Parkes and Repatriation Commission

[2010] AATA 967

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 967

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4053

VETERANS' APPEALS DIVISION		)
Re		KEITH PARKES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean
Mr S J Ellis AM (Member)

Date2 December 2010

PlaceAdelaide

Decision The tribunal affirms the decision under review.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

VETERANS' AFFAIRS – Veterans' entitlements – Rate of disability pension – Special rate – Veteran ceased work and is unable to work due to a combination of accepted and non-accepted conditions – Alone test not satisfied – Decision under review affirmed.

Veterans’ Entitlements Act 1986 ss 19(9), 24

Banovich v Repatriation Commission (1986) 69 ALR 395

Repatriation Commission v Hendy (2002) 76 ALD 447

REASONS FOR DECISION

2 December 2010   Senior Member K Bean
  Mr S J Ellis AM (Member)     

introduction

1.      The applicant, Mr Parkes, served in the Australian Army from 23 August 1960 to 16 September 1984.  As a result of his service, he is now suffering from a number of significant medical conditions, including a back condition, a heart condition and an anxiety disorder. 

2.      From shortly after his discharge from the Army in 1984, Mr Parkes was employed by the Liberal Party of Australia, South Australian Division.  He left that employment in mid 2007, and claims he could no longer carry out the duties of that employment due to his war-caused disabilities.

3.      Whilst he has been in receipt of a service pension since 2005, Mr Parkes has accordingly sought an increase in the rate of his  pension to the special rate provided for in s 24 of the Veterans Entitlements Act 1986 (the VE Act).

4.      Having been unsuccessful before the Repatriation Commission and the Veterans’ Review Board (VRB), Mr Parkes has now applied to this tribunal for review of the decision of the Repatriation Commission, affirmed by the VRB, that he was not entitled to be paid disability pension at the special rate.

legislation and issues

5.      In order to establish that he is entitled to be paid disability pension at the special rate, Mr Parkes must demonstrate that he satisfied all of the requirements of s 24 of the VE Act at some point during the assessment period.  For the purposes of this matter, the assessment period is the period between when Mr Parkes first lodged his application on 28 October 2004[1], and the date of this tribunal’s decision[2].

[1] T2/4

[2] VE Act, s 19(9)

6.      Section 24 of the VE Act relevantly provides as follows:

“24  Special rate of pension

(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.

…”

7.      The respondent does not dispute that Mr Parkes satisfies ss 24(1)(aa), 24(1)(aab), 24(1)(a), 24(1)(b) and 24(1)(d).  However, the respondent contends that he does not satisfy the “alone” test prescribed by s 24(1)(c).  At the hearing, the parties also relied upon different interpretations of the phrase within that provision “remunerative work that the veteran was undertaking”.

8.      The issues for our determination therefore are:

(a)what was the remunerative work that Mr Parkes was undertaking for the purposes of s 24(1)(c) of the VE Act?; and

(b)whether, during the assessment period, Mr Parkes was prevented by his accepted disabilities, alone, from continuing to undertake that work.

what was the remunerative work that mr parkes was undertaking?

9.      The phrase “remunerative work” in this context has been interpreted relatively broadly.  In Banovich v Repatriation Commission (1986) 69 ALR 395, the Full Court of the Federal Court said of this expression:

“… it is, in our opinion, erroneous to read the phrase ‘remunerative work that the member was undertaking’ as referring to a particular job with a particular employer. The term ‘remunerative work’ is used … in a context which indicates an intention to refer to work generally: … Consistently with that use, the phrase ‘remunerative work which the respondent was undertaking’ should be read as a reference to the type of work which the member previously undertook and not to any particular job.”[3]

[3] (1986) 69 ALR 395, at 402

10.     As we have alluded to above, Mr Parkes said in his evidence that he was employed by the Liberal Party of Australia, South Australian Division, from the time he left the Army in 1984 until mid 2007 when he ceased employment.  In his statement he said:

“I had been employed there on a full-time basis for around 24 years and performed clerical and administrative tasks, assisting with membership, electoral matters dealing with a vast array of business, political and semi legal matters including giving advice to members on constitutional and internal political decisions.

