Peacock and Repatriation Commission
[2004] AATA 523
•25 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 523
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/939
VETERANS' APPEALS DIVISION )
Re GEOFFREY PEACOCK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date25 May 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)......................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements - special rate of pension – veteran unable to undertake remunerative work - veteran not prevented by reason of incapacity from war-caused conditions alone from continuing to undertake remunerative work that he was undertaking – veteran not genuinely seeking to engage in remunerative work - pension payable at 100% of the general rate – decision affirmed
Veterans’ Entitlements Act 1986 ss 14, 19(5C), 19(9), 23, 24(1), (2)
Flentjar v Repatriation Commission (1997) 26 AAR 93
Leane v Repatriation Commission [2004] FCAFC 83REASONS FOR DECISION
25 May 2004 Mr RG Kenny, Member Background
1. In response to a claim lodged on 31 January 2003, in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), by Geoffrey Peacock (the applicant), a delegate of the Repatriation Commission (the respondent) determined, on 3 April 2003, that the applicant suffered from alcohol dependence and hypertension and that these were causally related to the period of operational service he rendered in South Vietnam from 24 May 1966 to 6 May 1967. The delegate then determined that the applicant was entitled to be paid pension at 100% of the general rate, in accordance with section 22 of the Act, in relation to the incapacity associated with all of the disabilities that had been accepted as being related to his eligible war service. In addition to the alcohol dependence and hypertension, these were chronic simple bronchitis, post traumatic stress disorder, haemorrhoids, gastro-oesophageal reflux disease, irritable bowel syndrome, bilateral sensori-neural hearing loss with tinnitus and impotence.
2. The delegate determined that this rate of pension was payable to the applicant with effect from 31 October 2002 and also that neither the intermediate nor the special rates of pension, as provided for in sections 23 and 24, respectively of the Act, were payable to him.
3. On 8 October 2003, that decision of the respondent was affirmed by the Veterans’ Review Board and, on 7 November 2003, the applicant sought review of the decision in relation to the rate of pension payable to him by the Administrative Appeals Tribunal (the Tribunal).
4. The applicant attended the hearing and was represented by Mr R Clutterbuck of Counsel. The respondent was represented by Mr J Kelly.
5. At the hearing, the following were taken into evidence:
Exhibit 1the “T” Documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6);
Exhibit 2a statement, dated 4 April 2004, by Paulette Peacock;
Exhibit 3 a medical report, dated 29 July 2002, by Dr Helen Bothwell;
Exhibit 4a medical report, dated 4 February 2004, by Dr Maxwell Katz; and
Exhibit 5a medical report, dated 28 January 2004, (with attached clinical notes) from Dr Tom Smythe
Issues and Legislation
6. The issue raised by the applicant in this case is whether he meets the criteria for payment of the special rate of pension under section 24 of the Act. Subsection 24(1) of the Act reads:
“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.”
7. The applicant’s claim was made under section 14 of the Act and he was born on 29 March 1945 so that, on the date of his initial claim, he was 57 years of age. It follows that he satisfies the requirements of paragraphs 24(1)(aa) and (aab) of the Act.
8. The applicant is currently in receipt of pension at 100% of the general rate, which is calculated in accordance with section 22 of the Act, and it was conceded by Mr Kelly that, as a result, he meets the requirements of sub-paragraph 24(1)(a)(i) of the Act. Having regard to the applicant’s incapacity associated with the conditions accepted by the respondent as being related to his eligible war service, I am satisfied that that concession has been properly made.
9. It has also been conceded by the respondent in this case that the applicant meets the requirements of paragraph 24(1)(b) of the Act in that he is totally and permanently incapacitated. Again, having regard to the medical evidence, in particular that associated with the applicant’s psychiatric conditions, I am satisfied that this concession has been properly made and that his incapacity from those conditions is, by itself alone, sufficient to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. I am also satisfied that this was the situation when he lodged his claim on 31 January 2003.
10. The specific issue that is to be determined in this matter is whether the applicant meets the requirements of paragraph 24(1)(c) of the Act.
11. The procedure which the respondent is required to follow in determining claims is provided for in section 19 of the Act. Subsection 19(5C) reads:
“(5C) The matters that the Commission must assess are:
(a)the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b) subject to subsection (6), the rate at which the pension is payable.”
12. The term “assessment period” as used in that provision is defined in subsection 19(9) of the Act in the following way:
“assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.”
