Pither and Repatriation Commission
[2004] AATA 574
•4 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 574
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/776
VETERANS' APPEALS DIVISION
)
Re
SHARON PITHER
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member J.R. Dwyer
Dr P.D. Fricker, MemberDate 4 June 2004
PlaceMelbourne
Decision The Tribunal sets aside the decision under review. In substitution, the Tribunal decides that Mr Pither was entitled to special rate pension from 24 June 1999 to 19 July 2001.
[sgd] Mrs Joan Dwyer
Senior Member
VETERANS' APPEALS – special rate of pension – requirement that the veteran be prevented from continuing to undertake remunerative work that he or she was undertaking by reason of incapacity from war-caused injury or disease – requirement that veteran be suffering a loss of salary or wages by reason of inability to undertake remunerative work –finding that veteran retired because he could no longer cope with work because of war-caused diseases – decision under review set aside.
PRACTICE AND PROCEDURE – account taken under s 119 Veterans’ Entitlements Act 1986 of difficulties in obtaining medical evidence.
Veterans' Entitlements Act 1986, ss 22, 24, 27(1), 119, 175.
REASONS FOR DECISION
4 June 2004 Senior Member J.R. Dwyer
Dr P.D. Fricker, Member1. This is an application under s 175 of the Veterans’ Entitlements Act 1986 (“the Act”) for review of a decision of the Veterans' Review Board (“the VRB”) made on 28 May 2002 (“the reviewable decision”). The reviewable decision set aside an earlier decision of the Repatriation Commission (“the Commission”). In substitution, the VRB decided that Mr Pither was entitled to pension under the Act at 100% of the general rate, with a special disability allowance at the rate applicable to Item 12 of s 27(1) of Act (one leg amputated below the knee) from 24 June 1999; and from 25 May 2000 was entitled to the extreme disablement adjustment.
2. Mr Pither died on 19 July 2001. Ms Pither, as the executor of Mr Pither’s estate, has sought review of the reviewable decision. She claims that Mr Pither was entitled to pension at the special rate, under s 24 of the Act, from 24 June 1999 to the date of his death.
3. At the hearing, Mr Dalmau, a Senior Advocate with the Bass Coast Veterans’ and Dependants’ Welfare Centre, appeared for Ms Pither. Ms McCulloch, an advocate with the Department of Veterans’ Affairs appeared for the Repatriation Commission. The Tribunal had before it the documents (“the T Documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the exhibits tendered during the hearing. Ms Pither and her brother, Mr Roberts, gave evidence. The Repatriation Commission did not call any witnesses.
THE RELEVANT LEGISLATION
4. Section 24 of the Act provides that a special rate of pension is payable to a veteran in certain circumstances. So far as relevant, it provides:
(1) This section applies to a veteran if:
…
(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
…
(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. …
BACKGROUND FACTS
5. Mr Pither served in the Australian Army ("the Army") from 1952 to 1961. He had operational service in Korea and with the Far East Strategic Reserve. Following his discharge from the Army, he commenced work with the Department of Defence Signals Branch (“Defence Signals”) in February 1962. He worked there for almost thirty years, until 10 January 1992 (R2 p37). At that time, Defence Signals was in the process of relocating from Melbourne to Canberra. Mr Pither did not move to Canberra.
6. The respondent produced a copy of Mr Pither’s Defence Personnel File (R2). It includes a letter dated 14 August 1991 (R2, p57) which acknowledges receipt of notification from Mr Pither that “you will be unable to transfer to Canberra”. Unfortunately, the notification from Mr Pither is not on the file. The letter of 14 August 1991 advised Mr Pither that as a consequence of his decision not to transfer to Canberra he had “been placed on the unattached list” in order to allow his position to be filled in Canberra. The letter continues:
As outlined in DTM 2086, of 5 September 1990, you are now classified a potentially surplus to the requirements of the DSD and the Department of Defence.
Though you and all potentially surplus staff may reasonably assume that you will continue to be employed by DSD until the second wave is completed, ie January 1993, you should now commence investigation of your redeployment options.