I would also assist with setting up and the preparation of political meetings and displays which included ministerial and prime ministerial functions, conventions, general meetings and election campaigning.

I would also assist with the running of shows and fairs and local country field days by setting up displays, providing material, literature and advising both party members, MPs and prospective MPs.”[4]

[4] Exhibit 4, [5]-[7]

11.     In his oral evidence, he said that the clerical aspect of these duties occupied approximately 35 to 40 percent of his time.  He said the other 60 percent was spent in travelling, running meetings, preparing for meetings, conducting ballots, setting up displays and general office work.  As to what was involved in “setting up” a display or stand, he said that where this involved attending a country show, there would be approximately two weeks of preparation involved, including organising posters, literature, displays and other material.  For the Royal Adelaide Show, the preparation time was greater, in the vicinity of three to four weeks, and he would spend two to three days at the Liberal Party stand at the Show.  He would also need to cart displays to show sites and set up the displays, including signage, drop curtains and sound systems.  When attending other events, including meetings, he would also need to cart literature and ballot papers where necessary.  He said that when he was travelling to shows, he would typically need to take with him in his vehicle the show stands, 20 or 30 boxes of literature and six or seven partitions, all of which were physically carried by him as necessary.  During election campaigns, the amount of material he needed to cart and distribute was much greater.  He also indicated that even when he was not travelling to shows or meetings, there was a significant physical component to his duties.  He said there were three or four functions per week at the Liberal Party’s premises in Adelaide which involved moving a significant amount of furniture.

12.     Mr Parkes also explained in his statement and oral evidence that towards the end of his employment he had reached a point where he could no longer carry out the more physical aspect of his duties, such as lifting boxes and partitions.  In his oral evidence he said he could no longer carry out these duties primarily due to various pains, including back pain, and also shortness of breath.  He said he had ceased these duties approximately 18 months to two years before he ceased work and for the last 18 months to two years of his employment with the Liberal Party his duties were limited to sitting at a desk and “culling” files for archives and other “basic procedural work” such as dealing with correspondence.

13.     Mr Parkes also mentioned in his statement and oral evidence that between approximately 1982 and 2008 he ran a small “hobby farm”.  However, neither party contended that this should be considered the “remunerative work” that he was undertaking.

Analysis

14.     As we have explained above, the applicable case law requires us to take a relatively broad view of the remunerative work that Mr Parkes was undertaking and to attempt to identify the substantive work he was undertaking, as opposed to the duties involved in any particular job. 

15.     Taking that approach, whilst Mr Parkes’ particular duties changed during the last 18 months to two years of his employment, we consider that in substantive terms, the remunerative work which he was undertaking for the purposes of s 24 embraced all of the clerical, administrative and other tasks involved in his employment with the Liberal Party, including the more physical aspects of those duties, such as helping to set up for functions, meetings, shows, fairs and country field days.  We note that he carried out these duties with the Liberal Party for approximately 22 years and in our view the full range of duties he undertook as part of his employment with the Liberal Party must be considered to be the remunerative work he was undertaking for the purposes of s 24.

did mr parkes’ accepted disabilities, alone, prevent him from continuing to undertake the remunerative work he was undertaking?

16.     There was no dispute between the parties that the conditions suffered by Mr Parkes and which have been accepted as being war-caused were:

·chronic eczema;

·gastro-oesophageal reflux disease;

·dermatitis;

·bilateral sensorineural hearing loss;

·ischaemic heart disease;

·lumbar spondylosis;

·anxiety disorder; and

·alcohol dependence.

17.      There was also no dispute that Mr Parkes suffers from a number of other conditions which have not been accepted as being war-caused and included:

·hypertension;

·diabetes;

·polycystic kidney disease; and

·knee pain.

