Stevenson and Repatriation Commission (Veterans' entitlements)
[2019] AATA 520
•21 March 2019
Stevenson and Repatriation Commission (Veterans' entitlements) [2019] AATA 520 (21 March 2019)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2017/3030
Re:David Stevenson
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:21 March 2019
Place:Melbourne
The Tribunal affirms the decision under review.
..................[sgd].................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
VETERANS’ AFFAIRS – application for Special Rate of pension – veteran’s degree of incapacity from war-caused injury or war-caused disease 70 per cent or more – whether veteran prevented from undertaking remunerative work – whether alone test at s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth) is met – whether ameliorating provisions of the Act apply – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Soldiers’ Repatriation Act 1920 (Cth)
Veterans' Entitlements Act 1986 (Cth)
CASES
Anthony Fox v Repatriation Commission [1997] FCA 176
Banovich v Repatriation Commission (1986) 69 ALR 395
Flentjar v Repatriation Commission (1997) 48 ALD 1
Leane v Repatriation Commission [2004] FCAFC 83
Repatriation Commission v Richmond [2014] FCAFC 124; (2014) 226 FCR 21
Repatriation Commission v Smith (1987) FCR 327
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
ReRedden v Repatriation Commission, [2015] AATA 273
Repatriation Commission v Strickland (1990) 22 ALD 10
Repatriation Commission v Watkins [2015] FCAFC 10; (2015) 144 ALD 17
Smith v Repatriation Commission (2014) FCAFC 53
Smith v Repatriation Commission (2014) 220 FCR 452Summers v Repatriation Commission [2015] FCAFC 36
SECONDARY MATERIALS
Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law, Federation Press, 3rd ed., 2016
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
21 March 2019
Mr David Stevenson is a 69-year-old veteran of the Royal Australian Navy (RAN), with approximately 20 years of service from 1965 to 1985. He has eligible defence service and operational service as defined by the Veterans’ Entitlements Act 1986 (the Act).[1] Mr Stevenson has received a disability pension from the Repatriation Commission (the Commission) at 100 per cent of the General Rate since 2013.
[1] Exhibit A1, 1. See also Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 23 February 2018, paragraph 5.
Mr Stevenson lodged two applications with the Tribunal seeking review of decisions by the Veterans’ Review Board (the VRB). The first relates to the VRB’s rejection of his claim to have his sleep apnoea recognised as war-caused. The second relates to the VRB’s decision to continue Mr Stevenson’s pension at 100 per cent of the General Rate.[2] At the commencement of the hearing, however, counsel for Mr Stevenson informed the Tribunal that the sleep apnoea application had been withdrawn.
[2] Exhibit R2, T2 [2a-2j].
The hearing commenced on 25 June 2018. Mr Stevenson was represented by Ms Fiona Spencer of counsel, instructed by Williams Winter Solicitors. The Respondent was represented by Mr Ken Rudge, a departmental advocate. Mr Stevenson gave oral evidence and was cross-examined. His general practitioner, Dr Kim Teo, and an occupational physician, Dr Robyn Horsley, gave oral evidence and were cross-examined.
On 26 June 2018, in light of an irresoluble issue in the medical evidence regarding Mr Stevenson’s respiratory condition, the hearing was adjourned to enable a clarifying opinion to be obtained from a consultant respiratory physician. The hearing resumed on 19 December 2018, at which time the report of consultant respiratory physician, Dr David Hart, was taken into evidence[3] and the parties made closing submissions. Transcripts of the hearing on 25 and 26 June 2018 were produced.
[3] Exhibit R6.
