Long and Repatriation Commission
[2004] AATA 937
•8 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 937
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/55
VETERANS' APPEALS DIVISION ) Re DARRALYN LONG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date8 September 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – rate of pension payable – death of veteran prior to decision of Veterans’ Review Board – proceedings continued by veteran’s personal representative – veteran not prevented from continuing to undertake remunerative work for war-caused reasons alone – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth), s 13(2)(c)(i), s 24(1)(c), s 24(2)(a)
Re Gurney and Repatriation Commission (1989) 18 ALD 760
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Banovich v Repatriation Commission (1986) 69 ALR 395
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96
Starcevich v Repatriation Commission (1987) 18 FCR 221
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
8 September 2004 Deputy President D G Jarvis 1. Darralyn Long is the widow of the late Ian David Long, who died on 7 May 2002 from a condition which was not war-caused. Mr Long served in the Australian Army from 1961 until 1973, and had eligible defence service from 7 December 1972 until 8 February 1973. Prior to his death he had an accepted disability of low back strain. From the documents before me, it appears that this was the result of an incident in Vietnam, when he was blown up by a land mine while he was in a tank.
2. Mr Long lodged an application for an increase in his disability pension on 23 March 2000. On 4 May 2000, a delegate of the Repatriation Commission decided to increase Mr Long’s disability pension from 60% to 100% of the general rate, and deferred consideration of special rate or intermediate rate pensions. On 30 June 2000, the delegate decided that Mr Long was not eligible for special rate or intermediate rate pension, and decided further to continue his disability pension at 100% of the general rate. This decision was later affirmed on review by the Veterans’ Review Board (“VRB”), and Mrs Long, as personal representative, has applied for review of the Commission’s decision.
3. At the hearing before me, Mr S Ower of counsel represented Mrs Long, and Mr A Crowe, a departmental advocate, represented the Commission. Mrs Long gave evidence and the general practitioner who was treating Mr Long at the time of his death, Dr Robin Olsson, also gave evidence in support of the application. Counsel for Mrs Long tendered the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the “T Documents”) and each party tendered various other documents. No oral evidence was called by the Commission.
4. Section s 13(2) of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”) provides in effect that where a veteran has died, and his or her death was not war-caused, and the veteran was, immediately before his or her death, a veteran to whom s 24 applied, the Commonwealth is liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VE Act. The circumstances in which a veteran is entitled to pension at the special rate are provided for in s 24 of the VE Act.
Issues for Determination
5. In order to determine Mrs Long’s claim, it is necessary to determine whether Mr Long satisfied s 24(1)(c) of the VE Act immediately before his death, that is:
·whether he was, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
·whether in consequence he was suffering a loss of wages or earnings on his own account that he would not have been suffering if he had been free of that incapacity.
6. It was common ground that immediately before his death, Mr Long satisfied the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70% of the general rate), and the second criterion (namely, his incapacity from his war-caused injury was of such a nature as, of itself alone, rendered him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week). These criteria are contained in s 24(1)(a)(i) and s 24(1)(b) respectively of the VE Act.
7. I have reached the conclusion that Mr Long did not satisfy the requirements of s 24(1)(c) of the VE Act immediately before his death, and so was not entitled to a pension at the special rate. The decision of the Commission should accordingly be affirmed.
Background Facts
8. At the time of his death, Mr Long was aged 59, having been born on 21 February 1943. He married Mrs Darralyn Long on 15 February 1975, and continued to live with her until about July 1993, when he moved to the Northern Territory. Mrs Long continued to live in Adelaide, and the parties remained married until Mr Long’s death.
9. After his discharge from the Army, Mr Long joined the Northern Territory Police Force. He was stationed at Tenant Creek and carried out office work, working in patrol cars, guarding and escorting prisoners to Court at Alice Springs, Court duty and some foot patrol work. He left after five years, and then for two years he and Mrs Long operated road houses at Murray Bridge and Renmark. Mr Long managed the service station side of the business, served customers on occasions, oversaw the business and did the office work. Mrs Long did the cooking and looked after the food area.
10. Mr Long then joined the South Australia Police. Initially he worked in the police band, but after undertaking a training course he undertook general duties, which included foot patrol work and working in the control room. Mrs Long said that he found this latter work very stressful, and he was not giving 100% because of his increasing stress, and the Police decided it was in his best interests to leave.
11. After that, in about 1985, Mr Long obtained part-time security work at the Australian Institute of Management. His duties included setting up rooms for evening meetings or presentations, and after these events concluded, making sure that persons attending had left the premises, and getting rooms ready for the next day’s activities. Mrs Long said that he left that work because he had started to become dependent on anti-depressants, and wanted a change because the job entailed evening work.
