premise that some level of pension at the general rate is already being paid.”
Subsection 120(4) requires that a veteran’s entitlement to an increased pension be decided on the decision-maker’s reasonable satisfaction, which, as explained in Repatriation Commission v Smith (1987) 15 FCR 327, is the civil standard of proof. Subsection 120(6) provides that no onus of proof is imposed on either party.
The central concept for determining the amount of pension payable is the degree of incapacity. Section 21A provides for the determination of the degree of incapacity by reference to the relevant provisions in the GARP.
The degree of incapacity is determined as 10% or a multiple of 10%, not exceeding 100%. In this matter, as previously noted, the veteran’s incapacity has been assessed at 70%.
In this matter the question to be determined is whether the veteran is entitled to payment of a service pension at the special rate.
Subsection 24(1) provides that a veteran is entitled to a pension at the special rate if:
(i)a claim has been made under s 14 for a pension, or under s 15 for an increase in the rate of pension being received – s 24(1)(aa);
(ii)the veteran had not turned 65 when the claim or application was made – s 24(1)(aab);
(iii)either:
(a)the degree of the veteran’s incapacity from war-caused injury or disease or both, is at least 70% - s 24(1)(a)(i); or
(b)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 – s 24(1)(a)(ii); and
(iv)the veteran’s incapacity from war-caused injury or disease, or both, is, of itself alone, of such a nature to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week – s 24(1)(b); and
(v)the veteran is, by reason of incapacity from war-caused injury or 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 wages, or earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity – s 24(1)(c); and
(vi)ss 24 or 25 do not apply to the veteran – s 24(1)(d).
Subsection 24(2) provides that for the purpose s 24(1)(c):
(a)a veteran who is incapacitated from a war-caused injury or 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 ceased engaging in remunerative work for reasons other than his or her incapacity; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, who has not attained 65 years of age or more and who has not been engaged in remunerative work, satisfies the Respondent that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to seek remunerative work and that the incapacity is the substantial cause of the inability to obtain remunerative work, the veteran shall be treated as having been prevented by that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Attention needs to be given to the operation of s 28 which provides that when determining for the purposes of s 24(1)(b) whether a veteran, who is incapacitated from a war-caused injury or disease (or both), is incapable of undertaking remunerative work, regard must be had only to the following matters:
(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 experiences referred to in (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 (b).
“Remunerative work” is defined in s 5Q to include “any remunerative activity”.
The Full Federal Court in Banovich v Repatriation Commission (1986) 6 AAR 113 at 120 held that the phrase “remunerative work which the member was undertaking” in the 1920 veterans’ entitlements legislation “should be read as a reference to the type of work which the member previously undertook and not to any particular job.”
The criteria in ss 24(1)(a)-(c) are separate and complementary. In order for a veteran to succeed he or she must satisfy each of the mandated criteria. A failure at any point to satisfy a criteria results in the claim not succeeding – see, for example, Watkins v Repatriation Commission (2014) 142 ALD 106 at [15]/109.
These provisions were carefully considered by Buchanan J in Smith. His Honour made the following observations ([47]-[49]/465-466):
“47 Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (ie not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of the loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
48 The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason. Section 24(2)(a) supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s 24(2)(a)(ii)). In this assessment, of course, it continues to be accepted that the veteran is actually incapacitated in any event (‘a veteran who is incapacitated’). The purpose of the enquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.
49 Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work, which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of the inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (ie loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.”
(emphasis in the original)
ISSUES
At no stage has either the veteran or the Commission raised any issues relating to the Extreme Disablement Adjustment or the operation of s 23. Accordingly, the only matter the parties raised concerned the applicability of s 24.
It is not contested that:
(a)the veteran made a valid application under s 15 for an increase in the rate of the pension he is receiving – s24(1)(aa);
(b)the veteran had not yet turned 65 years of age when the application was made – s 24(1)(aab);
(c)the veteran is being paid the disability pension at 100% of the General Rate, and, therefore, exceeds the 70% of the General Rate threshold – s 24(1)(a)(i).
