McNair and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 676
•2 September 2016
McNair and Repatriation Commission (Veterans’ entitlements) [2016] AATA 676 (2 September 2016)
Division
VETERANS’ APPEALS DIVISION
File Number(s)
2014/5275
Re
Gayle Dianne McNair (as legal personal representative of the estate of Peter David McNair (deceased))
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 2 September 2016 Place Melbourne The Tribunal sets aside the decision under review and in substitution determines that Mr McNair was entitled to be paid a disability pension at the Special Rate with effect from 30 November 2012, being the date after which Mr McNair ceased remunerative work.
........[sgd]...........................................
Egon Fice, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – application for increase in rate of pension – eligibility for Intermediate Rate of pension – eligibility for Special Rate of pension – whether veteran had capacity to undertake remunerative work – where misinformed medical evidence suggested capacity – where no capacity to work for more than 8 hours per week – where incapacity caused by war-caused conditions alone – veteran eligible for pension at Special Rate – decision set aside
LEGISLATION
Legislation
Veterans’ Entitlements Act 1986 ss 5Q, 21A, 23, 24, 28, 126.
REASONS FOR DECISION
Egon Fice, Senior Member
2 September 2016
Mr Peter McNair was born on 18 May 1948. He enlisted in the Royal Australian Navy (RAN) in 1965 and served for 20 years, being discharged in 1985. He had operational service in Malaysia and Singapore as a member of the Far East Strategic Reserve; Vietnam and the Middle East (Iran). In 2008 the Department of Veterans’ Affairs (DVA) accepted his pension claim for Non-Hodgkin’s Lymphoma and Solar Keratosis.
On 6 December 2012 Mr McNair made an informal claim for peripheral neuropathy and an increase in his rate of pension to the Special Rate. This was followed up with a formal claim on 12 December 2012. At that time, he was aged 64 years. In a letter dated 17 May 2013 a Delegate of the Repatriation Commission informed Mr McNair that his claim for peripheral neuropathy was accepted with effect from 6 September 2012. His disability pension was also increased to 100% of the General Rate. The Delegate determined that Mr McNair was not eligible for pension at either the Special or Intermediate Rate.
On 26 June 2013 Mr McNair lodged an application with the Veterans’ Review Board (VRB) seeking a review of the Delegate’s decision. The VRB handed down its decision on 4 August 2014 affirming the decision made by the Delegate of the Repatriation Commission. Mr McNair lodged an application with this Tribunal on 10 October 2014 seeking review of the VRB decision.
I heard this matter on 19 April 2016 in the course of which Mr McNair gave oral evidence and was cross-examined. At the conclusion of the hearing I reserved my decision.
However, in a letter dated 1 June 2016 from Williams Winter Solicitors, the Tribunal was informed that, sadly, Mr McNair died on 30 May 2016. His widow, Mrs Gayle Dianne McNair instructed her solicitors that she wished to assume the conduct of the application as the legal personal representative of her husband. Section 126 of the Veterans’ Entitlements Act 1986 (VE Act) relevantly provides:
(1) On the death of a claimant, the claim does not lapse in respect of any period before the death of the claimant, but the legal personal representative of the claimant, or a person approved by the Commission, may take such action in respect of the claim as the claimant could have taken if the claimant had not died and, for that purpose, the legal personal representative or persons so approved shall be treated as the claimant.
On 10 August 2016 the Tribunal received a letter from Williams Winter Solicitors dated 5 August 2016 enclosing a copy of the Last Will and Testament of Mr McNair. Consent was sought from the Repatriation Commission to have the name of the Applicant amended to Gayle Dianne McNair (in her capacity as legal personal representative of the estate of Peter David McNair (deceased)). Consent was given by Mr K Rudge, legal representative of DVA, on that day. Accordingly, I made an Order on 10 August 2016 amending the name of the Applicant in this proceeding.
The issues I am required to determine are whether Mr McNair was qualified for the Special Rate of pension or the Intermediate Rate of pension.
ELIGIBILITY FOR INTERMEDIATE AND SPECIAL RATE OF PENSION
The provisions dealing with the Intermediate and Special Rates of pension are found in
ss. 23 and 24 respectively in the VE Act. Relevantly, s. 23 provides:(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
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(b) the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.
