Michael Murray and Repatriation Commission

Case [2014] AATA 433

[2014] AATA 433

Division VETERANS' APPEALS DIVISION

File Number

2012/5610

Re

Michael Murray

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 2 July 2014
Place Brisbane

The Tribunal sets aside the decision under review and substitutes its decision that the applicant is eligible to be paid the special rate of pension under s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 8 August 2010.

........................Sgd.............................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of general rate – Eligibility for intermediate or special rate of pension – Defence-caused disabilities sufficient to prevent applicant from working eight hours per week – Incapacity from defence-caused conditions sufficient, alone, to prevent undertaking remunerative work for more than 8 hours per week – Special rate payable – Date of effect – Assessment decision under review set aside.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 14, 19, 22, 23, 24, 24A, 28, 120

CASES

Banovich v Repatriation Commission (1986) 69 ALR 395

Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1

Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363

Repatriation Commission v Alexander (2003) 75 ALD 329

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Butcher (2007) 94 ALD 364

Richmond v Repatriation Commission [2014] FCA 272

Smith v Repatriation Commission [2014] FCAFC 53

Willis v Repatriation Commission [2012] FCA 399

REASONS FOR DECISION

Mr R G Kenny, Senior Member

2 July 2014

BACKGROUND

  1. On 8 November 2010, Michael Murray (“the applicant”), who was aged 37 at that time, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension in respect of “major depressive disorder”. On 29 March 2011, the respondent determined that the depressive disorder was related to the applicant’s army service and assessed the applicant’s pension at 100% of the general rate under s 22 of the Act with effect from


    8 August 2010. On 20 August 2012, the Veterans’ Review Board (“the Board”) affirmed the decision in respect of the assessment of the rate of pension. The assessment took into account the incapacity from the following conditions which have been accepted as being related to the applicant’s defence force service: tenosynovitis of foot and ankle, thoracic sprain, chondromalacia patellae, other tenosynovitis of hand and wrist (left), burn of upper limb except wrist and hand (right), intervertebral disc prolapse at L5-S1, burn of trunk, rotator cuff syndrome of the left shoulder, depressive disorder and lumbar spondylosis.

    SERVICE, LEGISLATION AND ISSUES

  2. The applicant served in the Australian Army from 14 February 1990 until he was medically discharged on 14 August 1995.

  3. The

    procedure to be followed in assessing a rate of pension under the Act is set out in
    s 19 thereof. It requires the rate of pension to be determined during the “assessment period” which is defined…

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Michael Murray and Repatriation Commission [2014] AATA 433
Case
[2014] AATA 433
Decision Date

CaseChat Overview and Summary

In the case of Michael Murray and the Repatriation Commission, the applicant, a former serviceman, sought to be paid a special rate of pension under the relevant legislative provisions. The applicant argued that his disabilities stemming from his military service rendered him incapable of engaging in remunerative work for more than eight hours a week. The Tribunal was tasked with determining whether the applicant satisfied the statutory criteria for the special rate of pension, as outlined in section 24 of the Act.

The central legal issue revolved around whether the applicant's war-caused incapacity was the sole reason preventing him from continuing his previous occupations, specifically as a storeman and driver. The court had to evaluate if there were any other independent factors contributing to his inability to work beyond the specified hours, as required by section 24(1)(c) of the Act. The applicant had to demonstrate that his incapacity, due to war-caused injury or disease, was the lone factor preventing him from engaging in remunerative work.

The Tribunal examined the applicant's military service and subsequent employment history, along with the medical evidence provided by Dr Jenkins. Dr Jenkins opined that the applicant's depressive disorder, even without considering his orthopaedic conditions, was sufficient to render him incapable of working more than eight hours a week. The court applied the procedural summary from Flentjar to determine if the applicant's war-caused incapacity was the sole reason for his inability to work. The Tribunal concluded that the applicant's disabilities were indeed the sole reason for his inability to engage in remunerative work, satisfying the statutory requirements.

