Robert Mewett and Repatriation Commission
[2014] AATA 914
•10 December 2014
[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.
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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
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.
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.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
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.
Pensions may be paid at the general rate, the intermediate rate or the special rate. Section 24, which deals with the special rate, provides:
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(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
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(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
(d) section 25 does not apply to the veteran.
Section 23 of the Act is in identical terms except that in s 23(1)(b) the reference is to incapacity to undertake remunerative work “otherwise than on a part-time basis or intermittently” rather than the “8 hours per week” that appears in s 24(1)(b) of the Act. By virtue of s 73 of the Act a reference in ss 23 or 24 to “war-caused injury” is to be read as a reference to “defence-caused injury”.
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 theTAFE 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.[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.
By 2005 Mr Mewett had been experiencing chest pains for many years. Just before Christmas in that year he went to hospital and in early January 2006 had surgery to repair a 90% blockage to his left coronary artery. He was discharged from hospital on 11 January 2006, although he reported to the Barracks medical centre from time to time in the last weeks of his service before discharge.
There is in the material[8] a report by Dr P Patane of 5 September 2007 on Mr Mewett’s capacity to work. It notes that Mr Mewett had ceased work and attributed that to coronary artery disease in 2005, although the condition was described as having a minor effect on certain functions only.
[8]Exhibit 1, pages 179 – 185.
It is next relevant to note that on 11 January 2010 Mr Mewett lodged a claim for the acceptance of the conditions of depressive disorder and coronary artery disease. Both claims were rejected by the Commission. The decision-making history thereafter is not entirely clear however the matter was the subject of a decision of the Tribunal, differently constituted, of 8 May 2013 by which depressive disorder was accepted as being defence-caused.[9] The decision of the Commission relating to heart disease, by this point described as ischaemic heart disease, was affirmed.
[9]See [2013] AATA 277.
In the meantime, on 2 March 2011, Mr Mewett had lodged a further claim, this time for lumbar spondylosis, osteoarthritis left knee and a right shoulder tendon tear. Those claims were accepted on 6 May 2011 and Mr Mewett’s disability pension was increased to 90% of the general rate from 2 December 2010.[10] That decision considered that Mr Mewett was not then eligible for pension at the special rate or the intermediate rate.
[10]Exhibit 1, pages 42 – 43.
The Commission made a further assessment of Mr Mewett’s rate of pension on
23 May 2013[11] following the earlier Tribunal decision that had accepted depressive disorder as defence-caused. The Commission determined that Mr Mewett’s pension ought be increased to 100% of the general rate with effect from 11 October 2009 (the operative date for acceptance of the depressive disorder condition) and continued at that rate with effect from 2 December 2010 (the operative date for the lumbar spondylosis, osteoarthritis right knee and right shoulder tendon tear conditions). Again, the delegate considered whether Mr Mewett was eligible to be paid pension at the special rate or the intermediate rate and concluded that he was not. It was determined that it was notMr Mewett’s accepted disabilities alone that prevented him from working.[11]Exhibit 1, pages 86 – 87.
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
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.Despite Mr Mewett giving evidence that he told the representative of the TAFE College in early 2006 of experiencing symptoms of depressive disorder, there is no evidence that he was then experiencing symptoms of any severity. According to Professor Baune, the diagnosis of depression was first made in 2009. Mr Mewett did not seek treatment for depression until 2009. Although Professor Baune refers to him experiencing symptoms as early as 1999 or 2000, that appears to have been an isolated occasion and his symptoms cannot have been of any particular severity if no treatment was sought until 2009. It seems improbable that Mr Mewett could have informed a prospective employer that he was suffering from depression many years before he commenced experiencing symptoms of any severity. Again there is reason to doubt the reliability of Mr Mewett’s evidence.
The material suggests that he obtained a "blue card", a card enabling him to operate machinery, in late June 2006[21] and took steps to have a résumé prepared in July 2006.[22] However the matter be viewed, there is no evidence that Mr Mewett made any serious attempt to obtain work after mid-2006. It may well be that during 2006 his heart condition was of concern to him; the opinion of Dr Patane in September 2007 was that he had ceased work as a consequence of that condition. It is certainly the case now that the medical evidence is that his heart condition does not prevent him from undertaking employment but Dr Patane’s report is the only evidence of the position in the aftermath of the operation in January 2006.
[21]Exhibit 1, pages 217 – 219
[22]Exhibit 1, page 213.
From all of this I conclude that it was Mr Mewett’s choice, rather than the impact of either his orthopaedic injuries or his depressive disorder, to not actively seek work when his service with the Air Force ended or thereafter. The result is that in January 2010 when the assessment period commenced, Mr Mewett had been out of work for almost
four years. He was then almost 59 years of age. He had spent the vast majority of his working life pursuing an occupation, that of bomb disposal technician, for which there was and is little demand. Even though it be conceded that by that time his accepted conditions were sufficient to render him incapable of undertaking remunerative work for more than a total of eight hours per week, there were other factors that were in play. The period out of the workforce and his age, even if not the limited range of Mr Mewett’s skill, are likely to have played a part in Mr Mewett’s inability to obtain employment in January 2010. These factors did not abate during the assessment period; if anything, they played a greater role as time went by.