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Section 24 relevantly provides:
(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.
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In Mr McNair’s case, there can be no doubt that he has made a claim under s. 14 for a pension and an application under s. 15 for an increase in the rate of pension he was receiving. He had not turned 65 when his claim and application were made. His degree of incapacity from war-caused injury or war-caused disease or both had been determined under s. 21A to be at least 70% of the general rate. Mr McNair therefore satisfies these eligibility criteria common to both ss. 23 and 24.
The next issue which I must determine is whether Mr McNair’s incapacity from his war‑caused diseases is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work. In the case of the Intermediate Rate, it must have prevented him from undertaking remunerative work otherwise than on a part-time basis or intermittently. In respect of the Special Rate, it must have prevented him from undertaking remunerative work for periods aggregating more than 8 hours per week.
THE NATURE OF MR MCNAIR’S REMUNERATIVE WORK
In his witness statement dated 12 November 2014 Mr McNair listed his history of employment. While serving with the RAN, Mr McNair obtained a Diploma of Electronic Engineering. Upon discharge from the RAN, Mr McNair described his employment as service manager GGTIA where he said his duties were to supervise maintenance engineers. As described, the industry appears to be concerned with electronic engineering. His role was supervisory.
Mr McNair was then employed by Australian Marine Engineering Consolidated Ltd (AMECON) which was engaged in shipbuilding. AMECON subsequently became Transfield Ship Building. His role was operations manager which he performed for three to four years.
In cross-examination Mr McNair said he started at Williamstown in 1988, leaving in about 1991. During that time, he obtained a Bachelor of Business from Monash University. He then initiated a change of career direction and obtained employment as a commercial manager for Telstra in the area of retail products and marketing. He was involved in contract management for major clients such as the Department of Defence and other international clients. He remained in that role for about three years.
Mr McNair told Dr Robyn Horsley, an Occupational Physician, whose report dated 12 February 2015 was taken into evidence, that on leaving Telstra, he acted on behalf of BHP for the Olympic Dam upgrade and managed that contract. He described his work as that of a contract management engineer.
Mr McNair said he eventually obtained a Master’s Degree in Commercial Law and a Master’s Degree in International Law from Deakin University.
In the late 1990s Mr McNair established his own contract management business which was conducted through a private company, SEA Business Management Pty Ltd. In 2010 the company entered into a contract with QGC in Queensland. That entity was involved in the oil and gas industry including coal seam gas. He described his duties as managing large commercial contracts. He arranged tenders, perused relevant tender documents and responses, evaluated tenders, negotiated the terms of contracts and provided instructions to QGC lawyers. Upon QGC entering a contract, he managed the contract until its completion.
Mr McNair’s evidence was that his work with QGC in 2010 was on a full-time basis. He averaged 70 to 80 hours per week. His duties involved him attending worksites and at times he lived in oil and gas camps. He returned to Melbourne on a monthly basis. According to Dr Horsley, Mr McNair said that 50% of his role involved fieldwork and 50% was office work.
The expression remunerative work is broadly defined in s. 5Q (1) of the VE Act as including any remunerative activity. That expression, as used in s. 23(1)(b) and
s. 24(1)(b) of the VE Act, is not necessarily a reference to the last paid work conducted by an applicant before ceasing work. It includes any work for which the veteran was paid or rewarded. When the expression is used in s. 23(1)(c) and s. 24(1)(c), one needs to examine the nature of the remunerative work that the veteran was undertaking and is now prevented from undertaking.Section 28 of the VE Act deals with a veteran’s capacity to undertake remunerative work. It provides:
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)with the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with 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).
While Mr McNair had plainly acquired technical skills in electronic engineering, his work history as I have outlined above indicates that he significantly expanded his professional skills and qualifications after leaving the RAN. In my opinion, the remunerative work which Mr McNair was conducting at the time he ceased working in 2012 is properly described as complex project management. That is the nature of the work which Mr McNair claimed he was prevented from continuing to conduct as a consequence of his Non-Hodgkin’s Lymphoma and Peripheral Neuropathy.