On 23 January 2019, the Tribunal convened a Telephone Directions Hearing, at which it was decided that a Summons to Produce Documents would be issued to VicRoads in order to clarify Mr Stevenson’s licence renewal history. Records from VicRoads were subsequently received by the Tribunal on 21 February 2019 and leave was granted for the parties to inspect the records immediately thereafter. Neither party lodged further submissions in relation to the VicRoads records.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
After his discharge from the RAN in 1985, Mr Stevenson worked as a heavy vehicle driver in the transport industry. He also worked for National Foods as a warehouse manager for approximately three years before being retrenched. He was subsequently employed by Safeway as a driver, and became a fleet operations manager there during the late 1990s.[4]
[4] Exhibit A1, 1. His responsibilities encompassed a heavy vehicle fleet crewed by up to 200 drivers
Mr Stevenson resigned from his full-time role at Safeway in November 2009, but remained there in a part-time role driving heavy vehicles.[5] This enabled him to spend more time with his wife who was suffering worsening health. Mr Stevenson received Carer Allowance for looking after his wife[6] until she entered ‘full level high residential care’ in approximately September 2009.[7] Mrs Stevenson remained in care until she died in September 2013.
[5] Transcript of Proceedings 25 June 2018 (Transcript), 9 [30].
[6] Ibid 33 [27]-[28].
[7] Ibid 11 [10].
In addition to spending more time with his wife, Mr Stevenson states there were other factors influencing his decision to resign from his fulltime management role in 2009:
(a)The ‘trouble’ he experienced from his accepted disabilities; which often caused him to be short of breath, to suffer uncontrolled coughing, and to experience difficulty driving manual trucks;[8]
(b)The time-intensive nature of his managerial duties, which sometimes took up to six days a week to perform.[9] Mr Stevenson says the transition to part-time hours gave him ‘a bit of a break’ by ‘only working three days;’[10] and
(c)Conflict with his direct manager at Safeway, who was trying to impose ‘untried, different ways’[11] in the workplace, which resulted in disagreements between them.
[8] Ibid 9 [36]-10 [20].
[9] Ibid 10 [43].
[10] Ibid 10 [40].
[11] Ibid 37 [25]. See also Exhibit R4, 53.
After Mr Stevenson’s wife was taken into care in 2009, he applied for and received Carer Allowance for looking after his wife’s niece, who moved into their home.[12] He states this arrangement continued until his wife’s niece passed away a few months before his wife did in 2013.[13]
[12] Ibid 33 [23]-[30].
[13] Ibid [24]-[25].
Mr Stevenson worked as a part-time truck driver at Safeway from November 2009 until being made redundant on 2 June 2013.[14] He averaged 27 hours, working three days per week. His redundancy followed a decision by Safeway to outsource its road transport delivery services to an independent contractor (Linfox).[15] Mr Stevenson was one of approximately 200 truck drivers who were redeployed or retrenched as a result of the outsourcing decision. He was 64 years old when his redundancy took effect.
[14] Exhibit A1, 2.
[15] Exhibit A1, 2; Transcript, 13 [30]. See also: >
Approximately six weeks before being made redundant, Mr Stevenson says he considered a possible redeployment opportunity with Linfox. He decided not to proceed with an application to Linfox after learning the role involved transporting goods from a paint factory, which he felt ‘would aggravate [his] shortness of breath from the bronchitis.’[16] After electing not to proceed with the Linfox redeployment, Mr Stevenson has ‘not actively applied for employment’[17] of any sort, claiming he ‘was simply unfit for any remunerative work - even on a part time basis.’[18]
[16] Exhibit A1, 2; Transcript, 13 [33]-[35].
[17] Exhibit A1, 2;
[18] Ibid.
Within a month of his redundancy at Safeway, Mr Stevenson submitted a claim to the Commission for increased disability pension arising from a number of new conditions (morbid obesity, sleep apnoea, and peripheral neuropathy).[19] He had been diagnosed with diabetes in November 2000[20] and became insulin-dependent in 2011.[21] He attributed his morbid obesity to his diabetes. Mr Stevenson was also diagnosed with ‘severe obstructive sleep apnoea’ in March 2006,[22] which he attributed to his morbid obesity. Mr Stevenson concurrently claimed that all of his ‘accepted disabilities have gotten worse.’[23]
[19] Exhibit R2, 3-12.
[20] Exhibit R4, 77-78
[21] Ibid, 40-41; 575.
