Pamela Norton as Personal Legal Representative of the late Kenneth Norton and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 481

Pamela Norton as Personal Legal Representative of the late Kenneth Norton and Repatriation Commission (Veterans’ entitlements) [2016] AATA 481 (7 July 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/0981
Re	Pamela Norton as Personal Legal Representative of the late Kenneth Norton
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	7 July 2016
Place	Sydney

The Tribunal sets aside the decision under review and substitutes a decision that the veteran’s pension be paid at the Special Rate from and including 3 April 2013.

............................[sgd]............................................

Ms N Isenberg, Senior Member

Catchwords

VETERANS' ENTITLEMENTS - review of VRB decision - applicant seeks payment at the Special Rate under s 24 of the Veterans’ Entitlements Act 1986 – whether genuinely seeking to engage in remunerative work – whether applicant made a reasonable assessment of their disabilities – whether reasonably concluded that they could only be employed in a particular type of work – decision under review set aside and substituted

Legislation

Veterans’ Entitlements Act 1986, ss 23(1)(c), 24(1)(b) and (c), 24(2)(a) and (b), 120(4)

Cases

Hall v Repatriation Commission (1994) 33 ALD 454
Leane v Repatriation Commission [2004] FCAFC 83
Re Martin and Repatriation Commission (1987) 13 ALD 83

Summers v Repatriation Commission [2015] FCAFC 36

REASONS FOR DECISION

Ms N Isenberg, Senior Member

7 July 2016

1. The veteran, Lieutenant-Commander Kenneth Norton OAM, served for 43 years in the Royal Australian Navy (RAN).  He had a number of medical conditions that were accepted as related to his service:

   ·Hypertension;

   ·Malignant melanoma of the skin with brain metastases;

   ·Non melanotic malignant neoplasm of the skin;

   ·Solar keratosis;

   ·Asteatotic eczema;

   ·Seborrhoeic keratosis;

   ·Tinnitus;

   ·Lumbar spondylosis;

   ·Thoracic spondylosis;

   ·Cervical spondylosis;

   ·Osteoarthrosis affecting both knees;

   ·Diabetes mellitus;

   ·Secondary lymphoedema of left arm and chest; and

   ·Adjustment disorder with mixed anxiety and depressed mood.

2. Pension for his conditions was initially assessed at 90% of the General Rate, but, on internal review, was increased to 100%.  He sought the Special Rate of pension.  His application for review was refused by the Veterans’ Review Board, and he sought review by this Tribunal.  The veteran died on 29 September 2014 and the application for review is continued by his widow, Pamela Norton, as his legal personal representative.

   EVIDENCE

3. As well as written statements made by the veteran, Mrs Norton gave evidence.  She said that her husband had joined the Navy in July 1968.  He had signed on for 10 years, and then continued year by year until 2003.  He then transferred to the Inactive Reserve and shortly thereafter commenced continuous full time service (‘CFTS’) in annual contracts up to 2011. 

4. Mrs Norton said that, following his initial training, he became involved in anti-submarine warfare, in which field he specialised for the whole of his career.  For his work he was awarded an OAM in 2006, and was regarded as ‘a legend’ in the area. 

5. He wanted a break, and she noted that, as his role had required extensive interstate and overseas travel, he wanted to spend time with the family.  He did not renew his CFTS contract when it ended in March 2011.  His service records note that at the conclusion of his CFTS he transferred to the Active Reserve.  His plan was to return, after a break, to either ‘in uniform’ (as the veteran recorded in his statement) or as a civilian contractor.  Even before he left he knew his specialist skills would still be required, and, according to Mrs Norton, he was continually asked why he was leaving and when he would be back.

6. They holidayed for a week in Singapore to celebrate their 40th wedding anniversary, and undertook a number of short trips locally.

7. Mrs Norton said her husband was about to resume CFTS in early 2012, when his father became ill.  He spent some time with his parents, until his father passed away in July 2012, after which time he assisted his mother for a time attending to his parents’ affairs. 

8. Throughout that time the offer remained open, she said, and he intended to resume his work.  Then, notwithstanding that he had successfully undergone tests every couple of months for five years for his 2008 melanoma ‘scare’, it was found, in February 2013, that his melanoma had metastasised into his lymph glands.  He underwent surgery and still intended to return to work.  Then, in September 2013 his cancer was found to have metastasised to his brain.  Only at that time did he come to the view that he would not be returning to work.