Accordingly, the Tribunal set aside the decision under review and determined that the applicant was eligible for the special rate of pension under section 24 of the Act, effective from 8 August 2010.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the special rate, the matters that need to be determined are whether or not the veteran meets the requirements of s 24(1) of the Act. These read:(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…(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 incapacityEVIDENCEThe applicant During his army service, the applicant was employed as a storeman and an occasional driver. He was discharged in 1995 because of the impact of his accepted orthopaedic conditions. In 1996, these also caused him to cease a brief period of work as a delivery driver. He applied unsuccessfully for work until he commenced training in security work. This lasted for about nine months when he ceased his training because his accepted orthopaedic conditions limited him, in particular, in negotiating stairs. These continued to bother him and resulted in his being taken from work to Campbelltown Hospital by ambulance. His treating doctor advised him to move to a warmer climate and he did this in 2001 when he moved to Brisbane. From 1997, he and his first wife had experienced marital difficulties. She accompanied him to Brisbane initially but, after a few days, she returned to Sydney leaving him to look after their two children who were aged 3 and 5 years, respectively, at that time. He had assistance in minding the children from family members and remained in Brisbane for two years before returning to Sydney. There, he continued to seek work and had occasional interviews which did not mature into employment. He consulted with Centrelink for assistance and completed Activity Agreements in 2008. He recalled being tested for a telephone ordering position with a pizza outlet but was not successful as he was unable to master the standard oral responses he was to give to customers. Other prospects of work proved unsuccessful because of his orthopaedic problems and he also believed that he was suffering the effects of depression at that time, in particular, in respect of memory and concentration. In 2009, to again seek a warmer climate, the applicant and his children moved to Bundaberg where he continues to reside. He made attempts to obtain work when he first went to Bundaberg but ceased to do so when Centrelink granted him the disability support pension. He has not been in remunerative work since then. The applicant remarried in 2009 but he and his second wife separated in 2011.

Decision

Reasons for decision

The applicant is entitled to be paid the special rate of pension under s 24 of the Act. DECISION The Tribunal sets aside the decision under review and substitutes its decision that the applicant is eligible be paid the special rate of pension under s 24 of the Act with effect from 8 August 2010.

Ratio Decidendi

Legal Principle Established

On the basis that all of the requirements of s 24 were met, Mr Black submitted that the decision under review ought be set aside and, in substitution, the Tribunal ought determine that the special rate of pension was payable to the applicant with effect from 8 August 2010. CONSIDERATION There is no dispute about the concession by Mr Williams concerning the terms of s 24(1)(aa), (aab), (a) of the Act. In relation to s 24(1)(b) of the Act, I am satisfied that his concession was properly made. In particular, that is on the basis of the evidence of Dr Jenkins. His opinion was that the incapacity from the applicant’s depressive disorder, even without the orthopaedic conditions, was sufficient to render the applicant incapable of working more than eight hours per week. The analysis under s 24(1)(c) of the Act involves a consideration of what the applicant would probably have done in the assessment period in the absence of his accepted disabilities.[6] Typically, the analysis of s 24(1(c) of the Act is considered through the procedural summary advanced in Flentjar. While this may not be appropriate in every consideration of s 24(1)(c) of the Act,[7] I am satisfied that it is in this matter. In Flentjar, the Federal Court said that a proper consideration requires responses to the following questions:[8]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?”[6] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. [7] See Smith v Repatriation Commission (supra) per Buchanan J at [45].[8] See Flentjar v Repatriation Commission (supra) at 2. The relevant work is the type of work which the member previously undertook and not “a particular job”.[9] I accept Mr Black’s characterisation of the relevant remunerative work in the applicant’s case with his reference to storeman, which the applicant performed in the Army, and driver, which he performed in the Army and in his first post-service employment. This was not disputed by Mr Williams. [9] See Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 and Repatriation Commission v Butcher (2007) 94 ALD 364 at 366. For the second Flentjar question, as noted above, it is common ground that by reason of the applicant’s accepted disabilities, he is prevented from continuing to undertake that work. The third of the Flentjar questions above raises in issue the first part of s 24(1)(c) of the Act through what is referred to as the “alone test”. In Willis v Repatriation Commission,[10] Bromberg J said:[23] The question raised by the “alone test” is not whether, on its own, the war- caused incapacity prevents the veteran’s continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.[24] Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.[10] [2012] FCA 399 (emphasis in original).