CAPACITY TO UNDERTAKE REMUNERATIVE WORK
To qualify for the Intermediate Rate of pension, Mr McNair’s incapacity from his war‑caused diseases must, of itself alone be of such a nature to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. Given the nature of his work and the evidence before me, it is not possible to conclude whether Mr McNair was capable of undertaking remunerative work for 50% of the time ordinarily work by persons engaged in complex project management. In that case,
s. 23(2)(b) applies to him. That is, he must be incapable of undertaking his work for more than 20 hours per week in order to qualify for the Intermediate Rate of pension. The reason for that incapacity must be because of his war-caused diseases alone, and not for any other reason.As for the Special Rate of pension qualification, s. 24(1)(b) requires Mr McNair to have been incapable of undertaking his remunerative work for periods aggregating more than eight hours per week. Again, the incapacity must be due to his war-caused diseases alone, and not for any other reason.
Mr McNair’s Non-Hodgkin’s Lymphoma was diagnosed in April 2008 following a scrotal ultrasound. This diagnosis was confirmed in a microscopic cell examination conducted on 28 April 2008. His left testicle was removed on 28 April 2008. He was then treated with chemotherapy and radiotherapy. In a letter dated 14 September 2008 Dr Ian Porter, a Radiation Oncologist, recorded that Mr McNair was tolerating the chemotherapy program with moderate lethargy and occasional nausea.
It appears that Mr McNair was also examined by a Psychiatrist, Dr Dianne Clifton. At that time, he was being treated with chemotherapy and the radiotherapy had been proposed. Dr Clifton said that the complications of chemotherapy at that stage were feelings of nausea, lack of energy and a loss of feeling at his fingertips. She recorded that Mr McNair told her he felt sick and tired of his treatment after the third chemotherapy and was at the point of ceasing treatment. He described his energy level as fluctuating but less than 50%.
Dr Clifton said Mr McNair described his illness as debilitating. He had difficulties dealing with the restrictions placed on him by his illness and couldn’t go overseas to manage his business. He described a feeling of helplessness and said that this feeling was worse when he felt physically unwell from his treatment. In a letter dated 11 February 2009 Dr Porter suggested that Mr McNair’s serum testosterone should be checked, particularly if he had persisting lethargy. He suggested testosterone supplementation.
In a letter dated 4 March 2009, following a repeat PET scan, Dr Brady reported that Mr McNair appeared to be in complete remission. By November 2009 Dr Brady indicated that Mr McNair’s testosterone levels were within normal limits. According to Dr Brady in a letter he wrote on 30 June 2010, Mr McNair was preparing to compete in the Pan Pacific Games with his basketball team in November.
On 20 December 2011 Dr Brady reported Mr McNair as being fighting fit and up in the gas fields in northern Queensland. However, according to a letter Dr Brady wrote on 25 February 2012, Mr McNair had complained about sensory changes in his feet and fingers. Dr Brady said that the changes in his feet and fingers were permanent and a result of his chemotherapy, which was well known. Dr Brady also mentioned Mr McNair’s energy levels which he said would also be related to surgery, chemotherapy and subsequent radiotherapy.
In a letter dated 18 June 2012 Dr Brady again told Mr McNair that the sensory changes in his feet and fingers were permanent. He said that Mr McNair could not expect further improvement in those symptoms. Dr Brady also referred to Mr McNair’s energy levels which he said were related to his surgery, chemotherapy and subsequent radiotherapy. Apparently Mr McNair told him this had all occurred subsequent to his treatment but, nevertheless, Dr Brady said it was probable that his fatigue related to the treatment. He was of the view that those symptoms would not improve.
In a letter dated 17 June 2013 Dr Brady reported that Mr McNair continued to do well, it now being five years since his testicular lymphoma of the left testis. He also mentioned that Mr McNair was going to Turin for the World Masters games to play with his basketball team. Dr Brady reported on 16 June 2014 that Mr McNair had played in the World Masters basketball team for Australia and that he enjoyed his time in Turin. Mr McNair was said to remain well.
