Peter Kenneth Dunstall and Repatriation Commission
[2012] AATA 313
•25 May 2012
[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.
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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
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% .
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.
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.
[1] See [2010] AATA 806.
The statutory setting
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 that course: see Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256.
In determining, for the purposes of s 24(1)(b) whether an incapacitated veteran is incapable of undertaking remunerative work the Commission, (and thus the Tribunal in its stead) is required by s 28 of the Veterans’ Entitlements Act to consider the following matters only,
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
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.
Mr Dunstall was able to cope with this work although he had occasional problems. His knees and back required him to rest at regular intervals. His basal cell carcinoma prevented him from using a picking bag but that difficulty was overcome at Stanthorpe where he was able to use a cherry-picker. Mr Dunstall ceased picking oranges at Gayndah because of this issue. Eventually he ceased fruit picking in 2007 because, he says, his accepted physical conditions prevented him from earning sufficient income to make the work worthwhile. I will discuss that aspect of the matter at greater length below. In 2005, when Mr Dunstall turned 60, he applied for and was granted a service pension. Despite that he continued to pick fruit for the two following seasons.
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.
Reliance is placed on the opinion of Dr Jenkins whose report of 9 February 2010 expresses the opinion that Mr Dunstall “is unable to work in any capacity even 8 hours per week as a result of these accepted conditions alone”. His oral evidence did not take the matter much further.
While there is no evidence to the contrary to that expressed by Dr Jenkins I am unpersuaded by his evidence. Dr Jenkins is certainly in a position to express a view on the impact of Mr Dunstall’s mental condition on his capacity to engage in remunerative work but he undertook no test and, so far as I can tell, no detailed analysis of the limitations placed on Mr Dunstall by his physical ailments. It is undoubtedly the case that Mr Dunstall’s back and knees place significant limitations on his capacity to engage in remunerative work. So much is evident from the description given by Dr Monsour. However it is quite a different matter to say that those limitations are such that, in combination with Mr Dunstall’s post-traumatic stress disorder, they preclude him from engaging in remunerative work for more than eight hours per week. Mr Dunstall’s case is that it is the combination of mental and physical ailments that prevents him from engaging in remunerative work for periods in excess of eight hours per week; I am not satisfied that that that is the case.
The same is true in relation to the claim for pension at the intermediate rate which is put as an alternative; there is insufficient evidence from which I could be satisfied that the physical and mental conditions have the requisite effect on Mr Dunstall’s capacity to engage in remunerative work.
On that basis I would affirm the decision under review.
But there is a further basis on which Mr Dunstall’s case fails and that is in relation to the second issue. I am able to state my conclusions shortly. One of the matters that must be shown is that, by reason of Mr Dunstall not working, he is suffering from a loss of salary, wages or other earnings that he would not be suffering if he were free from incapacity. That issue throws up for consideration what Mr Dunstall probably would have done if he had none of his service difficulties[5]. I am required to take into account any factor that plays a part or contributes to Mr Dunstall being prevented from continuing to engage in remunerative work.
[5] See Repatriation Commission v Hendy (2002) 76 ALD 47 at [36]-[37].
Here there is contemporaneous evidence that Mr Dunstall had planned to cease working at age 60 years in any event. In a letter he sent to the Commission in March 2002[6] Mr Dunstall detailed difficulties that he was then having with basal cell carcinoma. He said,
I had planned on working to age 60 in seasonal work, however the above problem may not allow me to do this.
Mr Dunstall became eligible for a service pension at the age of 60. I consider it likely that he would have retired at the age of 60.
[6] Exhibit 1 at page 70.
I am then not satisfied that Mr Dunstall meets the criteria in s 24(1)(c) of the Act, a conclusion also sufficient to warrant affirming the decision under review.
I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC.
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Associate
Dated 25 May 2012
Date(s) of hearing 17 February 2012, 12 April 2012 Counsel for the Applicant Mr A Harding Solicitors for the Applicant Terrence O'Connor, Solicitor Counsel for the Respondent Ms H Bowskill Solicitors for the Respondent Australian Government Solicitor
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