Phillips and Repatriation Commission - [2002] AATA 1205

DECISION AND REASONS FOR DECISION [2002] AATA 1205

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/652

VETERANS' APPEALS DIVISION          )
           Re      ALAN JOSEPH PHILLIPS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date22 November 2002
PlaceTownsville

Decision The Tribunal sets aside the decision under review and substitutes therefor the decision that the Applicant is eligible to be paid disability pension at the special rate provided for by section 24 of the Veterans' Entitlements Act 1986 from 4 December 2000.

[Sgd] Ms N Bell
Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – application for special rate – war-caused disabilities and non war-caused disabilities – whether the Applicant's war-caused disabilities alone prevent him from continuing to undertake remunerative work he was undertaking – determination of the Applicant's remunerative work

Veterans' Entitlements Act 1986 section 24

Magill v Repatriation Commission [2002] FCA 744
Banovich v Repatriation Commission (1986) 69 ALR 395
Hall v Repatriation Commission (1994) 33 ALD 454
Re Hornery and Repatriation Commission (1998) 52 ALD 317

REASONS FOR DECISION

22 November 2002 Ms N Bell, Member

This is an application by Mr Alan Phillips ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 8 February 2001 to continue payment of the Applicant's disability pension at 100 per cent of the General Rate of pension. That decision was affirmed by the Veterans' Review Board on 14 May 2001. The Applicant had applied for an increase in the rate of his pension on 4 December 2000.
At the hearing of the application before the Tribunal the Applicant was represented by Mr Darren Honchin of Counsel and the Respondent was represented by Mr John Stoner, an advocate with the Department of Veterans' Affairs. The Applicant gave oral evidence to the Tribunal as did Dr Keith Adam. The Tribunal had before it the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975, the Applicant's statement of 20 May 2002 (Exhibit A2), the report of Ms Kathryn Purse dated 20 March 2002 (Exhibit A3), the report of Dr Keith Adam dated 15 September 2002 (Exhibit R2) and the transcript of the hearing before the Veterans' Review Board on 14 May 2001 (Exhibit R3).

BACKGROUND

The Applicant was born on 5 September 1939 and at the time of his application for an increase in his pension he was 61 years old. The Applicant served with the Royal Australian Army from 21 April 1961 to 28 September 1981 and served in Vietnam from 25 April 1967 to 20 February 1968. There is no dispute that this service constitutes occupational service for the purposes of the Veterans' Entitlements Act 1986 ("the Act").
The Applicant has the following accepted war-caused disabilities:
·Lumbar spondylosis;
·Bilateral sensorineural hearing loss;
·Bilateral tinnitus;
·Hypertension;
·Solar skin damage with malignant change;
·Post-traumatic stress disorder;
·Alcohol dependence or abuse; and
·Ischaemic heart diease.
The Applicant also suffers from the following non war-caused conditions:
·Plantar fasciitis of the right and left feet;
·Post operative loss of sensation of the right foot;
·Obesity; and
·Localised osteoarthritis of the right knee.
In addition the Applicant also has an ulnar nerve release disability which the Respondent concedes produces no incapacity.
There is no dispute that the Applicant left the Army in 1981 and worked in the plastic piping industry, initially as a labourer moving piping and plastic material both manually and with forklifts. In approximately 1985 the Applicant began quality control work with that same employer. In approximately 1990 the quality control activities of his employer were transferred to Brisbane and the Applicant returned to his original labouring work. Approximately six months later, during 1990 the Applicant was retrenched.

LEGISLATION

The Applicant is and was at the time of his application, in receipt of disability pension at 100 per cent of the General Rate of payment. He seeks payment of the pension at the "Special Rate". Eligibility for payment at that rate is provided for in section 24 of the Act. Section 24 provides relevantly:
"SECTION 24
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.

ISSUES

The Respondent has made the following concessions or admissions:

The Applicant satisfies the requirements in sections 24(1)(a) and 24(1)(b) of the Act;
The Applicant's accepted disabilities of lumbar spondylosis and ischaemic heart disease are the substantial cause of his being prevented from continuing to undertake remunerative work (section 24(2)(b) of the Act); and

The Applicant is suffering a loss of salary or wages on his own account.