18.     In relation to his diabetes, Mr Parkes said in his evidence that this was Type II diabetes which had first been diagnosed in 1993.  He said he was able to manage this condition with diet and exercise and it had not affected him working, although he also referred to the fact that he was suffering from some relatively serious effects of the condition, including burst blood vessels in his eyes and his feet being “blue”.

19.     In relation to his kidney condition, he said this had first been diagnosed many years ago, in about 1977, when he was still in the Army.  He had had to undergo dialysis for a period of time until having a kidney transplant on 13 November 1986.  He said this condition had not caused him any real problems since then, apart form the fact that he had a distended abdomen, being a side effect of the kidney transplant surgery. 

20.     Mr Parkes also acknowledged that he suffered from knee pain which had first commenced around 1988 as a result of a fall down some stairs.  He had subsequently undergone an arthroscopy to his right knee which he said had essentially solved the problem, although he still suffered pain in his right knee from time to time.  As to the affect of this on his ability to work, he said that it had been a “nuisance” but said it did not affect his ability to work.  He said if the pain became bad, he would stop what he was doing for 10 minutes or so and then keep going.  He said he had worked with this problem for many years. 

21.     It was pointed out to Mr Parkes that, according to the decision of the VRB, he had conceded to the Board that “his knee disability and pain definitely played a part in his decision to resign”[5].  He responded that his knee was a problem, but not a problem that had stopped him from working. 

[5] T16/100

22.     Mr Parkes also acknowledged that he had suffered from asthma and hay fever, but said neither of these conditions had troubled him in recent years.

23.     Under cross-examination, Mr Parkes also acknowledged that in an undated Lifestyle Questionnaire he had stated that he suffered from “constant back, neck and leg pain – unable to lift bulky items” [6].  He said that with lifting, carrying and carting things he would suffer back pain and pains in his shoulders.  As to where he suffered pain in his legs, he said sometimes this would be in his ankles and sometimes in his knees or hips.  He said if he lifted bulky items, he would suffer from these pains.  He also acknowledged that he had stated in the Lifestyle Questionnaire that he suffered from swollen feet and ankles, which he associated with his diabetes.

[6] T4/25

24.     It was also put to Mr Parkes in the course of cross-examination that in a medical report provided to the respondent, a doctor had indicated that his diabetes caused Mr Parkes to suffer from symptoms including tiredness and lassitude[7].  He acknowledged this but stated that those symptoms had not been as bad since approximately 2000, as he had been able to manage his symptoms better with diet and exercise.  It was also pointed out to him that the same doctor had stated that the drugs he takes for his kidney disease cause tiredness[8].  He did not dispute this but pointed out that he had been taking these drugs since 1986 and said he had functioned reasonably well since then.

[7] T11/83

[8] T 11/83

Analysis

25.     Mr King, who appeared as counsel for Mr Parkes, contended that the duties Mr Parkes was doing towards the end of his employment were clerical duties.  He referred to evidence given by Mr Parkes as to the difficulties he had had in the last years of his employment and contended that his difficulties interacting with others, together with his impaired concentration and judgement, were the reason he could not continue with these duties.  He also referred to the medical evidence before us and contended that all of these difficulties were attributable to Mr Parkes’ anxiety state, which was an accepted disability. 

26.     In relation to the effect of Mr Parkes’ non-accepted disabilities, Mr King relied on Mr Parkes’ evidence and submitted that his diabetes was controlled through diet and exercise and had had no impact on his ability to work.  In relation to Mr Parkes’ kidney condition, he submitted that this had not affected his ability to work after the transplant and he had worked for many years with the condition.

27.     As for Mr Parkes’ knee problems, Mr King conceded that these had affected his ability to work prior to the last two years of his employment, but submitted that they had not affected the duties he was doing at the time he ceased employment with the Liberal Party and therefore were not a barrier to his claim succeeding.

