Richard Clark and Repatriation Commission
[2014] AATA 533
•4 August 2014
[2014] AATA 533
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4225
Re
Richard Clark
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Dr Ion Alexander, MemberDate 4 August 2014 Place Sydney The Tribunal sets aside the decision under review and in substitution decides that the Applicant qualified for the special rate of pension as of 25 June 2011.
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Senior Member J Toohey
CATCHWORDS – VETERANS ENTITLEMENTS – special rate of pension – whether applicant prevented from continuing in employment by reason of accepted disabilities alone – decision under review set aside
Legislation
Veterans’ Entitlements Act 1986 ss 19, 24(1), 24(2), 120(4)
Cases
Forbes v Repatriation Commission 171 ALR 131
Repatriation Commission v Butcher [2006] FCA 811
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
Senior Member J Toohey
Dr Ion Alexander, MemberBackground
Mr Richard Clark served in the Royal Australian Navy from January 1965 until his resignation in January 1977. He rendered operational service over three periods in 1966. He is now aged 65 and receives a disability pension.
Mr Clark suffers from lumbar spondylosis, bilateral sensorineural hearing loss and bilateral tinnitus all of which the Repatriation Commission (the Commission) accepts are related to his service. He also suffers – or has suffered in the past – from anxiety disorder and hypertension, alcohol dependence, hypertension, facial scar, bilateral plantar fasciitis, specific phobia (situational type), sleep apnoea, dry eyes and asbestosis, none of which the Commission accepts as service-related.
In June 2011, Mr Clarke sought an increase in his disability pension. The Commission increased his pension to 40 per cent of the general rate as of 28 March 2011. Mr Clarke sought review of that decision by the Veterans Review Board (the Board).
In June 2012, the Board determined that Mr Clark should be paid at 50 per cent of the general rate for the period 28 March 2011 to 24 June 2012, and 60 per cent of the general rate from 25 June 2012. Mr Clark seeks review of that decision and says his accepted disabilities rate in excess of 70 per cent of the general rate and his pension should be paid at the special rate.
The Commission concedes that Mr Clark’s pension should be assessed at 80 per cent of the general rate from 25 June 2012 but contends that he does not otherwise satisfy the criteria for payment at the special rate.
Relevant legislation
To qualify for the special rate of pension, Mr Clark must satisfy the criteria in s 24(1) of the Veterans Entitlements Act 1986 (the Act). He must firstly be under 65 at the time of his claim and the degree of his war-caused incapacity must be at least 70 per cent, neither of which is in contention.
Section 24(1)(b) requires that Mr Clark be totally and permanently incapacitated, meaning that his war-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The Commission concedes, and we are satisfied on the evidence, that Mr Clark satisfies s 24(1)(b).
Section 24(1)(c) requires that Mr Clark be, by reason of war-caused incapacity alone, prevented from continuing to undertake remunerative work that he was undertaking, and be, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering were he free of that incapacity.
Section 24(1)(c) is in two parts, both of which Mr Clark must satisfy. By reason of s 24(2)(a), he will not be taken to meet the second limb – loss of salary or wages or earnings on his own account – if he ceased to engage in remunerative work for reasons other than his war-caused incapacity, or if he is incapacitated, or prevented, from engaging in remunerative work for some other reason: s 24(2)(a).
By s 24(2)(b), a veteran who has not been engaged in remunerative work will be taken to be prevented from continuing to undertake the remunerative work that he or she was undertaking if:
(i)he or she has been genuinely seeking to engage in remunerative work;
(ii)he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work; and
(iii)that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage.
The standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4). The “assessment period” is from 23 June 2011, when Mr Clark lodged his claim, to the date of this determination: s 19.
Mr Clark’s employment history
After leaving the Navy in 1977, Mr Clark worked as a gas fitter and sales representative for a gas company for two years. He then worked casually as a doorman at an RSL club for approximately 12 months before being offered the position of manager of the club, a position he held for five years until 1985. He gave evidence, which we accept, that the position involved a lot of “hands-on work” including cellar work, behind the bar and helping the greenkeeper, and the qualifications required for a similar position now, including occupational health and safety requirements and poker machine administration, are “completely different”.
