Robert Mewett and Repatriation Commission

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[2014] AATA 914

Division VETERANS’ APPEALS DIVISION

File Number

2014/0296

Re

Robert Mewett

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President P E Hack SC
Date 10 December 2014  
Place Brisbane

The decision under review is affirmed.

..........................[Sgd]...........................................

Deputy President P E Hack SC

Catchwords

VETERANS’ AFFAIRS – veterans’ entitlements – special rate – intermediate rate – whether there are other reasons preventing continuing remunerative work – whether genuinely seeking to engage in remunerative work

Legislation

Veterans’ Entitlements Act 1986 (Cth) ss 13, 14, 15, 18, 19, 23, 24, 24, 73

Cases

Smith v Repatriation Commission 220 FCR 452; [2014] FCAFC 53

REASONS FOR DECISION

Deputy President P E Hack SC

10 December 2014

Introduction

  1. Mr Robert Mewett served in the Royal Australian Air Force for a period of eight years between 1967 and 1975. He re-enlisted in 1980 and served until February 2006 when he reached the compulsory retiring age.

  2. Mr Mewett says that various orthopaedic conditions and depressive disorder, all of which have been accepted as defence-caused conditions, are such as to qualify him to be paid a disability pension at the special rate, that is, the rate referred to in s 24 of the
    Veterans’ Entitlements Act 1986 (Cth) (the Act), or at the intermediate rate, that is, the rate referred to in s 23 of the Act. The Commission does not agree. It accepts that
    Mr Mewett satisfies most of the criteria. What is in issue is whether Mr Mewett satisfies what is described in the cases as the “alone” test, that is, whether his accepted conditions alone prevented him from continuing to undertake the remunerative work that he was undertaking.

  3. For the reasons that follow I have concluded that factors other than Mr Mewett’s accepted conditions have contributed to preventing him from continuing to undertake the relevant remunerative work and that he does not then satisfy the “alone” test.

    The legislation

  4. The Act creates a scheme whereby the Commonwealth is liable to pay a pension, by way of compensation, to a veteran who is incapacitated from a war-caused injury or war-caused disease.[1] A veteran may make a claim for a pension[2] or apply for an increase in the rate of pension.[3] The Commission must consider the claim or application and determine it having regard to the provisions of the Act.[4] Amongst other matters, the Commission must make an assessment of the rate or rates at which pension is payable during the assessment period,[5] that being the period that commences on the day on which a claim or application is received and ends on the day when the claim or application is determined.[6]

    [1]See s 13(1), Veterans’ Entitlements Act 1986.

    [2]See s 14, Veterans’ Entitlements Act.

    [3]See s 15, Veterans’ Entitlements Act.

    [4]See s 18, Veterans’ Entitlements Act.

    [5]See s 19(5C) Veterans’ Entitlements Act 1986.

    [6]See s 19(9) Veterans’ Entitlements Act 1986.

  5. Pensions may be paid at the general rate, the…

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Details
Case
[2014] AATA 914
Decision Date

CaseChat Overview and Summary

The case of Robert Mewett and the Repatriation Commission involves a dispute over veterans' entitlements, specifically whether Mr Mewett, a former member of the Australian Defence Force, is entitled to a special rate of pension due to his war-caused injuries and illnesses. The primary legal issue before the court was whether Mr Mewett's incapacity from war-caused injury or disease prevented him from engaging in remunerative work, as required by section 24(1)(c) of the relevant legislation. The court also had to determine if Mr Mewett was genuinely seeking to engage in remunerative work, as per section 24(2)(b) of the Act, and whether there were other reasons preventing him from continuing remunerative work, as outlined in section 24(2)(a)(i).

The court examined the evidence presented, including medical reports and Mr Mewett's own testimony, to assess his capacity to work. The Commission argued that Mr Mewett did not satisfy the statutory criteria for entitlement to the special rate pension, primarily because they contended that he was not genuinely seeking employment and had other reasons preventing him from engaging in remunerative work. The court critically evaluated Mr Mewett's efforts to find employment, noting inconsistencies in his accounts and the lack of corroborating medical evidence supporting his claims of severe disability. The court found that Dr Gibberd's assessment, which attributed Mr Mewett's symptoms to psychosocial factors rather than physical injuries, was more reliable than other medical opinions. Ultimately, the court concluded that Mr Mewett did not meet the criteria for the special rate pension due to the lack of evidence supporting his claims of genuine effort to find employment and the absence of disabling physical conditions.

