Luelf and Repatriation Commission - [2001] AATA 988

DECISION AND REASONS FOR DECISION [2001] AATA 988

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1476
VETERANS' APPEALS DIVISION
  Re:         DAVID FREDERICK LUELF
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             5 December 2001
Place:            Melbourne
Decision:      The Tribunal affirms the decision under review.

…………………………………….
Member
VETERANS' AFFAIRS - veterans' entitlements - assessment - farming activities - ability to work - whether special rate applies
Veterans' Entitlements Act 1986 ss9, 24, 28
Chambers and Repatriation Commission (1995) 36 ALD 207

REASONS FOR DECISION

5 December 2001 G.D. Friedman, Member

This is an application by David Frederick Luelf (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 21 September 2000. The VRB affirmed a decision of a delegate of the respondent dated 14 July 1998 to assess pension at 100% of the general rate.
At the hearing of this matter on 31 October 2001 Mr C. Thomson of Counsel represented the applicant, and Mr K. Rudge, an Advocate for the Department of Veterans' Affairs, represented the respondent. The matter before the Tribunal was whether the applicant should be assessed as eligible for pension at the special rate.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T22), together with two exhibits lodged by the applicant (Exhibits A1-A2) and six lodged by the respondent (Exhibits R1-R6).
BACKGROUND
The applicant was born on 12 November 1946. He left school at the age of 16 years to work full-time on his family's sheep and cattle farm near Bairnsdale. On 19 April 1967 he joined the Australian Army as a conscript and served until 18 April 1969. His service included a 12-month tour of duty in Vietnam from 1967 to 1968 and is operational service as defined in s9 of the Veterans' Entitlements Act 1986 (the Act). After his discharge he returned to the family farm. In 1983 he purchased a farm in Omeo which he operated until he moved to Mansfield in 1995, when he purchased a 365-hectare sheep and cattle farm. He lives on the property but has not worked since 1997. His daughter and her husband operate the farm.
On 27 June 1997 the applicant made a claim for disability pension. The claims for lumbar spondylosis, bilateral sensorineural hearing loss and post- traumatic stress disorder (PTSD) were accepted on 14 July 1998 and pension was assessed at 100% of the general rate with effect from 27 March 1997. On 4 September 1998 the applicant applied to the VRB for review and following the decision of the VRB to affirm the decision, the applicant lodged an application with the Tribunal on 7 December 2000 for review of the decision.
EVIDENCE
The applicant told the Tribunal that in the 1980s he worked hard on the farm and that although he had back problems and became irritable easily he did not believe that anything was wrong with him. He stated that in 1986 he and his wife separated for one year. They separated permanently in 1994 and were subsequently divorced. The applicant said that since 1995 his back and other problems have prevented him from doing much of the physical work involved in farm activities, even though the farm is a low-maintenance business. He said that he was particularly impatient in dealing with the stock. After his marriage ended he decided to seek treatment for his emotional and psychological problems.
The applicant told the Tribunal that he attended a psychiatrist who prescribed anti-depressants. They were effective in making him more placid, although he said that because of the side effects he ceased taking the medication. He stated that the farm is running smoothly because his daughter and her husband have improved the systems. The decision to agist cattle (instead of owning them) has made the operation of the farm easier. One of his sons comes home each weekend to help. The applicant stated that because of his physical and emotional conditions and his inability to contribute to the farm, there was no likelihood of expanding the farm's activities or improving its profitability. He said that the farm is losing money.
The applicant stated that occasionally he performs minor tasks such as the payment of accounts, but is unable to do any other work around the farm. He said that he and his children engage an accountant to handle the finances. A person is employed to ensure that quarterly taxation requirements are met. He stated that there is no work available in Mansfield or surrounding areas for someone with his skills or farming background. Under cross-examination the applicant stated that he could undertake 8 hours per week in administrative duties such as bookkeeping, but that the physical aspects of farm work were impossible. He said that other rural-based employment would not be feasible because of his physical limitations and his difficulty in relating to people.