The issues that arise in the consideration of s 24 are as follows:
(a)Was the veteran prevented from working more than eight hours per week at any time from the commencement of the assessment period by virtue of his accepted disabilities – s 24(1)(b)?; and
(b)If the requirements of s 24(1)(b) are met, are the veteran’s accepted disabilities the only factors preventing him from continuing to undertake work from the commencement of the assessment period resulting in him suffering a loss of salary or wages that he would not have suffered but for that incapacity, such as to satisfy the requirements of s 24(1)(c)?
THE HEARING
A Hearing was convened in Brisbane on 22 July 2019. The veteran was represented by Mr Brian O’Neill of the Tweed Heads & Coolangatta Sub-Branch of the Returned and Services League of Australia. The Commission was represented by Mr Peter Crethary of Moray & Agnew Lawyers.
The veteran participated in the Hearing by telephone and gave evidence. No other witnesses were called by either Mr O’Neill or Mr Crethary.
CONSIDERATION
Capacity for work – ss 24(1)(b) and 28
As Hill J observed in Wright and Repatriation Commission (2005) 144 FCR 302 at [15]/308 ss 24(1)(b) and (c) “pose different hurdles which the veteran must surmount”. His Honour explained that s 24(1)(b):
“goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then s 24(1)(b) is satisfied.”
Rares J observed in Smith (at [8]/455) the evident intention of s 24(1)(b) “is to define when a veteran is totally and permanently incapacitated for the purposes of determining whether he or she can qualify for an increase in the rate of pension.” Consequently s 24(1)(b) contemplates that a veteran is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
It is important to note that the task of the Tribunal is to make a determination on the veteran’s capacity to engage in remunerative work during the assessment period.
Regard must also be had to s 28, which was explained previously. Section 28 is relevant only to the application of s 24(1)(b) and not to an inquiry pursuant to s 24(1)(c) – Fox v Repatriation Commission (1997) 45 ALD 317.
It will be noted that s 28 requires a decision to only take into account the matters outlined in paragraphs (a) – (c). The Full Federal Court in Chambers v Repatriation Commission (1995) 55 FCR 9 held that s 28 operated to exclude matters made might otherwise be relevant to an assessment under s 24(1)(b) such as depressed market conditions.
The evidence presented highlights that the veteran has engaged in broad range of remunerative work since leaving the Army. For a number of years immediately after leaving the Army (1981 – 1994) he was engaged in training students parachuting and ultralight aircraft flying and immediately thereafter worked as a security officer. Since that time the bulk of the veteran’s remunerative endeavours have involved the marine industry with work as a diving instructor in the Philippines and Queensland, the skipper of yachts, the Master of a Tug vessel, scuba diving instructor and a range of professional yacht services including yacht deliveries, instruction, maintenance, day charters, whale watching and sailing instruction.
It is difficult to put a precise label on the type of remunerative work that the veteran has engaged in other than to note that he has not had “desk” jobs, and the focus of his remunerative endeavours has been in the flying and marine industries, with a particular focus on yachting and services related to yachting.
The Commission submits (Respondent’s Submissions (RS) para 12) that the Tribunal could not be reasonably satisfied on the evidence presented that the veteran was prevented by his accepted conditions from working more than eight hours per week. In that regard, the Commission submits that the veteran has given numerous conflicting accounts of his work history (RS para 14).
The Commission (RS para 15) drew the Tribunal’s attention to the veteran’s Claim Form where he stated that he had ceased work on 14 July 2015 – Exhibit 1 T36 p. 311. As the Commission submits, this statement was contradicted by the evidence presented to the Tribunal on 22 July 2019 as well as the Lifestyle Questionnaire the veteran completed on 25 August 2016 – Exhibit 1 T49 pp. 343 – 351.