13. It is not disputed, and I am satisfied, that the application day in this case was 31 January 2003 and that the assessment period runs from that day until the matter is determined by the Tribunal.
Summary of Evidence
14. In his evidence, the applicant outlined his employment history. He served with the Australian Army as a National Serviceman and this included a period of one year in South Vietnam from 24 May 1966 until 6 May 1967. Prior to this, he had commenced a career in local government administration in Victoria. He returned to this employment on discharge from the Army and remained in full-time employment in various capacities with various local government authorities in Victoria until he retired on 14 April 2000. For all but the last three years and three months of that period, he was employed on a permanent full-time basis but, from 15 January 1997, he was employed on a contractual basis by the Shire of Yarra Ranges.
15. The applicant completed a diploma course at the Royal Melbourne Institute of Technology in the period from 1968 until 1974 and his qualifications and experience enabled him to progress to responsible administrative positions in various local authorities including Healesville where he was the Shire Secretary from 1974 until 1993. At that stage, there was a restructuring of local government organisations by the Victorian Government and this resulted in an amalgamation of four separate Councils, including Healesville, into a single body which became the Shire of Yarra Ranges. In many of those positions that he had attained, the applicant was required to make application and endure an interview process before being appointed. When the Shire of Yarra Ranges was established, a new Chief Executive Officer (CEO) was appointed. This was Eric Howard. In the revised structure, the applicant was appointed Manager of Council Business and, in 1996, he applied for and was interviewed for the position of Council Support Executive Officer. This was a contractual position to which he was appointed from 15 January 1997 for a period of three years and three months.
16. The applicant said that the standard contractual period was of five years but he said he had discussed his appointment with Mr Howard. He told the Tribunal that he had been experiencing problems in the workplace in respect of his capacity to concentrate and to deal with people and he said Mr Howard was aware of these difficulties. He said his main concern was that he wanted to continue in employment until he reached 55 years of age because, at that time, he would be able to gain access to his superannuation benefits and the contract was tailored, in length, to achieve that goal. This was confirmed by Mr Howard in his evidence. Mr Howard said he had had some concerns about the applicant’s well-being and was aware he was having problems with his hearing. Nevertheless, Mr Howard described the applicant as having been an exemplary employee. He said he had been thoroughly reliable, had worked long hours and was fastidious in the way he carried out his duties.
17. Mr Howard said that the applicant’s work was critically important both to the office of the CEO and to the municipality because his role was that of ensuring they were protected. The applicant, in his evidence, also referred to this protective role and said he had been involved in negotiations between the Council and various prominent citizens in the Yarra Valley in respect of ongoing litigation and had been successful in achieving reasonable settlements in these matters.
18. Mr Howard continued as CEO of the Yarra Ranges Shire until November 1998 and was followed in that position by Mr Robert Hauser. On 14 October 1999, Mr Hauser wrote to the applicant in terms related to his contract of employment. The contract contained a clause which required him to be notified, not less than six months prior to the expiration of the agreement, of the Shire’s future employment intentions for him. In the letter, Mr Hauser wrote:
“Your current Employment Agreement expires on 14 April 2000 and based on previous discussions with you, it is not proposed that it be extended. Therefore to comply with the requirement for six (6) month’s notice, your employment with the Shire of Yarra Ranges will cease on 14 April 2000.”
19. Mr Hauser said that the discussions he had had with the applicant related to the nature of the role that he was performing for the Shire at that time. He said he was not aware of any difficulties that the applicant had in carrying out his work but said that, in the manner in which he had restructured the organisation, the position the applicant filled had become one of decreasing importance and had reached the stage where the position was no longer needed. He said that these were the discussions that he had with the applicant and it was for that reason that the decision was made for him not to be re-engaged.
20. In his evidence, the applicant said that, when this discussion had taken place with Mr Hauser, he had accepted the outcome. He said that his ambition was to work until he was aged 55 but, with about three months of his contract to run, he came to a realisation that he could not go on any longer in the job and he spoke to his supervisor about gaining access to his long service leave and accrued annual leave to take him to the date of termination of his position. He said this was approved by Mr Hauser and that, the following day, he emptied his desk and did not, thereafter, return to the Shire offices.
