Sizmur and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 580

Sizmur and Repatriation Commission (Veterans’ entitlements) [2015] AATA 580 (10 August 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2014/2824
Re	William Sizmur
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	10 August 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – rate of service pension – application for pension at special rate or intermediate rate – must cease work because of war-caused injury or disease – applicant left work because of dismissal – non-service related factors contributed to inability to work – decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986(Cth), ss 23, 24, 28

REASONS FOR DECISION

Senior Member Bernard J McCabe

10 August 2015

Introduction

1. Mr William Sizmur has applied for an increase in the rate of his service pension paid under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). He is currently paid at 100% of the general rate. Ideally, he wants to be paid at the special rate provided for in s 24, but alternatively he believes he is entitled to be paid at the intermediate rate pursuant to s 23.

   The facts

2. Mr Sizmur served in the Royal Australian Navy between 1969 and 1980. He now suffers from a number of medical conditions that have been accepted as being related to his service, including:

   ·Post-traumatic stress disorder (PTSD);

   ·Emphysema;

   ·Ischaemic heart disease;

   ·Acquired cataracts in both eyes;

   ·Skin disorders; and

   ·Hearing problems.

3. The applicant’s PTSD is related to a stressful incident in 1979 while he served as the engineer aboard HMAS Bombard, a patrol boat (Exhibit 1, page 85). He also suffers from osteoarthritis in the right ankle and foot, which appears to affect his stability. The osteoarthritis condition has not been accepted as being related to his service.

4. Mr Sizmur worked in a variety of occupations after he left the navy. He spent time as a general handyman and a bricklayer. He also started a small nursery and ran a cleaning business. In due course, he came to work for Perry Catamarans, a shipyard. In his statement (Exhibit 1, page 2), he explained he worked at the shipyard for a time as a sub-contractor before he was taken on as an employee, but nothing turns on this. He worked as an employee for two to three months before his position was terminated in 2005. He said in his oral evidence that he was sacked following conflict with the production manager. It seems the conflict arose out of the fact the factory was old and in a poor state, which made for unsatisfactory working conditions.

5. Mr Sizmur has not done paid work since he left Perry Catamarans. But he has worked.

6. After he left the employ of Perry Catamarans, Mr Perry was contacted by a local businessman in Bundaberg. The businessman proposed acquiring and restoring a retired patrol boat, the former HMAS Aware. The vessel needed a lot of work but the businessman planned restoring and registering it for use in connection with a tourist business. Mr Sizmur agreed to become involved in the restoration of the vessel. The precise details of his engagement were unclear from his statement (Exhibit 1, page 5). It seems the tourist business failed before the work on the Aware was complete. Many of the business’s creditors, including Mr Sizmur and the Port Authority, were unpaid. Mr Sizmur said he was allowed to keep an old 4WD vehicle in settlement of his claim against the business.

7. After the business collapsed, Mr Sizmur had to work out what to do with Aware. It was still moored in the Burnett River. He lived on board, and funded his living expenses by selling his assets. The vessel was in his name. The businessman and everyone else involved in the restoration project walked away, leaving Mr Sizmur to deal with the Port Authority over the many issues connected with the vessel. He had to pay the wharf fees and meet other expenses which he could not afford. He said he found the whole experience very stressful, and it became even more costly when the Port Authority secured large fines that were levied against him personally. He said in his evidence that the wrangling with the Port Authority during 2005 and 2006 caused him a great deal of distress and mired him in financial difficulties (Exhibit 1, pages 4-6). His marriage also broke down.

8. In 2006, Mr Sizmur was due to commence work with a local business called Coral Coast Maraculture. But he had a heart attack on the day before he was to start in November 2006 (Exhibit 1, page 5). He said in his oral evidence that his prospective employer changed its mind about giving him the job once he recovered. He assumed that was because of his health problems.

9. Mr Sizmur said he has tried to find work since 2006. In his oral evidence, he cited the example of an unsuccessful application for work at a garage/workshop in 2012-2013. He now says he cannot work. The Veterans’ Review Board accepted that was so. In its reasons dated 6 May 2014, the Board referred to a Capacity to Work assessment form completed by the applicant’s treating general practitioner on 17 February 2012. That form suggested the applicant was totally and permanently incapacitated.