In the Lifestyle Questionnaire the veteran answered affirmatively to the Question (26) whether he was employed. He went on to state that his occupation was a “Sailor” that his employment was “Fulltime” and that he worked “40-60 hours weekly”. In response to the Question (31) what things he couldn’t do at work that he used to, he answered “I cannot do the rigging, or raise and lower the anchor, nets or diving equipment” – Exhibit 1 T49 p. 349.
Of particular relevance was the veteran’s answer to Question 34 which asked had he lost any time from work during the past 12 months because of his disabilities. The veteran’s answer was: “Many, too much to assess, but probably in excess of 100 hours” – Exhibit 1 T49 p. 350.
The veteran’s representative, Mr O’Neill, in his opening statement, made the following observation – Transcript (Tr.) 22 July 2019 p. 6:
“The applicant made another statement on 16 May 2018, folio 428 to 430. In this statement he reiterates his work history and the difficulties to get medical reports in Brazil. He also reiterated the hours he worked and the business he worked in and how long he worked in that industry from 2000 to 2018.”
Even if this statement of Mr O’Neill was incorrect, or is said to be taken out of context, the veteran also testified that he was working in 2016. The following exchange occurred – Tr. 22 July 2019 pp. 25 – 26:
“MR LLEWELLYN: Back when, when was this filled out?
DEPUTY PRESIDENT: I think it’s 2016. I think it’s dated 25 August 2016. If we look at page 343, so I am just asking, is that an accurate statement of the hours of work you were working in August 2016?
MR LLEWELLYN: No it wouldn’t be.
DEPUTY PRESIDENT: It’s not accurate? What would be an accurate figure then, if that’s not accurate.
MR LLEWELLYN: 2016, what was I – working – well in some weeks I may have been – 60 hours a week, yes, no. No, in 2016 – well up until 2016 the amount of hours that I was working, or able to work, was slowly decreasing, and some weeks I couldn’t work at all, and in other weeks when my back and bits and pieces were working, then I could work much longer…”
Compounding the problems the veteran has with satisfying s 24(1)(b) is the Answer he gave in the Lifestyle Questionnaire outlined above that he was working 40 – 60 hours per week.
I specifically asked the veteran at the Hearing if this statement was accurate, to which he answered “No” and subsequently estimated that he was working “maybe 10” hours per week at the time the Questionnaire was completed – Tr. 22 July 2019 p. 26.
The following exchange occurred between Mr Crethary and the veteran – Tr. 22 July 2019 p. 26:
“MR CRETHARY: Well it’s a point in time, so it says are you employed, what is your occupation, is your employment full time, part time or casual, how many hours per week do you normally work? So I would think it’s a point in time. You’ve answered 40 to 60 hours weekly.
MR LLEWELLYN: Yes, well maybe 10.
MR CRETHARY: All right can you explain why you’ve written 40 to 60?
MR LLEWELLYN: Nope.
MR CRETHARY: Can you explain why you are now confident it was more like 10?
MR LLEWELLYN: Well that’s what I am feeling, at that particular time of what was happening to me. But I would have been working because I was working less, and less, and less, all the time. And that’s the time that I was just about to come back to Australia in 2016, so I know I wasn’t doing very much work at that stage.”
This part of the Questionnaire was the subject of further cross-examination by Mr Crethary later in the Hearing. It is important to quote in full what transpired – Tr. 22 July 2017 pp. 36 – 37:
“All right. Well, how Is that different then to the document we spoke about at length, which was your – your questionnaire, which is also in 2016, where he said you were a sailor working 40 to 60 hours a week?--- Well, between the – between the – well, that questionnaire – as Mr O’Neill pointed out a little while ago, that questionnaire was based on a period from 2000 to 2016, where during that period I would have been at times working for 40 to 60 hours a week.
Well, that’s Mr O’Neill’s interpretation of it, but that’s not what we say is the interpretation? --- No.
We say it’s a point in time request from you to provide information at that time? --- Well, I – I – I obviously concur with the way Mr O’Neill has interpreted it, as during that period of time basis. I received that VRB report, I think it was – when did I get that?