21. The applicant currently lives in Queensland on the Gold Coast and has done so since June 2000. In his evidence, he said he had always wanted to live in Queensland and that he had placed his own house on the market in January 2000 and that he and his wife had travelled to Queensland in March 2000 where they purchased a unit which was subsequently renovated for them to occupy in June 2000. The applicant said he felt that, whilst he was working for the Yarra Ranges Shire, he was really two different people. He said the “work person” remained ethical and was able to produce outcomes of a high standard, was thorough and methodical in his work although not good at dealing with people. He said that the “home person” was moody, with no social life and consumed excessive amounts of alcohol.
22. In her evidence, the applicant’s wife, Paulette Peacock, said that she believed that the applicant was a different person at home than he was at work. She said he consumed alcohol excessively at home and she said that, on some occasions, she had observed him consuming alcohol in the form of vodka before going to work. She said she had been concerned about the applicant’s health in the mid-1980s and had spoken to her own medical practitioner about him. This was Dr Tom Smythe who recommended that the applicant come to see him. She said the applicant did this. This was confirmed by the applicant in his evidence who said he was treated by Dr Smythe for a short time for depression and that he had been asked by Dr Smythe if he wanted to see a psychiatrist. The applicant said he had not wanted to do so. He said he had made a claim against the respondent in respect of haemorrhoids shortly after returning from South Vietnam but had made no further claims and had seen no further medical practitioners, after Dr Smythe, until he began to see Dr Bothwell on the Gold Coast.
23. The applicant said he has not attempted to obtain any form of remunerative work since he left the Yarra Ranges Shire Council. However, he said he had been undertaking voluntary work at the Southport Bowls Club, which he joined as a member after being on the Gold Coast for about a year. He said that the work involved maintaining membership lists and playing rosters which occupied him for a few hours each month.
24. In evidence was a letter from Dr Smythe (Exhibit 5) in which he stated he had forwarded all of the clinical notes he had in relation to the applicant. These reveal entries in February 1985 and the applicant is noted to have been “depressed” and “not keen to see a psychiatrist”.
25. Dr Bothwell gave evidence that she first saw the applicant in mid-2001 and, in her report dated 29 July 2002, she noted the applicant had undergone “random spasmodic assessment and treatment” for post traumatic stress disorder until he suffered a nervous breakdown in 1985 requiring psychiatric assessment, medication and supportive services. She said she believed she had seen reference to this in the applicant’s paperwork but also said she may have been mistaken about previous psychiatric treatment. Dr Bothwell expressed the opinion that the applicant was not capable of undertaking remunerative work. That was also the opinion of Dr Maxwell Katz, consultant psychiatrist, who gave evidence that he had seen the applicant for the purposes of preparing his report of 4 February 2004. He said that, based upon what he was told by the applicant and his wife, he believed the applicant would have had difficulties in the workplace at the time he was working for the Shire of Yarra Ranges and he said he would have difficulty in undertaking employment on a remunerated basis because of problems with his reliability.
26. The applicant has undergone psychiatric treatment since January 2003 from Professor Philip Morris. Dr Morris did not give evidence but completed a report on 12 March 2003 in which he expressed the opinion that the applicant was not capable of working. He referred to the employment background of the applicant saying:
“In 2000 he found that he could not deal with the pressures of work. His psychological symptoms made it difficult for him to complete tasks and respond to time and work pressures. His contract at the Yarra Ranges Council was not renewed in April 2000. He says that this was because his employers felt that he could not cope any further with the position.”
Consideration
27. The assessment period in this matter commenced with the lodgement of the claim by the applicant on 31 January 2003. On the evidence of Dr Morris, Dr Bothwell and Dr Katz, I am satisfied that, from that date, the applicant has not been able to engage in remunerative work and, indeed, this has been conceded by the respondent.
28. For the purposes of paragraph 24(1)(c) of the Act, the Federal Court in Flentjar v Repatriation Commission (1997) 26 AAR 93 said that a proper consideration of the provision requires responses to the following questions:
“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?”