10. I have access to some more recent material provided by the Department of Human Services. The information was generated in connection with Mr Sizmur’s applications for social security benefits. The material includes an Employment Services Assessment report dated 8 May 2014. That report suggests Mr Sizmur had a “baseline work capacity” of 8-14 hours per week (although it acknowledged his work capacity at the time of the assessment was lower because of temporary factors). The assessor went on to opine that Mr Sizmur had capacity to work 15-22 hours per week after “disability specific intervention”. To that end, Mr Sizmur participated in a program of support provided by STEPS Employment. The report from that organisation (Exhibit 5) confirms Mr Sizmur did everything required of him, including completing a computer course. The report concludes:

    Nil [employment] outcomes achieved. It is our belief that our program will not be of any benefit to Bill as we do not feel his work capacity will improve with our assistance.

11. The assessments undertaken through Centrelink must be treated with caution, of course. An applicant for Centrelink benefits, such as the disability support pension, is assessed on the capacity to work more generally. The assessment of one’s ability to undertake remunerative work for the purposes of a pension application under sections 23 or 24 of the Veterans’ Entitlements Act 1986 is informed by s 28. That section says the decision-maker must have regard to:

    (a)the vocational, trade and professional skills, qualifications and experience of the veteran;

    (b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

    (c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

12. The report from STEPS Employment tends to confirm the applicant would not be able to work 15-22 hours as the job capacity assessor had predicted. But it is unclear whether he had any capacity at all given someone with his skills, qualifications and experience tended to undertake light manual labour as a boat-builder and maritime worker – yet that was made exceedingly difficult by reason of his accepted heart condition and PTSD.

13. These factual observations must be dealt with in the context of the legislation. I will deal with the application for special rate first. That application is made pursuant to s 24. The Commission says Mr Sizmur cannot satisfy subsections 24(1)(b) or (1)(c). Section 24(1)(b) provides:

    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; …

14. While the evidence in relation to Mr Sizmur’s work incapacity is not clear-cut, I could infer from the job capacity assessment and the report from STEPS Employment that Mr Sizmur is unable to “work for periods aggregating more than 8 hours per week” in the sort of jobs for which he would be suited having regard to the matters in s 28.

15. But even if I make that finding, Mr Sizmur cannot satisfy the requirement in s 24(1)(c). That subsection says the applicant must be suffering a loss salary, wages or earnings because he was unable to continue with the sort of work he had been doing because of the impact of his accepted conditions and for no other reason. Section 24(2)(a) goes on to clarify:

    (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; …

16. Mr Sizmur left his last work because he was dismissed following an argument with his employer. The argument related to a workplace health and safety issue. While it was suggested the argument was a consequence of Mr Sizmur’s PTSD, he made it clear in his evidence that there were genuine issues in relation to workplace health and safety which justified his stand. It is hard to see how that falling out can be attributed to PTSD in the circumstances. I note Dr Duke reached the same view in his report dated 24 November 2014.

17. The applicant experiences other difficulties which prevent him from engaging in remunerative work. One of them is a heart condition – although that is accepted. His heart condition certainly stopped him from working at Coral Coast Maraculture in fairly dramatic circumstances, and he insists the heart attack informed the prospective employer’s decision not to hire him once he was released from hospital. Other factors contributing to his failure to undertake remunerative work during the assessment period are unrelated to service, however. He noted in his oral evidence that he does not have a driver’s licence, which is a disadvantage when living and seeking work in a regional town. (The licence was cancelled under state law because the fines levied in respect of the boat had not been paid.) Mr Sizmur is also aged 61, has an osteoarthritis condition in his right ankle and foot that affects his stability and he has been out of the workforce for some time, which means his skills have almost certainly degraded. Given the contribution of the non-service related factors, I am not satisfied the applicant satisfies s 24(1)(c).

18. The applicant does not fare any better if his application is treated as an application for the intermediate rate under s 23. Even if I accept in his favour that his service-related conditions render him unable to engage in remunerative work other than on a part-time basis, he is still required to meet s 23(1)(c), which imposes the equivalent of the “alone test” in s 24(1)(c) – and which is subject, in s 23(2)(a), to effectively the same qualification contained in s 24(2)(a). Mr Sizmur’s claim must fail because the evidence suggests non-service related factors contribute to his inability to work.

    Conclusion

19. The decision under review must be affirmed. Mr Sizmur’s application for an increase in his rate of pension cannot succeed.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated   10 August 2015

Date of hearing	22 May 2015
Applicant	In person
Advocate for the Respondent	Mr B Williams, Department of Veterans' Affairs