Luxford and Repatriation Commission
[2001] AATA 207
•12 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 207
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/361
VETERANS' APPEALS DIVISION )
Re ARTHUR GORDON LUXFORD
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date12 January 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/361
)
VETERANS' APPEALS DIVISION )
Re: ARTHUR GORDON LUXFORD
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 12 January 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT the Applicant, ARTHUR GORDON LUXFORD, is entitled to pension at the special rate as and from the 2nd November 1998.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Special Rate Pension. Loss of salary or earnings on his own account. Redundancy payments irrelevant. Whether ceased work because of war-caused incapacity alone.
Veterans' Entitlements Act 1986 - s19, subs19(5), subs120(4)
Repatriation Commission v Smith 15 FCR 327
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Greenwood 12 AAR 408
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 12 January 2001
Date of Decision 12 January 2001
Counsel for Applicant Mr N DawsonSolicitor for Applicant R L Whyburn & Associates
Advocate for Respondent Mr P Godwin, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/361
By Mr M.D. Allen, Senior Member
LUXFORD and REPATRIATION COMMISSION
SYDNEY, FRIDAY, 12 JANUARY 2001MR ALLEN: In this matter the applicant, pursuant to an application lodged with the Tribunal on 6 March 2000, sought review of a determination by the respondent made 8 December 1998 and affirmed on review by a Veterans' Review Board continuing his disability pension at 100 percent of the General Rate. The applicant in these proceedings seeks that pension should be paid to him at the special rate pursuant to section 24 of the Veterans' Entitlements Act 1986 as amended.
Section 120(4) VEA provides that in determining this application for review the Tribunal shall make its determination to its reasonable satisfaction. The term "reasonable satisfaction" was equated by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327 to the civil standard of proof, namely, that on balance of probabilities. In making the assessment section 19(5) of the VEA provides that:
The entitlement to any rate of pension shall be at the application day.
which is defined as the day upon which the applicant makes the application for an increase in pension for the acceptance of the particular conditions, and then the assessment period continues forward until the determination has been finalised. Section 24 provides inter alia that the Special Rate applies in cases where:
…
(aab)the veteran had not yet turned 65…
and is in receipt of a pension
(a)either:
(i)… at least 70% …
(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;
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©Auscript Pty Ltd Transcript-in-Confidenceand subparagraph (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;
Subsection (2) of section 24 then provides in paragraph (a) that:
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;
Now those particular subsections were clearly raised in this application. Before turning to the facts of the matter however the law as it applies to section 24 has been discussed by his Honour Nicholson J in the matter of Forbes v Repatriation Commission (2000) 101 FCR 50. His Honour stated at page 54 in his reasons for decision as follows:
The requirements of s 24(1)(c) of the Act have been considered by the Full Court in Flentjar v Repatriation Commission (1997) 26 aar 93 at 96; 48 ALD 1 at 4-5. There, Branson J, with whom Beaumont and Merkel JJ agreed, said:
In my view the issues before the tribunal in this case were as follows:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
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©Auscript Pty Ltd Transcript-in-ConfidenceHis Honour went on to state at page 55:
In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 Burchett J agreed with Davies J in Re Easton and Repatriation Commission (1987) 6 AAR 558 at 570-571 the word "alone" should not have substituted for it other words in the absence of ambiguity. He saw the requirement of the word "alone" as it appears in s 24(1)(c) as requiring a practical decision whether the veteran's loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well. He regarded that as a decision not to 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.
The only other matter I would seek to mention in the law is the decision of the Veterans' Review Board in this case. I realise that this Tribunal does not sit on appeal from the Veterans' Review Board but the comments of the Board cannot pass without comment. In their decision they said:
Section 24(1)(aab)(c) requires that because of the war-caused injury or disease alone, the veteran is prevented from continuing to undertake remunerative work and as a consequence suffers a loss of earnings.
That is not what the subsection says. Paragraph (c) of subsection (1) of section 24 states that:
… the veteran is … 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 …
The difference is important. To illustrate its importance I refer the Board to the decision of his Honour Davies J in Repatriation Commission v Greenwood 12 AAR 408, at 413. His Honour said in the case of where a veteran had retired but was still receiving some remuneration:
It was contended that Mr Greenwood did not suffer a loss of salary or wages or earnings by reason of having to give up physical work for he continued to receive salary or wages from R & B Greenwood Pty Ltd. It was submitted, moreover, that no loss was shown as the proceeds of investment were as high as would have been the proceeds from any building activity that R & B Greenwood Pty Ltd might have undertaken. I think that this was the substance of the argument put though I have not used counsel's precise words.
