Peter Kenneth Dunstall and Repatriation Commission

Case [2012] AATA 313

[2012] AATA 313  

Division VETERANS' APPEALS DIVISION

File Number

2010/1412

Re

Peter Kenneth Dunstall

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President PE Hack SC
Date 25 May 2012
Place Brisbane

The decision is affirmed.

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

Deputy President PE Hack SC

CATCHWORDS

VETERANS AFFAIRS – benefits and entitlements – incapacity pension – special rate – mental and physical ailments – able to work more than eight hour per week – planned to cease working at age 60 – decision affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 ss 24(1)(b), 24(1)(c), 24(2)(a), 28

REASONS FOR DECISION

Deputy President PE Hack SC

25 May 2012

Introduction

  1. The applicant, Mr Peter Dunstall, suffers from various conditions including, relevantly, post-traumatic stress disorder, basal cell carcinomas and osteoarthritis of both knees. The respondent, the Repatriation Commission, accepts that these, and other, conditions are attributable to Mr Dunstall’s service (as a conscript) in the Australian Army between February 1966 and February 1968 and accepts that Mr Dunstall is qualified to receive an incapacity pension at 100% .

  2. In these proceedings Mr Dunstall contends that he satisfies the statutory criteria that entitle him to be paid incapacity pension at the “special rate” i.e. the pension referred to in s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the VEA). On 21 September 2009 the Commission decided that Mr Dunstall did not qualify for a special rate pension. That decision was affirmed by the Veterans’ Review Board on 22 March 2010.

  3. Mr Dunstall seeks a review of that decision. The matter was the subject of an earlier hearing and decision[1] by the Tribunal (differently constituted). That decision was set aside on appeal and the matter remitted for re-hearing.

    The statutory setting

  4. In order to qualify for pension at the special rate an applicant must satisfy each of the criteria in paragraphs (aa), (aab), (a), (b), (c) and (d) of s 24(1) of the Veterans’ Entitlement Act. The Commission concedes that all except paragraphs (b) and (c) are satisfied[2].   Those paragraphs 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; …

    [2]At the earlier hearing the Commission conceded the satisfaction of paragraph (b); that concession was not maintained at the re-hearing. It is not open to doubt that the Commission is entitled to take…

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AGLC
Peter Kenneth Dunstall and Repatriation Commission [2012] AATA 313
Case
[2012] AATA 313
Decision Date

CaseChat Overview and Summary

The case of Peter Kenneth Dunstall and Repatriation Commission was heard before the Administrative Appeals Tribunal of Australia. The primary dispute was whether Mr Dunstall, a former serviceman, was eligible for a special rate incapacity pension due to his war-caused injuries and conditions, which include post-traumatic stress disorder, lumbar spondylosis, and osteoarthritis in both knees. Mr Dunstall had been deemed 100% incapacitated due to these conditions, but the Repatriation Commission found him ineligible for the special rate pension.

The key legal issues that the court had to decide were whether Mr Dunstall's incapacity was such that it rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week, and if this incapacity alone prevented him from continuing to undertake remunerative work, thereby suffering a loss of salary or wages. The court had to determine these issues based on the evidence provided by Mr Dunstall’s medical practitioners, specifically Dr Monsour and Dr Scott Jenkins.

In examining the evidence, the court noted that Dr Monsour’s assessment indicated severe physical impairments, including significant pain and restricted mobility. However, the court observed that the evidence did not sufficiently address the impact of these conditions on Mr Dunstall's ability to work for more than eight hours per week. The court also highlighted that Mr Dunstall had been engaged in light agricultural work and fruit picking, activities that contradicted the notion of complete incapacity. The tribunal ultimately concluded that Mr Dunstall's conditions did not render him incapable of engaging in remunerative work for more than eight hours a week. The decision of the Repatriation Commission was affirmed, and Mr Dunstall was found ineligible for the special rate incapacity pension.