Given the concessions made by the Respondent, the following issues remain for the Tribunal to consider. The Tribunal must first consider whether the Applicant satisfies the requirements in section 24(1)(c) of the Act, that is, whether by reason of incapacity from his war-caused conditions alone, the Applicant is prevented from continuing to undertake the remunerative work that he had been undertaking.
This, in turn, requires the Tribunal to identify the remunerative work undertaken by the Applicant and to examine the effect of the Applicant's accepted conditions on his ability to do that work. That examination must take place with reference to the Applicant's non accepted conditions and to any other factors that have an effect on his undertaking of that work.
If the Tribunal concludes that it is not the Applicant's war-caused conditions alone that prevent him from undertaking that work, then it may look to the "ameliorative" provisions of section 24(2)(b) of the Act (see Magill v Repatriation Commission [2002] FCA 744). In this respect the Respondent has conceded that the Applicant's heart and back conditions are the substantial cause of his inability to obtain the remunerative work. It will remain for the Tribunal to determine whether the Applicant has genuinely been seeking work.

APPLICANT'S EVIDENCE

The Applicant's evidence, by his statement dated 20 May 2002 and by his oral evidence to the Tribunal, may be summarised as follows:
The Applicant's first job after leaving the Army in 1981 was as a storeman with Humes Plastics, working in the yard unloading and loading PVC piping and materials that included one tonne bags. The lifting was by use of a forklift and also by manual handling.
In approximately 1985 – 86 the Applicant began carrying out quality control testing of pipes, including measuring diameters and thickness, to ensure uniformity and pressure capacity. Most of this testing was carried out in the laboratory and involved the manual carrying of one meter lengths of piping of various weights and diameters into the laboratory. Most of the testing was done standing and some paper work was also required to be done. During this time Humes Plastics was bought out by Smorgens and then the plastics area of the enterprise was brought out by Hardy Illex.
Work in the laboratory took place in 12-hour shifts. Only one quality tester worked on the night shift. During the day shift two workers were present. There was a total of two quality testers employed by the company including the Applicant.
In 1989 or 1990 quality testing was moved to Brisbane and the Applicant was returned back into the yard doing his previous job, namely loading, unloading and moving pipes. The Applicant experienced difficulties doing this work again, because of his back condition. The manager observed this difficulty, gave the Applicant a "warning" and shortly thereafter terminated his employment.
After leaving his employment the Applicant registered with the Commonwealth Employment Service and explained to the service the problems he had with his back. He went for a number of job interviews and told the Commonwealth Employment Service that he would consider any work he was capable of doing. He had a number of interviews for jobs, including jobs as a cleaner at the Technical and Further Education Institution and as a plant storeman with a nickel refinery. After some time he was not referred to any further interviews by the service.
The Applicant obtained a job at Honeycombs Display Homes in 1993 working one day per week tending yards and gardens. The mowing hurt his back and made him exhausted. The company soon after installed automatic watering systems and his services were no longer required.
In 1995 or 1996 the Applicant obtained work with Wetworld in the office doing clerical work for 3 to 4 hours per day, two days per week. The work consisted mainly of answering telephones.
In approximately 1995 or 1996 the Applicant obtained work with North Queensland Pipeline Services Pty Ltd but was unable to continue because of the heavy lifting and extensive walking involved in the work.
The Applicant was registered with the Commonwealth Employment Service for 10 years and attended its office every fortnight to search for jobs. He would also, approximately once every month, visit about 6 factories in a day asking for work. When he visited the factories he would generally be told that they would get back to him and he would hear nothing further. He ceased this activity and his registration with the Commonwealth Employment Service at about the end of 2000.
When referred to a letter at page 88 of the T-documents from North Queensland Pipeline Service P/L, noting the Applicant's recent application for a position as a pipe welder, the Applicant confirmed that he had approached that company in 1995. The Applicant approached the company again in 2001 but only as a welder (with various other duties) on the understanding that the proprietor of the company would allow him to perform duties which accommodated his disabilities. Those accommodations were not made.
The Applicant had a mild heart attack in 1998 or 1999 but had developed some shortness of breath and chest pains in 1995 or 1996. He was first diagnosed as having Post-traumatic stress disorder in 1993.
In relation to the Applicant's knee and feet conditions he said that he has difficulty standing and walking and must sit down to relieve the pain he experiences in his knee and feet. He said he takes Celebrex for his knee pain and has had surgery on his feet on two occasions, both while he was still in the Army. He said that his feet condition has stayed the same over the years and that when doing quality testing if his feet hurt he would do paper work so that he could sit down. His knees hurt him when driving long distances.
The Applicant has chest pains as a result of his heart condition and is no longer able to drive as a result.
The Applicant believes that he would continue to work if he was able to but both his cardiologist and his general practitioner have advised him that he should not work any more. He is able to cope with his plantar fasciitis if he wears soft-soled shoes and while swelling occurs and his feet become sore he is still able to stand and walk. His feet had no effect on his ability to perform his Army duties and no effect on his ability to do his work as a quality tester. He left the Army because he retired – he was not medically discharged.
Ms Kathryn Purse, Occupational Therapist, identified, in her report of 20 March 2002, three conditions which would render the Applicant unable to engage in any type of employment. Those are his back condition, cardiac condition and plantar fasciitis of his feet. She said:
"His physical capacities are very restricted, particularly by his episodes of chest pain related to his heart disease, and by his lower back condition and the condition of his feet.
His continuous walking, standing and sitting tolerances are restricted.
His lifting and carrying capacity is restricted to light loads on an infrequent basis.
He has great difficulty assuming low postures.
He is able to use his hands and arms in light activities only and is unable to reach overhead.
His right hand dexterity is impaired by the deformity developing in the hand.
There is no functional incapacity relating to the intermittent numbness and tingling experienced in his right forearm and hand following the ulna nerve release…
Mr Phillips does not have the physical capacity to engage in any type of employment because of his back condition, cardiac condition and plantar fasciitis of his feet."