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©Auscript Pty Ltd Transcript-in-ConfidenceA similar submission was rejected by an Administrative Appeals Tribunal in Re Fahey and Repatriation Commission (1986) 5 AAR 274. In that case the Tribunal said (at 277-278):
"While that submission covered many points, essentially it was that, by reason of the applicant's transposition of his investment in the farm into investments in a house in Boorowa township and into a deposit of money at interest, he was not suffering a loss of income and had in fact managed to produce a higher income than the farm had returned. It seems to us that the question is not one of loss of income, that is to say of reduced support, but rather of loss of (i) salary, (ii) wages, or (iii) earnings on the veteran's own account, that the veteran would not be suffering if he or she had been free of the incapacity. It is all in the context of being 'prevented from continuing to undertake remunerative work'. The phrase here relevant, namely 'earnings on his or her own account', was in our opinion clearly inserted to cover the case of a person who derived not salary or wages, but rather the earnings of a business, profession or trade as a result of remunerative work. There is a loss of salary or wages, or of earnings on one's own account, when one does suffer a loss of remuneration properly so described. It seems to us to be nothing to the point that a person has sold a business that was run by the sweat of his brow because of ill health and invested in shares in BHP. What that person receives in dividends can be said to be 'earned', but no definition of the word 'earnings' can, given that the legislation speaks of 'earnings on his or her own account' and puts that phrase into the context of what is received as the product of remunerative work, lead to a conclusion that a person like the present applicant has not suffered a loss of earnings on his own account when he has had to give up the remunerative work which produced such earnings for him. It would have been very easy for the legislature to have said 'loss of income' if that was what was meant. Instead the legislature has used a more lengthy formula which, on a fair reading, is more restrictive in its scope. It would not be correct to subvert the legislative intent by giving 'earnings on his own account' an interpretation so expansive that it, together with 'wages and salary', adds up to mean 'income'."
His Honour then said:
I agree with the approach taken in that passage.
In the instant case the VRB said this:
Although the veteran could have received another about 10 months of salary if he had stayed in employment the Board takes the view that his financial position improved by the acceptance of
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©Auscript Pty Ltd Transcript-in-Confidencethe voluntary redundancy package and there was no financial disadvantage to him by ceasing work 10 months early. The Board considers that the veteran did not suffer a loss of "earnings" as the acceptance of the voluntary redundancy packet and the associated benefits was more than adequate compensation for the loss of 10 months of salary.
As I have just stated, the passage from Greenwood's case supra gives the lie to that argument. It would be better if the Veterans Review Board were to apply the law in these matters rather than its own peculiar prejudices.
The facts in this matter are in relatively short compass: The applicant started his working life as a coal miner. He enlisted in the Australian Regular Army and had the good fortune of being allocated to Artillery. He served in Vietnam and as a result of his Army service he has the following injuries and diseases accepted as being compensable pursuant to the Veterans' Entitlements Act, namely: Bilateral sensorineural hearing loss which, one might expect in a gunner, chronic bronchitis, post traumatic stress disorder, psychoactive substance abuse or dependence, hypertension, sleep apnoea, gastro-oesophageal reflux disease and irritable bowel syndrome.
Upon retirement from the Army he again went down the mines. He worked underground for some time. However in the last two years of his coal mining position he was placed above ground. It is clear from the evidence that he was placed above ground because he was considered a risk of injury working underground. Having been shifted to an above ground position, as described by Dr Rosenthal in his report of 4 March 1999, see exhibit R5 in the following words:
He stated that he could no longer work under ground because he became extremely irritable, cranky, he was arguing and felt emotionally that he was not coping with underground work.
The applicant in a statutory declaration, which is at document T14 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, states:
Whilst on the same roster I then was offered pit top working as a Bathhouse Attendant. Duties consisted of telephone answering and cleaning of the bathhouse. This position is light work and alleviated any heavy lifting or strenuous work as was expected when I was underground. Although this position should have provided me with easier, less stressful working conditions, nothing had changed. I still found I couldn't cope with situations that arose and I was still unable to relate to my peers in a civilised
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©Auscript Pty Ltd Transcript-in-Confidenceway.At this stage I believed my situation was hopeless but management had decided to offer redundancies to members of the workplace within Wambo Mining due to downsizing of mine personnel.
