Smith and Repatriation Commission

[2003] AATA 1111

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1111

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/117

VETERANS' APPEALS  DIVISION		)
Re		GRAHAM JOHN SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date6 November 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review to reject a claim for disability pension at a rate higher than 100% of the General Rate pursuant to the provisions of the Veterans’ Entitlements Act 1986.

................SIGNED...............................

D.W. MULLER
  DEPUTY PRESIDENT

CATCHWORDS

VETERANS’ AFFAIRS – special rate pension  - whether the applicant’s war-caused disabilities alone prevent him from continuing to undertake remunerative work - whether applicant was seeking remunerative work – whether applicant simply retired

Veterans’ Entitlements Act 1986: s24

REASONS FOR DECISION

Deputy President Don Muller       

1. Graham John Smith, the Applicant, claims that his service-related disabilities prevent him from working at paid employment and that, therefore, he is entitled to be paid disability pension at the Special Rate, pursuant to section 24 of the Veterans’ Entitlements Act 1986.

2.      The Applicant has the following disabilities which have been accepted by the Respondent as service-related:

Bilateral Sensori-Neural hearing loss with tinnitus

Squamous Cell Carcinoma

Other Specified Gastritis

Post Traumatic Stress Disorder

Alcohol Dependence or Alcohol Abuse

Gastro Oesophageal Reflux disease

Depressive Disorder

He has been receiving disability pension at 100% of the General Rate with effect from 29 October 2000.

3.      The Applicant has also been entitled to the Service Pension since 23 April 1998 due to his age (60 years).  He did not apply for the pension when he first became entitled to it because his assets and the income of his wife would have reduced the payments to nil.

4.      The Applicant currently has no disabling injuries or diseases other than those service-related disabilities listed above.

5.      The Applicant was born on 23 April 1938.  He applied for the lost income/employment related Special Rate disability pension on 29 January 2001, when he was 62 years of age.  He is now 65.

6.      The following matters are not in dispute and the Tribunal finds that:

(a)After leaving school the Applicant worked as a labourer/meat worker.

(b)In 1956, at the age of 18 years, he joined the RAAF.

(c)His initial duties in the RAAF were described as “general hand”.  He then became a transport driver.

(d)He served in Vietnam for eight months between 1 July 1965 and 3 March 1966, as an assistant loadmaster on Caribou aircraft.  His duties included delivering supplies to the troops in the field and taking out wounded personnel.

(e)After eight months in Vietnam he was “stressed out”.  He was sent to Butterworth Hospital where he had treatment for two weeks.  He was then sent back to Australia where he was again hospitalised for a time.

(f)Upon his return to Australia he was re-mustered as a transport driver.

(g)He was discharged from the RAAF on 4 May 1973.

7.      The Applicant gave evidence to the following effect:

(a)Prior to going to Vietnam, he was a very good squash player.  He was the in-service champion and he won the Queensland Country Title. He was very fit and he drank very little alcohol.

(b)In Vietnam he started to drink alcohol more regularly, mainly spirits.  He also started to smoke.  He believes that he adopted those habits to settle his nerves.

(c)Upon his return from Vietnam he continued to regularly drink alcohol.  He no longer kept himself in top physical shape.  He has not won a squash title since.

(d)Upon leaving the RAAF in 1973, he decided that he would go into business as a manager of a squash court complex.  He initially had to wait 12 months for a squash centre to be built.  During that 12 months he worked as a pest control operator with Flick & Co.

(e)Between 1974 and 1995, he managed, leased, built, bought and sold squash courts in the Townsville area.

(f)After he sold his squash interests in 1995, he bought into a limousine business in Townsville..  He obtained a general transport licence for driving taxis, limousines and buses.  He still holds the licence.

(g)The Applicant has a son, Marcus (among other children), who is also a very good squash player.   Marcus was accepted into the special coaching course conducted by the Australian Institute of Sport at QEII Stadium in Brisbane.