12. Mr Long stopped working for the Australian Institute of Management in about 1990 and was then unemployed for about two years. He then went to Darwin. Mrs Long said she was less sure of his employment history in Darwin. She thought he worked for the Salvation Army as a shop assistant in an Op shop for a time, but did not know whether this was on a volunteer basis. He then obtained work as a security officer with Chubb from May 1994 until he had a fall at work in February 1999. As far as Mrs Long knew, his work at Chubb comprised patrolling or securing different properties, and this entailed patrolling both inside and outside various properties. After his accident, he received workers’ compensation for about 12 months. He was not re-employed by Chubb, and Mrs Long thought that this was because Chubb had been taken over by another company, and they did not want to take him back.
13. After completing a taxi driver’s course in Darwin, Mr Long then worked as a taxi driver for a period of about 10 weeks in March, April and May 2001. I note that in an undated letter received by the Commission on 13 November 2001 (exhibit A1, T21, page 73), Mr Long said in effect that he was unable to continue this work because he was unable to lift heavy cases into the boot of the taxi or to sit for long periods in the taxi, and he said that his back injury prevented this. He also said that he had not been able to find any other suitable part-time work, and it appears that he did not undertake any further work prior to his death on 7 May 2002.
Medical Conditions Suffered by Mr Long
14. Apart from Mr Long’s accepted disability of low back strain, the T Documents record that Mr Long suffered from a number of other complaints or disabilities, namely substance abuse, bipolar affective disorder, Type II diabetes mellitus, Crohn’s disease, asthma and a prostatic malignancy. In addition, he suffered a painful neck condition as a result of sawing branches off a tree. This flared up again about three years later, and he had a cervical laminectomy in 1990. Details of his various disabilities are listed in a report dated 25 May 2000 from his former general practitioner, Dr G Chong Wah (exhibit A1, T11, page 46). This report also indicates that his accident at Chubb entailed a fall when he stepped into an uncovered manhole in the ground at night and struck his head against the side of the building, and that this accident resulted in post traumatic epilepsy. However, later medical evidence indicated that he was not suffering from epilepsy.
15. In addition to the disabilities referred to in the preceding paragraph, Mr Long was also obese. In a letter dated 10 January 2001, Dr Olsson records that Mr Long had put on a lot of weight in the previous four or five years, and that he used to weigh about 90 kg but then weighed at least 126 kg, which was as far as the doctor’s scales went (exhibit R1). Dr Olsson further recorded that Mr Long’s height was 183 cm.
Legislation
16.Section 24(1)(c) and s 24(2)(a) of the VE Act provide as follows:
“24(1) This section applies to a veteran if
…
(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
…
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused 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 has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; …”
If s 24(1) of the VE Act applied to Mr Long at the time of his death, Mrs Long will be entitled to a pension at the special rate provided for in s 24(4).
Applicant’s Submissions
17. Mr Ower for the applicant submitted that Mr Long had been prevented from continuing to undertake remunerative work that he had been undertaking by reason of his incapacity from his accepted condition of low back strain alone. Counsel referred to each of the conditions from which Mr Long had suffered and made the following specific submissions in relation to them.
(a)As to his neck condition, it was submitted that an MRI scan of Mr Long’s cervical spine on 15 January 2001 showed no evidence of spinal pathology, and he had been able to work in the Northern Territory notwithstanding any pain from which he might have been suffering after 1990, when his neck condition necessitated the cervical laminectomy. In particular, there was no suggestion that he had ceased working because of pain from this injury or any condition of his cervical spine.
(b)Counsel further submitted that there was no evidence that Mr Long’s bipolar disease or substance abuse was a contributing factor in Mr Long’s inability to undertake work. As to his Crohn’s disease, I note that a report dated 11 April 2001 from Dr Fisher to Dr Olsson indicates that his bowel disease was in remission.
(c)Counsel acknowledged that Mr Long had been suffering from obesity during the assessment period, but pointed out that this had been the case for a long time, according to Mrs Long’s evidence, and submitted that there was no evidence that this had interfered with his work at Chubb or with his ability to work as a taxi driver. It was further submitted that whilst Dr Olsson had agreed in evidence that obesity was possibly a contributing factor to Mr Long’s inability to work as a taxi driver, there was no evidence to suggest that this was the case; and on the contrary, Dr Olsson said in his letters of 9 October 2001 and 7 November 2001 to the VRB that Mr Long’s back injury was the only reason for his inability to work (exhibit A1, T18 and T20, pages 68 and 72). Counsel also drew attention to a letter from Mr Long to the Commission received on 13 November 2001 in which Mr Long attributed his inability to continue working as a taxi driver to his back injury (exhibit A1, T21, at page 73).
