Staples and Repatriation Commission - [2001] AATA 82

DECISION AND REASONS FOR DECISION [2001] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/296

VETERANS' APPEALS DIVISION )

Re Milcie STAPLES (Legal Personal Representative of Cyril George STAPLES, deceased)
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date8 February 2001
PlaceSydney

Decision The Tribunal – 1. Sets aside the decision of a delegate of the Repatriation Commission ("the Respondent") dated 18 May 1998 that refused to increase pension paid to Cyril George Staples beyond one hundred percent of the General Rate; and 2. Substitutes therefor its decision that the Respondent is liable to pay pension to the estate of the late Cyril George Staples at the Special Rate, pursuant to s24 of the Veterans' Entitlements Act 1986, on and from 22 October 1997 until and including the date of his death of 4 October 2000.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – assessment - special rate – veteran over 65 years of age at application date – whether applicant would have suffered loss of earnings if free of war-caused incapacity
Veterans' Entitlements Act 1986 - s24(2A)(e)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 18 May 1998 that refused an application for increase made by Cyril George Staples MBE ("the Applicant") on 22 October 1997. The Applicant sought review of that decision by the Veterans' Review Board, and on 24 November 1998 the Veterans' Review Board affirmed the decision of the Respondent. The Applicant then sought review by this Tribunal. All applications for review were in time, and therefore the earliest date of effect of the Tribunal's decision is 22 October 1997, being the date of the application for increase.
The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act (1975). The following documents were tendered as evidence on behalf of the Applicant –

Report from Dr M Burns, occupational physician, dated 7 August 1999 (exhibit A);
Statements written by the Applicant dated 3 September 1999 (exhibit B), 22 November 1999 (exhibit C), 5 January 2000 (exhibit D) and 17 January 2000 (exhibit E).

The Applicant gave oral evidence at the hearing on 14 March 2000.

The Applicant died on 4 October 2000, before the Tribunal's decision was handed down. The Tribunal was advised on 5 December 2000 that the Applicant's widow, Milcie Staples, was the Executor of his Will, and she sought to continue this application for review as his legal personal representative. The Respondent did not oppose this request. The Tribunal determines, pursuant to s126 of the Veterans' Entitlements Act 1975 ("the Act"), that Milcie Staples is the Legal Personal Representative of the deceased Applicant.
The Applicant was born on 11 February 1916, and served in the Army from 1939 to 1945, including service in Palestine and Greece where he was captured by the Germans. He became a prisoner of war in Greece and then in Poland.

At the time of the application the Applicant was aged 81 years and was receiving pension at 100 percent of the General Rate. He was seeking payment of pension at the Special (Totally and Permanently Incapacitated) Rate. The following conditions from which he suffered were accepted as being due to his war service –

Anxiety state
Abdominal pains
Right renal calculi
Cholelithiasis
Left ureteric calculus
Hypertension
Atherosclerotic cardiovascular disease
Cervical spondylosis
Lumbar spondylosis
Irritable bowel syndrome
Diverticular disease of the colon