The court's decision resulted in the dismissal of Mr Mewett's claim for a special rate pension. The final orders of the court were that the Repatriation Commission's decision to deny Mr Mewett the special rate pension was affirmed, and Mr Mewett's appeal was dismissed with costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Having regard to the arguments of the parties, reference need also to be made to s 24(2) of the Act. So far as is relevant it is in these terms:(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 The factual background is largely uncontroversial although I must say that I am not able to regard Mr Mewett as a reliable historian. There are aspects of his evidence, referred to below, that cause me to conclude that some, at least, of Mr Mewett’s evidence is the product of reconstruction after the event. That is understandable and a common enough occurrence and I make no criticism of him for doing so given he is now seeking to recall events of some years ago. Mr Mewett was born in February 1951. He retired from the Air Force when he reached his 55th birthday, the compulsory retiring age for a Warrant Officer, his rank at the time. Because he was aware of his impending retirement he says that he made some enquiries about employment in civilian life in the year before his discharge date. He made enquiries of the Air Force Reserve but says that he was advised that he would not be accepted because he could not pass a fitness test. He says that he prepared a resume with copies of the very many qualifications he had obtained. He had in mind that his qualifications would enable him to undertake technical or trade teaching although he also had skills as an explosives technician, the line of work he pursued in his second engagement in the Air Force. During 2005 Mr Mewett had some discussions with a representative of his local TAFE College who expressed interest in utilising his skills. He followed up that initial enquiry with a phone call. He told the Veterans’ Review Board that he had made that enquiry after treatment for his heart condition. Given that the heart problems were treated in December 2005 and January 2006, it must have been January 2006 at the earliest that he made that phone call. On that occasion Mr Mewett explained to the person to whom he spoke that he had health problems. He says that at that stage he could not sit or stand for very long because of his spine, and a knee problem made exercise difficult. He says that he told the person to whom he spoke at the [7]Mr Mewett’s evidence given at the hearing was, to this extent at least, inconsistent with his witness statement (exhibit 6 at [8]) and a statutory declaration at page 118 of exhibit 1.TAFE college that he had symptoms of depressive disorder[7] and that he could not sit or stand for very long because of his back. He says that he was told that there was no use applying more formally to the TAFE college for employment. For reasons that I will return to, I have reservations about the reliability of this aspect of Mr Mewett’s evidence.

Evidence

Evidence Before The Court

That decision was affirmed by the Veterans’ Review Board on 25 November 2013.[12] Mr Mewett commenced these proceedings on 15 January 2014.[12]Exhibit 1, pages 221 – 230.The medical evidence Before considering the medical evidence it is as well to list the various conditions which have been accepted by the Commission (or the Tribunal) as having been defence-caused and which touch upon his capacity to engage in remunerative work. Under the general description of orthopaedic injuries[13] are:[13]It was not suggested that hearing loss and tinnitus affected the capacity to engage in any employment.·Internal derangement of the right knee;·Osteoarthritis of the right knee;·Cervical spondylosis;·Thoracic spondylosis;·Lumbar spondylosis;·Right shoulder tendon tear; and·Left ulnar neuropathy.Additionally Mr Mewett’s depressive disorder is an accepted condition. Those conditions need to be considered during the assessment period i.e. from January 2010. I note at the outset that no medical witnesses were called at the hearing; the medical evidence is all found in reports in the material. The orthopaedic injuries were reported on by Dr Gibberd, an orthopaedic surgeon, and, to a lesser extent, by his general practitioners Dr Alan Nelson and Dr Patane. Dr Patane completed an assessment of Mr Mewett’s capacity to work in September 2007, some 18 months after his retirement. He said of Mr Mewett’s musculo-skeletal system that he had a minor reduction in range of movement in the right knee and thoracic spine,[14] and that Mr Mewett had “chronic knee pain, reduced range of movement”.[15][14]Exhibit 1, page 180.[15]Exhibit 1, page 183. Dr Gibberd saw Mr Mewett on 1 March 2010 and provided a report dated 4 March 2010.[16] Dr Gibberd noted that on his examination there were no objective findings of continuing pathology. He found it “difficult to explain the alleged severity of [Mr Mewett’s] continuing complaints of pain and their continuity”. He attributed the symptoms complained of by Mr Mewett to “psycho-social factors” and concluded that there was no reason why Mr Mewett could not work 20 hours per week.[16]Exhibit 1, pages 153 – 160. Dr Nelson expressed the opinion in August 2013 that Mr Mewett’s depression, cervical and lumbar spondylosis and right knee osteoarthritis had rendered him “medically unfit for gainful employment of any duration”.[17] In August 2009 he had assessed the orthopaedic injuries as having a severe or disabling effect on many of Mr Mewett’s functions.[18][17]Exhibit 1, page 209.[18]Exhibit 1, page 199. Mr Mewett’s depressive disorder has been reported on by Professor Bernhard Baune,[19] a consultant psychiatrist, and by Dr Michael Likely.[20] Professor Baune referred to a diagnosis of depression having been first made in 2009. In May 2010 he considered that Mr Mewett was capable of taking on a teaching job up to 10 to 15 hours per week. Dr Likely considered that Mr Mewett was totally and permanently incapacitated from undertaking remunerative employment and that he became so “around July of 2006”. The basis for choosing that date does not appear in his report.[19]Exhibit 1, pages 9 – 11.[20]Exhibit 4.Consideration