(d)In summary, counsel submitted that it was clear that Mr Long had not been a very well man during the assessment period, but each condition other than his low back strain was being controlled, and none of his other conditions prevented him from undertaking remunerative work. Counsel relied in this regard on Re Gurney and Repatriation Commission (1989) 18 ALD 760 as an example of a case where the veteran had a significant number of non war-caused disabilities, but not one of them would have prevented him from working during the relevant period.
Consideration
18. The Commission, and this Tribunal, standing in the shoes of the Commission when determining an application for review, must determine the application made by Mr Long in accordance with s 19 of the VE Act. Under s 19(5C) it is necessary to assess the rate or rates at which the pension would have been payable from time-to-time during the “assessment period”. That expression is defined in s 19(9) of the VE Act to mean period starting on the application day and ending when the application is determined. In the present matter, the assessment period commences on the date when Mr Long’s application for an increase in his disability pension was received by the Commission (namely 23 March 2000) and (having regard to s 13(2) of the VE Act) ended immediately before his death on 7 May 2002.
19. In considering the application of s 24(1)(c) of the VE Act, I refer first to the analysis of Branson J (with whom the other members of the Full Court of the Federal Court agreed) in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four 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 account that he would not be suffering if he were free of that incapacity?”
20. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 120(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
21. As regards the first question in Flentjar, the reference to “remunerative work that the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Banovich v Repatriation Commission (1986) 69 ALR 395. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition, is immaterial: Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 454 per Fox J.
22. In the present matter, I find on the evidence before me that the type of work which Mr Long had previously undertaken was working as a:
·police officer;
·security officer, entailing the work he did at the Australian Institute of Management (see paragraph 11 above);
·shop assistant;
·security officer, entailing the work he did at Chubb (see paragraph 12 above); and
·taxi driver.
It appears from the T Documents that Mr Long worked as a motor mechanic while he was in the armed forces, but it has not been suggested that this is relevant to the determination of these proceedings.
23. The second question in Flentjar entails a simple factual decision, and if s 24(1)(b) is satisfied it is unlikely to be an issue. In the present matter the respondent acknowledges that s 24(1)(b) has been satisfied, and I find that Mr Long, by reason of his war-caused injury, was prevented from continuing to undertake the type of work referred to in the preceding paragraph.
24. The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone”, in the absence of ambiguity, should not have other words substituted for it. The word “alone” as it appears in s 24(1)(c) requires a practical decision as to whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran’s case for pension at the special rate.
25. In Cavell (supra, at page 539), Burchett J said further that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was:
“… to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”.
In Forbes (supra), RD Nicholson J said (at [39]): “The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
26. The potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [37] as follows:
“The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … [H]aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
27. It appears from the material before me that a number of the conditions from which Mr Long suffered would not have contributed to his incapacity to undertake the type of work which he had previously undertaken. I refer in this regard to his bipolar affective disorder, his epilepsy, his diabetes, his asthma and his Crohn’s disease. The position is less clear as regards his substance abuse, his cervical spondylosis and his obesity.
28. The general practitioner who treated Mr Long for most of his time in Darwin was Dr Chong Wah. In a report dated 25 May 2000 to the Department of Veterans’ Affairs, he said that Mr Long was in constant pain from his cervical spondylosis, and that he had difficulty and restrictions in the range of neck movement, and there had been a collapse of vertebrae causing radiation of pain down his arms (exhibit A1, T11, page 46).
29. Exhibit A1 includes a medical assessment report provided to Centrelink in support of an application by Mr Long for a disability support pension. This report was apparently prepared by one Dr Robyn Zillman, a senior medical officer of Health Services Australia. Dr Zillman said with respect to Mr Long’s neck condition:
“I agree with this 58 year old man’s treating doctor that he is unfit for work for more than two years because of his neck and back pain.
His neck pain persists despite surgery and is constant and severe with very poor neck mobility. He needs morphine injections daily for this pain.
His back pain is also constant and severe requiring daily morphine injections. He cannot lift & cannot sit and stand for even 15 minutes. He cannot cope with household chores.
His epilepsy and diabetes are controlled with medication and alone would not prevent working in light occupations.
In my opinion this man is unfit even for light work for more than 2 years. His prognosis is poor.” (exhibit A1, T33, page 106).
It appears that Mr Long was granted a disability support pension on 25 February 2000 and the last payment was made to him on 28 May 2002.
30. Exhibit R1 also includes a copy of a report on an MRI scan dated 15 January 2001. This states, as pointed out by counsel, that there was no evidence of spinal pathology, but it also refers to spondylitic changes at the levels above and below the fusion at C6-7.
