RICHARD SZELAG and REPATRIATION COMMISSION
[2013] AATA 318
[2013] AATA 318
Division VETERANS' APPEALS DIVISION File Number
2012/2403
Re
RICHARD SZELAG
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 20 May 2013 Place Brisbane The Tribunal sets aside the decision under review and substitutes its decision that the veteran is entitled to be paid the intermediate rate of pension under s 23 of the Act with effect from 22 November 2010 and the special rate of pension under s 24 of the Act with effect from 17 January 2013.
........................[SGD]..........................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Eligibility for intermediate or special rate of pension – Assessment period – Incapacity from accepted conditions sufficient to prevent applicant undertaking remunerative work for more than 20 hours or 8 hours per week, respectively, in consecutive parts of assessment period – Intermediate rate payable in the early part of the assessment period – Special rate payable in the latter part of the assessment period – Decision under review set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 19, 22, 23, 24, 28, 31, 120
CASES
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
Mr Szelag (the veteran) was in receipt of pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) at 100% of the general rate when he applied for an increase in that level on 22 November 2010. On 4 February 2011, the Repatriation Commission (“the respondent”) rejected the claim and continued pension at 100% of the general rate. On review under s 31 of the Act, the respondent increased the applicant’s pension to the intermediate rate in accordance with s 23 of the Act with effect from 22 November 2010. After review by the Veterans’ Review Board on 29 March 2012, the applicant’s pension remained payable at the intermediate rate with effect from 22 November 2010.
ISSUES AND LEGISLATION AND SUBMISSIONS
The standard of proof applicable to assessment of pension is set out in s 120(4) of the Act, which requires that matters be determined to the decision-maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The procedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period”, which is defined as meaning the period starting on the application day, in this case 22 November 2010, and ending when the claim or application is determined.[2]
[1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335 per Beaumont J.
[2] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a) and 19(9).
It is not disputed that the general rate of pension payable to the veteran was correctly assessed at 100% of the general rate. The issue raised by the applicant is whether he meets the criteria for payment of an earnings-related rate of pension under s 24 of the Act (the special rate) rather than under s 23 of the Act (the intermediate rate) and, if so, the date of effect of the payability of that higher rate of pension.
For the special rate, the matters that need to be determined are whether or not the veteran meets the requirements of ss 24(1)(a)(i), (b) and (c) of the Act. These read:
(1) This section applies to a veteran if:
…
(a) …
(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
The requirements for the intermediate rate are identical except for para (b). To that end, s 23(1)(b) and s 23(2) of the Act read:
(b) the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently; …
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
For the veteran, Mr David Chalk submitted that the special rate of pension was payable with effect from 22 November 2010. He referred to the veteran’s work as a taxi-driver and submitted that he had been unable to continue with this after October 2010 because of the effects of his chronic airflow limitation which has been accepted by the respondent as a service-related condition. He submitted that the condition would impose an unreliability factor into his work because of being unable to satisfy the requirements of working to a driving roster. He also referred to a requirement of the Cairns Taxi group that drivers had to be in “good health”. Mr Chalk relied upon the report of the veteran’s treating doctor, Dr B Bennett, to support the inability of the veteran to undertake his work from November 2010.[3]
[3] See Exhibit 1, T-documents, p. 8.
Mr Bruce Williams, for the respondent, conceded that the veteran met the requirements of s 24(1)(a)(i)[4] and s 24(1)(c)[5] of the Act. He also conceded that the applicant met the requirements of s 24(1)(b) thereof but only from 17 January 2013. He submitted that the evidence of thoracic physician, Dr Neil Bretz, and of occupational physician, Dr Philip Hayes, was relevant in that regard and that he would have been able to undertake the kind of work as a taxi-driver[6] for more than eight hours per week prior to the report of Dr Bretz in January 2013.[7] He submitted that it was the capacity to undertake the work rather than any consideration of a roster which was relevant. Accordingly, Mr Williams submitted that pension was payable to the veteran at the intermediate rate with effect from 22 November 2010 and at the special rate with effect from 17 January 2013.
