Stefanowicz and Repatriation Commission

[2001] AATA 656

DECISION AND ORAL REASONS FOR DECISION [2001] AATA 656

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2000/359

VETERANS' APPEALS  DIVISION       )          
           Re      STANISLAW STEFANOWICZ    
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Miss WJF Purcell (Senior Member)        

Date29 June 2001

PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.   
  (Signed)
  W J F PURCELL

Senior Member

CATCHWORDS
VETERANS' AFFAIRS – disability pension – whether pension payable at special rate – whether applicant satisfied the "alone test".
Veterans' Entitlements Act 1986, s24

ORAL REASONS FOR DECISION

29 June 2001                     Miss WJF Purcell (Senior Member)                    

1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 7 July 1998, which assessed disability pension at 100 per cent of the general rate.  The Veterans' Review Board (VRB) affirmed the decision of the Commission on 11 July 2000.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Swan represented the applicant, who gave oral evidence. Mr Doube represented the Commission.

3. The applicant (the veteran) was born on 17 June 1946.  He served for 10 months in Nui Dat in Vietnam.  After his discharge from the Army, he was employed over a 7-year period by the South Australian Abattoirs, with casual labouring jobs in the building industry.  He worked then, from 26 June 1978, for Tubemakers Australia, until he ceased that employment on 14 December 1987.

4. The veteran had been in receipt of Disability Pension at the rate of 20 per cent in respect of his accepted disability of Bilateral High Tone Hearing Loss, when on 7 July 1998, his pension was increased to 100 per cent of the general rate, upon acceptance of the further conditions of Post Traumatic Stress Disorder (PTSD), Psycho Active Substance Abuse or Dependence Involving Alcohol, Chronic Bronchitis, and Tinea.  It was the delegate's opinion that the applicant was not entitled to the special or intermediate rate of pension, as "you would not now be working even if you were not suffering these disabilities and so I cannot grant you either of these rates."  (T18/84).

5. On 14 July 1998, the veteran lodged an application for review with the VRB and contended that he was entitled to the pension at the special rate. The VRB affirmed the Commission's decision, concluding that the veteran did not satisfy the "alone test" in accordance with s24 of the Veterans' Entitlements Act 1986 (the Act). The VRB considered that the veteran was prevented from engaging in remunerative work because of knee and back injuries, and not by reason of his accepted disabilities alone.

6. Section 24 of the Act provides:

   "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)       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.

   (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."

7. The veteran submits that his motor vehicle accident injuries do not limit his capacity to work.  He could undertake now, the work he was performing at Tubemakers.  He has genuinely sought employment, and the employment he obtained with his brother-in-law, and at furniture manufacturers, IJF, were terminated because of his war caused PTSD.

8. The Commission concedes that the veteran satisfies s24(1)(a)(i) and s24(b) of the Act, but contends that the veteran does not satisfy s24(1)(c) of the Act, in that he ceased work as a result of a compensible motor cycle accident which occurred in March 1986, and not for any reason associated with his war-caused incapacity. It submits further that the veteran has not been prevented from continuing to undertake remunerative work through incapacity from war-caused conditions alone, but has been unable to obtain employment because of the injuries he suffered in the motor cycle accident.

9. An undated letter from his treating general practitioner, Dr Nowosilskyj, in support of the veteran's service pension claim dated 17 December 1991, reads: 

   "Mr Stefanowicz has always done manual/labouring work eg. press operator, lumping wheat, brickies labour, abattoir work.
   With his medical /physical condition, he is not fit for this type of work.
   He is suitable for light duties only such as clerical – but even Tubemakers did not consider him fit for such a position with them.
   Even with a clerical position, (which he has never done) which requires sitting/standing and getting out of a chair really aggravates his knee problem so I can see problems arising with such a job as well" (T7/41).

1. In the veteran's claim for Disability Pension and Medical Treatment dated 30 December 1991, the veteran stated (in regard to his employment history) "employment terminated because no longer able to perform normal duties due to injuries received in vehicle accident on way home from work" (T8/44).  In a Lifestyle Report completed on 27 January 1992, the veteran reported "pain in left knee after about 2km when walking", (T9/46) and stated also that when sitting in or driving a car he had "pain in lower back, plus pain in left knee when bent, sitting" (T9/46).

2. Mr Patterson, the veteran's treating orthopaedic surgeon, reviewed the veteran on 11 October 2000, and reported significant improvement in the veteran's knee and stated, in part:

   "Mr Stefanowicz's left knee condition does not represent any limitation at all with regard to his work capacity. Indeed, even before the knee settled in 1989, Mr Stefanowicz advised that the knee did not specifically preclude him from returning to his previous employment as a press operator and that there were other factors which I have not fully explored, which were the reasons why he did not return to that employment" (Exhibit A1).

3. On the veteran's evidence he had several periods of absence from work subsequent to his March 1986 injuries.  The knee injury (pre-patella bursa) was the main problem, and Mr Patterson, the orthopaedic surgeon, operated on two occasions, on 14 May 1986 when the bursa was excised, and again in 1987.  The veteran saw Mr Patterson again on 23 February 1989, when he was given a cortisone injection.  He said in evidence that each time he returned to work he continued to perform his pre-accident duties as a press operator.  The only difficulties he experienced were when he bent his knee and the overalls rubbed on the knee.

4. The veteran gave evidence that on the last occasion he returned to work, he had a doctor's certificate which stated that he was fit to return to "light duties".  The personnel officer informed him that light duties were not available, and that he might as well go home.  It was soon after this that he received his dismissal notice.  Despite this, he says he was able to continue to perform his previous duties, as he is today.  He received a termination lump sum payment of $20,000.00 and subsequently settled his third party claim for $100,000.00 of which, he says, he received only some $30,000.00 or so.

5. The veteran said in evidence that in the mid-1980s he was becoming increasingly depressed and irritable.  He was abusing alcohol and becoming aggressive to Asian work-mates, who he considered were receiving better treatment as refugees, than were the Vietnam war veterans.  He did not understand at that time, that his nervous condition was attributable to his war service.  His PTSD was diagnosed by Dr Truman, psychiatrist, on 3 March 1998.

6. I have examined the evidence carefully and in detail, and I have taken into account the parties' submissions. I am satisfied on the evidence, and find as a fact, that the veteran ceased to be engaged in remunerative work with Tubemakers, as a result of his work related injuries. His ceasing work had nothing to do with any of his war-caused conditions. He cannot satisfy, therefore, s24(2)(a)(i) of the Act.

7. In relation to the ameliorating provision, s24(2)(b) of the Act, the veteran says that he sought employment between late 1987 and the granting of Service Pension in 1991. On each occasion he provided correct information to the prospective employer, as to his work related injuries. I am satisfied on the evidence that the applicant was genuinely seeking employment, but that he was unable to obtain such employment because of his work-related injuries. His war-caused disabilities were not a substantial cause of his inability to obtain remunerative work. Conditions such as PTSD were not known to the applicant at that time, and of necessity, were not known to the potential employer, and could not influence such potential employer's decision. The veteran does not satisfy s24(2)(b) of the Act. The veteran is not qualified therefore, for payment of pension at the special rate.

8. For these reasons the Tribunal affirms the decision under review.

   I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)

   Signed:   (Sgd) F M Boekamp.
     Personal Assistant

   Date/s of Hearing  29 June 2001
   Date of Decision  29 June 2001
   Counsel for the Applicant        Mr Swan
   Solicitor for the Applicant         Swan Lawyers
   Counsel for the Respondent    Mr Doube
   Solicitor for the Respondent    Department of Veterans' Affairs