28.     For a number of reasons, we are unable to accept these submissions in their entirety.  The main reason we cannot accept all of Mr King’s submissions is that, as we have indicated above, we do not accept that the remunerative work Mr Parkes was undertaking should be regarded as only those limited duties he carried out during the last two years of his employment.  Rather, the remunerative work Mr Parkes was undertaking incorporates all of the duties he was carrying out during the preceding 22 years.

29.     Once Mr Parkes’ remunerative work is defined in that way, the question for us becomes whether any of his non-accepted conditions contributed to his inability to continue to undertake that work.  Any factor apart from his accepted disabilities which played a part or contributed to him being prevented from continuing to engage in that work will be sufficient to prevent him from satisfying the “alone” test prescribed by s 24(1)(c)[9].

[9] See Repatriation Commission v Hendy (2002) 76 ALD 447 at [54].

30.     It is clear on the evidence before us that Mr Parkes’ accepted conditions, in particular his back, heart and anxiety conditions played a very significant role in preventing him from being able to continue to undertake all of the work he had previously been undertaking for the Liberal Party, and we accept Mr King’s submissions to that extent.  However, it appears to us on the evidence that a number of Mr Parkes’ non-accepted conditions also played some part in preventing him from being able to continue to undertake the full range of duties he had previously undertaken with the Liberal Party  

31.     One of the non-accepted conditions which we consider made some contribution to Mr Parkes being prevented from continuing to carry out the physical aspects of his duties was his knee condition.  Mr Parkes said in his evidence that his knees would become so sore at times that he would need to stop what he was doing and rest for 10 minutes before continuing on.  In our view, this indicates a significant level of incapacity which contributed to him ultimately ceasing to carry out the more physical aspects of his duties. 

32.     As indicated above, documents completed by Mr Parkes also referred to pain in his hips, ankles and neck and we consider that those symptoms, all of which related to non-accepted conditions, also contributed to his increasing difficulty in carrying out the physical aspects of his duties.  Whilst it is difficult to quantify, in light of the medical evidence before us suggesting that both his diabetes and medication taken for his kidney condition caused tiredness and lassitude, we consider that those symptoms also made some contribution to his increasing difficulty in carrying out his duties more generally, and his ultimate decision to cease work.

33.     Mr Crowe, who appeared as advocate for the respondent, submitted that rather than ceasing work abruptly, Mr Parkes in effect gradually withdrew from his employment, first ceasing the more physical aspects of his duties and two years later ceasing employment altogether.  Mr Crowe submitted that all of the reasons why Mr Parkes ceased carrying out the physical aspects of his duties should be regarded not only as contributing to his ultimate decision to cease work, but also as contributing to his inability to continue to undertake the remunerative work he was undertaking, properly defined. 

34.     We accept those submissions and consider that they accurately characterise what occurred in the period leading up to Mr Parkes’ resignation from his employment.  It follows that we consider his non-accepted conditions of knee pain, pains in his ankles, neck and hips together with tiredness and lassitude from his diabetes and medication for his kidney condition, contributed to Mr Parkes being unable to undertake the remunerative work he was previously undertaking.  Of those contributors, we consider Mr Parkes’ knee pain to have been the most significant, although we consider that each of the other factors we have mentioned also played some part.  Taken together, these matters constituted a significant contributor to Mr Parkes being prevented from continuing to carry out the remunerative work he was previously undertaking.

35.     It follows that we are not satisfied that Mr Parkes meets the alone test set out in s 24(1)(c) of the VE Act and therefore he does not qualify for an increase in his pension to the special rate.

decision

36.     The tribunal affirms the decision under review.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
And Mr S J Ellis AM (Member)

Signed:         ............J Coulthard.............................................
  Associate

Date of Hearing  30 September 2010
Date of Decision  2 December 2010
Counsel for the Applicant         Mr G King
Solicitor for the Applicant          Tindall Gask Bentley

Advocate for the Respondent   Mr A Crowe

DVA