Okay. Well it’s dated 25 August 2016, is what you have done, and the reason why I say it supports the interpretation we have put on it is if you look at the whole document in context, the other questions that it asks are what are current – like, how well can you do the following things. This is for domestic and employment activities. You have ticked various things. ‘I can’t do this’. ‘I need help with washing up,’ or whatever? – Yes.
It’s not going to say, ‘Did you need help washing up 10 years ago,’ is it? The document in its entirety is meant to be a point-in-time exercise. And, you see, if you actually then look at the – your other answers to questions following that, question 35, you say:
‘I can no longer captain a ship or run whale-watching tours and fishing tours’
? – I’m confused as to what you’re trying to get at here.
What I’m trying to get at is that when you completed that document, the claim was that you were working full time, 40 to 60 hours a week? --- Yes. Well, that document is a – is a typed-up document, so there’s you know, I don’t even know how to – I don’t even know how to do that, how it would have been a typed-up document, so it was probably sent – sent to me and I have – I have signed it, so ---
It’s got your signature on it? --- Yes, it has got my signature on it, so – and so it’s not a point in – it’s not a point in time. It has probably been done with the assistance of my advocate, and he has interpreted it as between 2000 and 2016, or whatever it was. So I have agreed – I have agreed with the way he has produced the document.”
The clear implication of the veteran’s evidence was that the Lifestyle Questionnaire had been completed by Mr O’Neill and that the veteran had acquiesced to Mr O’Neill’s interpretation of events. This suggestion, however, was quickly put to rest when Mr O’Neill asked further questions of the veteran – Tr. 22 July 2019 p. 37:
MR O’NEILL: Just one question sir. I specifically asked you, right, about that lifestyle questionnaire and you stated, ‘I came around to your place and we filled it in’? --- Yes.
So you were there when that document was filled in, and you signed it? --- Yes, I – yes, I had been there with you, so whatever’s on it, I presume it’s correct.
All right. Thank you. That’s all I wanted to ask you? – Yes.
Thank you? – You and I – you and I – you and I did that – did that together.”
The Commission submits (RS para 18) that the Tribunal should find that the veteran’s evidence about his ability to work during the assessment period is unsatisfactory:
“The Respondent submits that the exchange that took place between the Applicant and his representative suggests that the Applicant’s evidence at the Hearing was an attempt by him to explain the discrepancy regarding his work capacity by intimating that the information provided was from a historical as opposed to a temporal perspective. The Respondent notes the credibility of the Applicant’s evidence on this point was put into question by his own representative, who represented to the Tribunal his recollection was the lifestyle questionnaire was not historical and that he and the Applicant had completed it in August 2016 together (Transcript p 37 lines 3 – 13).”
Having listened to the veteran giving evidence and the exchange between the veteran and Mr O’Neill, the Tribunal agrees with the above submission of the Commission.
The veteran’s evidence was, with respect, evasive and unconvincing. The Tribunal has been presented with copious evidence which, in key aspects, is contradictory and somewhat confusing. The reason for this unsatisfactory state of affairs is tolerably clear. The veteran has spent much of his time over more than the past decade living in Brazil and the West Indies. During that time he has tried to juggle the difficult task of complying with local migration laws and earning a living so that he and his then wife could survive. In achieving some sort of equilibrium between these manifestly contradictory goals, the veteran has had to earn money on the black market and to evade the requirements of the migration and labour laws of his host nations. The Tribunal notes that the veteran presented as a decent person who was trying, to the best of his ability, to care for himself and his family and not be a burden on the social security system.
The Tribunal also agrees with the submissions of Mr O’Neill on behalf of the veteran (Closing Statement (CS) paras 1 – 3) that his medical condition has worsened over the past decade and he is now, clearly, a man who is suffering from a range of ailments that have had a marked and deleterious impact on his ability to work and his lifestyle generally.
In particular, the Tribunal has taken into account the Medical Impairment Assessments of Dr J Holmes of 20 July 2016 – Exhibit 1 T43 - 47 pp. 335 – 341.