Orders

Orders of the court

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Background

Background to the litigation

And it is relevant, when considering the issue posed by s 24(1)(c) of the Act, to have regard to s 24(2)(a). It provides:(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; …No issue arises about the application of the ameliorating provisions in s 24(2)(b) of the Veterans’ Entitlements Act.Background I do not understand what follows to be in issue. Mr Dunstall was born in June 1945. In 1960, after leaving school, he joined what was then the Postmaster-General’s Department as a linesman. He was so employed in February 1966 when conscripted into the Australian Army. He served for two years including active service in what was then South Vietnam. On his discharge in February 1968 Mr Dunstall returned to his employment, as a linesman, with the PMG. In 1970 he was transferred to Roma and spent the next three years working in south-western Queensland. In mid-1973 Mr Dunstall was transferred to Maryborough where he remained for a number of years. His job was office-based and involved cost estimating and maintaining cable records. In the early 1980’s Mr Dunstall spent some time working in Brisbane with what was then the new technology of fibre optic cable. Nonetheless he remained living in Maryborough. In 1988 he was asked to relocate to Brisbane however he declined the transfer. He did so, he says, because his accepted conditions of post-traumatic stress disorder, lumbar spondylosis and osteoarthritis affected his ability to work in the environment required to work in Brisbane. Had he accepted the transfer he would have been obliged to work in the city which would have required him to either drive or take public transport. His orthopaedic injuries prevented him from driving for any length of time and the post-traumatic stress disorder made public transport difficult because of an inability to deal with crowds. I see no reason not to accept Mr Dunstall’s evidence on this point – it was not challenged or contradicted. As a consequence of Mr Dunstall declining the transfer he was offered a redundancy. He accepted it because he was finding his employment with what was, by then, Telstra increasingly stressful and the stress was aggravated by his post-traumatic stress disorder. Moreover an increasing obligation to travel in his job was causing increasing pain in his back and knees. In the result, Mr Dunstall was made redundant (voluntarily) in November 1988. He was then aged 43 years. Prior to leaving his employment Mr Dunstall had intended using his long service leave to go fruit picking. Once made redundant he gave effect to that plan by going to Young, in New South Wales, in 1989 where he and his wife picked fruit for a period of four weeks. The following year they picked apples in Stanthorpe and citrus fruit in Gayndah. During the 1990’s Mr and Mrs Dunstall worked from January to August each year picking fruit and, at least in the case of Mr Dunstall, undertaking other light agricultural work. They purchased, and lived in, a caravan on these trips. In 1995 they ceased fruit picking in Young because of the distance and lesser financial rewards and from that year they worked only in Stanthorpe and Gayndah.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Dunstall lodged his claim for acceptance of the conditions of post-traumatic stress disorder, lumbar spondylosis and osteoarthritis affecting both knees on 23 April 2009. That date is thus the start of the assessment period[3]. By a decision of 21 September 2009 each condition was accepted as being service related and Mr Dunstall was assessed as having a degree of incapacity of 100%. The Commission however determined that Mr Dunstall was not eligible for pension at the special rate or the intermediate rate. It is that part of the Commission’s decision that is the subject matter of these proceedings. [3] See ss 19(5C), 19(6) and 19(9) of the Veterans’ Entitlements Act. Consideration Two of the statutory criteria remain in issue – whether Mr Dunstall’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week; and, if it is, whether Mr Dunstall is, by reason of that incapacity alone, prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that he would not be suffering if the veteran were free of that incapacity. These questions are to be decided to my reasonable satisfaction[4]. [4] See s 120(4) of the Veterans’ Entitlements Act. The evidence in relation to the first issue was, at least initially, very poor. The issue had been conceded by the Commission at the first hearing however the Commission’s statement of facts, issue and contentions dated 16 January 2012 put that matter back in issue. That change in attitude appears to have escaped the attention of Mr Dunstall’s advisers until the last moment with the result that Dr Jenkins was not available for cross-examination, as the Commission had requested. The matter was adjourned to enable that to occur. Mr Dunstall relies on evidence of his general practitioner, Dr Monsour, and of Dr Scott Jenkins, a consultant psychiatrist. Dr Monsour undertook an assessment of Mr Dunstall’s conditions in May 2009, shortly after the start of the assessment period. There is no reason to suppose that his conditions were any different at the start of the assessment period. Dr Monsour noted that Mr Dunstall had severe low back pain after five minutes when standing, back symptoms when sitting, sciatica in both legs and that his walking distances were restricted to 100 metres because of pain in his back. He assessed a restriction of range of the thoracolumbar spine in the order of 25%. Dr Monsour referred to pain in both knees when standing or walking and constant and severe pain when weight bearing. Absent from Dr Monsour’s evidence is any evidence of the impact of these physical conditions on Mr Dunstall’s capacity to engage in remunerative work for periods aggregating more than eight hours per week that is, in the language of s 28(c) of the VEA, the degree to which Mr Dunstall’s physical impairments as a result of the injury or disease, or both, have reduced his capacity to undertake the kinds of remunerative work that a person with his skills, qualifications and experience might reasonably undertake.