RESPONDENT'S EVIDENCE

Dr Keith Adam gave evidence in his report dated 15 September 2002 and by his oral evidence to the Tribunal. He gave the following opinion in his report:
"Mr Phillips suffers from a number of conditions, which considered separately or together may prevent him from working.
I consider that the accepted conditions of lumbar spondylosis and the ischaemic heart disease would be sufficient, in the absence of any other disease to prevent Mr Phillips from performing work for which he may be qualified by his experience. The anticipated clinical course of each of these conditions is of further gradual deterioration, and so his disability should be considered permanent.
The non accepted conditions of plantar fasciitis and osteoarthritis in both knees may also contribute to his disability. On their own, they may also prevent Mr Phillips from working, or reduce his capacity for work. However, they are not the sole, or major cause of his disability."
In cross-examination, Dr Adam declined to agree that the Applicant's condition of plantar fasciitis and osteoarthritis would not prevent him from working.

Consideration

The first issue to be considered by the Tribunal is the question of what remunerative work the Applicant was undertaking. The Applicant's evidence, which the Tribunal accepts, was that he began working for Humes Plastics in 1981, loading and unloading PVC piping and heavy materials. In 1985 or 1986 he began quality control testing for the same company which involved far less heavy lifting (only in the case of large diameter pipes) and a mix of standing measuring and testing work and some paperwork. He returned to his original work of loading and unloading in 1989 or 1990 and was retrenched soon after.
In Banovich v Repatriation Commission (1986) 69 ALR 395 the Full Federal Court said:
"The term "remunerative work" is used in the Schedule in a context which indicates an intention to refer to work generally: see, for example, para [1](b)(ii), para [2](b), para [3]. 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. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity — and by that incapacity alone — from continuing in that field of remunerative activity."

On the basis of the findings outlined above, the Tribunal concludes that the remunerative work that the Applicant was undertaking was in the field of "storeman/quality control tester", involving varying degrees and weight of manual work, with some clerical work associated with quality control testing.
In relation to the issue of whether the Applicant is prevented from continuing to undertake storeman/ quality control work by his war-caused conditions alone, the Tribunal notes the Applicant's evidence that he has lived and worked with his feet condition since his days in the Army and that his feet do not prevent him from working.
However, the evidence of both Dr Adam and Ms Purse was that the Applicant's plantar fasciitis (a non war-caused condition), in addition to his heart condition and his lumbar spondylosis, would prevent him from working. In the face of this expert evidence, the Tribunal cannot conclude that it is the Applicant's war-caused conditions alone that prevent him from continuing to work as a storeman/quality controller. In reaching this conclusion the Tribunal also notes that even the less physically demanding work of quality controller requires much of the work to be done while standing. While the Applicant said that it was his practice to sit down and do paperwork when his feet hurt him, Ms Purse's evidence was that his continuous walking, standing and sitting tolerances are restricted. It was her view that the Applicant's heart and back conditions and his plantar fasciitis prevent him from engaging in any type of employment.
Having reached that conclusion, the Tribunal looked to the "ameliorative" provisions of section 24(2)(b) of the Act. In light of the concessions made by the Respondent, the Tribunal need only examine whether the Applicant has been genuinely seeking work. In Hall v Repatriation Commission (1994) 33 ALD 454, Spender J said:
"It seems to me that the question of whether a veteran has been "genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to so seek" has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. 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. While it may be that Mr Hall was advised to pursue his attempts at seeking employment through the CES by advice which focussed on the desirability of efforts to seek remunerative work rather than on any realistic prospect that such work might be obtained, the report by the CES does not seem to cast doubt on the willingness of Mr Hall to accept work if any might be found for him."

