Public Trustee as Legal Personal Representative of Ian Lee (Deceased) and Repatriation Commission

[2004] AATA 1409

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1409

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   W2003/222

VETERANS’ APPEALS DIVISION		)
Re		PUBLIC TRUSTEE as legal personal representative of IAN LEE (deceased)

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal   M J Allen, Member

Date  24 December 2004

Place  Perth

Decision The decision of the respondent made on 3 September 1999, as affirmed        by the Veterans’ Review Board on 2 October 2000, to pay disability pension at 90% of the general rate rather than at the special rate, is affirmed.

..........( sgd M A Allen)............

Member  

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – disability pension – whether pension should be paid at special rate – a number of accepted conditions, including psycho-active substance dependence – those conditions, of themselves, sufficient to render the veteran incapable of undertaking remunerative work – veteran also suffering from other physical ailments – veteran accepted redundancy offer – veteran not in employment for some years prior to commencement of assessment period – finding that the accepted disabilities were not the only factor preventing the veteran from undertaking remunerative work – other non-war-caused conditions in combination also affected that ability – finding that veteran had not been genuinely seeking to engage in remunerative work or would be continuing to so seek remunerative work but for the war-caused incapacities – requirements of s24(1)(c) not satisfied – decision affirmed.

Veterans’ Entitlements Act 1986 ss 24, 126

Banovich v Repatriation Commission (1986) 69 ALR 395
Flentjar v Repatriation Commission (1998)48 ALD 1
Forbes v Repatriation Commission [2000] FCA 328
Repatriation Commission v Hendy [2002] FCA FC 424
Repatriation Commission v Van Heteren [2003] FCA 888

REASONS FOR DECISION

24 December 2004 M J Allen, Member  

1. This is an application for review of a decision made by a delegate of the respondent on 3 September 1999, as affirmed by the Veterans’ Review Board (“VRB”) on 2 October 2000, to pay to Mr Ian Lee deceased (Mr Lee) a disability pension at 90% of the general rate and not to pay disability pension at the special rate provided by s 24 of the Veterans’ Entitlements Act 1986 (“the Act”). The application was lodged with this Tribunal by Mr Lee prior to his death on 16 November 2003 and the matter is continued by the Public Trustee as the legal personal representative of Mr Lee pursuant to s 126 of the Act.

2. At the hearing of the matter Mr Lee’s estate was represented by Ms Cowan, a solicitor retained by the Public Trustee for that purpose, and the respondent was represented by Mr Ponnuthurai, an officer of the Department of Veterans’ Affairs. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (T1-T6) together with Exhibits A1-A3 tendered on behalf of Mr Lee’s estate and Exhibits R1-R7 tendered by the respondent.  Oral evidence was given in support of Mr Lee’s claim by Ms Heather Mary Duckworth.

background

3.      Mr Lee was born in December 1946 and served in the Royal Australian Airforce (“the RAAF”) between February 1968 and March 1973.  He rendered operational service between March 1969 and March 1970 and eligible defence service between December 1972 and March 1973.

4.      In December 1995 Mr Lee applied to the respondent to have accepted as war-caused a number of disabilities.  In 1996 and 1999 decisions were made to accept as war-caused the conditions of irritable bowel syndrome, psycho-active substance dependence, bilateral sensorineural hearing loss, chronic gastritis and post traumatic stress disorder.  Conditions that were considered but rejected as war-caused were peptic ulcer, inadequate personality and chronic obstructive airways disease.

5. In September 1999 the respondent assessed Mr Lee’s disability pension entitlement at 90% of the general rate and, upon review, the VRB affirmed that decision on the basis that Mr Lee did not satisfy the requirements for payment of a pension at the special rate provided for in s 24 of the Act.

6. The parties agreed that the issue for determination by the Tribunal in the present proceedings was whether the requirements of s 24 of the Act were satisfied by Mr Lee during the applicable assessment period – which the parties agreed commenced on 28 December 1995 when Mr Lee’s application was lodged and ended on the date of his death on 16 November 2003.