9. As to the effects of his other conditions – tinnitus, dizziness, inability to stand for long periods or walk long distances due to his arthritic knees, and his spinal condition - Mrs Norton said that he ‘just managed’ them.  His diabetes mellitus, which was diagnosed in mid-2011, appears, from the records of his GP, Dr Tan, to have taken some time to stabilise.

10. Mrs Norton was cross-examined about whether her husband had sought to return to work, but she conceded he had not, noting that he was continually asked to resume his role, and that he continuously intended to do so, believing he would recover from his various health setbacks. 

11. Evidence was also given by Commander Moncrieff, the Major Fleet Unit Operation Test Director, of the Navy’s Test, Evaluation and Acceptance Authority.  He was the veteran’s immediate superior officer.  He said he had targeted the veteran to have him work for the Authority because of his ‘deep specialist knowledge of underwater systems, sensors and weapons’.  There were a number of delays in the acquisition and testing projects and, at the time of the veteran’s last period of CFTS, the project was not complete.  He offered the veteran, at that time, another period of CFTS but the veteran told him he needed to ‘recharge his batteries’ and would resume in 2012, after a period ‘fishing and being with his family’, providing he could meet the re-entry requirements. 

12. In his evidence CMDR Moncrieff said in order to resume work in uniform – either on CFTS or using Reserve training days - the veteran would have to undergo a medical assessment which would include a medical questionnaire, blood and other tests and a physical assessment.  In addition, he said, a new CFTS contract would require a fitness assessment whereas, on training days, which were also available, he would not.   

13. Before the conclusion of the veteran’s CFTS contract they discussed his return to work, on Reserve training days which would be available up to the allowable maximum of 200 days.  CMDR Moncrieff said he told the veteran he would rather have had him full time but was nonetheless keen to re-engage him utilising training days.

14. He said he started asking the veteran to set a return date at the end of 2011, and continued asking him every couple of months, both formally and when they would come across each other socially.  There was no need for the veteran to contact him about returning to work because his expertise was continually needed. 

15. The first concrete offer was for work to commence in early 2012 in preparation for test firings to take place in March 2012, following which there would be an evaluation period.  However, he said, LCDR Norton told him he was experiencing some ‘potential personal health issues’ and would let him know.  CMDR Moncrieff said in his evidence that he thought it was at that time the veteran had been diagnosed with ‘throat cancer’.  After a few weeks he thought he was told that the veteran had recently seen a specialist and had received a diagnosis that would require ongoing treatment such as to preclude him taking up the offer.  Even at that time, he said, the veteran was expressing concern about being able to pass the medical.  He doubted the RAN would engage him if there was a need for ongoing treatment.

16. CMDR Moncrieff again offered him a role shortly after mid-2012, but again the veteran refused, he said, because of ‘a medical condition’.  He said that ‘within weeks’ the veteran was having surgery.  In mid-2013 he offered again but the veteran told him then he would not be able to meet the fitness requirements.   

    CONSIDERATION

17. The criteria for payment of the Special Rate of pension are set out in s 24 of the Veterans’ Entitlements Act 1986. Generally speaking, if any one of the criteria is not met, the veteran will not be eligible for payment of pension at that rate. The Tribunal has no discretion in this regard. To qualify for pension at the Special Rate, s 24 requires that the veteran must be under the age of 65 years and, be in receipt of pension of at least 70% of the General Rate. The veteran must meet a number of specific tests.

18. Firstly, the veteran must be totally and permanently incapacitated from his accepted disabilities which alone, render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week: s 24(1)(b).

19. Secondly, the veteran is by reason of incapacity from accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking and is thereby suffering a loss of salary or wages that he would not be suffering if he was free of that incapacity: s 24(1)(c). This test is qualified by s 24(2)(a) which provides that a veteran who is incapacitated by war-caused injury or disease shall not be taken to be suffering a loss of income by reason of that incapacity if:

    ·he had ceased to engage in remunerative work for reasons other than incapacity from that war-caused injury or war-caused disease, or both, or;

    ·he is incapacitated or prevented, from engaging in remunerative work for some other reason. 

20. There was no dispute that the veteran had a long and distinguished Naval career. The Respondent submitted that the evidence was that he wanted a break and, consequently he did not meet s 24(1)(c). I agree.

21. Section 24(2)(b) is an ameliorating provision. This section provides that a veteran who has not been engaged in remunerative work must be genuinely seeking work and that, but for his incapacity, he would be continuing to seek work. His incapacity must be the substantial cause of his inability to obtain work.