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Mewett’s depressive disorder has been reported on by Professor Bernhard Baune,[19] a consultant psychiatrist, and by Dr Michael Likely.[20] Professor Baune referred to a diagnosis of depression having been first made in 2009. In May 2010 he considered that Mr Mewett was capable of taking on a teaching job up to 10 to 15 hours per week. Dr Likely considered that Mr Mewett was totally and permanently incapacitated from undertaking remunerative employment and that he became so “around July of 2006”. The basis for choosing that date does not appear in his report.[19]Exhibit 1, pages 9 – 11.[20]Exhibit 4.Consideration The Commission expressly conceded that Mr Mewett’s accepted disabilities prevented him from undertaking remunerative work of more than 15 hours per week from 11 January 2010, the commencement of the assessment period. It conceded as well that he satisfied s 24(1)(b) of the Act at some time between 30 April 2010 (when he last saw Professor Baune) and 1 April 2014 when he saw Dr Likely. I regard the concession as somewhat generous but, on the view I take of the matter otherwise, need not consider whether the concession was correctly made. The Commission’s case is put in two ways – that Mr Mewett does not satisfy s 24(1)(c) of the Act (and necessarily s 23(1)(c)) and that s 24(2)(a)(i) of the Act, in any event, defeats his claim. Additionally, the Commission submitted that Mr Mewett was not genuinely seeking to engage in remunerative work and thus s 24(2)(b) of the Act could not operate to ameliorate the effect of the “alone” test. The assessment period commences in January 2010. Mr Mewett retired from the Air Force in February 2006. It is relevant to consider the position thereafter. The only evidence that Mr Mewett’s orthopaedic injuries were affecting him adversely in early 2006 is his evidence that he would not sit or stand for very long. There is considerable reason to doubt that evidence. He had maintained fulltime employment until his forced retirement, attributable to his age rather than any lack of capacity. It was the onset of coronary artery disease, and the treatment of that condition, that prevented him from working in the last weeks of his engagement. There is no medical evidence of his condition, so far as the orthopaedic injuries are concerned, at that time. In circumstances where none of the doctors who had expressed an opinion on Mr Mewett’s orthopaedic injuries (Dr Patane, Dr Nelson and Dr Gibberd) were called to give evidence, I am bound to prefer the evidence of Dr Gibberd. He is a specialist practitioner who exposes at least some of his reasoning. The reasoning of Dr Patane and Dr Nelson is not explained in their reports. Dr Gibberd concluded, in March 2010, that Mr Mewett’s complaints were not supported by any objective findings and that psychosocial factors caused his symptoms. Mr Mewett apparently sought and obtained a licence of some description to enable him to operate machinery but says that he found that his orthopaedic conditions prevented him from operating a friend’s vibrating roller. It is understandable that working on such a machine might aggravate even minor orthopaedic injuries however it appears that Mr Mewett did not attempt to train on other machinery that would cause less strain.