Nawrocki and Repatriation Commission (Veterans' entitlements)

[2022] AATA 1343

Nawrocki and Repatriation Commission (Veterans' entitlements) [2022] AATA 1343 (26 May 2022)

Division:GENERAL DIVISION

File Number:          2019/5057

Re:Frank Michael Nawrocki

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:26 May 2022

Place:Sydney

The decision under review is set aside and substituted with the determination that the Applicant is entitled to receive the pension at the special rate from 13 December 2017.

………………………[SGD]………………………

Senior Member M J McGrowdie

CATCHWORDS

Veterans Affairs— Application for pension at the special rate- Applicant receiving pension at general rate- whether veteran’s incapacity from war caused injury or disease which alone renders the veteran incapable of continuing remunerative work and results in the veteran suffering a loss of salary or wages, so as to entitle the veteran to the Special Rate- decision under review set aside and substituted.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth), section 24

CASES

Smith v Repatriation Commission [2014] FCAFC 53

REASONS FOR DECISION

Senior Member M J McGrowdie

26 May 2022

INTRODUCTION

1. The Applicant, Frank Michael Nawrocki, was born in 1956 and lives in Taree in NSW. He spent 20 years in the army between 1983 and 1993 and has a number of medical conditions attributed to his service.

2. As a result he has been receiving a “war pension” since September 2015 at the rate of 100%. Provision is made for a veteran to receive a higher rate, known as “the special rate” in certain circumstances.

   ISSUE

3. The issue between the parties is whether the Applicant satisfies the requirement that he suffers a war caused injury which alone rendered him incapable of continuing remunerative work and thereby suffered a loss of salary or wages so as to entitle him to receive the pension at the ’special rate’.

   LEGISLATION

4. The special rate of pension is governed by Section 24 of the Veterans’ Entitlements Act 1986 (the Act).

5. Section 24(1) relevantly provides that:-

   “(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…”

6. It is commonly said that Section 24(b) creates an “alone test” and a “loss test”.

7. By way of assistance to a veteran qualifying under Section 24(1), Section 24(2) provides that:-

   “For the purpose of paragraph (1)(c):-

   (a)      ……

   (b)where a veteran…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.”

   DECISION UNDER REVIEW

8. The decision under review is the decision of the Veterans’ Review Board dated 25 July 2019 which affirmed the decision of the Repatriation Commission dated 4 September 2018 confirming the Applicant’s disability pension at 100% of the general rate on the basis that the Applicant did not meet the requirements of a pension at the special rate.

9. In other words, the Applicant’s application for the special rate was not regarded as meeting the requirements of Section 24 with or without the ameliorating provision in Section 24(2)(b).

10. The Applicant, however, argued that he was forced to give up work, or lost the opportunity to work, because of a compensable condition affecting his right knee which required surgery in January 2016.

    DISCUSSION

11. The pertinent provisions are in Section 24(1)(b) and Section 24(2)(b) although the Applicant says that it is not necessary to go beyond Section 24(1)(b) for the Applicant to qualify for a pension at the special rate.

12. The Applicant says that because of his right knee surgery and the complications which followed, he was unable to continue with his work and that there was the prospect of  continuing some work with the entity he was doing work for prior to the surgery. There is some controversy about this in that the Respondent says that the work which the Applicant had been doing had run out and he was not making any genuine attempt to find any other work, in particular, other training contracts.

13. It was agreed between the parties that the Applicant’s claim for the special rate would commence from 13 December 2017.

14. The Applicant had previously been employed as a TAFE teacher between 2000 to 2010. He then commenced a training business concerned with food processing and food hygiene. He attained a contract consulting to Nestle at their Queensland factory as well as a contract with Sealed Air Australia at their Sydney premises in St Peters. He would provide training and write manuals for their operations. He would commute to these jobs. Neither were full-time. The work with Nestle ran out in 2014 and the Applicant continued with his work for Sealed Air.