7. On 30 December 1991, Mr Pither gave written notice of his intention to retire at completion of his shift on 10 January 1992 (R2, p37). The evidence is that he did retire on that day.
8. In 1995, Mr Pither moved from Melbourne to Cowes on Phillip Island.
9. The records of the Department of Veterans’ Affairs (“DVA”) do not seem to note when Mr Pither first applied to have his conditions accepted as war-caused diseases under the Act or its predecessor (T docs, index). However, he wrote that “left otitis media” and “ischio rectal abscess” were accepted as war-caused on discharge (T14, p58). Pension at 20% of the general rate under s 22 of the Act was paid in respect of those conditions prior to 24 September 1999.
10. On 24 September 1999, Mr Pither made a claim for “diabetes mellitus, loss of right leg below knee, renal impairment, ulcerated left leg, [and] heart disease” to be accepted as war-caused diseases (T3, p9). He sought a higher rate of pension taking into account those conditions. He wrote:
My diabetes and resultant problems with amputation of lower (R) leg, poor circulation, kidney failure, heart disease, and occasional leg ulcers all preclude me working or seeking employment. At the time of ceasing work I was suffering major health difficulties and medical advice received was to cease work. I was not aware that I could apply for a DVA pension.
11. By letter of 3 November 1999 (T11 pp48‑53), Mr Pither was advised that a delegate of the Commission had accepted “diabetes mellitus with nephropathy and ulcerated left leg, peripheral vascular disease with right below knee amputation, secondary cardiomyopathy and ischaemic heart disease” as war‑caused. The delegate decided to increase Mr Pither’s disability pension to 100% of the general rate with effect from 24 June 1999. In addition, Mr Pither was granted a special disability allowance for “one leg amputated below the knee”, under s 27(1) (Item 12) of the Act. Acceptance of the additional conditions was backdated to the maximum of 3 months prior to the lodgement of the claim, 24 June 1999.
12. In considering whether the intermediate rate, the special rate or the extreme disablement rate were payable to Mr Pither, the delegate, in the letter dated 3 November 1999 (T11), wrote:
Pension at the higher rate, ie Intermediate rate and the Special rate (T&PI), is not payable in this case. These pensions are not payable if there are other factors which contribute to your inability to work. According to the information which has been provided, I note that you have not been in employment since 1991 and at the time of the application were over 64 years of age. Therefore I find that the time out of the workforce and your age at the time of the application would now also be significant factors in preventing you from engaging in remunerative employment and you are not suffering a loss of earnings because of your war caused disabilities alone. Therefore, pension cannot be paid at the Intermediate Rate or the Special Rate.
…
I have also determined that you do not qualify for pension at the Extreme Disablement Adjustment (EDA) rate as you are not yet 65 years of age, which is a pre-requisite for payment of EDA. (T11, p 51)
13. On 12 November 1999, Mr Pither sought review by the VRB of the decision not to grant special rate of pension (T13). In its reasons for decision of 28 May 2002 (T2, xvii), the VRB said:
It cannot… be said as a probability that the veteran’s war-caused disabilities alone prevented him from continuing to undertake remunerative work. It follows that the first limb of paragraph 24(1)(c) of the Act is not satisfied and that there is accordingly no entitlement to the Special rate of pension. For the same reasons, the requirements of paragraph 23(1)(b) of the Act are not satisfied and there is no entitlement to the Intermediate rate of pension. (T2 xvii)
14. The VRB noted that, having attained the age of 65 on 25 May 2000, Mr Pither was entitled to the extreme disablement adjustment (“EDA”) from that date until the date of his death on 19 July 2001. Accordingly, the decision of the Commission was set aside, and in substitution, Mr Pither was found to be entitled to the EDA from 25 May 2000 – 19 July 2001, in addition to general rate of pension and the special disability allowance for the leg amputated below the knee, as had previously been granted.
