Siemsen and Repatriation Commission
[2005] AATA 682
•19 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 682
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/649
VETERANS’ APPEALS DIVISION
Re:REGINALD ALBERT EDWARD SIEMSEN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 19 July 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Senior Member
VETERANS’ AFFAIRS ‑ pension at special rate ‑ various physical conditions ‑ substantial cause of inability to work
Veterans’ Entitlements Act 1986 ss 5Q, 23, 24
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50Fox v Repatriation Commission (1997) 45 ALD 317
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997)
Repatriation Commission v Van Heteren (2003) 75 ALD 703Starcevich v Repatriation Commission (1987) 76 ALR 449
REASONS FOR DECISION
19 July 2005 G. D. Friedman, Senior Member
1. This is an application by Reginald Albert Edward Siemsen (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 31 March 2004. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 10 December 2002 that the applicant’s disability pension be increased to 100 per cent of the general rate.
2. At the hearing of this matter on 20 May 2005 and 24 June 2005 Mr D. De Marchi, solicitor, represented the applicant and Mr G. Purcell of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T23), together with five exhibits (Exhibits A1-A5) lodged by the applicant and fifteen exhibits (Exhibits R1‑R15) lodged by the respondent.
BACKGROUND
4. The applicant was born on 1 January 1940. He served in the Royal Australian Navy (the navy) from 28 April 1958 to 27 April 1967. Between 1959 and 1966 he had operational service on various ships including HMAS Queenborough, HMAS Melbourne and HMAS Vendetta in Malaysia, Singapore, Brunei and South Vietnam. The respondent has accepted that the applicant's acne vulgaris, sensorineural deafness and chronic asthmatic bronchitis and emphysema are war-caused disabilities. The respondent has rejected the applicant's claim that his osteoarthritis cervical spine, thoracic spine, left foot and right shoulder, and eyesight (no incapacity found) are war‑caused disabilities.
5. On 10 December 2002 the respondent granted the applicant a disability pension at 100 per cent of the general rate, with effect from 1 October 2002. On 4 March 2003 the applicant sought review of the decision by the VRB. Following the VRB decision the applicant applied to the Tribunal for review of the decision on 28 May 2004.
6. The issue before the Tribunal is whether the applicant’s inability to work is due to his accepted war‑caused disabilities to the extent that he is eligible for pension at the special rate.
EVIDENCE
7. In a written statement dated 1 October 2003 (Exhibit A1) the applicant said that after leaving the navy in 1967 he worked as a storeman in the Commonwealth Explosives Factory and then as a truck driver for the Department of Stores and Transport. In 1970 he worked for a private transport company. In 1974 he purchased a semi‑trailer and was employed by Carl May and Son until 1992. The applicant said that in 1993 he purchased a small dairy farm which he sold after twelve months. He said that in 2003 he completed a Responsible Serving of Alcohol certificate. In 2004 he was employed at the Condah Pub in western Victoria (the hotel) on a casual basis until September 2004.
8. The applicant explained that he ceased work at the hotel because he suffered from tightness in the chest as a result of smoking by customers. He said that he also had trouble hearing because of his tinnitus.
9. In oral evidence the applicant stated that he worked at the hotel for eighteen months to two years; until he was forced to stop work in February 2005. Under cross‑examination he agreed that in a Work History statement dated 12 June 1997 he made no mention of working as a farmer. The applicant stated that he was forced to discontinue farming because the cold weather affected his arthritis, which prevented him from carrying out the necessary tasks at the farm. He also stated in the Work History that he could not continue as a truck driver in 1992 because of pain in his back and hips.
10. The applicant agreed that there were inconsistencies in the work histories recorded by medical practitioners and those provided by him in various documents. He was unable to explain the inconsistencies. He agreed that essentially he was employed as a truck driver and that arthritis prevented him from continuing with this type of work. In relation to his smoking habit, the applicant stated that he has ceased smoking. In relation to the farm the applicant said that he purchased it from his uncle in 1993 and sold it in 1994.
11. In respect of his earnings at the hotel, the applicant said that the publican paid him $100 in cash each week, plus $50 for petrol, as he drove the hotel’s courtesy vehicle. He agreed that when he purchased a property about 30 kilometres from the hotel there was no longer any financial gain from working. The applicant agreed that his shoulder and back pain are the main reasons that he is unable to work.
12. In a written report dated 4 November 2004 (Exhibit A3) Dr A. Sillcock, occupational physician, stated at page 7:
…
His work over the last few years has been on farms and as a barman. While his musculoskeletal problems, osteoarthritis, certainly impacts on his ability to undertake this sort of work, his chronic asthma, bronchitis and emphysema is causing increasing shortness of breath and is also affecting his work capacity. This applies particularly to working as a barman in a smoky environment but would also affect him doing farm work because of the physical nature of the duties and working outside in varying weather conditions, extreme cold or heat and dust.