With regard to his daily activities the applicant stated that he lives quietly and is able to carry out domestic tasks. He drives a motor car and has a small vegetable garden. He said that he is content to remain living on the property, and his daughter and her husband are building a separate house.
In a written report dated 9 October 2001 Dr B. Holwill, Consultant Psychiatrist, stated that the applicant was incapacitated by his war-caused disability of PTSD and that he was incapable of working 8 hours per week. In oral evidence to the Tribunal Dr Holwill stated that he first examined the applicant in August 1997 and found him to be a socially isolated person who had poor concentration and difficulty relating to other people. Dr Holwill confirmed that he prescribed medication that initially was successful but that the applicant was unhappy with the side effects. Dr Holwill said that he last saw the applicant in 1999 and that employment for the applicant was impossible because of irritability and poor interaction with others. Under cross-examination Dr Holwill said that although in theory the applicant could cope with limited tasks on any given day, no one would employ him, and the stress of remunerative employment would be detrimental to his well being.
In a written report dated 18 May 2000 Dr W. Kemp, Consultant Rheumatologist, stated that the symptoms of lumbar spondylosis would be aggravated by walking on rough ground or jolting in a vehicle, and the applicant would be permanently unfit to carry out farm work. He added that the applicant has no other vocational qualifications or experience, and would be incapable of carrying out remunerative work for more than 8 hours per week, or sedentary work to enable him to study for other qualifications.
Daniell Weingott, daughter of the applicant, gave oral evidence to the Tribunal. She said that the applicant was always bad-tempered and had no patience in dealing with the animals on the farm, and he does not relate well to people. She confirmed that she and her husband have operated the farm for the past two or three years and there is little that the applicant is required to do, even if his health allowed him to work. Ms Weingott said that the applicant is unable to undertake any physical activities on the farm because of his back pain, and his hearing problems have made him socially isolated.
In written reports dated 21 June 2001 and 12 July 2001 Dr D. Barton, Consultant Occupational Physician, stated that when he examined the applicant on 20 June 2001 there was little ongoing evidence of any particular back problems. Dr Barton stated that he does not believe that the applicant's back condition prevents him from undertaking normal farm work for more than 8 hours per week. He added that, from a physical point of view, he does not believe that the applicant presents with any particular service-related problems that would prevent him from undertaking normal work consistent with his age and vocational experience. In oral evidence to the Tribunal Dr Barton said that the applicant has spent his entire working life on a farm and in a physical sense would be capable of operating a range of light equipment, either on a farm or in an industrial environment.
In written reports dated 26 July 2001 and 18 September 2001, Dr T. Gidley, Consultant Psychiatrist, stated that PTSD symptoms became evident in the 1990s but appear to have diminished to some extent as a result of treatment from Dr Holwill. Dr Gidley concluded that the applicant's psychiatric condition does not prevent him from undertaking work as a farmer for more than 8 hours per week. In oral evidence to the Tribunal, Dr Gidley said that such work might include gardening or a position in a factory or store that does not require lifting or strenuous physical activity or responsibility. Under cross-examination Dr Gidley stated that the applicant has the capacity to work in an area that involves minimal contact with other people.
CONSIDERATION OF THE ISSUES
Section 24 of the Act provides for a special rate of pension for a veteran who satisfies the criteria laid down in s24:
(1)       This section applies to a veteran if:
(aa)     the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)   the veteran had not yet turned 65 when the claim or application was made; and
(a)       either:
(i)        the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)       the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)       the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)       the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)       section 25 does not apply to the veteran.
(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; and
(b)       where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