13.After leaving that position, Mr Clark spent seven years as a labourer then took a job as a deckhand. He spent the next 18 years, until he ceased working in 2009, as a commercial fisherman. The work involved a lot of lifting and bending, and the Commission concedes that Mr Clark can no longer work in that occupation because of his accepted back condition and that he satisfies s 24(1)(b).
Is Mr Clark prevented by his war-caused incapacity alone from engaging in remunerative work that he was undertaking?
14.Section 24(1)(c) requires that a veteran’s inability to work be due to his or her war-caused disabilities alone and not to other reasons. If some factor other than war-caused incapacity plays a part in preventing a veteran from continuing to undertake remunerative work, he will not satisfy s 24(1)(c). This is so even if the war caused condition is “by far and away the more dominant of the causes of the preventative effect”: Forbes v Repatriation Commission (2000) 171 ALR 131, per Nicholson J at [40].
15.The matter should be approached in a “practical, common-sense, fashion”: Repatriation Commission v Butcher [2006] FCA 811 at [39] per Bersanko J. The word “alone” in s 24(1)(c) should be given its ordinary meaning. It need not be “the sole, unique and absolute cause” of a veteran’s inability to work. In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, Burchett J said that characterisation of “alone” had a tendency:
… to distract the tribunal from its true task — to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
16.The questions to be asked when applying s 24(1)(c) were set out by Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1as follows:
(i)what is the relevant remunerative work that the veteran was undertaking;
(ii)is the veteran, by reason of war-caused incapacity, prevented from continuing to undertake that work;
(iii)if the answer to question (ii) is yes, is that incapacity the only factor preventing the veteran from continuing to undertake that work;
(iv)if the answers to questions (ii) and (iii) are yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of income that he would not otherwise be.
17.The Commission agrees that whether Mr Clark meets s 24(1)(c) depends on the answers to the following questions:
(i)did psychiatric symptoms, diagnosed as generalised anxiety disorder in 2003, prevent him from continuing to undertake remunerative work that he was undertaking; and
(ii)did the fact that he was living in Sussex Inlet play a part in preventing him from continuing to undertake that remunerative work.
18.“Remunerative work” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. It is not limited to the last employment that the veteran actually undertook: Repatriation Commission v Hendy (2002) 76 ALD 47; Starcevich v Repatriation Commission (1987) 18 FCR 221.
19.We find that the remunerative work Mr Clark was undertaking was labouring. It was the substantive remunerative work that he undertook, as a brickie’s labourer then as a deck hand and fisherman, for approximately 25 years before ceasing employment.
Did psychiatric symptoms, diagnosed as generalised anxiety disorder in 2003, prevent Mr Clark from continuing to undertake the remunerative work that he was undertaking?
20.The Commission contends that psychiatric symptoms which Dr Karl Koller, psychiatrist, reported in 2003 that Mr Clark was experiencing, played a part in preventing him from continuing in his remunerative work.
21.In 2003, Dr Koller saw Mr Clark for assessment for the Department of Veterans Affairs. In a report dated 9 July 2003, he wrote that Mr Clark had generalised anxiety disorder with accompanying depressive spells. He noted:
There is a generalised anxiety disorder to be observed. He is excessively a worrier. He sleeps poorly. He is irritable. He is unable to relax and feels tense. Concentration is suspect. He is clearly socially avoidant. He has difficulty achieving trusting relationships.
22.The Commission contends that it is likely that the symptoms identified by Dr Koller played a part in preventing Mr Clark from continuing to undertake the work he was doing and that it falls to Mr Clark to provide a psychiatric report to show otherwise. We do not accept that submission.
23.It was put to Mr Clark by the representative for the Commission that the symptoms referred to by Dr Koller continued to affect him up until he ceased employment in 2009 and after. The transcript shows that Mr Clark responded:
They haven’t – they are there but they haven’t – probably the last five or six years they haven’t – they haven’t been there. They’ve been there but not to any significant factors. (sic)
24.Mr Clark was asked to clarify that “they used to be significant factors and about five or six years ago they stopped being significant factors?” to which he said:
I would say yes, probably less or. (sic)
25.There is no evidence to suggest that Mr Clark saw any medical practitioner other than Dr Koller in relation to these symptoms. He continued in full-time employment for another six years and there is no evidence to suggest that they affected his employment in any way.