7. The requirements of s 24 to be satisfied are set out in subsection 24(1). Paragraphs 24(1)(aa), (aab) and (a) require a veteran to have made a claim, to be under the age of 65 years when the claim was made, and to have a degree of incapacity from war-caused injury or disease of at least 70% (as determined under s 21A of the Act). It is not in dispute that Mr Lee satisfied all of those requirements.

8.      Section 24(1)(b) requires that: “(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 of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week”.

9. Although a Statement of Facts and Contentions filed on behalf of the respondent prior to the hearing contended that Mr Lee did not satisfy this requirement, Mr Ponnuthurai conceded at the hearing that the requirements of s24(1)(b) were indeed satisfied, and I note that the VRB was also satisfied of those requirements. In light of reports from a psychiatrist, Dr Fellows-Smith (Tp71), and from Dr John Ker (Exhibit R1), I am satisfied that the requirements of that subsection are indeed satisfied.

10. In relation to s24(1)(c), as R D Nicholson J explained in Forbes v Repatriation Commission [2000] FCA 328 at [14], that paragraph is best understood by dividing it into 2 limbs and relating those limbs to the relevant portions of what follows in s24(2). At [15] his Honour set out these provisions relevantly as follows:

15 The first limb of s 24 (1)(c) reads:

"(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..."

(d) ..."

That limb must be read subject to the application of s 24 (2)(b) which reads:

"(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."

The second limb of s 24(1)(c) reads:

"(c) ... 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"

This is to be read in conjunction with s 24(2)(a) which provides:

(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 ... ."

11.     The Full Federal Court in Flentjar v Repatriation Commission (1998) 48 ALD 1 said at [4] – [5] that when considering the requirements of s 24(1)(c) the questions that the Tribunal must answer are as follows:

“1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act.

2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”

12. In relation to the first of the above questions, the reference in s 24(1)(c) to “remunerative work” refers to the type of work in which Mr Lee had engaged and not to his last form of employment, or to a particular job with a particular employer: see Banovich v Repatriation Commission (1986) 69 ALR 395. Mr Lee’s work history was summarised in a statutory declaration made by him in November 2001 (Exhibt A3).Prior to his service in the RAAF Mr Lee worked as a blacksmith and welder in NSW.  After his discharge from the RAAF in 1973 he worked for about a year as a bench fitter and then for about 2 years as a barman/cellarman at a licensed club.  Between 1976 and January 1991 Mr Lee worked as a trades assistant for a mining company in Port Hedland in Western Australia.  He ceased fulltime employment in January 1991 and then registered with the Commonwealth Employment Service and was granted Newstart Allowance from the Department of Social Security.  For a short-time Mr Lee obtained some casual labouring work for a stevedoring company of no more than 2 or 3 days per month.  Paragraph 10 of Exhibit A3 contains a statement by Mr Lee that he received a service pension from the Department of Veterans’ Affairs in 1992 and had not sought work since that time.  It appears from Exhibit R6 (which is a claim form lodged by Mr Lee with the respondent in early 1996) that Mr Lee did not receive a service pension until that time and prior thereto he had been in receipt of some form of disability pension from the Department of Social Security.  However, the parties agreed that Mr Lee had not worked, nor had he sought work, after 1992.

13.     The parties agreed (and I find) that the relevant type of employment of Mr Lee was that of an unskilled labourer.  However, as noted above, for some years prior to the commencement of the assessment period Mr Lee had not engaged in any form of remunerative work.

14. In relation to the second of the Flentjar questions, the answer is essentially provided by the finding that has been made in relation to the requirement of s24(1)(b). The respondent did not dispute the finding of the VRB that Mr Lee’s conditions of post traumatic stress disorder and psycho-active substance dependence (in particular a chronic alcohol dependence) were sufficiently serious to prevent Mr Lee from working 8 hours per week. Accordingly, the answer to the second question is yes.