His hearing loss affects his ability to work in a hotel because of the difficulty hearing people, especially when there is a high level of background noise.
Therefore, on balance, I believe that Mr Siemsen’s accepted disabilities alone prevent him from working for more than eight hours per week.
…
In oral evidence Dr Sillcock stated that in her opinion the applicant’s bronchitis and emphysema were the main reasons that he could no longer work as a farmer or as a barman. Under cross‑examination she agreed that the applicant’s back, shoulder and neck problems were a significant factor in the applicant’s decision to cease work, and would contribute to his inability to work in the future. However, she maintained that primarily she was assessing the applicant’s respiratory condition when reaching her conclusion, and that this condition affected his ability to work as a barman. Dr Sillcock stated that either the musculoskeletal conditions or the respiratory conditions alone would affect his ability to work, but that her assessment was carried out on an assumption that the applicant did not have the musculoskeletal conditions.
13. In a written statement dated 13 October 2004 (Exhibit A2) Mr L. Beachley, the publican of the Condah Pub, said that the applicant had indicated that he could no longer perform casual work as a barman because of cigarette smoke and the noisy environment. Mr Beachley said that the applicant’s character and nature had made him an asset to the particular hotel and to the hotel industry. In a written statement dated 1 February 2005 (Exhibit R1) Mr Beachley said that he met the applicant in September 2002 and employed him for 40 weeks. He stated that initially the applicant was paid $15 per day for 3 to 6 hours per day over six days, which was changed to $100 per week plus $50 per week for petrol for the courtesy vehicle. Mr Beachley noted that the applicant was a heavy smoker who suffered from nose, chest and throat ailments, and that in mid‑2004 the quality of his work deteriorated to the point where he decided to leave.
14. In oral evidence Mr Beachley said that the applicant’s health problems plus the consequences of living 30 kilometres away in his new home were the reason the applicant ceased his employment at the hotel. Under cross‑examination he agreed that he paid the applicant’s wages in cash. He confirmed that the applicant smoked heavily while working at the hotel.
15. In a written report dated 8 December 2004 (Exhibit R9) Dr D. Barton, consultant occupational physician, stated that the applicant referred to part‑time work such as driving, general house and garden maintenance as work that he could undertake if it was available. Dr Barton said at page 4:
…
I believe this gentleman has some general vocational skills that would enable him to undertake a variety of jobs as detailed above. Even acknowledging the presence of the physical problems, I still believe he would have the capacity for such work.
…
I believe this gentleman would be capable of undertaking remunerative work for periods of between eight and 20 hours per week. While he does have some activity related shortness of breath, I do not believe this would be an impediment to him undertaking the types of duties detailed above.
16. In a supplementary report dated 2 May 2005 (Exhibit R12) Dr Barton stated that he had reviewed his clinical notes and a large amount of information provided by the respondent, and still held the view he expressed previously. Dr Barton stated:
…
Having had the opportunity to consider this information and note that this gentleman has continued to smoke, I would question whether exposure to cigarette smoke, as passive smoke in a hotel environment, would be particularly relevant when someone was already smoking what appears to have been about 20 cigarettes a day over the last few years.
…
Dr Barton concluded that the applicant would have a capacity to undertake work up to 20 hours a week despite his hearing loss and emphysema and bronchitis conditions.
17. In oral evidence Dr Barton said that the effect of inhaling smoke on the lungs is greater in a smoker than a person affected by passive smoking. Under cross‑examination Dr Barton agreed with some aspects of Dr Sillcock’s report; but said that the applicant’s breathing and hearing problems alone were not the reason the applicant was unable to continue working. He stated that the applicant himself did not consider that musculoskeletal problems prevented him from performing certain tasks.
18. In an Application for Increase in Disability Pension received by the Department of Veterans’ Affairs (the Department) on 24 February 2000 the applicant stated that he ceased work in 1989, although he described his employment history as 1978 to 1991 truck driver and 1991 to 1993 share farmer. He stated that the disabilities he was claiming affected his ability to seek employment after 1993 because of arthritis. In a lifestyle questionnaire, received by the Department on 10 March 2000, he stated that I was a truck driver and I could not do my job properly due to pain from arthritis. In a further lifestyle questionnaire, received by the Department on 18 October 2002, the applicant indicated that he stopped work due to ill‑health and stated he was …unable to drive a truck because I couldn’t sit for long periods then unable to work in dairy milking cows because of arthritis especially in cold weather.