Dr Robin Hunter, a Rehabilitation Physician, wrote a report dated 10 February 2014. Dr Hunter said Mr McNair’s last employment was with QGC in Queensland. He ceased working 18 months prior to the termination of his contract because he was having increasing difficulty managing at work. Dr Hunter said he was limited by:
1. Fatigue post chemotherapy
2. Difficulty managing fine objects in an office environment, which caused frustration,
3. Difficulty walking on uneven terrain and which made fieldwork difficult
4. Difficulty managing stairs getting on and off planes
5. Irritability with colleagues and clients. He describes becoming easily cranky in the office
He ceased work in December 2012 and has not looked for alternative work.
In his witness statement Mr McNair said he ceased work in November 2012, resigning as a director of his company. The company ceased trading in November 2012. Mr McNair had not engaged in remunerative work since that time. Mr McNair testified that the sole reason for him ceasing work in November 2012 was fatigue and the difficulties caused by his peripheral neuropathy.
Mr McNair said that about 4 to 6 months before ceasing work in November 2012 he reduced his hours so that he was only working three days per week. While he considered that might be sufficient for him to cope with, he found he was unable to manage his duties. Mr McNair admitted that he did make what he described as a few applications for work after November 2012 but had no real belief that he would be able to cope with duties and he never obtained an interview.
Mr McNair’s evidence regarding his reasons for ceasing work in November 2012 is supported by the medical reports to which I have referred above between 2007 and 2012. There is frequent reference to Mr McNair feeling fatigued or lethargic and having sensory problems with his hands and feet.
I also had in evidence a letter from a Mr Robert Luthringer dated 22 October 2013. Mr Luthringer said he was the Principal Contract Manager (Operations) for QGC in Queensland in July 2011. Mr McNair was a contractor working within contracts for the project phase of the coal seam gas business. He described Mr McNair as one of the hardest working people he had the distinction of working with.
Mr Luthringer said he noted changes in Mr McNair’s approach to work in early 2012 which caused him to question Mr McNair as to whether outside events or pressures might be occurring in his life. From early 2012 Mr Luthringer noticed that Mr McNair visibly slowed down and he no longer worked 12 – 15 hour days and some weekends by the middle of that year. He also noted when travelling into the field with Mr McNair, Mr McNair was having difficulties. He was easily fatigued, got angry when he dropped things and his feet did not work too well when walking on uneven terrain. Mr Luthringer said that in the Brisbane office, he noted the same fatigue issues and some of Mr McNair’s colleagues would mention how he got angry and anxious at times for no apparent reason.
Mr Luthringer said he discussed these concerns with Mr McNair at a work function.
Mr McNair told Mr Luthringer that it was nothing and more than likely the result of chemotherapy treatment he recently had due to cancer. He said he was managing and getting the work done but did admit that when he got home after working nearly always fell asleep as soon as he relaxed on the couch in front of the TV, something he had not done previously.
Mr Luthringer said he completed his contract at QGC in October 2012 and at that time, Mr McNair was continuing to reduce his hours, mentioning the fatigue was not getting any better. Mr Luthringer said he asked Mr McNair if he had seen a doctor and said he was not surprise that his answer was no, given that Mr McNair had served in the military for 20 years and worked for himself in many senior and complex roles. He described Mr McNair as being of a vintage where doctors were the last resort.
Mr Luthringer also said he was aware that Mr McNair’s current contract had quite a long period to run and that had he decided to stay at QGC, he would have been offered an extension. In summary, Mr Luthringer said Mr McNair struggled to perform at the standard he set for himself and his work colleagues.
In her report of 13 February 2015, Dr Horsley reported the difficulties Mr McNair was having with his hands and feet which are recorded in the reports I have referred to above. She also recorded being told of Mr McNair’s difficulty coping with his duties due to fatigue. Mr McNair described the impact of his illness to Dr Horsley as debilitating. Dr Horsley said Mr McNair presented in a straightforward manner and that was no fear avoidance behaviour exhibited. She described him as being straightforward to examine.
In a letter dated 1 September 2015 addressed to Mr McNair’s solicitors in this proceeding, Dr Brady said that Mr McNair had suffered a relapsed of disease and he had been referred to Professor Miles Prince regarding salvage chemotherapy for his Non-Hodgkin’s Lymphoma. Apparently Mr McNair presented in July 2015 with the blocked right nostril and, on performing a biopsy of the mass, a return of this cancer was confirmed. Dr Brady explained that the usual treatment for someone who has relapsed from testicular lymphoma was a salvage stem cell transplant. Dr Brady also said it was most unlikely that Mr McNair and would have any ability to undertake any type of work at that time or in the foreseeable future.