That being so I am not satisfied that Mr Mewett’s war-caused conditions alone prevented him from continuing to undertake remunerative work and that neither s 24(1)(c), nor
s 23(1)(c), of the Act is satisfied.That conclusion makes it necessary to consider the ameliorating effect of s 24(2)(b) of the Act. That operates where the applicant has not been engaged in remunerative work and the Commission (or the Tribunal in its stead) is satisfied: that the applicant has been genuinely seeking to engage in remunerative work; that, but for the effect of the
war-caused condition, he or she would be continuing to seek to engage in remunerative work; and that the effect of the war-caused conditions is the substantial cause, and not the sole cause, of the applicant's inability to obtain work.[23][23]See Smith v Repatriation Commission (2014) 220 FCR 452; [2014] FCAFC 53 at [11] & [174].
Mr Honchin, counsel for Mr Mewett, submitted[24] that Smith v Repatriation Commission[25] was authority for the proposition that attempts at seeking employment need not occur during the assessment period. He pointed to this passage in the reasons for judgment of Foster J[26] at [185]:
As to question 2, in my respectful opinion, there is no requirement in the VE Act that, for the purposes of s 24(2)(b), the veteran must be genuinely seeking work during the assessment period. The correct position is that the criteria for securing an increase to a higher rate of pension laid down in s 23 and in s 24 must be satisfied at some time during the assessment period. This is the effect of the language of the statute (ss 19(5C), 19(6), 23 and 24) and of the Full Court decision in Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625 at 626–628 [7]–[9] and 632–633 [27]–[33]. In considering whether those criteria have been met at any time in the assessment period, the Court is entitled to have regard to circumstances which obtained prior to the commencement of that period. There is no reason to exclude such circumstances. The language of the statute does not require that such circumstances be excluded. Therefore, the alternative reason expressed by the primary judge for not disturbing the Tribunal’s conclusion in respect of s 24(2)(b) falls to the ground. [Emphasis added]
As the passage highlighted emphasises, the question to be determined is whether an applicant satisfies the statutory criteria at any time during the assessment period. Circumstances prior to the commencement of that period may inform that determination.
[24]Applicant’s Statement of Facts, Issues and Contentions at [24].
[25] 220 FCR 452; [2014] FCAFC 53.
[26]At [185].
Additionally, he pointed to this passage from the reasons for judgment of Rares J in the same case:[27]
The veteran must sincerely or honestly do something to attempt or try to engage in remunerative work: Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625 at 632 [28] per Emmett, Conti and Selway JJ. Their Honours held that the word “genuinely” in s 24(2)(b) referred to the subjective intention of the veteran. They said that the way in which a veteran might establish his or her case to satisfy the requirement in s 24(2)(b), that “he or she has been genuinely seeking to engage in remunerative work”, was a practical issue. Their Honours held that it was not essential that there be objective signs of active pursuit of remunerative work, although, in the ordinary course, it may be difficult for the veteran to establish the requirement in the absence of such objective material. They gave an example of a veteran who honestly wished to engage in remunerative work, had made a reasonable assessment of his or her disabilities, had reasonably concluded that he or she could only be employed in a particular type of work, was checking employment advertisements on the look-out for such work, but had not yet identified any such employment prospects (81 ALD at 632-633 [29]).
[27]At [23].
I am not satisfied that Mr Mewett was genuinely seeking to engage in remunerative work, even during 2006. His attempts were perfunctory and, in my view, could hardly be regarded as genuine. Whilst one would not expect or require a prospective employee to lie about the employee’s disabilities to a prospective employer, it is suggestive of a lack of genuineness that Mr Mewett volunteered his disabilities at the outset. He seemingly made no effort to see whether what he regarded as his disabilities could be accommodated in any way. I am driven to the conclusion that Mr Mewett was not interested in seeking work. He had retired from a lengthy career in the Air Force immediately after what must have been a significant health scare with coronary artery disease and the surgical procedures associated with that. Even if, contrary to my view, he were regarded as having been seeking to engage in remunerative work in the first half of 2006, his failure to take any steps thereafter could not reflect any genuine assessment by him of his disabilities. It is not an answer to point to a conclusion reached by
Dr Likely many years after the event that he was suffering from depressive disorder. There is simply no evidence that Mr Mewett was affected by any symptoms at that time. In that context it is relevant that he did not make a claim to have depressive disorder accepted by the Commission as a defence-caused condition until January 2010. That rather suggests that Mr Mewett was not earlier affected, or significantly affected, by the condition.It follows that I am not satisfied that the criteria in s 24(2)(b) of the Act are satisfied.
In the result the decision under review will be affirmed.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC .............................[Sgd].......................................
Associate
Dated
Date of hearing 8 October 2014 Counsel for the Applicant Mr D Honchin Solicitors for the Applicant Purcell Taylor Advocate for the Respondent Mr K Rudge, Department of Veterans' Affairs
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