ISSUES AT THE HEARING
15. The issue at the hearing was whether Mr Pither was entitled to the special rate of pension under s 24 of the Act. He had not yet turned 65 on 17 September 1999 when he made his claim for pension in respect of additional conditions and applied for an increase in rate of pension. Thus, s 24(1)(aab) is satisfied.
16. Ms McCulloch accepted that paragraphs 24(1)(a) and 24(1)(b) of the Act were met. She did not dispute that the degree of Mr Pither’s incapacity from war-caused disease was 70% or more. Nor did she dispute that on 24 September 1999 Mr Pither was totally and permanently incapacitated for work due to incapacity from war-caused disease alone.
17. However, Ms McCulloch submitted that Mr Pither did not satisfy s 24(1)(c), as he had ceased work for reasons other than his accepted disabilities. As set out above, in paragraph 4 of these reasons, s 24(1)(c) requires that:
(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; …
18. Subsection 24(2) of the Act assists in the interpretation of paragraph 24(1)(c). It provides, as set out above:
(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.
19. Ms McCulloch submitted that the Tribunal should find that Mr Pither had left work because he preferred a retirement lifestyle and, thus, that s 24(2)(a)(i) of the Act applied. She submitted that Mr Pither should not be taken to be suffering a loss of salary or wages by reason of incapacity from war-caused disease alone, because he ceased to engage in remunerative work for reasons other than his incapacity from war‑caused disease.
20. Because Mr Pither had died on 19 July 2001, there were some gaps in the evidence which could not be filled. Ms McCulloch submitted that the fact that Mr Pither had stated in his claim for service pension (R6), on 11 August 1997, that he lived at Cowes on Phillip Island and that he owned a boat and a caravan was sufficient for the Tribunal to find that he left work in order to obtain a redundancy payment on retirement, and to enjoy a retirement lifestyle on Phillip Island with a boat and caravan.
21. There was evidence at the hearing that Mr Pither moved in 1995 from Clayton to a unit he had bought at Cowes in 1993. We indicated at the hearing that the fact of him having a 1975 model boat and a 1979 model caravan did not satisfy us that his retirement from his employment on 10 January 1992 was "for reasons other than his … incapacity".
22. Mr Dalmau acknowledged that the evidence in this matter is “skimpy”, due primarily to the fact that Mr Pither is dead and that there is no detailed statement from him as to the issues relevant to this matter. However, Mr Dalmau submitted that the only evidence available indicates that, on the balance of probabilities, Mr Pither retired for reasons of health and that he was prevented from continuing to undertake the remunerative work that he was undertaking with Defence Signals by reason of incapacity from his accepted war‑caused diseases alone.
23. The evidence that Mr Dalmau relied on was, first, Mr Pither's own statements at T documents pages 9, 30 and 59. In his claim lodged on 24 September 1999. Mr Pither answered "yes" to the question "Have the disabilities you are now claiming affected your employment or your ability to seek employment at any time?". He added (T3 p9):
My diabetes and resultant problems with amputation of lower (R) leg, poor circulation, kidney failure, heart disease, and occasional leg ulcers all preclude me working or seeking employment. At the time of ceasing work I was suffering major health difficulties and medical advice received was to cease work. I was not aware that I could apply for a DVA pension.
24. On 4 October 1999, Mr Pither filled in an employment questionnaire (T8, p3). In answer to the question "When did you cease work and why?" He wrote:
1991 - due to medical conditions was advised to cease work due to increasing difficulties. Could no longer cope.
25. Mr Pither wrote a letter in support of his application dated 16 December 1999 (At T15, p59). He wrote:
In 1961 after discharge from the Army, I accepted a position with the Department of Defence in Melbourne. It was always my intention to work until normal retirement age, and thereafter rely on my Superannuation for an income. Unfortunately my medical condition precipitated my early exit from the workforce at age 57.
Due to my finishing work early, I was unable to take full advantage of my Superannuation; in fact I was only able to take 36% of the full entitlement due at age 65.