15.     In relation to the third Flentjar question, it is clear from authorities such as Repatriation Commission v Hendy [2002] FCA FC 424 and Repatriation Commission v Van Heteren [2003] FCA 888 that the Tribunal is “required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work.  … the decision maker is required to consider the effect, contribution to, and relevant weight to be attached to any or all of those factors during the assessment period.”:  Hendy at [37]. In Forbes at [39] and [40] R D Nicholson J said that:

“39…the question whether the veteran by reason of the war-caused condition  “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists.  The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition.  The possibility of combination is recognised in the third conceptual environment identified in the applicant’s case.  Furthermore it is consistent with the application by a Tribunal of a commonsense approach “with an eye to reality”.

40  As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non-war caused condition having such effect in combination.  The result is that the presence of the latter will deny to a veteran qualification for a special rate of pension.  Parliament has sought to ameliorate this position by the provisions in s 24(2)(b)…”

16.     In order to answer the third Flentjar question in relation to Mr Lee it is necessary to examine the evidence concerning his work history and state of health.

17.     As noted above, Mr Lee worked for a mining company between 1976 and 1991.  It appears that his chronic alcohol consumption started to become a problem soon after he commenced that employment.  In 1988 Mr Lee was dismissed by his employer for what was said to be an excessive level of absenteeism and a failure to perform duties in accordance with his contract of employment.  Exhibit R3 is the decision of the Western Australian Industrial Relations Commission delivered in December 1988 in respect of that dismissal.  The Commissioner concluded that Mr Lee’s drinking habits were not irrelevant to his absences from work and that alcohol consumption was probably a significant factor in that (Exhibit R3, p5).  The Commissioner reviewed the history of Mr Lee’s employment up to that time, noting that between 1977 and 1983 Mr Lee had been formally warned or reprimanded on a number of occasions and that in 1984 various medical authorities had assessed Mr Lee – partly in relation to a recurring knee injury and partly for counselling in connection with his combat experience in Vietnam (Exhibit R3, p2).  In the event, the Commissioner ordered that Mr Lee be reinstated to his position.

18.     In a medical report provided by Mr Lee’s general practitioner, Dr Bowater, in 1996, Dr Bowater said that Mr Lee was unemployable because of his alcohol consumption, although Dr Bowater noted that the applicant also had osteoarthritis of the right knee (Tpp 4 and 6).

19.     In evidence given by Mr Lee to the VRB in May 1999 in connection with the assessment of some of his claimed disabilities, he is recorded (Tp30) as having informed the VRB that

“…he had a knee operation in the 1980s and this condition caused him considerable problems at work, particularly in cold weather.  It caused problems walking down stairs and ladders and he had taken time off because of this condition as well as for his alcohol dependence.  Since leaving work with Mt Newman Mining he had done some work labouring for a few days per month but found that his knee caused him such problems that he had to “give it away”, finding even a half shift of 6 hours too much.  This occurred 6 to 7 weeks after leaving Mt Newman Mining.  In all he had worked 3 twelve-hour shifts, two half-day shifts (6 hours) and one 12 hour shift.”

20.     In a report provided to the respondent in August 1999 (Tpp 39-42) Dr Bowater referred to the applicant’s non-war-caused conditions, including the osteoarthrosis of the right knee but stated that those disabilities did not affect Mr Lee’s ability to work.

21.     In October 2000 Mr Lee again gave evidence to the VRB and Exhibit R5 is a transcript of the proceedings of the VRB at that time.  In his evidence Mr Lee said that he drank about 15 cans of full strength beer each day and sometimes more on weekends.  He confirmed that he had had a knee operation in 1980 but that since 1980 he had not really ever been unable to work as a result of his knee.  Rather, he had used his knee condition as an excuse to explain his absences from work when he worked for Mt Newman Mining and to explain why he could not handle the work aboard ships subsequently.  Mr Lee said that following his reinstatement to his job at the end of 1988 and a subsequent rehabilitation program for his alcohol dependence he had improved in his work performance somewhat but continued to have periods off work.  When his employer offered a round of redundancies in 1990 he had been told by the employer and his union representative that if he did not take a redundancy he was going to be sacked eventually.  Accordingly he had decided to take the redundancy that was offered.