31. It is clear from Dr Olsson’s report of 10 January 2001 that Mr Long was significantly obese, since he then weighed at least 126 kg. Dr Olsson said in that report that this was detrimental to Mr Long’s back and his diabetes. In his evidence, Dr Olsson said that Mr Long’s level of obesity would have affected his whole body including his back, and his back condition and obesity would have exacerbated each other, because his obesity made it hard for him to exercise. He said that his level of obesity would affect a person with a normal back, and as far as driving was concerned, his back pain would be made worse by sitting, and repeatedly getting into and out of a car as a taxi driver would have been quite strenuous. Dr Olsson also gave the following evidence in re-examination:
“Even though his obesity would not have prevented him from doing certain work, would the obesity have been contributing factor in preventing him from doing work?---That is – you could probably say so, yes.
You are thinking of work which would involved walking around?---Yes.
Standing?---Yes.
Sitting for long periods?---Yes.
Any job involving things like getting in and out of a taxi frequently?---Well, it could be more difficult, yes.” (transcript,10 May 2004)
32. After Mr Long moved to Darwin, Mrs Long only saw her husband when he returned to Adelaide at Christmas for about three weeks, and in the middle of the year for about six to eight weeks. She did, however, have frequent lengthy calls from him. She said she was aware of her husband’s back condition and that he had developed other medical problems, that her husband always complained of not feeling well, and that this was often the major topic of conversation. She said he always complained about his back, but she could not ever recall him complaining about his neck. She also referred to his depression and “phenomenal” mood swings, and to the adverse effects of the morphine injections and tablets he was taking. She said that after they separated he would tell her on occasions that he had stopped having injections and taking tablets, but when she later saw him she realised from his appearance that this was not the case and that he was still adversely affected by this medication.
33. My task of determining whether conditions other than Mr Long’s war-caused injury were a contributing factor to Mr Long’s incapacity to undertake remunerative work is made more difficult by the absence of evidence from Mr Long. Dr Olsson’s letters to the VRB of 9 October 2001 and 7 November 2001 (exhibit A1, T18, page 68 and T20, page 72) state that Mr Long’s back injury was the only reason for his inability to work. The Commission’s advocate submitted that following the delegate’s decision not to grant the pension at the special rate, Mr Long would have been well aware of the issues raised by s 24(1)(c) of the VE Act, and might have tailored his history to Dr Olsson accordingly. Whilst this is possible there is no evidence before me to this effect. However, the above letters were clearly written by Dr Olsson to support Mr Long’s request to the VRB to review the delegate’s earlier decision, and this raises a question as to the objectivity of the doctor’s opinions. Both Dr Olsson and Mrs Long said that Mr Long’s cervical condition was not causing any difficulties, but I note that the MRI scan of the cervical spine to which I referred above was arranged by Dr Olsson only about two months before Mr Long commenced work as a taxi driver, and this suggests that Mr Long was still experiencing symptoms from his neck at the time of the scan. Further, Dr Olsson only began treating Mr Long late in his life, in December 2000, and his view of Mr Long’s cervical condition is inconsistent with the opinions expressed by Dr Chong Wha and Dr Zillman. I also found Mrs Long’s evidence to be somewhat vague as to Mr Long’s neck disability and his neck operation, and in view of this, and because she was not living with him for the large majority of the time after the onset of his neck problem, I am unable to attach much weight to her evidence as to the neck disability.
34. It also appears that Mr Long continued to experience difficulties from his head injury at Chubb for longer than the period referred to in Dr Olsson’s above letters, because Mr Long was apparently assessed by Mr Anthony P Franklin, a psychologist, in January 2001 (see Mr Franklin’s report to Dr Chong Wha dated 6 March 2001 in exhibit R1). For this reason also I have concerns about the correctness of Dr Olsson’s opinion as to the sole cause of Mr Long’s incapacity for work.
35. I referred in paragraph 31 above to evidence relevant to Mr Long’s obesity. It seems that this was also a significant condition, and Dr Olsson acknowledged that this condition would have been a factor preventing him from doing work which involved walking around, standing and sitting for long periods. His answer to the question relating to getting in and out of a taxi frequently was ambiguous; he might only have been referring to a possibility that Mr Long’s obesity would render that work more difficult, but his answer might also be interpreted as assenting to that proposition. However, his evidence as to the issue of sitting for long periods would in my view be relevant to work as a taxi driver, and having regard to the extent of Mr Long’s obesity, I think it likely that this condition was a contributing factor in his inability to work as a taxi driver (as well as in other types of remunerative work which he had undertaken).
Conclusion
36. I am mindful that the applicant has no onus of proof, as mentioned above, but having regard to all of the above considerations, I am not satisfied from the evidence before me that Mr Long was during the assessment period, by reason of incapacity from his war-caused injury, alone, prevented from continuing to undertake remunerative work that he had been undertaking.
Decision
37. For the above reasons, the decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true
copy of the reasons for the decision herein
of Deputy President D G Jarvis
Signed: .....................................................................................
N. Quirke AssociateDate/s of Hearing 10 May 2004
Date of Decision 8 September 2004
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe
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