Re Beasley and Repatriation Commission

[2009] AATA 237

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 237

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4811

VETERANS’ APPEALS DIVISION		)
Re		SEAN-LEE BEASLEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date8 April 2009

PlaceBrisbane (Heard in Townsville)

Decision The Tribunal affirms the decision under review.

...............Signed.................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – special rate – whether the veteran was genuinely seeking to engage in remunerative work – involves an assessment of subjective intention – veteran’s efforts directed to providing evidence – not genuinely seeking work - whether the incapacity is the substantial cause of  inability to obtain remunerative work – the accepted incapacity is not the operative factor which, more than any other factor, explains the inability to obtain work – decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth) ss 24, 24(2)(b), 24(1)(c)

Conway v Repatriation Commission [2003] FCA 704

Fox v Repatriation Commission (1997) 45 ALD 317

Hall v Repatriation Commission (1994) 33 ALD 454

Leane v Repatriation Commission (2004) 81 ALD 625

Repatriation Commission v Sheehy (1995) 133 ALR 654

REASONS FOR DECISION

8 April 2009   Deputy President P E Hack SC    

1.The applicant, Mr Sean-Lee Beasley, served in the Australian Regular Army between 1964 and 1971. As a consequence of accepted service related disabilities Mr Beasley receives a pension from the Commonwealth at 100% of the general rate. In these proceedings Mr Beasley contends that he ought receive pension at the “special rate” i.e. the rate referred to in s 24 of the Veterans’ Entitlements Act 1986 (Cth).

2.Given various concessions made by the parties the issue to be decided is whether the ameliorating provisions of s 24(2)(b) of the Act operate in Mr Beasley’s case.

The legislation

3.Pension is payable at the special rate when the matters in paragraphs (aa), (aab), (a), (b), (c) and (d) of s 24(1) of the Act are satisfied. Mr Stoner, who appeared for the Commission, accepted that these matters were satisfied with the exception of s 24(1)(c). It provides:

“(1)     This section applies to a veteran if:

…

(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 have been suffering if the veteran were free of that incapacity: and

(d)  …”

4.Mr Honchin, counsel for Mr Beasley, conceded[1] that Mr Beasley did not satisfy what is commonly described as the “alone” test in s 24(1)(c) of the Act, that is, it was not Mr Beasley’s war-caused conditions alone that prevented him from continuing to undertake remunerative work. He relied instead on the ameliorating provisions in s 24(2)(b) of the Act which is in these terms:

“(2)     For the purposes of paragraph (1)(c):

(a)         …

(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.”

[1]That concession is amply supported by the opinion of Dr John Binder, a consultant respiratory physician.

Factual background

5.There was no controversy about the background facts. Mr Beasley was born in 1946. He left school at the age of 11 and worked in pastoral pursuits

before commencing an apprenticeship as a jockey. He left that apprenticeship shortly prior to his 18^th birthday to join the Australian Regular Army in 1964. Mr Beasley had two periods of operational service in Vietnam. He was discharged in 1971 and commenced employment in the mines at Mt Isa where he remained in employment for the next thirty years or so. In mid 2000 he was made redundant by Mt Isa Mines but immediately commenced similar employment with a sub-contractor. 

6.In October 2002 Mr Beasley failed a medical test required for underground work and was dismissed. He has not worked since then. He says that he was not told why he failed the medical but assumes that it was as a consequence of breathing difficulties that he then had and continues to have.

7.In August 2002 Mr Beasley applied to the Commission for acceptance of the condition of post traumatic stress disorder (PTSD) as being war-caused. That condition, together with the condition of alcohol dependence, was accepted on 1 July 2003 however the Commission refused Mr Beasley’s claim for pension at the special rate. Mr Beasley made application to the Tribunal for a review of that part of the Commission’s decision. The application was heard and determined in March 2005 and the Commission’s decision was affirmed[2].

[2]        See Beasley and Repatriation Commission [2005] AATA 252.

8.Following the Tribunal’s decision Mr Beasley was advised by a lay veterans’ advocate that he “would have to provide evidence that [he] was looking for work” in order to show that he was genuinely seeking to engage in employment. As a consequence of that advice he applied to five potential employers – Bradken Mining, Louminco Pty Ltd, Vitra Constructions & Engineering Pty Ltd, Mount Isa Metal Recyclers and Bridgestone Earthmover Tyres Pty Ltd – for work in the period between June 2005 and August 2005. None of the applications was successful. In each case Mr Beasley approached the employer seeking employment (as distinct from responding to

an advertised vacancy). Mr Beasley obtained a letter from each of the potential employers which, in each case, records the fact of the approach, the fact of Mr Beasley having disclosed that he suffered from PTSD and the opinion of the potential employer that the demands of the position applied for were such that the position was not suited to someone suffering from PTSD.