Section 28 of the Act provides that:

In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
   (a)       the vocational, trade and professional skills, qualifications and experience of the veteran;
   (b)       the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
   (c)       the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

Mr Thomson, on behalf of the applicant, submitted that the Tribunal should accept the evidence of Dr Holwill that the applicant is incapable of working for 8 hours per week as a result of his accepted disabilities. He submitted further that the evidence from the applicant and Ms Weingott supported this view. In relation to the capacity of the applicant to undertake remunerative work, Mr Thomson referred to s28 of the Act and urged the Tribunal to take into account the applicant's vocational, trade and professional skills, qualifications and experience and the type of work available. He stated that the accepted war-caused conditions suffered by the applicant have reduced his capacity to undertake remunerative work that would be appropriate. He said that the applicant is capable of minor administrative tasks such as writing cheques, but is unable to undertake tasks that would be remunerative in the sense that they would assist the farm to become a productive enterprise. Mr Thomson stated that even if Dr Barton's evidence was to be accepted in theory, the reality is that in the Mansfield area there is no work available that the applicant might reasonably undertake.

On the question of financial loss suffered by the applicant, Mr Thomson referred to the financial statements tendered by the applicant, and noted that since he ceased working in 1997, the applicant no longer receives direct remuneration and the viability of the farm is dependent on someone else. He urged the Tribunal to consider the gross income of the farm and submitted that if the applicant was not incapacitated because of war-caused conditions he may have expanded the operations of the farm and increased the farm's income, such as by purchasing cattle. He stated further that because the applicant has lost the ability to derive income he has incurred a loss. 18. Mr Rudge, on behalf of the respondent, referred to the evidence from Dr Barton and Dr Gidley and submitted that the applicant does not satisfy s24(1)(b) because he is not incapable of undertaking remunerative work for more than 8 hours per week, and his incapacity for work is not the result of war-caused injuries or diseases alone. Mr Rudge cited Chambers and Repatriation Commission (1995) 36 ALD 207 in which the Full Federal Court stated, in respect of s24(1)(b), at p 218:
The phrase "remunerative work" is defined in the widest terms, to mean "any remunerative activity"… The ultimate inquiry is not expressed to be whether the veteran's war-caused incapacity has rendered him or her incapable of undertaking employment of the kinds for which his previous work history provided training or relevant experience.

At p 221 the Court said:

We do not think that the adjectives used in s28(a) are intended to limit the skills, qualifications and experience that may be taken into account to those that have been acquired from a particular source or in a particular manner. Rather, they are intended to direct attention to skills, qualifications and experience equipping the veteran for remunerative work in a vocation, trade or profession.

Mr Rudge said that the applicant has had long experience as a farmer and has the skills and aptitude to undertake a range of remunerative activities such as the handling of various items of equipment.
In relation to s24(1)(c) Mr Rudge submitted that the applicant has not suffered a loss of earnings. He said that the farm, which is operated by a family trust, consistently made losses, and although the applicant removed himself from the trust in 1998/99, there has been no loss to him for the purposes of the Act.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made. There was no dispute between the parties in respect of s24(1)(a) and the Tribunal finds that the applicant satisfies this provision. In respect of s24(1)(b) the Tribunal takes into account that in his oral evidence the applicant admitted that he could work for 8 hours per week in bookkeeping or other administrative tasks, but not physical activities involved in farm work. The Tribunal notes that Dr Barton carried out a thorough examination and assessment of the physical aspects of the applicant's ability to work. The Tribunal accepts his conclusion and oral evidence that there were no service-related problems that would prevent the applicant from undertaking normal work consistent with his age and vocational experience. The Tribunal prefers this evidence to that of Dr Kemp, whose conclusion that the applicant was incapable of undertaking other remunerative work appears to be based on the applicant's age, lack of vocational qualifications or experience, and does not take into account other non-physical activities that may be possible.

Although Dr Gidley acknowledged that a combination of PTSD and back pain makes the applicant incapable of performing the physical aspects of farming, the Tribunal accepts his evidence that the applicant's psychiatric condition alone does not prevent him from undertaking work as a farmer for more than 8 hours per week, or administrative/management aspects of farming for more than 20 hours. The Tribunal prefers Dr Gidley's evidence to that of Dr Holwiil, who acknowledged in his evidence that the applicant might be able to cope with work involving light duties.

Taking the evidence as a whole the Tribunal accepts the submission by Mr Rudge that, applying the test in Chambers, there would be a number of remunerative activities that the applicant would be capable of undertaking, despite the war-caused conditions suffered by him. After taking into account the factors specified in s28, the Tribunal finds that the applicant is not incapable of undertaking remunerative work for more than 8 hours per week, and that the applicant's incapacity for work is not the result of his war-caused injuries or diseases alone. Therefore the Tribunal finds that the applicant does not satisfy s24(1)(b) and he cannot meet the criteria in s24 for the grant of pension at the special rate. Consequently there is no need for the Tribunal to consider other matters raised at the hearing, such as loss of earnings.

DECISION

The Tribunal affirms the decision under review.

I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member
(sgd)       Rhona Hammond
              Clerk
Date of hearing:  25 October 2001
Date of decision:  5 December 2001
Counsel for applicant:                 Mr C.Thomson
Solicitor for applicant::                 Geoffrey Tobin
Solicitor for respondent:              Mr K. Rudge, Advocacy Section, Department of Veterans' Affairs