I have been financially disadvantaged by being forced to cease work early, due to my poor health. [emphasis added]
26. In addition to those documents which were identified by Mr Dalmau, we see that Mr Pither prepared a chronological history of his medical condition, relevant to his claim (T14, p58). He wrote:
1961Hearing Loss and Rectal Abscess – accepted disabilities on discharge from Army. Treatment has been ongoing until the present time.
1986Diabetes Mellitus 2 – Ongoing treatment and medication until the present time.
1986Renal Impairment – resulting in ongoing treatment and medication until the present time.
1992Three operations in one month, resulted in the amputation of my right leg below the knee. Prosthesis, rehabilitation and medication continue until this time.
1992Ulcerated left leg below knee, due to poor circulation. Medication and treatment, currently on a daily basis.
1996Heart Disease which has resulted in a pacemaker, along with medication and ongoing treatment until the present time.
27. There are some inaccuracies as to dates in Mr Pither’s chronology. The Monash Medical Centre records (R5) show that the three operations in one month, which resulted in the amputation of Mr Pither’s right leg below the knee, took place in July 1993 and not in 1992. However, the Monash Medical Centre notes do confirm that Mr Pither was suffering from a number of conditions at the time of his admission on 17 July 1993. They are listed as:
1. PVD [Peripheral Vascular Disease] RECENT (R) BALLOON ANGIOPLASTY
2. SILENT AMI [Acute Myocardial Infarct] ANTEROSEPTAL
3. C.C.F [Congestive Cardiac Failure]
4. IDDM [Insulin Dependent Diabetes Mellitus]
5.CEREBROVASCULAR DISEASE – TIA (L) [Transient Ischaemic Attack (left)] CORTICAL ISCHAEMIA
6. EX-SMOKER
7. WARFARIN TREATMENT
28. There is confirmation of the fact that Mr Pither's was in poor health in 1986 in the Defence Personnel File (R2), which shows that Mr Pither was off work for more than 13 weeks in 1986, and that there was consideration given to sending him for examination by the Commonwealth Medical Officer at that time (R2, pp83‑86).
29. The Tribunal had before it a statement from Mr Pither's stepson, Mr Roberts. He lived with Mr Pither from approximately 1984 until 1995, when Mr Pither moved to Cowes. Mr Roberts wrote in his statement (A3):
...
Between 1984 and when he was made redundant in early 1992 I would do all the cooking, laundry, house cleaning and gardening. Later on in that period he would become breathless if he would do any physical work.
At the same time he had a very strong work ethic. He would not take a day's sick leave no matter how bad he felt. As well as that he was devoted to his work and he would put his job before anything else.
He did not want to go to Canberra because there he would not have any one to look after him and he did not like Canberra after living up there before. He could not handle the cold weather.
I believe that at that time the only reason he was able to continue working was because I was able to look after him.
He positively did not want to stop work.
He loved his job, he loved working and he needed to work to get enough money to live other than his redundancy lump sum which he try to keep intact, he had very little income from his superannuation. He was annoyed that his early redundancy limited his super payments.
30. At the Tribunal’s request, Mr Roberts came into the hearing in order to amplify his statement and be cross‑examined. Unfortunately, the Tribunal concluded that Mr Roberts was somewhat confused as to dates. We find that Mr Pither was not a man who discussed his concerns with his family members, such as Ms Pither and Mr Roberts. We find that, although Mr Pither and Mr Roberts lived in the house together, and Mr Roberts assisted with the cooking and house work, Mr Roberts was not fully informed as to the reasons why Mr Pither did not go to Canberra. Mr Roberts did not know that Mr Pither had, apparently, retired from his position with Defence Signals in January 1992, even though by letter dated 14 August 1991, he was told he could reasonably assume his employment would continue. Nor did Mr Roberts know anything about the doctors Mr Pither was attending in the early 1990s. He did not know what doctor would have told Mr Pither that he should give up work in January 1992.