The Respondent conceded that the Applicant had ceased work as a result of his war-caused disabilities and was unable, because of those disabilities, to work for more than eight hours per week. In effect the parties agreed that the Applicant met the requirements of s24(a) and (b) of the Act. As he was over the age of 65 years at the time of his application s24(2A) applies. Section 24(2A) provides –
This section applies to a veteran if:
(a)       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
(b)       the veteran had turned 65 before the claim or application was made; and
(c)       paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)       the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)       because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)        the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)       when the veteran stopped undertaking his or her last paid work, the veteran;
(i)        if he or she was then working as an employee of another person – had been working for that person, or for that person and any predecessor or predecessor of that person; or
(ii)       if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)       section 25 does not apply to the veteran.
The Respondent conceded that the Applicant, after the age of 65 years, was employed for more than ten years with the same employer, that being GBS Group Pty Ltd and therefore he satisfied s 24(2A)(d) of the Act. The Tribunal accepts that these concessions were properly made. The only issue for the Tribunal to determine is whether the Applicant satisfies paragraph (e).
It was the Respondent's position that at commencement of the assessment period, the Applicant was highly unlikely to be working irrespective of any disabilities because of his age of 81 years and the number of years he had spent out of the workforce. After having heard the Applicant's evidence it was the Respondent's position that, from the time he moved to Ballina in September 1993 his focus was on retirement, and from that time he did not intend to return to remunerative work.
The Applicant had worked throughout his life as a qualified accountant. In 1952 he assisted a builder to transform his business into a company. Over the years the business grew extensively, and in 1971 the Applicant assisted in transforming the business into a new public company - GBS Developments Ltd. The Applicant worked for the same company and/or its subsidiaries, as Company Secretary and business administrator, and as a director, until 1992. By this time, with various changes in the company over the years, it had come to be known as GBS Group Pty Ltd. By 1989 the Applicant was living in the Hunter Valley, and he travelled to Sydney weekly for two or three days each week, to attend to company business. He worked about 40 hours over those two or three days. He continued this arrangement until 1992.
In 1992 the Applicant began to have difficulty in walking, and this culminated in his having an urgent laminectomy for his war-caused lumbar spondylosis. He was advised that recuperation from the surgery would take more than a year, and so he resigned. He said that company law responsibilities did not provide for long sick leave for directors or company officers, and therefore he had no alternative but to resign. He had intended to return when he was fit by tendering his name for re-election as a director at the Annual General Meeting in November 1993. However, by that time he was not well enough to resume work because of his back.
The Applicant and his wife moved to Ballina in September 1993, some 15 months after his laminectomy. He said that their house in the Hunter Valley was an old historic home that they were restoring. After his laminectomy he was sure that he could not continued to do the work around the house that he had done previously. He said that one factor that influenced their choice of living in Ballina was that it had domestic flights to Sydney four or five times a day, and he thought the company would have borne the cost of his travel. He expected that he could have continued his work with GBS by restricting his visits to Sydney to one or two days a month. The reduced need to visit Sydney related to the near completion of projects that had previously involved him in extensive face to face negotiations with various organisations in Sydney. Otherwise he would work from home on his computer, and he had done that prior to his surgery.
In 1995 the Applicant had a prostatectomy because of carcinoma of the prostate. He said that he was then prescribed medication, and understood that it was working well. At the time of the hearing he was not having any difficulty from that condition.
The Applicant's back condition started to deteriorate about 1997. He said that he did not have any specific plans about how long he would have continued working for the company if his health had enabled him to do so, and he would have worked as long as he could "keep going". His evidence at the hearing was that if it had not been for the laminectomy he would continue to be there. He said he has maintained his membership of the Chartered Institute of Secretaries for sentimental reasons as he commenced the study for that while he was in the prison camp in Poland.
The company continues to trade. The Applicant said he continued to have telephone contact with his fellow directors of the company and two weeks prior to the hearing he had attended a conference and lunch with them where he shared his ideas on issues important to the company. He said that while some of the directors were younger than he was, others were in their late seventies.
As at the date of the hearing he continued to be mentally alert and kept abreast of professional accounting, and business and political issues relevant to the area of operation of the company. He also busied himself making submissions to government on income tax changes and a few weeks after the hearing he was preparing to be the guest speaker at a conference of about 100 people dealing with strata title law.
The Applicant was also involved in a fraud investigation over many years, not associated in any way with his work for GBS. He said he continued to undertake some minimal work during 1994 and 1995 to complete those investigations. He was able to undertake this work from his home in Ballina. However because of limitations in walking he was unable at that time to return to his work with GBS.