With respect to the veteran’s conditions viewed from the perspective of disfigurement and social impairment, Dr Holmes observed that the veteran had “a visibly limping gait”, that he was “embarrassed” by his need “to use a walking stick” and that he “seldom socialises” and mainly “stays at home due to embarrassment” – Exhibit 1 T43 p. 335.
Dr Holmes opined that while the veteran was not suffering any appreciable loss of range of movement in his hips or ankles, he had a loss of 50% of movement in his right knee and 75% in his left knee – Exhibit 1 T44 p. 336. Further, Dr Holmes observed that the veteran suffered from constant knee pain, and that the pain in his left knee keeps him awake at night. He also observed that the veteran could only walk 50 metres on level ground without taking a rest, needed to use a walking stick and had difficulties ascending and descending stairs – Exhibit 1 T45 p. 337.
With respect to the veteran’s condition of lumbar spondylosis, Dr Holmes observed that the veteran suffered constant back pain when standing, and also pain when sitting and lying down. The veteran’s back pain radiates down into both legs and there was some loss of sensation in both legs – Exhibit 1 T47 p. 341.
The uncontested medical evidence of Dr Holmes demonstrates that during the assessment period the veteran was suffering considerably from this accepted conditions, and the cumulative effect of these conditions results in the veteran suffering from significant restrictions in his ability to move around and engage in work and recreational activities.
It is necessary, in this context, to refer to the “report” of Dr Luiz Carlos Noguetra which, on its face, supports the submissions of the veteran.
The Tribunal agrees with the conclusions reached by the Board with respect to this report – Exhibit 1 T65 p. 436. As the Board noted, the “report” contains no details of Dr Noguetra, and, in particular, has no information about his qualifications, business address or telephone contact number. The report does not contain a signature block and it is not clear if the markings in the stamped block on each page are intended to be the signature of Dr Noguetra. Further, Mr O’Neill informed the Board that he spent a day with an interpreter “obtaining” the report.
The weight that can be placed on this report, is, therefore miniscule. Dr Noguetra was not called to give evidence, and the Tribunal is in no position to know if the interpreter used by Mr O’Neill competently translated into English what Dr Noguetra may have said.
What has been presented, then, is a report from a Doctor whose qualifications are unknown and whose prognosis is dependent on the skills of a translator whose identity is unknown and whose skills in translating Portuguese into English is not clear.
In mid-September the veteran sent to Mr O’Neill further Brazilian medical information which, with the agreement of the Commission on 18 September 2016, was formed part of the veteran’s closing submissions.
The first document appears to be the note of the veteran’s consultation with an orthopaedic surgeon (“consulta orthopedista”) but contains no information of assistance to the Tribunal. The second series of documents appear to be notes made by Dr Noguetra on 30 January 2018 of an ultrasound performed on the veteran by Dr Luis Antonio Lima. Again, as these documents are written in Portuguese and as they have been provided without any translation, it is next to impossible for the Tribunal to assess their relevance. Further, although the documents were provided to the Tribunal, they were not accompanied by any written explanation as to their relevance. Accordingly, no weight can be given to this material.
The fundamental difficulty that the Tribunal faces in this matter is that the veteran’s own evidence undercuts the conclusions reached by Dr Holmes.
First, the evidence discloses that the veteran completed his Lifestyle Questionnaire in the presence, and with the assistance, of Mr O’Neill. Mr O’Neill is a very experienced advocate for veterans and regularly appears before the Tribunal in the Brisbane Registry. Mr O’Neill would be fully aware of the law governing the Special Rate because he has a very long background of representing veterans who seek it.
In particular, Mr O’Neill has assisted many veterans who have completed Lifestyle Questionnaires. He would know keenly the Questions contained in this document and the context of those Questions.
As has been noted above, the veteran stated in the Lifestyle Questionnaire of 25 August 2016 that he was working 40 – 60 hours per week. He went on to state that he could no longer do the rigging or raise and lower the anchor or diving equipment. Critically, when asked how much time had he lost work over the previous 12 months, he estimated in excess of 100 hours – Exhibit 1 T49 pp. 349 – 350.