(h)The family decided that Marcus would be better able to reach his potential if he lived in Brisbane.  To assist with that goal the family decided to move from Townsville to Brisbane.

(i)In late 1998, the Applicant sold his limousine business and took up a lease on a squash centre at Capalaba (an outer Brisbane suburb).  The lease was for two years plus an option for 12 months.  It was agreed among the family members that the Applicant would provide the money for the lease, if his family (including Marcus) and their partners would do the physical work around the squash centre.

(j)It was the intention of the Applicant to return to Townsville after two years at Capalaba.  He did not sell his home in Townsville.  He locked it up.  He was well satisfied with the price he got for the sale of the limousine business.  He did not intend to work in Brisbane.  He intended to treat his time in Brisbane as a holiday.

(k)The plan was that if Marcus had not achieved the Queensland number one ranking within two years, the Applicant would exercise the option to extend the lease and leave Marcus to work the squash centre at Capalaba.

(l)At the Capalaba squash centre the Applicant did very little physical work..  His job was to answer the telephone and take bookings.  He used to also sleep a lot.  His wife did all the paper work.

(m)The squash centre had a four bedroom home attached to it.  The Applicant and his family all lived in the attached home.

(n)He did not like Capalaba much.  He often thought that he would prefer to be back in Townsville.

(o)The Applicant applied for and was granted the service pension due to his age while he was at Capalaba.  He was also receiving the disability pension at 70% of the General Rate.

(p)Marcus did well at squash within six months of moving to Capalaba.  It was clear to the family by March 2000 that they would not be exercising the option on the lease.

(q)After the family had moved into the squash centre at Capalaba, they discovered that the local shire council required a lot of remedial work to be done at the centre.  The rectification work was said to be necessary to allow the centre to comply with the provisions of Local Law No. 9 (Entertainment Venues).  It included repairs to the toilets, swimming pool, wash basins, roof sheeting, down pipes, ceilings, cracked windows, concrete treads and stairwells.

(r)The Applicant entered into a dispute with the owner of the centre about who should pay for the work.  The owner refused to pay for anything.

(s)The council stopped the operation in June 2000, after the applicant and his family had been there for just over 18 months.  The family remained in the four bedroom house attached to the courts for the full two years, but for the last five or six months they could not operate the business.

(t)The squash centre had been a profitable business before it was forced to close.  There were five people taking drawings (not including the Applicant and his wife).

(u)Upon his return to Townsville in October 2000 the Applicant spent a lot of time and cash (about $30,000 to $40,000) in upgrading his home and its surroundings.  He and his wife also bought a car each.  He built a shed in his yard.

(v)After he had re-furbished his home, he started to think about what he would do to generate some income.  He had previously been paid as a Queensland director of squash coaching and he thought about getting back into that business.  He investigated a number of squash centres which were for sale.  Eventually he decided that he would not be able to cope with coaching and running a squash centre without the assistance of his wife and family.  Marcus had gone to Holland, and another son was in the Northern Territory.

(w)He then investigated the possibility of getting back into the limousine business.  He found that he could lease an LTD for $1,000 per month.  The person to whom he originally sold the limousine business had built it up and was interested in taking on the Applicant as a partner/sub-contractor.  The Applicant was having some blood pressure problems at the time (now controlled).  He decided that he would have trouble driving for lengthy periods, and it was not economically viable to hire a driver.  It was necessary to maintain an expensive car to remain in business.

(x)He currently drives limousines as a favour to the owner and for something to do, for two mornings per week for about two hours each time.  He said, “You can’t sit around at home all the time.”

(y)The medication he takes for “anxiety” makes him feel drunk.