29. It is not disputed that, in this case, the relevant remunerative work that the applicant was undertaking was that of a clerical or administrative nature. In relation to the second question posed in Flentjar v Repatriation Commission (above), I am satisfied that it cannot be said that the applicant is prevented from continuing to undertake that work because of his war-caused injuries or diseases. At the time when he stopped work, the only condition which had been accepted under the Act was haemorrhoids and the other conditions had not been diagnosed at that time. There is no contemporaneous medical evidence to indicate that the applicant was suffering from the effects of any of these conditions, subsequently accepted as being related to service, at that time. Even if it were the case that the symptoms of his now accepted disabilities were beginning to manifest themselves whilst he was working with the Yarra Ranges Shire, there is no medical evidence that they were preventing him from continuing to undertake that work. There is evidence that he was treated for depression in 1985 but with no subsequent treatment until about one year after he moved to Queensland at which time he began to see Dr Bothwell. Dr Morris expressed the opinion that the applicant had a long history of post traumatic stress disorder and alcohol dependence but did not indicate that these were of relevance at the time when he was working for the Yarra Ranges Council. Dr Morris referred to problems in the work-place as being responsible for his contract of employment not being renewed. The history recorded by Dr Morris is completely at odds with the evidence of Mr Howard or Mr Hauser. Both indicated satisfaction with the applicant’s employment and Mr Hauser said that the applicant’s contract was not being continued because the position that he had was no longer required.
30. I am not satisfied that the applicant’s war-caused injuries or diseases prevented him from continuing to undertake remunerative work that he was undertaking. However, even if it were the case that the second question in Flentjar v Repatriation Commission could be answered in the affirmative, I am satisfied that, for the purposes of the third question posed by the Federal Court in that case, any such conditions were not the only factor or factors preventing him from continuing to undertake that work. He was employed on a contractual basis which had been specifically tailored to come to an end at a point where he would be able to access his superannuation benefits at the age of 55 years. The contract continued until that time was reached although he actually stopped attending the work-place before that as he took long service leave and holiday leave over the final months of his contract. This was without the benefit of any medical advice and after making a decision to relocate with his wife from Victoria to Queensland. To that end, he had already begun to negotiate the sale of his own house and purchased his future residence in Queensland in March 2000. The decision to bring to an end his remunerative employment had been made in 1996 when he entered into the agreement. I am satisfied that, from that time, he had decided to work until his 55th birthday and to then retire after securing his superannuation benefits. This was in a setting where consecutive CEOs of the Yarra Ranges Shire were able to express satisfaction with the manner in which he undertook his employment obligations over the next three years.
31. I am satisfied that the availability of his superannuation payments at age 55 had a significant role to play in the applicant’s decision to cease employment and that, therefore, it was not his war-caused injuries or diseases, alone, which prevented him from continuing to undertake his previous remunerative work when his contract expired or at any time thereafter. By the commencement of the assessment period, he was far removed from the working environment of local government in which he had been involved for all of his working life and had become a retired person with no intention of engaging in any form of remunerative work whilst living in retirement on the Gold Coast.
32. On the basis of that finding, the applicant does not meet the requirements of paragraph 24(1)(c) of the Act as it is set out above. However, the operation of that provision is ameliorated by the terms of subsection 24(2) of the Act which reads:
“(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.”
33. In this case, the applicant is under the age of 65 years and reference must be made to paragraph 24(2)(b) of the Act. It will be sufficient, to satisfy paragraph 24(1)(c) of the Act, if his service-related disabilities are the substantial cause of his inability to obtain remunerative work. A pre-condition to the application of that ameliorating provision is that the applicant must have been genuinely seeking to engage in remunerative work. In Leane v Repatriation Commission [2004] FCAFC 83, the Full Federal Court referred to this requirement in the following way:
“28. The primary judge interpreted the word ‘seeking’ to mean ‘attempting to’ or ‘trying to’. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant ‘do’ something. On the other hand the word ‘genuinely’ is used in the sense of ‘sincerely’ or ‘honestly’. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.”
34. It was conceded by Mr Clutterbuck that the applicant did not meet this requirement on the basis that he had not been genuinely seeking to engage in remunerative work at any time since he left the Yarra Ranges Council. The applicant said that he has made no attempt to obtain employment and, in that sense, there is no evidence before the Tribunal that he even had a mere wish or hope to do so. I am satisfied that the concession made by Mr Clutterbuck was properly made and that the ameliorative terms of paragraph 24(2)(b) of the Act are not applicable to him.
35. I am satisfied that the applicant does not meet the requirements for the payment of the special rate of pension because, specifically, he fails to satisfy the terms of paragraph 24(1)(c) of the Act. Though the intermediate rate of pension, for which provision is made in section 23 of the Act, was not raised by the applicant in this case, I am also satisfied that the requirements for payment of pension at that rate are not met.
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 Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 18 May 2004
Date of Decision 25 May 2004
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
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