31. Ms Pither, Mr Pither's daughter, also gave evidence. However, she was not living with her father during the period prior to 1992. She said that she did not see him frequently, until he was discharged to her care after the amputations in 1993. Ms Pither said that in the 1980s her father had difficulty breathing and had problems with his diabetes as he could not get it stable. That is confirmed in the Monash Medical Centre notes which describe him as having unstable diabetes (R5, p12).
32. The impression we gathered from the evidence of Ms Pither and Mr Roberts was that Mr Pither was a private man who did not discuss his problems with the family. He acknowledged that himself. He wrote (T5, p16):
My disabilities placed strain on my married [sic] (now divorced). I am in pain often (and was for years). I do not discuss my problems.
Both his children said he enjoyed his work very much, had a very strong work ethic and would have worked as long as he was able to do so. The fact that he did remain with Defence Signals for 30 years is consistent with his enjoying that work and having a good work ethic.
33. The only evidence we have as to the reasons why Mr Pither did not continue his employment are his statements first, that he was prevented from continuing to work because he could no longer cope because of his war‑caused disabilities, and secondly, that he was given medical advice to cease work.
34. The respondent was of the view that Mr Pither had been seeing a Dr Bennett during the relevant period. The respondent attempted to obtain Dr Bennett’s clinical notes. The Tribunal received a letter from him (R1) explaining that he had sold his practice and had been informed by the new practice that his clinical records, covering the period prior to 1992, had been shredded. Dr Bennett wrote that, without the records to jog his memory, he could not remember Mr Pither.
35. After the hearing, the Tribunal found a note in the Monash Medical Centre file (R5, p16) stating that Mr Pither’s treating general practitioner as at 17 July 1993 was Dr Massage of Clayton. We arranged for the District Registrar to write to the respondent requesting that efforts be made to locate Dr Massage. We were advised by the respondent that, although Dr Massage had been located, he too had retired and, although enquiries were made of his former practice in Clayton, Mr Pither’s records were unable to be found.
36. Mr Dalmau submitted that the Tribunal should accept Mr Pither’s statements that the reason he left work in January 1992 at age 56 was because he could no longer cope with work due to his major health difficulties. We find that, at that time, he had unstable diabetes, renal impairment, peripheral vascular disease and heart problems, as well as the earlier accepted hearing loss and rectal abscess. We note that a nine year history of intermittent claudication was noted at Monash Medical Centre on 17 July 1993 (R5, p16). At that time, Mr Pither reported that he suffered claudication after walking 100 metres.
37. Taking into account Mr Pither’s severe health problems which ultimately lead to amputation of the right lower leg due to gangrene in July and August 1993, and to left ventricular failure in September 1993 (R5, p15), we have no reason to doubt Mr Pither’s statements that he was advised to give up work in January 1992, because of his severe health problems.
38. That conclusion is also supported by the evidence of Ms Pither and Mr Roberts as to Mr Pither loving his work and having a very strong work ethic. Mr Roberts said he went to work even when he was not well. That evidence supports a finding that Mr Pither would not have left work unless he had to do so, for medical reasons.
39. There is a further relevant statement before us. A social worker at the Monash Medical Centre interviewed Mr Pither on 3 May 1994. She wrote:
He reluctantly retired 2 years ago from Defence Force after working with them for 30 years. The Department moved to Canberra however he maintains regular contact with colleagues.
In that interview, the social worker noted that Mr Pither was living in a rented house in Clayton (A4, p11).
40. We find from the letter from his employer of 14 August 1991 (R2, p57) that Mr Pither could have worked on with Defence Signals until January 1993. We find from the letter Mr Pither wrote on 16 December 1999, that he lost a considerable amount by way of superannuation due to leaving work early (T15, p59). That indicates to us that if Mr Pither had been fit to go on working, he would probably have done so, rather than leave early and be entitled only to a low rate of superannuation pension.
41. Ms McCulloch submitted that we should find that one factor that led Mr Pither to retire was his entitlement to a redundancy payment. However, we find that is not so. Mr Pither's entitlements on retirement consisted only of recreation leave, leave bonuses and long service leave. He did not receive any redundancy payment (R2, p44). That may be because he had been told that he could work until January 1993.
