McCallum and Repatriation Commission
[2014] AATA 50
•31 January 2014
[2014] AATA 50
Division VETERANS' APPEALS DIVISION File Number
2011/3353
Re
David Robert McCallum
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 31 January 2014 Place Melbourne The Tribunal affirms the decision under review.
.........................[sgd]...............................................
Regina Perton, Member
VETERANS’ AFFAIRS - pension at special rate – whether war caused conditions alone cause of inability to work – reason why applicant stopped working for more than 8 hours per week – decision under review affirmed
Veterans’ Entitlements Act 1986 ss 24(1)(a), (b) and (c), 24(2)(a)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Alexander (2002) 75 ALD 329Repatriation Commission v Hendy [2002] 76 ALD 47
REASONS FOR DECISION
Regina Perton, Member
31 January 2014
David McCallum, who is now 68 years old, served in the Australian Army for two years from 1 February 1967 to 31 January 1969. This included operational service in Vietnam from 11 December 1967 to 17 December 1968. Mr McCallum currently receives a service disability pension at 100 per cent of the general rate. He suffers from multiple medical conditions, of which bilateral sensorineural hearing loss, post traumatic stress syndrome (PTSD), chronic obstructive airways disease, type II diabetes mellitus, alcohol dependence, solar keratosis of both arms and atherosclerotic peripheral vascular disease affecting both legs have been accepted by the Repatriation Commission (the Commission) as having been war caused.
On 16 September 2010 Mr McCallum lodged a claim for increase in pension. He was successful in having atherosclerotic peripheral vascular disease affecting both legs accepted as an additional war caused condition but continued with 100 per cent pension which he was already receiving.
On 25 November 2010 Mr McCallum applied for review to the Veterans Review Board (VRB). Mr McCallum, who was under 65 years of age when he lodged the claim in 2010, believes he is entitled to a special rate pension, which is a higher rate of pension paid to a disability pension recipient who is unable to work due to his accepted war caused disabilities alone.
On 23 June 2011 the VRB affirmed the Commission's decision that Mr McCallum was not eligible for a pension at a special rate. On 18 August 2011 Mr McCallum lodged the application currently under consideration by the Tribunal.
In deciding whether Mr McCallum is eligible for pension at the special rate, the Tribunal needs to consider:
·Is Mr McCallum unable to undertake remunerative work for more than 8 hours per week?
·When and why did Mr McCallum stop working for more than 8 hours per week?
·Do Mr McCallum's accepted war-caused conditions alone prevent him from working?
IS MR MCCALLUM UNABLE TO WORK FOR MORE THAN 8 HOURS PER WEEK?
Based on the medical evidence and that of Mr McCallum and his family members, the Commission has indicated that it accepts that Mr McCallum is unable to undertake remunerative work for more than eight hours per week. The Tribunal heard evidence from several witnesses that Mr McCallum is still involved with some farm work in advising family members on work that needs to be done and how it should be undertaken. The Tribunal accepts that this is now for less than eight hours per week. The Tribunal finds that Mr McCallum is unable to undertake remunerative work for more than eight hours per week.
WHEN AND WHY DID MR MCCALLUM STOP WORKING?
Mr McCallum left school after completing Year 10. He worked in road construction prior to undertaking national service. Since completing his army service, he has been involved in farming. At various times he has been involved in rice and wheat production as well as in sheep farming. He has worked on different properties, at times with his father and brother. After his father died, there was a bitter will contest about the land. Mr McCallum eventually received part of his father’s property. There have been moves over time to different properties. His property is mainly given over to sheep farming now.
In recent years Mr McCallum has had the assistance of various children at various times in managing the farm. He has two children from his first marriage and two from his second marriage, all of whom are adults. At present he is assisted by his youngest child, a son, and for some years before that by his third child, a daughter, then in her early twenties. She has moved to Queensland relatively recently.
In affidavits tendered to the Tribunal and oral evidence, Mr McCallum told the Tribunal about his health issues, his farm work, his family relationships and related matters. He said that while his work had been affected by his PTSD, skin condition and other accepted injuries, it was his difficulties with his knee that were the major factor in him ceasing to be able to undertake much in the way of physical farm activities.
Mr McCallum told the Tribunal that he had suffered a knee injury in Vietnam. He was thrown off the back of a truck, which started suddenly and unexpectedly after its occupants were advised to move off the truck, injuring his left knee. The knee was packed with ice but he was not examined by medical staff. He was out of action for a few days. Army medical records wrongly state that it was Mr McCallum’s right knee that was injured. He has now lost the ability to walk very far, step up into farm equipment, use ladders, kneel or squat. His knee is quite swollen as was evident throughout the hearing as was his difficulty in moving easily or very far.
Mr McCallum’s first and second wives provide a great deal support to him as do his children. They gave evidence about how they have helped despite his lack of appreciation for what they do. They all care and are concerned for him and do a great deal to support him, both in his day to day existence as well as on the farm. They spoke about the impact on him and them of his disabilities and the deterioration in his physical and psychological health which has resulted in him being unable to do any real farm work now apart from providing guidance.