In Re Hornery and Repatriation Commission (1998) 52 ALD 317 the Tribunal said:
(41) The tribunal is satisfied that Mr Hornery would genuinely be liking to work, that is that he would genuinely like "to engage in remunerative work". The wording of the provision, however, requires that the tribunal must be satisfied that Mr Hornery "has been genuinely seeking to engage in remunerative work". The tribunal agrees with Deputy President McMahon in Re Bonner and Repatriation Commission (1989) 17 ALD 680 as reported at 681 that "the use of the word 'genuinely' in the paragraph indicated the necessity for some objective signs of active pursuit of remunerative work". Mr Hornery's active pursuit of remunerative work ceased in 1986 when he was granted invalid pension… (44) Section 24 (2) (b) refers to a veteran who ''has been genuinely seeking to engage in remunerative work" and in the tribunal's view, this being a special provision to ameliorate s 24 (1) (c) in so far as its effect is that the alone test there does not apply, it was intended to apply where the veteran's genuine and active pursuit of work, that is, his or her efforts to obtain work were brought to an end by incapacity from war-caused injury or disease. By saying that, the tribunal does not mean to say that incapacity from war-caused disease or war-caused injury must have supervened at such time as the veteran was seeking on a daily or weekly basis to find work but in the tribunal's view it must supervene at such a time as the veteran can properly be said to have been genuinely seeking to find remunerative work, with there being "some objective signs of active pursuit of remunerative work": Re Bonner, above."
The Applicant's evidence, which the Tribunal accepts, was that he was registered with the Commonwealth Employment Service for ten years after his employment was terminated in 1990. During that time the Applicant visited that service every fortnight to search for jobs, did "cold calling" on local factories each month and attempted and had some very limited employment in three positions, before he made his claim for the special rate of pension. The Tribunal considers that these activities constitute "objective signs of active pursuit of work" (Re Bonner, supra) and concludes that the Applicant was genuinely seeking to engage in remunerative work. The consistency of the Applicant's efforts to obtain work over the ten year period, and the development of his heart condition in the latter half of that period (Applicant's evidence), indicate that, if it were not for his incapacity, he would have continued to so seek work.
The Respondent submitted that the Applicant's attempts to obtain work were unrealistic, in that he sought work that was beyond his capacity. In the Tribunal's view, the Applicant's efforts to obtain work over a ten year period do not indicate a cynical attempt to "go through the motions", but rather a degree of persistence that actually secured some, albeit very limited, work for him. In addition, the range of work applied for and/or obtained by the Applicant (cleaner, storeman, groundsman, clerk, welder) indicates a willingness to test his ability.
Given the Respondent's concession that the Applicant's accepted disabilities of lumbar spondylosis and ischaemic heart disease are the substantial cause of his being prevented from continuing to undertake remunerative work, and the Tribunal's conclusion that the Applicant was genuinely seeking to engage in remunerative work, and would, but for his war-caused incapacity, continue to so seek work, the Applicant satisfies the requirements in section 24(2)(b) of the Act . It follows that he is eligible to be paid disability pension at the special rate from 4 December 2000.

Decision

The Tribunal sets aside the decision under review and substitutes therefor the decision that the Applicant is eligible to be paid disability pension at the special rate from 4 December 2000.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: ......................................................
C. O'Donovan, Associate
Date/s of Hearing  15 October 2002
Date of Decision  22 November 2002
Counsel for the Applicant        Mr Darren Honchin
Advocate for the Respondent Mr John Stoner