42. Ms McCulloch did not dispute that, as at the assessment date, Mr Pither was prevented from continuing to undertake remunerative work, but she seemed to suggest that it was not by reason of incapacity from war‑caused disease alone, but also because of his decision to retire in 1992 rather than to continue working. As we have found that the retirement was, on the balance of probabilities, because Mr Pither could no longer cope with work, because of incapacity from his accepted war‑caused diseases, we reject that submission.
43. We also reject Ms McCulloch's submission that, because all Mr Pither’s statements in the T documents were self‑serving, in the sense that they assisted his application for an increase in pension, we should regard those statements as unreliable. We would only do so if we had some reason to doubt their truth. There is no such reason on the material before us. Rather, the evidence is that Mr Pither did not even claim his entitlements. There is no doubt, from the medical history in the clinical notes from the Monash Medical Centre (R5), that Mr Pither had had problems with diabetes and ischaemia prior to July 1993, when his right leg was amputated below the knee. The medical history sheet for 17 July 1993 indicates that, when admitted on that day, Mr Pither gave a history of nine years of intermittent claudication. The fact that Mr Pither had been suffering from diabetes for many years is confirmed in the correspondence from the Monash Medical Centre (R7) which states that Mr Pither was diagnosed as having diabetes in 1984. But Mr Pither made no claim to have his diabetes or ischaemic heart disease accepted as war-caused at any time until 1999. As soon as he did, the conditions were accepted.
44. It is relevant, in regard to Ms McCulloch’s submission, that Mr Pither's medical records at the Monash Medical Centre (A4, p11) include a social work report of 3 May 1994. On that occasion, Mr Pither had been referred to the Social Work Department of Monash Medical Centre, because he had concerns about the cost of medication. The note says he was interested in knowing whether he was eligible for any financial assistance. Mr Pither seems to have been in a bad way. It is unfortunate that Mr Pither was not advised at that time to lodge a claim under the Act to have his conditions accepted as war-caused.
45. Mr Pither, as already noted, told that social worker that he had retired “reluctantly”. That statement was made five years before the lodging of the claim and application for increase with DVA and much closer in time to actual retirement than the statements made in 1999. We have no reason to doubt the accuracy of that statement made to a social worker in 1994, or the truth of the statements made in 1999 to the effect that Mr Pither had to retire because he could no longer cope with work for medical reasons.
46. Ms McCulloch sought to rely on s 24(2)(a) of the Act on the basis that we should find that Mr Pither ceased to engage in remunerative employment in order to enjoy a lifestyle with a boat and a caravan on Phillip Island. We find there is no evidence to support such a finding. Many people own boats and caravans and even houses on Phillip Island and go on working. The mere fact that Mr Pither had those assets cannot lead to a finding as to the reason why he retired. Further, Mr Pither did not move to Phillip Island on his retirement, or even as soon as he bought the unit on Phillip Island. He seems to have bought it in 1993 but did not move to Phillip Island to live until 1995.
47. It would of course have been preferable it there had been medical evidence available as to the state of Mr Pither’s health in December 1991 and January 1992, and also evidence from the doctor who Mr Pither said advised him to cease work at that time.
48. We note that Mr Dalmau offered to provide the VRB with further medical reports at the hearing on 28 May 2002. We consider it unfortunate that the VRB said that was not necessary (R4, p4). At that time, there would have been more chance of obtaining records and a report from Dr Bennett and Dr Massage.
49. Section 119 of the Act provides that the Commission is not to be bound by technicalities. Subsection (1) provides:
119(1) In considering, hearing or determining, and in making a decision in relation to:
(a)a claim or application;
...
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
50. In this matter, we have decided that it is appropriate to take into account the difficulties that lie in way of obtaining medical confirmation of Mr Pither’s statements that he retired from his employment for medical reasons due to conditions which are now, but were not at that stage, accepted as war‑caused. There is also of course the additional difficulty caused by Mr Pither's death, which means that he could not provide further information to clarify his statement.
