Norris and Repatriation Commission

[2003] AATA 1334

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1334

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/865

VETERANS' APPEALS DIVISION		)
Re		JOHN DICKSON NORRIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date17 November 2003

PlaceCairns

Decision The Tribunal affirms the decision under review. 

...................(Sgd).....................

B J McCabe
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – disability pension – rate of pension – whether applicant entitled to pension at the special rate – applicant ceased work due to his psychiatric condition – no loss of wages or salary – decision affirmed

Veterans’ Entitlements Act 1986

WRITTEN REASONS FOR ORAL DECISION

23 December 2003 Senior Member B J McCabe        

Background

1.      This is an application by Mr Norris for review of a decision of the Veterans’ Review Board, dated 23 August 2001, which refused his application for an increase in the rate of disability pension payable to him.  The Veterans’ Review Board had refused to increase the applicant’s disability pension beyond 80% of the general rate, with effect from 18 September 2000. 

2. The application for review was heard by the Tribunal on 17 November 2003 in Cairns. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and various documents lodged by the parties as exhibits, and heard oral evidence from the applicant.  The Tribunal gave an oral decision on the day of the hearing, affirming the decision of the Veterans’ Review Board.

3. On 25 November 2003, the solicitors for the applicant requested the Tribunal to provide written reasons for its decision, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975.  The following are the Tribunal’s reasons for its decision.

Written Reasons for Oral Decision

4.      The applicant is seeking the payment of his disability pension at the special rate under the Veterans' Entitlements Act 1986 (the Act).  The provisions with which the Tribunal is principally concerned in this application are found in section 24 of the Act.  As the applicant was  54 years of age at the time of his application for an increase in the rate of his pension, sections 24(1) and (2) apply.  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.”

5.      The respondent contends neither section 24(1)(b) or section 24(1)(c) are satisfied in this case and therefore submit pension is not payable at the special rate.  The respondent further contends that the applicant has not been genuinely seeking remunerative work and therefore cannot rely on the ameliorating provisions in section 24(2)(b) of the Act.

6.      The applicant contends that, as a result of his war-caused conditions, Mr Norris is incapable of undertaking remunerative work of more than eight hours per week.  The applicant further contends that Mr Norris is suffering a loss as a result of his inability to work.

Evidence of the Applicant

7.      The applicant gave evidence at the hearing of this matter, and a statement prepared by him was accepted into evidence as Exhibit 2.  The applicant has a number of conditions which have been accepted as being war caused.  They are:

§Pilonidal sinus (operated);

§Post traumatic stress disorder (PTSD);

§Alcohol dependence or abuse; and

§Bilateral sensorineural hearing loss with tinnitus.

The applicant has the following non-accepted conditions:

§Lumbar spondylosis;

§L5 bifid occulta spine; and

§Hiatus hernia.

8.      The applicant commenced a contract cleaning business, Graycol, in 1997.  He believed this type of work would be the most appropriate for him, in light of his PTSD and the difficulties he had dealing with people.  His company secured a contract with the South East Queensland Water Board, but the contract ceased in 2000, when the applicant and his wife realised they could not longer fulfil their obligations under the contract due to the applicant’s inability to work.

9.      The applicant stated he ceased physically working in the cleaning business in December 1999.  His wife took over his physical work in the business.  She was also responsible for financial management and administration of the business. The company’s financial records show that the applicant received wages for work done after December 1999, but the applicant explained that his wife and not himself had performed the work.  For some reason, the applicant’s wife had chosen to continue to pay the applicant wages rather than paying herself for the work she had undertaken.

Consideration

10.     After having heard the evidence of Mr Norris, and after having regard to the medical statements, the Tribunal is satisfied that the applicant did in fact stop work in effect by December 1999, and that he undertook no meaningful work after that date. 

11.     The Tribunal is also satisfied that the cause of him ceasing work was his accepted psychiatric condition.  There was no evidence before the Tribunal about any other condition (for example, his back condition or his age) being a factor of any event.

12.     The Tribunal also finds that while the applicant’s contribution to Graycol's business progressively diminished, it ceased by December 1999.  The slack was taken up by his wife, and they continued to run the business in effect together, albeit through the medium of the company, until June the following year. 

13.     I am also satisfied that Mr Norris, although a director, did not have a clear handle on the administration of the business.  He did not undertake the hiring and firing; that was all left in the hands of his wife. 

14.     Although the Tribunal is satisfied that the applicant’s accepted psychiatric condition alone was the reason he ceased working, that is not enough.  The Tribunal must also be satisfied that the applicant was suffering a loss as a result of his inability to work. 

15.     Unfortunately, the Tribunal has difficulty with the question whether or not the applicant suffered a loss of wages, salary, or earnings.  Although the Tribunal has a lot of sympathy for Mr Norris' position, the fact is he continued to be paid a wage up until at least the end of the business.  He may not have been physically responsible for the earning of that wage; but the money was still being paid to him, and there was no evidence that he was denied access to that money.  As such, in substance, he was not making a loss as a result of his being unable to continue work.  In those circumstances, the application must fail.

16.     The Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         Sarah Oliver
  Associate

Dates of Hearing  17 November 2003
Date of Oral Decision                17 November 2003
Date of Written Reasons          23 December 2003
Counsel for the Applicant         Mr D Honchin
Solicitor for the Applicant          Purcell Taylor
Solicitor for the Respondent     Mr M Smith, Departmental Advocate