15. It was the usual practice for the Applicant not to work during the Christmas shut-down period. In November 2015 the Applicant had completed his work for Sealed Air for the year. However Sealed Air was not going to re-open their Sydney premises but rather re-locate their operations in Melbourne. There was an existing trainer in Melbourne but, according to the Applicant, there was the prospect of continuing work for him in the new year for a short term in Sydney for its decommission and in Melbourne and things were to be discussed in the New Year after his surgery. However, nothing eventuated. The Applicant had a hard time recovering from surgery and developed a post-surgery infection.

16. As far as the Applicant was concerned there had been the prospect of further work with Sealed Air at the time he went in for surgery and that he had not ceased to work. Also, with his experience he considered that he had the proposal of picking up further work in his area of expertise.

17. There were file notes made by the Applicant’s accountant which suggested that the Applicant may have been considering retirement. However, the Applicant did some work on his CV and doesn’t appear to have given up the prospect of doing further work. TAFE was not an option because of its funding issues. The prospects of the Applicant finding further work appeared bleak.

18. Mr Vanderlaan of Sealed Air wrote that at the end of November 2015 the Applicant had indicated he would contact Mr Vanderlaan in February 2016 to see what the work situation was. Mr Vanderlaan also indicated that in February 2016, the Applicant contacted him and advised that the knee replacement surgery had not gone as well as expected and was still in rehabilitation. This was even before the knee became infected. If there was work available, the Applicant was unfit to do it.

19. The first limb of Section 24(1)(c) is satisfied in that the Applicant was prevented from working because of his related disability. This leaves the question of whether it was the condition alone that prevented the Applicant from working. It does appear that as this incapacity has continued and is supported by medical evidence, the Applicant does not rely on Section 24(2)(b). The Applicant relies on Section 24(1).

20. The Respondent concedes that the Applicant meets the requirement of Section 21(1)(a) and (b), however, takes issue with Section 21(1)(c) in that it is not the incapacity alone which prevents the Applicant from working but rather it was simply a case of the work running out in November 2015. There is no issue that the Applicant suffered a loss of earnings.

21. I found the Applicant to have been honest in his evidence. I accept his evidence that he proposed to follow up on any further work opportunities with Sealed Air and that the door had not been closed by Sealed Air. I do not believe that a point had been reached where it could be said that the work with Sealed Air had come to an end. I accept the Applicant’s evidence I this regard.

22. The Applicant suffers from a variety of service-related conditions including a psychological condition including depression. However, what has rendered the Applicant incapacitated for work is the condition of his right knee although his other service-related conditions could also contribute to his incapacity.

23. In Smith v Repatriation Commission [2014] FCAFC53, the Federal Court spoke of there being two scenarios in Section 24(1)(b) in the following way:-

    “First, the effect of the injury will have will have brought about the inability of the veteran to engage in remunerative work for more than 8 hours per week (s 24(1)(b)).  Secondly, he or she is prevented by reason of that effect alone from undertaking remunerative work that he or she had previously undertaken.  Thirdly, that sole cause of the veteran being prevented from undertaking that work has resulted in a loss of income that the veteran would not have sustained if he or she were not affected by the injury.”

24. In the present case the Applicant had not come to any firm view that he was going to retire or that there was no work available for him within his expertise. The Applicant had a good work history showing enthusiasm for his work and a preparedness to travel. He had not reached what might be said to be retirement age.

    CONCLUSION

25. I consider that the Applicant satisfies the requirement of Section 24(1) so as to qualify for the special rate pension.

    DECISION

26. The decision under review is set aside and substituted with the determination that the Applicant is entitled to receive the pension at the special rate from 13 December 2017.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

..................................[SGD]......................................

Associate

Dated: 26 May 2022

Date(s) of hearing:	15 July 2021 and 25 August 2021
Advocate for the Applicant:	Ken Doran, Taree Veterans Centre
Solicitors for the Respondent:	Brendan O'Brien, Moray & Agnew Solicitors