At page 21 which, is in document T5 of the Tribunal documents, the applicant states as follows as to why he left work:
Due to my accepted war caused conditions wholly solely and alone I have had to take redundancy. I asked to be medically retired because I could not go on any longer & My doctors had advised me to leave work. I could not convince my union or employers that I was giving up work because I could not keep going & that I wanted to resign because I was too ill to keep going. They insisted on making me redundant I had tried to keep going and have managed it for three years but I'm at the end of my rope now. I would be quite able to work with my non-accepted disabilities. My P.T.S.D. is very severe I was getting into fights at work & I am verbally abusive at home.
In evidence to the Tribunal today the applicant also gave evidence of how he was having conflicts, not only with co-workers, but also with management. At page 30, a further statement from the veteran says:
I am very angry. I was getting angry at work and fighting with everyone. I told my bosses that I would have to resign because my disabilities were getting so bad. They would not accept this so I went to the union and told them how I was not coping & my psychiatrist had advised me to leave work but they would not accept resignation either. Both employer and Union said I had to go in the next batch of redundancy & would not let me go any other way. The Union said if I resigned there would be a strike because, in their opinion, I would not be being properly paid. I couldn't go on so I just gave in.
He also refers there to being booked into Linyard Hospital near Newcastle for a PTSD course. Dr Graham Altman, psychiatrist, is the applicant's treating psychiatrist. In a report of 22 October 1998, document T7, he says in a report to the applicant's general practitioner:
Of particular concern has been deteriorating ability to cope at work and he finally stopped working on September 18, 1998. It is only through his conscientiousness and diligence that he has managed to cope at work for this long. It has been clear to me for several years that he was just managing to cope at work and as I have mentioned it was through his diligence that he has managed to work up until September 18, 1998. In terms of why he cannot
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©Auscript Pty Ltd Transcript-in-Confidencework any longer he stated that "I just couldn't get on with the people and the management. I was tense I didn't feel like going. There were a couple there I felt like belting and I got into quite a few arguments".
In his report, referred to previously, Dr Rosenthal, an occupational health consultant, says:
Mr Arthur Luxford is a 59 year old army veteran who suffers from a number of different conditions, the main one being his post traumatic stress disorder which is causing him significant difficulties at present. …
In my opinion it is quite amazing that Mr Luxford was able to maintain paid employment until September 1998. The fact that he was removed from underground coal mining and placed above ground was in fact a wise decision from the purposes of underground safety, but I believe that even above ground Mr Luxford would have had severe difficulties in performing his work. Fortunately he reports that no major accidents or emergencies occurred whilst he was on duty above ground, as I severely doubt that he would have had sufficient capacities to cope with such emergencies. I am in agreeance with Dr Altman to the fact that he would have had difficulty coping towards the end before he left work and to me there is no doubt that his post traumatic stress disorder would have been the major health impact in his decision to leave. … Thus his main reason for stopping work would have been because of his psychological condition of his post traumatic stress disorder.
A similar opinion has been expressed by Dr Mark Burns, Occupational Physician, in a report to the respondent dated 5 June 2000; that report is exhibit R2. It has been argued by the respondent that the applicant's generalised osteoarthritis would also have been a factor in his decision to cease work. As the applicant's evidence said the job he had above ground was a light job and he would, apart from his PTSD, have been able to cope with it. Dr Ostinga in his report refers to a need for an arthroscopy but the applicant says that he still has not seen the need to have that operation.
Dr Burns said of generalised osteoarthritis:
Mr Luxford has a history of arthritis in his ankles, knees and shoulders. This arthritis has been present for probably five to ten years at the least but has not stopped him from doing any activities. He has never had any medical treatment for his arthritis but occasionally uses analgesics. He reports that his
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©Auscript Pty Ltd Transcript-in-Confidencearthritis does not stop him from carrying out any tasks which he wishes to do.