9.These applications were the only occasions in the period after October 2002 that Mr Beasley sought employment. Sometime after those applications Mr Beasley must have had some dealings with Centrelink because the material shows that on 27 October 2005 he was referred to CRS Australia by the Disability Officer from Centrelink. The result of that referral was that Mr Beasley was assessed under the Veterans’ Vocational Rehabilitation Scheme in November 2005. That assessment concluded that Mr Beasley’s employment prospects were “extremely limited due to his age, medical conditions, and limited education.” The report identified “barriers to employment” as follows:

“*  The long-standing nature of PTSD and its impact on Mr Beasley’s life and function. Due to this diagnosis, Mr Beasley has limited tolerance of people and frequently becomes short-tempered and may become aggressive and argumentative with little warning.

*  With Mr Beasley’s COAD [chronic obstructive airways disease], he is unable to perform manual labour. This condition is also degenerative.

*  Mr Beasley has extremely limited literacy skills and would need extensive education and training to develop these to a level required for an administrative position.

*  Mr Beasley has clearly stated that he feels that he is unable to return to the workforce.

*  The treating General Practitioner, Dr Warren, has indicated that Mr Beasley is not fit for any work.”

10.The report went on to conclude that, for similar reasons, it was unlikely that a vocational rehabilitation programme would enable Mr Beasley to successfully return to the workforce.  

11.The Commission’s decision in issue here was made on 28 November 2006. It was affirmed by the Veterans’ Review Board on 26 June 2007.

The medical evidence

12.Dr Michael Likely, a consultant psychiatrist, has treated Mr Beasley for PTSD and alcohol abuse since May 2006, seeing him generally monthly, although less frequently over the past 12 months because of travel difficulties. In a report after his first consultation Dr Likely expressed the opinion that:

“…by virtue of his posttraumatic stress disorder alone, Mr Beasley should be considered to be totally and permanently incapacitated from undertaking any type of remunerative employment.”

13.It is however plain that Dr Likely was not called upon to consider the considerable physical ailments that afflict Mr Beasley, including his breathing difficulties.

14.These difficulties were the subject of reports from Dr John Binder. In his most recent report Dr Binder expresses the opinion that Mr Beasley “has evidence of chronic bronchitis and emphysema, chronic asthma and pulmonary fibrosis” which lead to a “significant clinical impairment”. The chronic bronchitis and emphysema condition is an accepted condition but the other two are not. Dr Binder would attribute 30% of the functional respiratory deficit to chronic obstructive asthma, 30% to chronic obstructive pulmonary disease (chronic bronchitis and emphysema) and 40% to pulmonary fibrosis. Dr Binder concluded that there “is a significant impact on Mr Binder’s capacity to undertake remunerative work on the basis of his combined lung disease”.

The issues

15.Given the arguments of the parties the issues that fall to be decided are:

·was Mr Beasley genuinely seeking to engage in remunerative employment?

·was Mr Beasley’s incapacity from PTSD the substantial cause of his inability to obtain remunerative work?

The genuinely seeking test

16.The policy of s 24(2)(b) of the Act was discussed by the Full Court of the Federal Court in Leane v Repatriation Commission[3] where the Court said:

[3] (2004) 81 ALD 625 at 632-3, [27] to [29]

“[27] The policy of s 24(2)(b) of the Act was explained in the speech on the second reading of the Bill for the insertion of that provision: see per Sackville J in Repatriation Commission v Sheehy (1995) 133 ALR 654 at 660-1 ; 39 ALD 286 at 292. In that speech the relevant minister made the point that ‘special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work’.

[28] The primary judge interpreted the word ‘seeking’ to mean ‘attempting to’ or ‘trying to’. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant ‘do’ something. On the other hand the word ‘genuinely’ is used in the sense of ‘sincerely’ or ‘honestly’. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.

[29] It may be accepted that, in the ordinary course, a person in the position of the veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some ‘objective signs of active pursuit of remunerative work’. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the tribunal that:

o he or she honestly wished to engage in remunerative work;

o he or she had made a reasonable assessment of his or her disabilities;

o he or she had reasonably concluded that he or she could only be employed in a particular type of work;

o he or she was checking employment advertisements on the look-out for such employment; but

o he or she had not yet identified any such employment prospects.

Counsel for the commission properly conceded that, on these facts, the tribunal might be satisfied that the claimant was ‘genuinely seeking to engage in remunerative work’. This example highlights that the adjectives ‘objective’ and ‘actual’ in the redefinition adopted by the tribunal are at least unhelpful and may be misleading. The proper course was for the tribunal to ask itself whether, on the evidence before it, it was satisfied that the veteran was ‘genuinely seeking to engage in remunerative work’ or not, rather than to ask itself the different question that it did ask.”