22.     Mr Lee was referred to the evidence that he had given to the VRB in 1999 about his knee condition causing problems at work and he responded by saying that he now realised that he was telling lies and that the knee was an excuse to cover alcohol problems.

23.     In a report of June 2001 Dr Ker, who was a consultant physician in rehabilitation medicine, reported that he had examined Mr Lee at that time and found a “full range of bilateral shoulder movements” and that in the right leg he found that “there was no effusion in the knee and he had a full range of knee movements.  There was some modest patello-femeral crepitus on movement but I noted that his ligaments were quite intact … I feel he has some modest patello-femeral symptoms here but I did not find other evidence of an osteoarthritic process”.  Dr Ker said that he believed Mr Lee “… does have some orthopaedic complaints of significance related to his right knee.  I believe they could usefully be investigated radiologically.  I do not believe that the incapacity present in this man’s right knee would render him incapable of undertaking remunerative work for periods aggregating more than 8  hours per week, nor do I believe that his knee per se would prevent him undertaking remunerative work for periods aggregating more than 20 hours per week.”  However, Dr Ker noted that Mr Lee had no skills other than for manual labouring and that the likelihood of him being able to undertake any remunerative work for which he might be physically capable was remote because of the sustained alcohol consumption.

24.     In the statement made by Mr Lee in November 2001 (Exhibit A3) he referred to the work in 1991 on the wharf at Port Hedland, and said “…but in general I found the work too heavy for me.”

25.     In a statutory declaration made in August 2004 (Exhibit A2) Mr Alan Lamb said that he had served in Vietnam with Mr Lee and had seen him once or twice a year from the early 1980s until his death.  He said that he knew of Mr Lee’s alcohol problems and his work problems.  He said that Mr Lee’s physical condition was deteriorating over the years, but “I never heard anything about a crook knee.  I just knew he wasn’t going to work because he wanted to stay home and drink.”

26.     In a statutory declaration made in 2004 (Exhibit A1) Ms Heather Duckworth said that she had met Mr Lee in 1981 and had seen him periodically thereafter until his death.  At various times Mr Lee had stayed with Ms Duckworth and her husband at their home in Perth and near Geraldton.  Ms Duckworth said that she knew that Mr Lee had had a knee operation and she remembered that after the operation Mr Lee would complain of walking up steps because his knee would give way.  He also complained about a sore shoulder.  Ms Duckworth said that Mr Lee would say, when visiting Ms Duckworth’s home near Geraldton, that he could not walk up a few limestone steps because “…my knee will give out”.

27.     Ms Duckworth said that towards the end of his life Mr Lee would often “blackout”.  Usually this was when he was drunk but not always.  On such occasions he often fell to the ground and hurt his head.

28.     Ms Duckworth gave oral evidence to a similar effect.  In relation to the redundancy offer that Mr Lee had accepted she said that Mr Lee had told her that he was going to accept the offer because if he didn’t he would eventually be sacked anyway because of his drinking problems.  She said that she recalled Mr Lee having his knee operation and that from time to time he would complain about it when walking on steps but this had been less frequent in recent years.  Likewise, Mr Lee sometimes complained about a sore shoulder but he did not say that it stopped him doing anything and she did not think it affected his daily living.

29.     Ms Duckworth said that she was aware that Mr Lee had worked for a very short time on the wharf at Port Hedland after leaving Mt Newman Mining, on a casual basis.  He had said to her that he did not want to work and although he had registered as unemployed with the Commonwealth Employment Service he had hated doing so.  She knew that Mr Lee had not sought work since the early 1990s because he simply did not wish to work.  Rather, he preferred to sit at home and drink each day.       

