Pill and Repatriation Commission

[2007] AATA 1989

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1989

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3523

VETERANS' APPEALS DIVISION		)
Re		GREGORY PILL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date28 November 2007  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

....................[Sgd].............................

RG Kenny
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – veteran in receipt of intermediate rate of pension – veteran not prevented from undertaking remunerative work for at least 8 hours per week – pension not payable at the special rate – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 23, 24, 119, 120

REASONS FOR DECISION

28 November 2007      Mr R G Kenny, Member

Background

1. On 15 March 2006, Gregory Pill lodged a claim in accordance with s 15 of the Veterans’ Entitlements Act 1986 (the Act) for an increase in the pension paid to him in relation to his war-caused disabilities of osteoarthrosis of the right knee, osteoarthrosis of the left elbow, asthma, contact dermatitis, adjustment disorder with mixed anxiety depressed mood and deep vein thrombosis right leg.  A delegate of the Repatriation Commission (the respondent) determined that Mr Pill’s pension should continue at the intermediate rate as provided for in s 23 of the Act.  That decision was affirmed by the Veterans’ Review Board and Mr Pill seeks further review by the Administrative Appeals Tribunal (the Tribunal).

Issues and Legislation

2.      Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case: see s 120(4) and s 119(1) of the Act, respectively.  In that process, neither party bears an onus of proof: see s 120(6) of the Act.  The procedure to be followed is provided for in s 19 of the Act.  Subsection 19(5C) requires the rate of pension to be assessed from time to time during the assessment period.  The term assessment period is defined in s 19(9) of the Act as the period starting on the application day and ending when the claim or application is determined.  It is not disputed that the application day in this case was 15 March 2006 and that the assessment period runs from that day until the matter is determined by the Tribunal.

3.      The issue raised by Mr Pill in this case is whether he meets the criteria for payment of the special rate of pension under s 24 of the Act.  It is not in dispute that Mr Pill was under 65 years of age at the time of his claim or that he is in receipt of pension at a rate greater than 70% of the general rate.  Accordingly, he meets the preliminary requirements of s 24(1)(aa), (aab) and (a)(i) of the Act for the special rate.  In issue is whether Mr Pill meets the incapacity component in s 24(1)(b) of the Act.  This is that he is totally and permanently incapacitated, that is to say, his incapacity from his accepted disabilities is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. For the intermediate rate, a similar requirement is found in s 23(1)(b) and this is that the incapacity from his accepted disabilities is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently.  While Mr Kelly conceded that the less stringent s 23 test was met by Mr Pill, he submitted that the s 24 test was not.

4.      In the event that s 24(1)(b) of the Act is met, it will also be in issue whether Mr Pill meets the requirements of s 24(1)(c) of the Act. 

Evidence of Mr Pill

5.      Mr Pill gave the following evidence.  He served for 23 years in the Royal Australian Air Force (RAAF) until 1997.  For most of that time, he was a fitter/technician but, for about two years of his service, he was working as an instructor at a trade school.  He understood that he was to be medically discharged and purchased, for $20,000, a furniture-making business.  He was advised that he could remain in the RAAF but, nevertheless, resigned and commenced on a full-time basis with his furniture business.  Initially, this was a "one man" enterprise but, before he sold it in 2002, he was engaging others to assist him.  He made no real income from the business but sold it for approximately $80,000.  He then commenced a handyman business which involved him in doing all the jobs around domestic residences.  He discontinued this in July 2004 because his physical disabilities made it difficult for him to carry out these tasks.  Currently, he works for one hour on each of 3 days per week.  This involves him in the supervision of young children after school in various kinds of sporting activities.  He recently applied for a position at Beerwah State School after he had seen an advertisement in the local newspaper for someone to work for 7¼ hours per week as a teacher’s aide.  His application was unsuccessful but he was not given the reason for this.  Mr Pill has been involved with his local football club and is currently the president of it.  He undertakes a range of administrative tasks in relation to this position.