Jill Hetherington, who married Mr McCallum in 1967 and divorced him in 1977, described the changes in him before and after service in Vietnam in a statement dated 22 August 2013. She and Mr McCallum had two sons born in 1967 and 1971 respectively. Ms Hetherington stated that she and Mr McCallum had a good relationship before his service in Vietnam but this changed dramatically on his return. She described his poor sleep, bad nightmares, increased smoking and drinking and his harsh discipline of the children. Following the breakdown of her second marriage and a serious illness, Ms Hetherington was rescued in 2000 from a difficult environment by Mr McCallum and lived on his farm for a time while she had medical treatment. She noticed a dramatic change in him physically and mentally for the worse. He suffered from many medical conditions and could not work the way he used to. Ms Hetherington and Mr McCallum’s second wife have become good friends and share taking care of his day to day needs which he is no longer able to do despite being too proud to admit it.
Geoff McCallum, who is Mr McCallum’s second son, provided a written statement and gave oral evidence about his relationship with his father, his father’s expectations and the work he was expected to do on the farm while still at school. He described his father’s excessive drinking which he stated affected Mr McCallum’s ability to work and manage the farm effectively. Geoff McCallum left home after finishing school and is now a stock and station agent. He moved back to a town near the farm in 2006 and has since always been involved in any sheep work at the farm. He stated that since then, his father has had no physical input as they were worried he would get hurt. Furthermore, his poor physical state prevented him from doing anything more than sitting in the ute and telling them that they are doing things incorrectly. Geoff McCallum said that he has tried to advise his father on modern techniques but that his father refuses to consider anything new. He also described his father’s problems with his knee and his inability to get onto a tractor. He estimated that his father had been unable to do a great deal on the farm for five or six years. He finished his statement as follows:
… He is the boss at the farm in name only but we all still conform to his decisions due to respect and wanting to keep the peace.
In closing Dad has been completely incapacitated for years, with the last 6 or 7 he can hardly walk from the ute to the house. His excessive drinking has been the one constant I can always remember.
His belief that he still “runs the show” and gets things done is completely wrong and for Dad to communicate this idea to various doctors is totally farcical…
Judith Gray McCallum (Judy McCallum), Mr McCallum’s estranged second wife who married Mr McCallum in 1982, described the history and the nature of her relationship and that of her children with Mr McCallum in oral evidence as well as written statements. She described how much of a strict disciplinarian he was to their children, the effects of his drinking and the impact of the sun on his skin condition. Judy McCallum described the work done on the farm by her two surviving children and the lack of appreciation Mr McCallum appeared to have for their efforts. Despite that, she and Ms Hetherington continue to provide him support because he needs their help to survive.
Judy McCallum now works at a nursing home in a town quite some distance from the farm and lives in a separate dwelling on the farm. She stated that Mr McCallum now gets around with a walking frame, forgets to take his medication and spends much of his time chain-smoking and watching television. Family members take him to medical appointments and other family members do the work that needs to be done at shearing time or lambmarking. Judy McCallum helps him meet his day to day expenditure as he spends a lot of his income on cigarettes, which he is not prepared to give up despite the urgings of his doctor and family. Ms McCallum, in her oral evidence, provided many more details of the difficulties she and the family have faced, emotionally, financially and physically due to Mr McCallum’s accepted war-caused conditions.
David McCallum Jnr, Mr McCallum’s youngest son, provided a statement dated 26 August 2013 and gave oral evidence. He described the difficulties the family experienced while he was growing up due to his father’s medical difficulties and habits. He described the work he has done on the farm for his father and how little his father is now able to do for himself both in relation to the farm and in his personal care.
Donna McCallum, Mr McCallum’s daughter, provided a statement in which she described similar issues to her siblings. She described his physical disabilities and his daily routine. She indicated the nature of the work he had them do on the farm and that done by her mother and others including physical work and bookwork.
Based on the family’s evidence and that of Mr McCallum, whose memories are somewhat patchy, the Tribunal is satisfied that it has now been several years since Mr McCallum has been able to do any physical work on the farm. He does not do any book work or the like in relation to the farm as this is done by Judy McCallum.
The Tribunal is unable to set down an exact date for when Mr McCallum stopped being able to properly participate in farm work for more than eight hours per week but is satisfied that it was before or during the relevant period for the purposes of this review.
DO MR MCCALLUM'S ACCEPTED WAR-CAUSED CONDITIONS ALONE PREVENT HIM FROM UNDERTAKING RENUMERATIVE WORK?
Section 24 of the Veterans' Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(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…
(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…
The Commission accepts that Mr McCallum meets sections 24(1)(a) and 24(1)(b) of the Act. The Tribunal concurs.
The Commission submits that Mr McCallum does not meet s 24(1)(c) of the Act. Section 24(1)(c) and its qualifying provision, s 24(2)(a) state:
…
(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…
(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.