19. Before the VRB on 31 March 2004 (in the transcript of proceedings Exhibit R4, at page 2) the applicant’s advocate stated that the applicant ceased work in about 1989, and that he had been granted the invalidity service pension. The applicant told the VRB (at page 6 of the transcript) that he then tried share farming on a dairy farm but gave up because it was not good for his arthritis and breathing problems. He stated that he ceased looking for work in about 2001 or 2002. Later in the proceedings (at pages 16 to 17) the applicant acknowledged that he worked as a truck driver until 1992; and that in an application to the Department, he had listed 1996 as the date he ceased working.
CONSIDERATION OF THE ISSUES
20. Section 24 of the Veterans' Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(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
…
(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
…
(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.
…
21. Mr De Marchi noted that the applicant’s most recent employment was at the hotel, where he undertook remunerative activity, and that the applicant was forced to cease employment because of his accepted conditions of sensorineural deafness and chronic asthmatic bronchitis and emphysema. Mr De Marchi submitted that the accepted conditions alone prevented the applicant from working more than eight hours per week, and said that the evidence from Dr Sillcock and Dr Barton supported the applicant‘s claim. He stated that the applicant was a truck driver, then a farmer and finally a barman, and that the cessation of work at the hotel had resulted in a substantial loss of income for the applicant.
22. Mr De Marchi submitted that on the balance of probabilities the accepted disabilities were the predominant factors in the applicant’s inability to work and constituted the substantial cause of his inability to obtain remunerative work.
23. Mr Purcell referred to inconsistencies in the applicant’s evidence, given to the VRB and to various medical practitioners, concerning his work history. In particular, Mr Purcell noted that at the VRB hearing on 31 March 2004 the applicant did not mention his casual employment at the hotel, despite evidence before the Tribunal that he worked there from about May 2003 until October 2004. He said that the applicant ceased full‑time remunerative work as a truck driver at some time between 1986 and 1991. He then worked for a brief period as an unpaid dairy farmer. Between 1993 and 2003 the applicant did no remunerative work. Finally, the applicant had casual employment in the hotel between 2003 and 2004, for which he received a total payment of $4000. Mr Purcell submitted that the hotel work was not part of the applicant’s claim before the VRB because the applicant considered this to be casual employment rather than remunerative work that the veteran was undertaking for the purposes of the Act.
24. Mr Purcell referred to Dr Barton’s evidence that the applicant has the capacity to work for between eight and twenty hours per week. He said that Dr Sillcock’s conclusion that the applicant’s accepted conditions alone prevented him from working more than eight hours per week was inconsistent with her findings that the applicant suffers from musculoskeletal conditions which impact on his work capacity.
25. Authorities cited by Mr Purcell relevant to s 24(1)(c) of the Act included Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96; Forbes v Repatriation Commission (2000) 101 FCR 50 at 54; and Repatriation Commission v Van Heteran (2003) 73 ALD 703. Mr Purcell submitted that the Tribunal must determine whether the remunerative work that the applicant was undertaking was as a truck driver, a farmer or a casual barman. He referred to Re Forrester and Repatriation Commission AAT 12510, 22 December 1997 and Starcevich v Repatriation Commission (1987) 76 ALR 449 and submitted that the remunerative work that the veteran was undertaking was truck driving rather than unpaid dairy farming or casual bar work. Mr Purcell stated that, in respect of s 24(1)(c) of the Act, the applicant is not prevented by reason of his war‑caused incapacity alone from continuing to undertake remunerative work of the kind he was undertaking; and that the applicant is not suffering a loss of salary or wages or of earnings on his own account that he would not be suffering if free from that incapacity.
26. In respect of s 24(2)(b) of the Act, which applies because the applicant had not reached the age of 65 years at the date of his claim, Mr Purcell submitted that the correct test was not whether the accepted disabilities were the predominant factor causing an incapacity to work, but whether the accepted disabilities were the substantial cause. Mr Purcell said that, in any event, the applicant did not satisfy s 24(2)(a)(i) of the Act, because the applicant had ceased to engage in remunerative work for reasons other than his incapacity from the war‑caused disabilities, such as arthritis and other musculoskeletal factors, and the purchase of a house about 30 kilometres from the hotel. He also submitted that the applicant had not been genuinely seeking to engage in remunerative work.
27. The Tribunal reached its decision taking into account the oral and written evidence and the submissions made at hearing.
28. The Tribunal agrees with Mr Purcell that there are many inconsistencies in the applicant’s evidence concerning his work history. In all the circumstances the Tribunal finds that the applicant worked as a truck driver from about 1967 until 1992. Between 1992 and 1993 he worked on a dairy farm for no remuneration. He was then unemployed for about ten years, until he obtained casual employment as a barman from 2003 until 2004. He has not worked since then.