Dr Brady provided a further letter to Mr McNair’s solicitor dated 11 November 2015. Dr Brady said:
What I hadn’t appreciated talking to Peter over subsequent years of review was that the Cisplatin in particular had caused significant peripheral neuropathy which is well described side-effect. This contributed to fatigue and it was at that stage that he became totally and permanently incapacitated i.e. since November 2012. Peter pointed out to me that working in the field of coal seam gas required walking on uneven ground and moving around construction sites. When he had the safety boots on, which was a requirement of the job, he had little sense of where his feet were, he would often trip and lose balance. He felt it was a hazard to both himself and his fellow contractors and staff. He gave another example of a fire drill in a Brisbane high-rise building where he was required to walk down 23 flights of stairs. He fell and blocked the stairwell and this also became a major occupation health and safety issue. It is for these reasons that he ceased work in November 2012.
Dr Peter D Stevenson, a Consultant Physician, examined Mr McNair on 22 April 2013, providing a report dated 10 May 2013. In his report, Dr Stevenson described Mr McNair as having had curative treatment for Non-Hodgkin’s Lymphoma. With the benefit of hindsight, that assessment was plainly incorrect. Dr Stevenson was also of the opinion that it was difficult to measure self-reported fatigue and that there was no reliable way of doing so. He said Mr McNair could probably do management work even though he may find it more tiring and it might take more effort.
In Dr Stevenson’s opinion, Mr McNair’s overall output would be diminished by a factor of 10 – 15%. He concluded Mr McNair was capable of it least 20 hours per week at work. This assessment was, of course, based on Dr Stevenson’s opinion that Mr McNair’s cancer was in remission or cured.
Some two years later, in February 2015, Dr Horsley, following her examination, appeared to reach a different view. She noted that Mr McNair’s fatigue was probably also contributed to by his moderate depression which she confirmed on the Beck Depression Inventory administered on her examination on 13 February 2015. She suggested this aspect should be referred to Mr McNair’s General Practitioner for further follow-up and management.
Dr Horsley also referred to the effect Mr McNair’s chemotherapy may have on him. She considered there may be a residual component of fatigue related to that treatment. She agreed that Mr McNair’s peripheral neuropathy, which resulted in reduction in manual dexterity and increased slip/trip rate, would make him a health and safety risk out in the field. She considered it was prudent for Mr McNair to attempt to decrease his hours from full-time work to three days per week in order to manage his fatigue. Dr Horsley said:
Unfortunately, once he reduced to part-time and with his inability to work in the field, it became apparent fairly quickly that he was no longer able to fulfil the full requirements of the role and resigned. He was unable to find alternative employment. I believe that he is permanently unfit for his previous high flying managerial role on a permanent basis.
Dr Horsley suggested that Mr McNair could work potentially in a voluntary capacity for less than eight hours per week, perhaps helping local not for profit businesses from a managerial perspective. She concluded:
I believe that he has realistically come to the end of his working life. Some component of voluntary work would improve his quality of life.
With the benefit of hindsight, it is clear that Dr Horsley’s opinion was undoubtedly correct. Although much was sought to be made of the fact that Mr McNair was able to participate in the World Masters basketball tournament in Turin while at the same time claiming incapacity for work, in my opinion, that carries very little weight.
While Mr McNair confirmed that he went to Turin and that he played basketball there, he said he spent most of the time on the bench. In those games he did play, it was only for a very brief time. He travelled to Italy with his wife and they stayed for about eight weeks. In my opinion, it is not possible from the brief description given by Mr McNair to make any finding about his capacity for remunerative work from this information. That is particularly so given that his holiday to Italy occurred in 2014, probably prior to the recurrence of his lymphoma which appears to have been diagnosed in about July 2015.
Logically, Mr McNair’s condition began to again deteriorate, probably in 2015, when he was found to have developed relapsed lymphoma, or perhaps even sooner. The hearing of this matter, which was first scheduled for 26 – 27 November 2015 had to be vacated because of Mr McNair’s deteriorating condition and subsequent treatment via salvage stem cell transplant. He was certainly in no condition to perform remunerative work by that time.