8.      The Tribunal received evidence from two psychiatrists:

(a)Dr. Rogers has been treating the Applicant since 19 March 2001.  Since then he has had regular ongoing contact at one to two month intervals.  In his report dated 11 April 2001, Dr. Rogers said that the Applicant told him that he retired in June 2000 due to a build up of work related stress and irritability which was affecting his relationship with his clientele.  He also suffered chest pains and an acute cardio-vascular episode which required admission to intensive care in Brisbane, immediately prior to his retirement.  Dr. Rogers does not believe that the Applicant is capable of working more than eight hours per week.  In a report dated 26 September 2001, Dr. Rogers said, “The deterioration in his mental state was the sole reason for him deciding to sell the business and retire from work.”

(b)Dr. Mulholland saw the Applicant on 28 August 2002.  He reported:

“Upon reviewing the total situation I consider that Mr. Graham Smith probably does suffer from a chronic major depressive disorder and chronic PTSD.  He formerly suffered from chronic alcohol abuse/dependence but fortunately he has now got that under control.  The genesis of his conditions appear to be his service in Vietnam when he was flying as assistant loadmaster in Caribou transports.  His description was that chronic fear was the main psychological issue for him at that time and this led to problematical drinking.  The problematical drinking continued for 30 + years however fortunately and wisely he ceased same in 1991.

The reason this man stopped work is not due to psychiatric factors and the reason he is not working now is not due to psychiatric factors.  It is likely that psychiatric factors did to some extent impair his working effectiveness but are not the fundamental reason for his not working.  If suitable work was available there is no reason why this man could not work 20 hours + per week at the present time.”

9. The relevant legislation is contained in s.24 of the Act, as folllows:

“24  Special rate of pension

(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)…

(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;

..

(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 it self 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;

(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.”

10.     Although Dr. Rogers appears to have misunderstood the reasons for the Applicant’s cessation of his interests in the limousine business in 1998 and the squash business at Capalaba in June 2000, the Respondent and the Tribunal accept his evidence that the Applicant’s service-related disabilities are of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

11.     That is, the Applicant satisfies subsections 24(1)(a) and 24(1)(b) of the Act. The remaining matter to be determined by the Tribunal is whether the Applicant satisfies subsection 24(1)(c) of the Act.

12.     There is no doubt that the last remunerative work undertaken by the Applicant was his limousine business which he sold in late 1998.  He treated the Capalaba period as a holiday and he took no drawings from the business.  He has not worked for remuneration since he returned to Townsville in October 2000.

13.     The sale of the limousine business in 1998 had nothing to do with any service-related disabilities.  It was part of a strategic plan to give his son Marcus a chance at becoming a professional squash player.

14.     The closure of the squash business at Capalaba was also not due to service-related disabilities.  It was due to non-compliance with council regulations which culminated in the Council closing down the business.

15.     The Tribunal finds that the Applicant ceased to engage in remunerative work in late 1998 for reasons other than his incapacity from war-caused injury or war-caused disease, or both.

16.     On his return to Townsville in October 2000, the Applicant worked on his house and surroundings and built a shed.  He did not look for work.  By then he was receiving the Service Pension plus Disability Pension at 70% of the General Rate (later increased to 100% from 29 October 2000).  At the same time he also significantly reduced his capital resources by spending $30,000 to $40,000 on his house and by buying two cars.

17.     The Tribunal finds that when the Applicant returned to Townsville in October 2000 he had no intention of getting back into business.

18.     At the date of this application for an increase in pension to the Special Rate, 29 January 2001, the Applicant had not sought remunerative work for over two years and he had just completed major refurbishment of his house in the previous four months.

19.     The Tribunal is satisfied that the main reason for the failure of the Applicant to engage in remunerative work since November 1998 is the fact that he retired.  He now drives limousines for a few hours per week as an interest, a hobby.

20.     The Applicant does not satisfy subsection 24(1)(c) of the Act and is not entitled to disability pension at a rate above 100% of the General Rate.

21.     The decision to reject his claim is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  20 May 2003
Date of Decision  6 November 2003
Counsel for the Applicant         Mr. D. Honchin
Solicitor for the Applicant          Purcell Taylor
Respondent  Mr. J. Stoner, departmental advocate