In Flentjar v Repatriation Commission (1997) 48 ALD 1, Branson J set out the issues posed by s 24(1)(c) in a series of questions:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
In respect of question 1, the Tribunal finds that the remunerative work undertaken by Mr McCallum was as a farmer.
In respect of question 2, as stated above, there was evidence from psychiatrists and other medical practitioners that Mr McCallum is unable to work for more than eight hours per week due to his accepted war caused conditions. For example, Dr Nigel Strauss, in a report prepared for the Commission on 23 May 2012 gave the following opinion:
Firstly I should state that from a psychiatric perspective this man does have a post traumatic stress disorder and I believe that he drinks alcohol excessively and he has alcohol dependence.
I believe that he uses alcohol as a way of coping with his situation. I suspect that increasingly in the years he has been drinking more because he has become more and more inactive.
Because he has been drinking more this has in turn limited his ability to work.
In my opinion this man does very little on a daily basis both because of physical and psychiatric factors.
I believe that both physical and psychiatric factors are contributing to his incapacity.
From a purely psychiatric point of view however I believe that this man could not work more than 8 hours a week. I believe that his post-traumatic stress symptoms as well as his alcohol problem are restricting his ability to work and I cannot see this man working again purely on psychiatric grounds but of course physical factors are also greatly restricting him.
…
The Tribunal finds that Mr McCallum is prevented from working more than eight hours per week due to his accepted war-caused disabilities. So the answer to question 2 is yes.
There are also other factors to be taken into account in relation to Mr McCallum’s ability to work apart from his accepted war-caused conditions. The Tribunal notes the comments of Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50:
[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. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition.
[40] …it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
In Repatriation Commission v Alexander (2002) 75 ALD 329 at 334, Spender J stated:
[22] The test under s 24(1)(c) is not, "would Mr Alexander's war-caused conditions alone prevent him from undertaking the relevant remunerative work?", as the Tribunal indicated in pars 47 and 48 was the test it applied. As par 48 in particular indicates, the Tribunal concluded that if Mr Alexander did not suffer from war-caused difficulties, "he still would have been working". This is not the test for which s 24(1)(c) calls. It is whether war-caused conditions, alone, prevent the respondent from continuing to undertake remunerative work that he had been undertaking. It seems to me the Tribunal has not addressed the question of causation that s 24(1)(c) calls for, but has, in effect, applied the requirements of s 24(1)(b). The conclusion that "a combination of war service and non-war service related conditions preventing Mr Alexander from working is a non-issue" is simply wrong. If the non-service related conditions were a factor in preventing Mr Alexander from continuing to undertake remunerative work, albeit those conditions were "of secondary importance", the "alone" requirement of s 24(1)(c) would not be satisfied.
In Repatriation Commission v Hendy [2002] 76 ALD 47, the Full Court of the Federal Court stated:
37 The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. 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. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having 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. Error on the part of the Tribunal is determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.
In a report dated 5 March 2012 Dr Robyn Horsley, occupational physician, stated:
…
Mr McCallum has always worked in the farming industry which is heavy manual work. I rely upon my Psychiatrist colleagues for an opinion about his capacity to undertake farming work on the basis of his post-traumatic stress disorder and alcohol dependence.
…
I note that my Psychiatrist colleagues believe he has no capacity for work from the psychiatric perspective.
…
The primary non-accepted disability, I believe at this time, is his left knee condition.
…
Currently, on physical grounds, I believe that his left knee condition prevents him from doing farming work.
In respect of question 3, Mr McCallum and his witnesses have described the impact of his accepted war-caused conditions on his inability to work. However, Mr McCallum also stressed the impact of his left knee condition on his ability to undertake farm work. Dr Horsley also cited other conditions such as sleep apnoea but the evidence did not point to that as a factor preventing him from undertaking farm work.
The Tribunal is not satisfied that Mr McCallum's accepted war-caused disabilities alone prevented him from working for more than eight hours per week during the assessment period. The Tribunal finds that Mr McCallum’s knee condition was also a factor in his inability to do physical work on the farm even though his accepted conditions alone would have been enough to stop him from doing so. The Tribunal understands he may lodge a claim for acceptance of that condition. It was the error in the army medical records as to which knee had been injured in Vietnam that appears to have been the barrier to him applying for that condition to be accepted as war-caused despite his consistent insistence that the records were wrong. The Tribunal finds that Mr Richmond ceased work working for more than eight hours a week as a farmer due to his accepted disabilities but also because of his knee condition.
The answer to the third Flentjar question is no.
There is no evidence that Mr McCallum has sought any other work since turning 65 years during the assessment period. The Tribunal is not satisfied that he meets s 24(2)(b) of the Act.
Mr McCallum fails to meet the criteria in s 24(2)(a) of the Act and therefore fails to meet s 24(1)(c) of the Act. He is therefore not eligible for payment of a pension at a special rate.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member ........................[sgd]................................................
Associate
Dated 31 January 2014
Dates of hearing 14 & 15 November 2013 Applicant In person Counsel for the Respondent Mr K Rudge Solicitors for the Respondent Department of Veterans' Affairs Review Section
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