51. Bearing those difficulties in mind, it seems appropriate to us to make our decision on the evidence which is before us. On that evidence we find, on the balance of probabilities, in accordance with the statements of Mr Pither and the support for those statements in the medical history and the social worker's report and the reference to Mr Pither “being unable to transfer to Canberra” (R2, p57), that it was Mr Pither's medical condition which prevented him continuing to work for the Department of Defence at least up until January 1993. It had been indicated to him in the letter of 14 August 1991 that he could reasonably expect to remain in his employment in Melbourne until that time.
52. Thus, we find the first requirement of s 24(1)(c) of the Act satisfied. We find that Mr Pither was prevented from continuing to undertake the remunerative work that he was undertaking, by reason of his incapacity from war-caused disease alone. Section 24(1)(c) also requires that Mr Pither, by reason of that incapacity, be suffering a loss of salary or wages that he would not be suffering if he were free of his incapacity from war‑caused disease.
53. Having found, as we have, that it was incapacity from war‑caused disease alone, that prevented Mr Pither continuing to undertake remunerative work, we find that he suffered a loss of salary or wages after his retirement, when, instead of receiving his salary or wages, he was receiving a superannuation pension which he wrote was only 36% of the full entitlement at age 65. He wrote that he had been financially disadvantaged by having to leave work early (T15, p59). Mr Roberts and Ms Pither gave evidence that he moved to Cowes in 1995 because he could no longer afford the rent at Clayton. There is also evidence in the report of the social worker that in 1994 Mr Pither was concerned about the cost of medication. Those were problems we would not have expected if he was still earning a full salary from his employment at Defence Signals.
54. We do not find under s 24(2)(a)(ii) of the Act that, when he lodged his claim in September 1999, Mr Pither was prevented from engaging in work for any reason other than his incapacity from war-caused disease. It is clear from the medical records that his health was extremely poor and that he could not have worked at that time. That was conceded by Ms McCulloch. But she relied on the argument, which the VRB seem to have accepted, that other factors which prevented Mr Pither working, as at the application day, were that he was aged 64, had been out of the workforce for eight (in fact seven) years, and resided in a rural area.
55. In our view, those factors are not relevant in the situation in which Mr Pither found himself. First, we do not accept that his age of 64 was a factor preventing him from working. He had skills which did not require him to perform physical work. There is no evidence to suggest that he could not have continued the work he had been doing to age 65, if he was free of incapacity from war-caused disease. Secondly, we find that the only reason Mr Pither had been out of the work-force for those seven years was that he had been prevented from continuing his remunerative work with Defence Signals because of his incapacity from war-caused disease. Thirdly, the evidence is that Mr Pither moved to his unit at Phillip Island in 1995 to save money so he did not have to continue paying rent for the home in Clayton. At the time of the move, he had had the right leg amputation and had heart problems. He did not move to Phillip Island to enjoy an active boating lifestyle, but to live cheaply, as he no longer had his salary or wages from employment. That was the evidence of Ms Pither and Mr Roberts. He had not been able to go on working for health reasons after January 1992, even when he was living in Clayton. Ms Pither said that after Mr Pither had his leg amputated, he did not drive much. Mr Roberts said that he went downhill after the amputation and lost interest in things. He said he spent time in bed in the mornings and did not go out much at all. We find he was prevented from working due to incapacity from war-caused disease alone.
56. We find that s 24(2)(a) of the Act does not apply so as to require that Mr Pither not be taken to have been suffering a loss of salary or wages. We find s 24(1)(c) of the Act is satisfied.
The decision under review will be set aside. In substitution, we will decide that Mr Pither was entitled to the special rate pension from 24 June 1999 to 19 July 2001.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer and Dr Fricker, Member.
Signed: Josephine McKay
AssociateDate/s of Hearing 16 March 2004
Date of Decision 4 June 2004
Advocate for the Applicant Mr Dalmau
Advocate for the Respondent Ms McCulloch
0
0
0