Dr Burns then continued as a conclusion:
With respect to employment, I do not believe that he could return to work for even eight hours per week due mainly to his post traumatic stress disorder. This condition is moderately severe and causing him a great deal of distress. His chronic bronchitis would also limit his capacity to do heavy manual work but would certainly not stop him from returning to lighter duties. I believe that his arthritis would also limit his capacity to do heavy work but would not make it impossible for him to work.
In conclusion, I believe that the reasons he is no longer at work is his post traumatic stress disorder and psychoactive substance abuse. Considering the severity of this condition, I believe he did very well to remain at work for as long as he did.
I would only add, as to osteoarthritis, Dr Rosenthal dealt with it in the following way:
… has recurrent sore ankles and knees and is due to have an arthroscopy on his knee shortly.
But, as stated, Dr Rosenthal thought the main reason for stopping work was the psychological conditions. These other incapacities were also discussed by occupational physician, Dr Baz. Her report to the applicant's solicitors is dated 14 August 2000 and is exhibit A2. Under the heading Work and Fitness Assessment she says:
It is likely that his underground duties would have ultimately been precluded by increasing symptoms in the joints, but I do not consider these are sufficiently severe, either on a clinical or historical basis, to preclude him from lighter work, such as the cleaning duties he undertook on the pit top.
In my opinion his capacity has been markedly limited over many years due to the accepted psychiatric disability, and he has only been able to continue in the workforce with considerable determination, and the understanding of his colleagues and management.
Document T10, page 43, is a letter from his former employer, Wambo Mining Corporation Pty Limited, which was relied upon by the respondent. That letter states inter alia:
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©Auscript Pty Ltd Transcript-in-ConfidenceHad Arthur chosen not to be voluntarily retrenched, it is likely that he would still be employed at Wambo. Forced retrenchments can only occur within seniority as per our Certified Agreement …
That, no doubt, is entirely correct so far as it goes, but in this matter the applicant did choose a voluntary retrenchment for the reasons set out previously, and which have been reiterated here today. Namely, that he had reached the stage where he thought that he could no longer carry on. It was argued that given the benefits which then flowed from the voluntary redundancy it was a choice made by him in that the benefits increased the following pension status, was a very good trade off for having to work the extra months until compulsory retirement.
As the applicant said, the work he was doing was easy work and in evidence he denied quite vehemently that that factor was in his consideration. He spoke of family responsibilities, and I accept what he said that the family responsibilities and the necessary expenditure thereon would have mitigated against his not continuing in employment. The differences of course are considerable in remuneration.
The Tribunal has before it his final income tax return, which shows that from Wambo Mining Corporation Pty Limited in the tax year ended 30 June 1998, his wages were in the sum of $95,352. The payout for redundancy was on the bases without overtime and just the basic rates and amounted to the sum of $39,398.40. Even allowing for taxation at the highest rate, it is still clear that the applicant suffered a loss of wages and earnings on his own account. There is another element referred to, which is a DFRDB pension, but that is a constant which continued to be paid and continues to be paid.
Part of the applicant's cross-examination referred to the domestic situation; who does work, etcetera. It was put that he was in fact receiving more visitors at his home than he was admitting to either in this Tribunal or to medical practitioners. However, it was never directly put to the applicant that he was giving false or incorrect evidence. Other matters referred to a sick leave record, however the applicant to my mind has explained that, as the company's sick leave policy was very strict, plus of course he had a very easy job.
In my understanding of the evidence it is quite clear that if it had not been for the disabilities engendered by his post traumatic stress disorder, the applicant would still have been engaged in working for wages at the Wambo Coal Mine as at the application day, namely 2 November 1998. He has provided taxation returns I have referred to before, showing that he has suffered a loss of wages, or if one likes to
put it another way, he has suffered a loss of earnings on his ownluxrepJ 12.1.01 P-9
©Auscript Pty Ltd Transcript-in-Confidenceaccount. That has been due to incapacity from war caused injuries and diseases alone. His osteoarthritis may cause some problems, but did not prevent him carrying out the light work he was.
In those circumstances, therefore, it seems to me that all one has to do is apply the principles discussed by his Honour, Nicholson J, in Forbes v Repatriation Commission supra and that makes it clear that this decision under review should be set aside. The applicant is entitled to pension at the Special Rate as and from 2 November 1998.
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©Auscript Pty Ltd Transcript-in-Confidence
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