A plain reading of this part of the Questionnaire is that by 25 August 2016 the veteran was still working, although not able to undertake all of the previous tasks he once performed, and that in the period 2015 – 2016 he had lost in excess of 100 hours of work because of his disabilities.
It is tolerably clear that the answers given were of a temporal and not historical nature. If the veteran has lost more than 100 hours of work in the past year because of his disabilities, it necessarily flows that he was working regularly and for other than a nominal period.
The Tribunal has formed the view, based on the evidence presented, that the veteran honestly answered the questions posed in the Questionnaire, and by August 2016 he was still working approximately 40 hours per week, although his work capacity was decreasing and his ailments were resulting in long periods when he could not work at all, or for restricted periods.
Tellingly, when Mr Crethary asked the veteran to explain why he had stated he was working 40 to 60 hours weekly, the response given was “Nope” – Tr. 22 July 2019 p. 26.
Second, even if this conclusion is incorrect, and the Tribunal accepts the veracity of the testimony of the veteran, a further insuperable hurdle arises.
When the veteran was asked by Mr Crethary how many hours per week he was working, the answer given was: “Yes, well maybe 10.” – Tr. 22 July 2019 p. 26.
Section 24 is predicated on a veteran not being able to undertaking remunerative work for periods exceeding 8 hours per week because such a veteran is “totally and permanently incapacitated” – s 24(1)(b).
The veteran’s own testimony is that he was working in excess of 8 hours per week, and whether it was 40 – 60 hours, as stated in the Lifestyle Questionnaire, or 10 hours, as given in evidence at the Hearing, it remains the case that the veteran was working during the assessment period for more hours than would allow the Tribunal to form the view that he is now totally and permanently incapacitated for the purposes of s 24(1)(b).
The Tribunal accepts that, from the time veteran was assessed by Dr Douglas in February 2004 (Exhibit 1 T29 pp. 169 – 183) to the time he was assessed by Dr Holmes in July 2016 that his medical condition has deteriorated. Unfortunately, with the passage of time that degeneration can only be expected to continue and that in due course the veteran will be rendered totally and permanently incapacitated. However, though that bleak but realistic prognosis flows from the evidence, the Tribunal is not satisfied that during the assessment period that state of affairs had been reached.
It is not necessary for the Tribunal to deal with the dispute over whether the veteran was supplied a Lifestyle Questionnaire by Mr Caruana and whether it was open to the Commission or the Board to determine if the veteran could successfully claim the Extreme Disablement Adjustment pursuant to s 22.
As previously noted, the Tribunal was presented with no submissions relating to s 22. However, for the sake of completeness, and in fairness to the veteran, the Tribunal notes that the evidence presented illustrates that his state of health is declining and with that decline is a concomitant decline in his lifestyle.
Should that decline in the veteran’s health continue, then the evidence suggests it will be open to him to claim, in due course, the Extreme Disablement Adjustment. The veteran has now passed the 65 year threshold to make a claim and has a degree of incapacity of 100%. Whether the veteran can satisfy the Commission that he has an impairment rating of least 70 points and a lifestyle rating of at least 6 points will necessarily depend on the evidence he is able to present.
It flows from the evidence, then, that the veteran does not satisfy the requirements of s 24(1)(b) in that during the assessment period he was capable of undertaking remunerative work for more than 8 hours per week.
Prevented from undertaking remunerative work – ss 24(1)(c)
Having concluded that the veteran has not satisfied the requirements of s 24(1)(b), it is not necessary to consider the operation of s 24(1)(c).
DECISION
The Decision under review is affirmed.
I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
.....................................................................
Associate
Dated: 10 December 2019
Date of hearing: 22 July 2019 Date of last submissions: 11 September 2019 Advocate for the Applicant: Mr Brian O’Neill Solicitor for the Respondent: Mr Peter Crethary Solicitors for the Respondent: Moray & Agnew Lawyers
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