30.     In late 2001 or early 2002, Mr Lee had a lung removed and radiotherapy for a squamous cell carcinoma of the lung.  In December 2002 metastatic deposits were found in his right shoulder and he was treated with radiotherapy and other forms of therapy.  Thereafter he spent various periods in hospital until his death in November 2003.

31.     Given that the events described above occurred over more than 2 decades, and in the absence of direct oral evidence from Mr Lee, it is difficult to form firm conclusions about what might be called the “real” reasons for Mr Lee’s actions and decisions.  I am satisfied on the evidence that Mr Lee’s alcohol problems were a major reason why he ceased fulltime work in 1991 and did not work (other than on a casual basis for a short period of time) thereafter.  However, I am not satisfied that his alcohol problems were the only reason.  It is apparent that his problems with his employer, Mt Newman Mining, came to a head in 1988.  Although the rehabilitation program that Mr Lee underwent at that time did not solve his alcohol problems he did apparently make an effort to improve his work performance – even if only in anticipation of receiving a redundancy offer that he was disposed to accept.  Mr Lee’s evidence on various occasions during the 1990s concerning the impact on his work of his knee condition was contradictory.  I consider that the assessment of the evidence by the VRB at paras 20-25 of its decision (Tp76) was a fair assessment of the situation and one that I agree with on the basis of the evidence before me.  I am satisfied that Mr Lee did have a continuing knee problem, which affected his ability to climb ladders or steps and that his inability (and lack of desire) to continue to work in a labouring occupation was a contributing factor to his decision to accept the redundancy offer - bearing in mind the evidence that the money allowed him to purchase his own home in Port Hedland - and his lack of employment thereafter.

32. As noted above, even though the war-caused condition may be the more dominant of the causes of an inability to work, if there is also present a non-war-caused condition that has that effect in combination with the war-caused condition then the requirements of s 24(1)(c) will not be met. Although I find that Mr Lee’s war-caused conditions were the dominant factor causing him to be unable and unwilling to work, I am satisfied that there were other factors that in combination had that effect.

33. Accordingly, Mr Lee would not satisfy the requirements of s 24(1)(c) unless the ameliorating provisions of s 24(2)(b) are satisfied to alter that conclusion. If the requirements of that paragraph are met then it will be sufficient if the war-caused condition is “…the substantial cause…” of Mr Lee’s inability to obtain remunerative work. 

34. At the commencement of the assessment period Mr Lee was a veteran who had not attained the age of 65 years and who had not been engaged in remunerative work. On the evidence set out above I am satisfied that Mr Lee chose to cease fulltime work when he accepted the redundancy offer for a combination of reasons, one of which was his assumption that he would eventually be sacked anyway, but also because of a desire not to work at all and because of some other problems. On balance I consider that his attempts to find casual work thereafter were not genuine attempts to find work of a meaningful nature. I am satisfied that Mr Lee registered with the Commonwealth Employment Service only because of a wish to obtain social security benefits and that after 1992 he had ceased to look for any work of any kind. By his own admission (Exhibit A3) and on the evidence of Ms Duckworth and Mr Lamb, Mr Lee made no attempts to find employment after 1992. Accordingly, I am not satisfied that Mr Lee genuinely sought to engage in remunerative work or that he would, but for his war-caused conditions, have continued to seek to engage in remunerative work. Accordingly, the requirements of s 24(2)(b) are not satisfied and it is not possible to answer yes to the third Flentjar question.

35.     Having arrived at the conclusion set out in the previous paragraph it is unnecessary to consider the fourth Flentjar question.

36. For the reasons set out above I am satisfied that the requirements of s 24(1)(c) of the Act are not satisfied in relation to Mr Lee. Accordingly, I affirm the decision under review that Mr Lee’s disability pension should not be paid at the special rate.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen, Member.

Signed:         ............(sgd J M Lim)............
  Associate

Date/s of Hearing  29 September 2004
Date of Decision  24 December 2004
Counsel for the Applicant         Ms Marlene Cowan
Solicitor for the Applicant          Hammond Worthington Solicitors
Counsel for the Respondent     Mr Carl Ponnuthurai