Nigel Longhorn and Repatriation Commission - [2013] AATA 854

[2013] AATA 854

Division VETERANS' APPEALS DIVISION

File Number

2013/2072

Re

Nigel Longhorn

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Dr P McDermott RFD, Senior Member

Date 29 November 2013

Place Brisbane
The decision under review is affirmed.
.......................[Sgd].................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Service pension – Special rate of pension – Whether applicant ceased remunerative work for reasons other than his war-caused incapacity – Whether applicant is suffering a loss of salary or wages, or of earnings – Decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 24, 120
CASES
Counsel v Repatriation Commission (2002) 72 ALD 204

Flentjar v Repatriation Commission (1997) 48 ALD 1

Willis v Repatriation Commission (2012) 202 FCR 323
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
29 November 2013
INTRODUCTION

Mr Nigel Longhorn (“the applicant”) has made a claim for an increase in the disability pension paid to him in respect of conditions previously accepted by the Repatriation Commission (“the Commission”) in relation to his service in the Australian Army.
Those conditions are internal derangement of the left knee, foreign body left shoulder, sprain or strain of the back region, osteoarthrosis of the right and left knees, posttraumatic stress disorder (“PTSD”), rotator cuff syndrome of the right shoulder, bilateral sensorineural hearing loss and tinnitus. On 17 August 2012 a delegate of the Commission made a decision in which the applicant’s pension was assessed at 100% of the general rate with effect from 10 October 2011. On 22 February 2013 the Veterans’ Review Board affirmed this decision. The applicant has made an application to this Tribunal for review of the decision.
ISSUES
The applicant has sought payment of the special rate of pension from 10 January 2012, which is the date when he made his application for an increase in the rate of his pension. I must determine whether the applicant meets the requirements of s 24 of the Veterans’ Entitlements Act1986 (Cth) (“the Act”). The Commission concedes that the applicant meets the requirements of s 24(1)(aa), (aab) and (a) of the Act. At issue is whether the applicant meets the requirements of s 24(1)(b) and (c) of the Act which provide:
(1) This section applies to a veteran if:
...
(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;
Section 19 of the Act provides that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] AATA 854
Decision Date

CaseChat Overview and Summary

In the case of Nigel Longhorn and Repatriation Commission, the applicant sought a special rate of pension due to his inability to undertake remunerative work for more than eight hours per week. The applicant, a former member of the Australian Army, argued that his post-traumatic stress disorder (PTSD) rendered him incapable of working more than eight hours per week. The court was required to determine whether the applicant met the statutory criteria for a special rate of pension under sections 24(1)(b) and 24(1)(c) of the relevant Act.

The primary legal issues involved interpreting the statutory requirements for a special rate of pension and applying those requirements to the applicant's circumstances. Specifically, the court needed to assess whether the applicant's PTSD and related symptoms prevented him from undertaking remunerative work for more than eight hours per week and whether this was the sole factor preventing him from doing so. The court also had to determine if the applicant was suffering a loss of salary, wages, or earnings due to his incapacity, which he would not be suffering if he were free of that incapacity.

The court found that the applicant's PTSD condition, as confirmed by Dr. Jonathan Hargreaves, rendered him incapable of undertaking remunerative work for more than eight hours per week. Dr. Hargreaves' assessment was supported by the applicant's own testimony and the observations of Dr. Peter Johnstone, a consultant orthopaedic surgeon. However, the court concluded that the applicant did not meet the statutory requirements for a special rate of pension under sections 24(1)(c) and 24(2) of the Act. The applicant's voluntary work, while considerable, did not meet the criteria for remunerative work as it was less stressful and could be abandoned at any time. The court also noted that the applicant had not sought payment of the intermediate rate of pension, but even if he had, he would not have qualified based on the statutory requirements.

The court affirmed the decision under review, holding that the applicant was not entitled to the special rate of pension. The applicant's voluntary work and other activities did not qualify as remunerative work under the Act, and therefore, he did not meet the statutory requirements for the special rate of pension.