[4] As well as its s 23(1)(a) equivalent.
[5] As well as its s 23(1)(b) and (c) equivalents.
[6] Mr Williams referred to the terms of s 28 of the Act in that regard.
[7] See Exhibit 3.
MEDICAL EVIDENCE
Dr Bretz completed several reports in relation to the veteran’s lung condition and has also made reference to his work capacity. On 24 December 2010,[8] he wrote that he had been seeing the veteran since 2005 for his lung condition and concluded:
Mr Szelag’s most recent occupation was as a Taxi Driver. When well, I believe he would be able to work up to 20 hours per week in this occupation. In view of his recurrent infective exacerbations of chronic obstructive pulmonary disease, he would require recurrent periods off work while receiving treatment for these. This effect of his chronic obstructive pulmonary disease on his ability to work is permanent.
[8] See Exhibit 1, T-documents, p. 19.
On 17 January 2013, Dr Bretz wrote that the veteran’s lung condition had deteriorated since he saw him 13 months earlier and his opinion was that the veteran was now unable to undertake remunerative work as a taxi-driver.[9] In his evidence, Dr Bretz confirmed his opinion that the veteran would have been able to complete one 12 hour shift per week in his taxi when he saw him in December 2010 and December 2011 provided he was not involved in heavy physical exertion during that time.
[9] See Exhibit 3.
Dr Haynes assessed the veteran on 7 June 2011 and completed reports on 9 June 2011[10] and 12 August 2011[11]. He noted that the veteran had worked as a taxi driver until October 2010, having been in hospital in respect of his lung condition for a week in August 2010 and extremely debilitated for some five weeks thereafter. He reported that the lung condition was worsening but concluded:
[The veteran] is fit to work eight hours or more but less than 20 hours per week because of his chest condition.
[10] See Exhibit 1, T-documents, pp. 102-106.
[11] See Exhibit 1, T-documents, p. 108.
Dr Bennett completed several reports including those on 10 November 2010[12], 3 December 2012[13] and 14 March 2013[14]. In the first of those reports, Dr Bennett wrote:
He is now [sic] unfit to work due to his progressive COPD and both myself and his treating specialist (Dr Bretz) have recommended he stop work.
[12] See Exhibit 1, T-documents, p. 8
[13] See Exhibit 6.
[14] See Exhibit 7.
In his later reports, he wrote that the veteran had been unable to undertake any remunerative work because of his lung condition from January 2011. In his evidence, Dr Bennett confirmed his opinion and recognised that it was not consistent with that of the specialists. However, he said that his opinion was based on his own observations of the veteran over time.
CONSIDERATION
I am satisfied that the concessions by Mr Williams in respect of s 24(1)(a) and s 24(1)(c) of the Act have been properly made. I am also satisfied that such is the case in relation to s 24(1)(b) of the Act from 17 January 2013. While I have noted the evidence of Dr Bennett and the submissions of Mr Chalk, I am reasonably satisfied that preference should be given to the specialist evidence. While I accept that Dr Bennet’s evidence was reasoned and based on his own observations of the veteran, I am also satisfied that this was the case with the evidence of Dr Bretz which includes his understanding of the veteran’s work capacity to January 2013. I have also noted the report of Dr Haynes which related to the period from which Mr Chalk has submitted the special rate should be payable. That report is consistent with the evidence of Dr Bretz.
I am satisfied that the veteran meets the requirement for payment of the intermediate rate of pension under s 23 of the Act with effect from 22 November 2010 and of the special rate of pension under s 24 of the Act with effect from 17 January 2013.
DECISION
The Tribunal sets aside the decision under review and substitutes its decision that the veteran is entitled to be paid the intermediate rate of pension under s 23 of the Act with effect from 22 November 2010 and the special rate of pension under s 24 of the Act with effect from 17 January 2013.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
.........................[SGD]............................................
Associate
Dated 20 May 2013
Date of hearing 1 May 2013 Advocate for the Applicant Mr David Chalk, non-legal advocate Advocate for the Respondent Bruce Williams
0
2
0