17.The starting point in asking the question is to ascertain the point at which these issues need be considered, that is, when Mr Beasley became incapacitated for work. That is so because the “genuinely seeking” test “relates to the work history of the applicant rather than to efforts which he might make after he becomes incapacitated”[4]. Here the evidence first admits of the conclusion that Mr Beasley was incapacitated for work in late 2005. The CRS Australia report makes it clear that Mr Beasley was incapacitated at that time. Mr Honchin did not suggest that there was any evidence that pointed to incapacity prior to this time. Dr Likely’s report was made subsequently in May 2006.

[4]        Conway v Repatriation Commission [2003] FCA 704 at [8].

18.By late 2005 it would appear that Mr Beasley’s efforts to obtain employment after ceasing employment in October 2002 were limited to his five “cold calls” to the employers listed in paragraph [8] above. Whilst I accept that one must approach questions such as this in a realistic manner[5] I am unable to regard these efforts as amounting to genuinely seeking to engage in employment. Were it necessary to reach a concluded view I would have considered that the calls were undertaken having regard to his advocate’s advice to “provide evidence” that he was looking for work, not a genuine attempt to look for work. Mr Beasley made no attempt to find work from October 2002 until June 2005. He did not look for work in what might be regarded as a conventional way e.g. by looking for advertised job vacancies or consulting a job search agency. He limited his enquiries to employers within the mining industry. Moreover he seemingly volunteered to the potential employers information regarding his PTSD. He did so, he said, because of his “duty of care”. I can readily accept that a potential employee is obliged to be honest in the employee’s dealings with the employer and must, for example, answer questions regarding the employee’s health honestly. But, in my view, that obligation falls far short of requiring the potential employee to volunteer at the outset adverse details such as that volunteered by Mr Beasley. To do so, I consider, demonstrates that Mr Beasley was not genuinely seeking employment, he was merely seeking to provide evidence. I am not satisfied that Mr Beasley ever had any genuine desire to find work after October 2002.

[5]        See Hall v Repatriation Commission (1994) 33 ALD 454.

19.Thus I am not satisfied that Mr Beasley was genuinely seeking to engage in remunerative work.

The substantial cause

20.Kiefel J considered the meaning of “the substantial cause” in Fox v Repatriation Commission[6] where her Honour said:

“The words ‘the substantial cause’ require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be ‘a substantial cause’ has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as ‘substantial’ (the phrase which was contained in the legislation dealt with in University of Tasmania v Cane (1994) 4 Tas R 156 at 163, to which I was referred in argument). The definite article in s 24(2) of the 1986 Act (compare Repatriation Act 1920 Sch 2, as amended in 1985), requires a stronger and more direct causal connection between the incapacity and the inability to obtain remunerative work.”

[6](1997) 45 ALD 317 at 319-320.

21.Whilst the evidence here allows a conclusion that Mr Beasley’s PTSD and chronic bronchitis and emphysema were, collectively, “a substantial cause” of his incapacity I do not consider that they were “the substantial cause”. That is so, in my view, because of the significant impairment of the other pulmonary conditions. Both Dr Binder and the CRS assessment describe significant exertional dyspnoea leading to the conclusion that Mr Beasley was not fit to be employed as an underground miner and with what Dr Binder calls a “significant compromise” in performing other labouring work. The greatest part of this impairment, 70% in Dr Binder’s estimation, is attributable to conditions that are unrelated to Mr Beasley’s service. It seems from Dr Binder’s report that the pulmonary conditions collectively were sufficient, of themselves, to prevent Mr Beasley from obtaining remunerative work. Dr Likely was of the same view in relation to PTSD.

22.Accordingly, I am satisfied that the war-caused conditions (PTSD and chronic bronchitis and emphysema) as well as the other pulmonary conditions that are not related to service are each a substantial cause. But in my view the nature of the unrelated conditions is such that they would affect all of Mr Beasley’s work by creating breathing difficulties. Those difficulties would be constant whereas the PTSD would be episodic. Even having regard to the effect of chronic bronchitis and emphysema with PTSD I am not satisfied that those conditions are the substantial cause of Mr Beasley’s inability to obtain remunerative work.

Conclusion

23.It follows that I would affirm the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .........................Signed.........................................
  Melissa Hamblin, Associate

Date of Hearing  24 March 2009 
Date of Decision  8 April 2009
Counsel for the Applicant         Mr D Honchin
Solicitor for the Applicant          Purcell Taylor 
For the Respondent                  Mr J Stoner