Although it may be true to say that I have had the benefit of hindsight regarding Mr McNair’s capacity to undertake remunerative work following his initial diagnosis and treatment for Non-Hodgkin’s Lymphoma, a number of medical practitioners who examined him and wrote reports about his work capacity suggested he had some capacity to work, possibly in excess of 20 hours per week. However, not all of the medical practitioners were quite so confident.
I believe it is fair to say that those practitioners held quite an optimistic view of Mr McNair’s prognosis following initial treatment despite his persistent claims of feeling unwell, suffering from fatigue and having problems with his hands and feet due to the consequences of chemotherapy. Those, such as Dr Stevenson, were sufficiently optimistic to suggest that his lymphoma may have been cured. Plainly, that was incorrect.
It is also likely that Dr Stevenson held an overoptimistic view of Mr McNair’s ability to perform remunerative work. That is because Dr Horsley, some 21 months later, came to a very different opinion. I have also taken into account Mr Luthringer’s statement where he indicated Mr McNair would have viewed seeing a doctor as a last resort. It is reasonable to expect that Mr McNair would have felt seriously unwell some considerable time before his relapse was diagnosed.
Accordingly, I find that at the time Mr McNair lodged his application for an increase in the disability pension in early December 2012, he was incapable of undertaking remunerative work for periods aggregating at least eight hours per week. I also find that Mr McNair’s incapacity was caused alone by the symptoms and complications in treatment of Mr McNair’s Non-Hodgkin’s Lymphoma and peripheral neuropathy. Therefore, I find he satisfies the eligibility criteria in s. 24(1)(b) of the VE Act.
SUFFERING A LOSS OF EARNINGS ON HIS OWN ACCOUNT
The only remaining question which I must answer, given my findings regarding the nature of his incapacity from war-caused disease alone rendering him incapable of undertaking remunerative work, is whether, for that reason, Mr McNair suffered a loss of salary or wages, or earnings on his own account which he would not be suffering if he were free from his incapacity.
The evidence before me discloses that Mr McNair was paid a salary by SEA Pty Ltd and the company itself had earnings. It is only necessary to examine the gross income of the corporate entity in order to determine whether Mr McNair has experienced a loss as a consequence of his incapacity to engage in remunerative work. That is because he was, at the relevant time, a director together with his wife, each holding one share in the company.
The company’s Profit and Loss Statement for the year ended 30 June 2012 discloses income in the way of professional fees in the amount of $276,370. At that time, the company had a contract with QGC and it is reasonable to infer that all of the professional fees for the 2012 income year were earned by Mr McNair on behalf of the company. For tax purposes, it is correctly described as personal services income. On ceasing to engage in remunerative work on 29 November 2012, there can be no question that Mr McNair experienced a loss of salary or wages, or earnings on his own account which he would not have suffered if he were free from his war-caused incapacity.
CONCLUSION
I have found that Mr McNair satisfies the qualifying criteria for payment of a disability pension at the Special Rate. His war-caused injuries, particularly Non-Hodgkin’s Lymphoma and Peripheral Neuropathy alone rendered him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Furthermore, it is for that reason alone that Mr McNair suffered a loss of salary or wages, or of earnings on his own account that he would not have suffered if he were free from the incapacity arising from his war-caused disease.
Accordingly, I find that the decision made by the VRB made on 4 August 2014 refusing to increase this rate of pension was not the correct decision. I set aside that decision and in substitution determine that Mr McNair was entitled to be paid a disability pension at the Special Rate with effect from 30 November 2012, being the date after which Mr McNair ceased remunerative work.
60. I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member.
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Associate
Dated 2 September 2016
Date of hearing
19 April 2016
Counsel for the Applicant
Ms F Ryan
Solicitors for the Applicant
Williams Winter Solicitors
Counsel for the Respondent
Mr G Purcell
Solicitors for the Respondent Department of Veterans’ Affairs Review Section
Key Legal Topics
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Administrative Law
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Statutory Interpretation
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Appeal
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Causation
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Procedural Fairness
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Remedies
0
0
0