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

I am required by s 120(4) of the Act to determine any issues to my reasonable satisfaction. This provision has been held to require that any issues are determined on the balance of probabilities.EVIDENCE At the hearing of the application oral evidence was given by the applicant and Dr Jonathan Hargreaves. Applicant The applicant was discharged from the Australian Army in 1985. When he was discharged he did security work for a number of different companies. He started his own firm (N & L Security) which from 1991 traded under the name Electronic Security. In 1995 the business became incorporated as Electronic Security (Qld) Pty Ltd (“ESQ”). The applicant in giving his evidence said that his security business was a hobby business. He stated that he worked in the business to keep active. The business was created to monitor alarms on behalf of installers; the monitoring fees were split between his business and the installers. The applicant stated that the security monitoring business was active for 24 hours per day. He would be present in the business premises all the time but would not be working all the time. The business operated from Fortitude Valley and then later moved to Geebung. He stated that the manager of the business was a lady who handled the accounts. There were two staff on duty at night and two staff on duty during the day. The applicant stated that he did not draw any wages from the company which paid his security licence. The applicant stated that he lived in the building where the business was conducted from. The applicant confirmed that the moneys earned by the company were paid into a trust which is no longer operational but has not been closed down. The applicant stated that when he worked for ESQ, the entity paid for the rent of the property where he lived. The applicant stated that he never paid any tax. Any profits of ESQ went back into the business as well as paying for him to go to security shows in Sydney and the United States of America. The building at Geebung was subject to a mortgage to which he is personally paying $2,300 per month. The applicant also discussed his voluntary work. He stated that he does voluntary work for the Vietnam Veterans Motorcycle Club working as treasurer, as well as conducting secretarial and welfare work. The club meets every Friday; he works on the accounts from a quiet room. The applicant also stated that he does secretarial work for the Harley Davidson Club which meets once per month. When he rides with these clubs he takes plenty of rest stops. The applicant stated that his work as a justice of the peace mainly involves him certifying documents for the benefit of veterans who are lodging claims. That work is for about 20 minutes per week. The applicant also stated that in the past he gave voluntary lectures in road safety. The applicant stated that after the divorce he did not want to pay his wife any maintenance, but that he paid child support for his children. Under cross-examination the applicant was asked about the comments recorded by Dr Hargreaves who noted that the applicant remarked that he “decided against earning further in the workforce so as to prevent having to pay his ex-wife”.[1] The applicant said that the statement was an “extract”. He stated that he did not want to pay his wife any “extra moneys”. It was put to the applicant that he did not want to take a salary as he did not want to pay maintenance to his ex-wife. The applicant confirmed that he did not dispute the accuracy of the written comment by Dr Hargreaves. [1] Exhibit A, p. 95.

Decision

Reasons for decision

I am of the opinion that the applicant is not entitled to payment of the special rate of pension because the applicant does not satisfy the requirements of ss 24(1)(c) and 24(2) of the Act. I should for the sake of completeness record that while the applicant did not make a claim for payment of the intermediate rate of pension, the applicant would not be entitled to pension at that rate as he does not satisfy the requirements of s 23(1)(c) of the Act which is in the same terms as s 24(1)(c) of the Act. DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The applicant asked Dr Hargreaves to confirm whether he still considered that the applicant was unable to engage in remunerative work for more than 8 hours per week. Dr Hargraves confirmed that was still the case. Dr Hargreaves replied that he considered that the PTSD condition prevented the applicant from working for more than 8 hours per week. Dr Hargreaves remarked that he based his opinion on the fact that the applicant’s PTSD would interfere with his capacity to perform at the level that would be required for the sort of work that he was doing. Dr Hargreaves referred to the fact that the applicant would have difficulty in concentrating, as well as his; irritability, difficulty in getting on with people, tiredness, dreams and sleep disturbance, loss of interest in the work that he was doing, loss of motivation, depressed moods, tendency to avoid people, discomfort with people, tendency to clash with people, getting annoyed with people, difficulty in focusing, distress when reminded about Vietnam, and hyper arousal and hyper vigilance. CONSIDERATION I am satisfied that the requirements of s 24(1)(b) of the Act have been met during the assessment period. Dr Hargreaves has given cogent reasons why the PTSD condition of the applicant,[9] which is an accepted disability, renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. [9] See [20] above. There is also the report of Dr Peter Johnstone, consultant orthopaedic surgeon, who reported on 10 May 2010 that the applicant “cannot work for between 8-20 hours per week”. In making my finding about the application of s 24(1)(b) of the Act I have considered the fact that the applicant does a considerable amount of voluntary work but I accept the explanation of Dr Hargreaves that this voluntary work would not be as stressful as remunerative work. The applicant can walk away from the voluntary work at any time. Dr Johnstone’s report indicates that he was aware of this voluntary work when he wrote his report. I am next required to consider whether the requirements of s 24(1)(c) of the Act are met. This requires consideration of the following questions articulated in Flentjar v Repatriation Commission (1997) 48 ALD 1 (“Flentjar”) at 4-5: 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? The first Flentjar question requires me to consider the relevant remunerative work that the applicant was undertaking. The term remunerative work is defined in s 5Q(1) of the Act as including “any remunerative activity”. I accept the submission of the applicant that as the director and owner of ESQ the remunerative work that he was undertaking could be regarded as that of a security manager. In giving his evidence the applicant confirmed that after leaving the Army his employment could be described as a manager of an electronic security company.

Division	VETERANS' APPEALS DIVISION
File Number	2013/2072
Re	Nigel Longhorn
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Dr P McDermott RFD, Senior Member
Date	29 November 2013
Place	Brisbane