6.      Mr Pill described his physical conditions as presenting him with difficulty in sitting or standing in one position or driving his car for any length of time.  He is unable to do the heavy physical work and can no longer take part in his former sports activities such as golf, bowls or fishing.  He has been advised that a knee replacement would improve his physical limitations.  However, he considers himself too young to undergo that procedure and is also concerned because of his previous episode of deep vein thrombosis.  In relation to his psychiatric condition, he still feels very low at times. He considered his asthma to be somewhat under control but as presenting with acute episodes on 2 or 3 occasions per year. 

Medical evidence

7.      Medical reports completed in this matter during the assessment period were prepared by Mr Pill’s treating medical practitioner, Dr Julia Collett, and occupational physician, Dr Christopher Oates.  Dr Collett completed a Medical Examination Form on 27 March 2006 where she assessed Mr Pill’s accepted disabilities on the following functional rating scale:

rating	description
0	no functional effect
1	minor effect on certain functions only
2	moderate effect on certain functions only
3	severe effect on certain functions only
4	severe or disabling effect on many functions
5	overwhelming effect on all relevant system functions

Dr Collett allocated the following ratings:

condition	rating
adjustment disorder with mixed anxiety and depressed mood	2
asthma	1
contact dermatitis	1
deep vein thrombosis right leg	0
osteoarthrosis of the left elbow	3
osteoarthrosis of the right knee	4

8.      In that report, Dr Collett marked a box to indicate that Mr Pill could work for “less than 8 hours per week” but, in answer to a question on the same form, she wrote that Mr Pill could work for “8 hours per week”.  Dr Collett also completed a more recent report.  It is dated 29 October 2007.  Therein, she noted that Mr Pill was appealing the decision that he is able to work for 20 hours per week.  She described his current activities, including the after-school program and his administrative work with the football club and wrote:

He would not be able to return to work full-time and at this stage I feel he would struggle with 20 hours per week.  He may be able to increase his current level if he had an appropriate job that did not require him to have prolonged periods of sitting or standing.  He certainly would not be able to have a job that involved manual labour type work.

9.      Dr Oates completed a detailed report on 20 July 2006.  He also gave evidence.  In his opinion, Mr Pill was capable of undertaking sedentary type non-manually intensive work for between 8 and 20 hours per week.  In particular, he would be able to undertake work which did not require him to sit or stand in one position for long periods but which enabled him to alternate between these postures.  Dr Oates was aware that Mr Pill had applied for work in a teaching situation and considered that he would be able to undertake this work on a part-time basis for short sessions.

Consideration

10.     Paragraph 24(1)(b) of the Act requires that the incapacity from Mr Pill’s war-caused diseases be such that it, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.  Dr Collett’s descriptions of work capacity are not entirely consistent.  She refers, in the same document, to the capacity to undertake 8 hours per week and also less than 8 hours per week.  However, in her more recent report, she doesn’t completely rule out the prospect of Mr Pill undertaking 20 hours per week although she said that he would struggle to do so.  She also referred to Mr Pill increasing his current level of work with an appropriate job where he did not have to sit or stand for prolonged periods.  As I read that description, it is consistent with the functional ratings which she allocated to Mr Pill’s accepted disabilities and which are noted above.  Importantly, it is also consistent with the evidence given by Dr Oates.  On Dr Oates’ evidence, Mr Pill is capable of working for more than 8 hours per week and the incapacity requirement of s 24(1)(b) of the Act is not met.

11.     On all the evidence, particularly that of Dr Oates who is an is an occupational physician, I am reasonably satisfied that Mr Pill’s circumstances do not reach the threshold requirement of incapacity provided for in s 24(1)(b) of the Act and, in that situation, he does not qualify for the special rate of pension.  It is not disputed that Mr Pill continues to meet the incapacity component of s 23(1)(b) of the Act in relation to the intermediate rate.

12.     As s 24(1)(b) the Act is not satisfied, it is unnecessary to consider the application of s 24(1)(c) of the Act in this matter.

Decision

13.     The Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:……………………………………………….         
  Legal Research Officer

Date of Hearing  20 November 2007
Date of Decision  28 November 2007
For the Applicant  Mrs H Smith
For the Respondent                  Mr J Kelly, Departmental Advocate