22. The purpose of the ameliorating provision was aptly described in Re Martin and Repatriation Commission (1987) 13 ALD 83 where the Tribunal said at [49]:

    If s 24(2)(b) were not in the Act, veterans who had been unemployed at the time when their incapacity became so severe as to remove their capacity for work would never be able to qualify for pension at the special or intermediate rate.

23. The application of the ameliorating provision was the only issue in contention. 

24. The Respondent submitted that the evidence should be put no higher than that he was open to the possibility of a return to work.  The submission relied on concessions by Mrs Norton and CMDR Moncrieff that the veteran did not seek out his return to work and could not therefore be described as genuinely seeking work, such as to bring his circumstances within the ameliorating provision. 

25. I was referred to Leane v Repatriation Commission [2004] FCAFC 83, where at [29] the Full Court said:

    It may be accepted that, in the ordinary course, a person in the position of the Veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some ‘objective signs of active pursuit of remunerative work’. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the Tribunal that:

    ·he or she honestly wished to engage in remunerative work;

    ·he or she had made a reasonable assessment of his or her disabilities;

    ·he or she had reasonably concluded that he or she could only be employed in a particular type of work;

    ·he or she was checking employment advertisements on the look out for such employment; but

    ·he or she had not yet identified any such employment prospects.

    …

    However, the mere fact that a person accepts remunerative work does not mean that he or she is seeking it, much less ‘genuinely seeking’ it. For example, the relevant employer could have sought out the prospective employee and requested that person’s assistance which the employee had reluctantly given even though the employee had not been ‘seeking’ employment. This does not mean that evidence of employment could never give rise to an inference that the person had been seeking employment. If evidence was given, for example, that a person had been employed by a number of different employers over a relatively short period, there may be an almost overwhelming inference that that result could only have occurred by reason of the person ‘genuinely seeking’ employment. Of course, that inference could be displaced by other evidence. However, in this case, it would seem to us that the evidence that the Veteran had been employed on two different occasions by the same employer was not capable, by itself, of satisfying the Tribunal that the Veteran was ‘genuinely seeking’ remunerative work, even in 1997 or 2001.

26. Applying the test in Leane, the veteran honestly wished to engage in remunerative work; and he had made a reasonable assessment of his disabilities, notably, that he doubted he could be re-engaged because he would be unlikely to pass the fitness test on the basis of his accepted arthritic conditions, which was well before the deterioration in his condition, from which he ultimately did not recover.  He had worked for his entire career in a highly specialised field and it is reasonable to conclude that he could only be employed in that work; there was no need for him to check employment advertisements for such employment because he already knew what was available, and in any event, in my view, such esoteric roles would be unlikely to be advertised; and there was a standing offer to return.  He had transferred to the Active Reserve, as distinct from the Inactive Reserve or resigning his Commission, and could have taken up a position at any time.

27. I was also referred to Summers v Repatriation Commission [2015] FCAFC 36 where at [202] the Full Court said:

    We also agree with her Honour’s view (at [84]) that, by the use of the present continuous tense in s 24(2)(b) through the use of the words “genuinely seeking to engage in remunerative work”, Parliament intended to convey an activity that may be ongoing or incomplete rather than a reference to an activity which is satisfied by a single attempt such as a phone call. Her Honour considered that the phrase contemplates at least a course of conduct by the veteran. Like the primary judge, we do not accept that a decision-maker is obliged to find that a veteran satisfied s 24(2)(b) if there is a single piece of evidence about a single attempt to seek work during the assessment period (no matter how long), and no evidence that the attempt was dishonest or disingenuous.

28. I observe that in Hall v Repatriation Commission (1994) 33 ALD 454 at 461, Spender J stated:

    Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade.

29. There was no evidence that the veteran had adopted a retirement lifestyle.  While he had taken some short holidays, it was his intention to return to work and he continually fielded offers to do so.  His work was highly specialised.  His superior officer wanted him to return and the veteran was well aware of that. 

    CONCLUSION

30. Consequently, I am reasonably satisfied, as required by s 120(4), that the veteran satisfied the ameliorating provision of s 24(2)(b) in addition to all other requirements for the Special Rate.

31. Even if I were incorrect in this conclusion, I consider it would be open, in any event, to find that the veteran had not ceased remunerative work in terms of s 23(1)(c) and that from March 2011 he could also properly be characterised as taking a break from work as unpaid leave, given his transfer to the Active Reserve.

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision that the veteran’s pension be paid at the Special Rate from and including 3 April 2013.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

........................[sgd].......................................

Associate

Dated 7 July 2016

Date of hearing	20 June 2016
Support person for the Applicant	Mr D Norton
Solicitors for the Respondent	Repatriation Commission