The Applicant's statement to the Veterans' Review Board dated 4 June 1998 (T11) was that "it is only in recent months that serious deterioration has occurred. This has led me to decide that I will not be able to return to the work-force as before". He also said that until he lodged his application for increase in pension in October 1997 he still hoped to return to work. He said he kept abreast of changes in his field by studying professional journals, government reports and current affairs as well as maintaining telephone contact with some previous associates. He noted that the breadth of his professional experience placed him in a different position to the average worker, and said that age was no disqualification for him getting employment. He noted that he had maintained a home office with computer and fax. He noted that his walking and travelling limitations alone prevented him from taking his place in the work force.
Dr Burns, occupational health physician, in his report dated 7 August 1999 (exhibit A) opined that the Applicant was unable to work, at least from the application date (22 October 1997) and since that time, because of his back and heart conditions, both being accepted disabilities. Although the Applicant's heart condition was not a problem at the time he ceased work, subsequently it provided a significant limitation.
submissions
It was submitted for the Applicant that he was at an advanced age in the general work force and, was still continuing to work considerable hours in the years leading up to 1992 when he had to cease work at reasonably short notice because of his war-caused back condition. His position as company director was not taken over by anybody else. He intended to return to work after he recovered but because of disappointing rehabilitation he was unable to do so. It was also submitted that the work of a company director is often undertaken by people after retirement from their normal occupations, and that age is no barrier to continuing in that role.
The Tribunal's attention was drawn to the Applicant's attachments to his letter at T11, and that these attachments were evidence of the Applicant's continued ability to deal with complex issues involving business practices, accountancy and the like. It was also submitted that his oral evidence to the Tribunal was a demonstration that he has continued to retain that capacity. He has retained membership of his professional association, although this is not essential to his continuing role as a company director.
It was submitted that the Applicant did not suffer from any other medical disability that would prevent him from continuing to work, and that his loss of earnings arose entirely as a result of his inability to work because of his back condition.
It was conceded for the Respondent at the end of the hearing that the amount of salary lost by the Applicant was sufficient to satisfy the provisions of s24 of the Act.
It was submitted for the Respondent that after the Applicant's back operation he had been able to walk two miles per day, and in 1994 and 1995 he was able to complete some fraud investigation work. Hence, the Applicant was not precluded from working from that time because of his difficulty in walking or because of his war-caused conditions. (On a careful analysis of the Applicant's oral evidence and the documentary evidence the Tribunal can find no reference to the Applicant walking a mile to the shops and a mile back home each day. His oral evidence was merely that he walked to and from the local shop each day to buy the newspaper).
It was submitted for the Respondent that the Applicant adopted a retirement lifestyle in Ballina by that time, and that if indeed he intended to return to work with GBS he could have moved to a location other than Ballina that would have been more convenient for that work. It was submitted that he had made a decision not to return to work. At the commencement of the assessment period, 22 October 1997, he was 81 years of age, and had ceased work for GBS four years previously. It was also submitted that he had some capacity for work after he ceased work with GBS. Therefore, it was his age at the application date, the length of time out of the work force, and his decision to retire, that are the overwhelming factors.
consideration of evidence and findings of fact
At the application date the Applicant was aged 81 years. The Tribunal finds that at the application date the Applicant could have returned to his position as company director and company secretary of GBS Group Pty Ltd, were it not for the effects of his war-caused disabilities, and in particular his lumbar spondylosis and atherosclerotic cardiovascular disease. On the evidence of Dr Burns, which the Tribunal accepts, the Applicant was unable to perform his work as a company director at least from October 1997 and it was his back problem that caused him to leave work in 1992. The Tribunal finds that the Applicant's move to Ballina would not have precluded him from continuing his work with GBS, nor would his age or time out of the workforce. The Tribunal finds that the Applicant was one of those exceptional people who retained his professional skills and mental ability despite his advanced age.
The Tribunal finds, on the evidence, that the Applicant was prevented by his war-caused conditions alone, from undertaking his last paid work, that being his work as a company director and company secretary of GBS. He thereby suffered a loss of earnings on his own account that he would not have suffered if he was free from those war-caused conditions. As at the application date, 22 October 1997, the Applicant met all relevant provisions of s24 of the Act, and therefore was entitled, from that date and until the date of his death (4 October 2000), to receive pension at the Special Rate.
The decision under review is therefore set aside, and in substitution the Tribunal determines that pension be paid to the estate of the Applicant at the Special Rate from 22 October 1997 until and including 4 October 2000.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  14 March 2000
Date of Decision  8 February 2001
Representative for the Applicant   Ms J Buss
Representative for the Respondent Mr P Godwin