29. In respect of s 24(1)(c) of the Act, the Tribunal notes that the applicant did not rely on his casual employment at the hotel in his claim before the VRB. However, s 5Q of the Act specifies that remunerative work includes any remunerative activity. As the applicant received remuneration for his work at the hotel the Tribunal rejects the submission from Mr Purcell that this activity does not constitute remunerative work.
30. In Flentjarv Repatriation Commission (1997) 48 ALD 1 at 4‑5, the Federal Court set out the issues in a series of questions:
1.What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
31. In respect of question 1 the Tribunal notes that Fox J in Starcevich v Repatriation Commission (1987) 76 ALR 449 referred to Banovich v Repatriation Commission (1986) 69 ALR 395, in which the Full Federal Court held that the work need not be the last employment, or work generally, but related to a type of work previously undertaken. Fox J stated at page 454:
…The loss must be real, in the sense that the applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the applicant's inability to work became complete. In my opinion, a veteran's entitlement to a pension under s 24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether…
32. In Repatriation Commission v Van Heteren (2003) 75 ALD 703 Finn J found (at paragraph 18) that remunerative work:
…is the remunerative work undertaken by the veteran before he or she was prevented from continuing to undertake that work. The term, though, does not refer simply to a particular job with a particular employer…; nor merely to the last remunerative work undertaken before the veteran’s inability to work became complete… It signifies the type of work which the veteran previously undertook but which because of war-caused incapacity alone, he or she can no longer undertake…
33. The Tribunal takes into account the casual nature of the applicant’s work at the hotel, the level of remuneration ($4000 over an eighteen‑month period) and the evidence from Mr Beachley about the declining local population, and finds that this was …by its very nature, occasional work that which offered little by way of return and no promise of any future. [Mathews J in Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997) at paragraph 32]. Therefore, the Tribunal finds that this work was not substantial remunerative work. Similarly, there is no evidence that the applicant’s work at the dairy farm was remunerated; and therefore, it cannot qualify as substantial remunerative work. In considering the applicant‘s post‑service employment history and in particular the length of time he spent as a truck driver, the Tribunal accepts the submission from Mr Purcell that the remunerative work undertaken by the veteran was truck driving, and that in effect he ceased employment in 1992 and was out of the work force for ten years before the assessment period had begun.
34. In respect of question 2 from Flentjar, the Tribunal accepts that the applicant ceased driving trucks for a number of reasons, and that his war‑caused disabilities were a contributing factor that would prevent him from continuing that work. Therefore, the answer to question 2 is yes.
35. In respect of question 3 from Flentjar, the Tribunal accepts the medical evidence, supported by the applicant’s own evidence, that shoulder and hip pain, low back pain, arthritis and other musculoskeletal conditions played a major part in his decision to cease driving trucks in 1992. For these reasons the answer to question 3 is no. It follows that there is no necessity to consider question 4.
36. The Tribunal notes that s 24(2)(b) of the Act is applicable in this case, as an ameliorative provision in respect of s 24(1)(c), because the applicant had not reached the age of 65 at the time of his application. With respect to the phrase the substantial cause in s 24(2)(b) of the Act, in Fox v Repatriation Commission (1997) 45 ALD 317 Kiefel J stated at page 319‑320:
…
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 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…
37. The Tribunal has already referred to the applicant’s non‑accepted musculoskeletal conditions including shoulder pain, lower back pain and arthritis that played a major role in his decision to cease driving trucks. The Tribunal also accepts the applicant’s evidence that arthritis was a significant factor in ceasing his work on the dairy farm. The Tribunal takes into account the applicant’s evidence that he ceased work at the hotel because of his accepted conditions of chronic asthmatic bronchitis and emphysema. However, in respect of the requirement of inability to engage in remunerative work, the Tribunal finds that other factors, such as the applicant’s non‑accepted conditions, his age, his lack of qualifications, and the limited opportunities in the employment market in rural Victoria, all contribute to his inability to obtain remunerative work in which to engage; and that his incapacity due to his accepted conditions is not a substantial cause of this inability.
38. For these reasons, and taking into account the requirement to make a decision that is practical and based on all the material [Cavell v Repatriation Commission (1988) 9 AAR 534], the Tribunal finds that the applicant does not satisfy s 24(2)(b) and s 24(1)(c) of the Act.
39. Therefore, the applicant does not satisfy all relevant criteria in s 24 and the claim cannot succeed. For similar reasons, the applicant does not satisfy the criteria in s 23 of the Act in respect of payment of the intermediate rate of pension.
DECISION
40. The Tribunal affirms the decision under review.
I certify that the forty [40] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 20 May 2005, 25 June 2005
Date of decision: 19 July 2005
Advocate for applicant: Mr D. De Marchi
Solicitor for applicant: De Marchi & Associates
Counsel for respondent: Mr G. PurcellSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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