26.Dr Robin Chase, occupational physician, saw Mr Clark in December 2012 for assessment of his capacity for work. In a report dated 18 December 2012, Dr Chase said “the only major condition from which [Mr Clark] suffers is his lumbar spondylosis and chronic back pain” which appeared to have been gradually getting worse over the previous ten or so years. Dr Chase noted Mr Clark’s accepted and non-accepted disabilities including anxiety disorder and he noted Dr Koller’s report of 9 July 2003 among the documents provided to him for the purposes of his assessment.
27.Giving evidence by telephone, Dr Chase said he did not specifically remember paying “much attention at all” to any psychiatric issues other than to note that Mr Clark saw Dr Koller in 2003 and was diagnosed as having a generalised anxiety disorder. He was satisfied that he adequately explored these issues with Mr Clark. He took no history to support any significant psychiatric problems.
28.Dr Chase told the Tribunal that assessing the effect of psychiatric symptoms on a person’s capacity to work is within his expertise. He did not think the presence of the symptoms described by Dr Koller in his report would mean that Mr Clark had no, or limited, work capacity. He gave evidence that symptoms can fluctuate and it was entirely plausible that Mr Clark had remained at work, his symptoms decreased, and he had no further symptoms. Dr Chase said that even people with schizophrenia or bipolar disorder, if medicated, can continue to work and function well, and many people with anxiety and depression get through life without any problems.
29.The evidence before us is that Mr Clark experienced a form of psychiatric symptoms in 2003 after which there is no evidence that they continued. He remained in employment for six years without any apparent difficulty attributable to those symptoms, and Dr Chase’s evidence is that he could have done so even with those symptoms present. In our view there is no basis for a finding that they played any part in Mr Clark ceasing remunerative employment. No onus falls on him to produce evidence that his symptoms no longer existed.
Did the fact that Mr Clark was living in Sussex Inlet play a part in preventing him from continuing to undertake that remunerative work?
30.The Commission submits, although it concedes not with the same force as the submission concerning psychiatric symptoms, that the fact Mr Clark was living in Sussex Inlet played a part in preventing him from continuing to undertake remunerative work.
31.Mr Clark gave evidence that he looked in the local papers and made several attempts to find work. About six months after he ceased work, he approached a local builder about work but was not successful after he told the builder about his back condition. He also enquired with another local building company but was again unsuccessful, it appears because there was no work available. Around the end of 2010, he applied for an advertised position as a supervisor of maintenance work at Mission Australia in Wollongong but received no reply. He resigned himself to the fact that he was unemployable and stopped looking. Giving evidence, Mr Clark said the town he was living in, “or even Sussex Inlet”, is still only a small town so it meant either moving or travelling for work.
32.The Commission concedes that Mr Clark’s back condition appeared to play a part in his unsuccessful attempt to find work with the local builder but says there is no evidence that his accepted back condition played any part in why he did not obtain the other positions.
33.We accept that it may have been more difficult for Mr Clark to obtain employment in a smaller area but we are not satisfied, on the evidence before us, that living in or near Sussex Inlet played any real part in him not continuing in remunerative work.
34.The Commission agrees Mr Clark is suffering a loss of income that he would not otherwise be suffering so that the fourth Flentjar question should be answered in the affirmative.
Conclusion
35.Taking into account the concessions by the Commission, and that the only issues in dispute identified above, we are satisfied that Mr Clark meets the criteria in s 24(1). We set aside the decision under review and in its place decide that he qualified for the special rate of pension as of 25 June 2011.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey. ..............................................
Associate
Dated 4 August 2014
Date(s) of hearing 8 July 2013 and 18 June 2014 Representative for the Applicant Mr Craig Colborne, Counsel
Ms Claire Mudge, CounselRepresentative for the Respondent Mr Adrian Crowe, Advocate
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