[22] Exhibit R2, 25. See also Exhibit R4, 429.
[23] Ibid, 7.
The Commission rejected Mr Stevenson’s claim for sleep apnoea. In 2013 the Commission accepted peripheral neuropathy as caused by Mr Stevenson’s service, while morbid obesity was accepted in 2016. It is in the context of reviewing Mr Stevenson’s overall assessment following the acceptance of morbid obesity in 2016, that the VRB decided he should continue to receive disability pension at 100 per cent of the General Rate.
As at the commencement of the hearing, the Commission had accepted the following conditions as related to Mr Stevenson’s service under the Act:
(a)Morbid Obesity;
(b)Tinea;
(c)Osteoarthritis Left Ankle;
(d)Bilateral Sensorineural Hearing Loss;
(e)Bilateral Tinnitus;
(f)Chronic Simple Bronchitis;
(g)Diabetes Mellitus;
(h)Peripheral Neuropathy;
(i)Secondary Chronic Lymphoedema;
(j)Solar Keratosis of the Face; and
(k)Non-Melanotic Malignant Neoplasm of the Skin.
Mr Stevenson also has a number of disabilities that have not been accepted as related to his service, namely:
(a)Sleep Apnoea;
(b)Alcohol Abuse;
(c)Refractive Error;
(d)Glare;
(e)Hypertension; and
(f)Bilateral Presbyopia.
LEGISLATIVE FRAMEWORK
Section 14 of the Act provides for pension claims. Section 15(1) of the Act enables veterans to apply for an increase in their pension payments on the ground that incapacity has increased since the previous rate of pension assessment.
Section 19 of the Act provides for determination of claims and applications, requiring the Commission to assess the rate of pension in accordance with whichever of s 22 (General Rate), s 23 (Intermediate Rate), or s 24 (Special Rate) applies.
Special Rate of pension
Mr Stevenson considers he is entitled to the Special Rate of Pension, which was first introduced in the Australian Soldiers’ Repatriation Act 1920 for:
…members of the Forces who have been blinded as the result of War Service, and to members who are totally and permanently incapacitated (i.e. incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage).[24]
[24] Australian Soldiers’ Repatriation Act 1920 (Cth) sch 1 para 1.
By way of background, Senator Edward Millen, Australia’s first Minister for Repatriation, stated in his Second Reading Speech:
I pass from that to refer to what is done for the benefit of those most seriously stricken men, the totally and permanently incapacitated. These terms are used with varying meaning, but are interpreted literally by the Department of Repatriation. In view of the nature of the war, the number of our men totally incapacitated is fortunately smaller than might have been expected. These men include men who are hopelessly crippled or paralyzed—spine cases—men to whom we can offer no hope of restoration to health…
There is a special schedule in the new Bill for the blinded, and for that class to whom I referred earlier, that is, the totally and permanently incapacitated. Provision is made to allow these a pension of £4 per week. In view of the severity of their affliction, I venture to believe that the Senate will not regard that sum as out of the way.
… the number of those so seriously injured is very much less than one might have expected, bearing in mind the character of the war. The total number of blinded is not more than 100…The maximum number of the totally and permanently incapacitated will not exceed 150.[25]
[25] Senator Edward Millen, Second Reading Speech, Parliament of Australia, 24 March 1920.
The test for Special Rate of Pension did not change until 1985, when the original intention of the 1920 provisions was considered to have been undermined by an overly liberal judicial interpretation of the qualifying provisions. In 1985 the test was replaced with substantially the same tests applying in the current Act. On introducing the 1985 changes, the Acting Minister for Veterans’ Affairs stated:
Since 1920, there has been a special rate of disability pension payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment. The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force.
Determining authorities have found the application of the present legislative provisions difficult because the provisions, unchanged since 1920, contain outmoded and imprecise terms. The amendments clarify the eligibility criteria and make it clear that to qualify for a TPI pension a veteran must be eligible for the 100% general rate pension. In addition, the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension. Special provision is made by the Bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work.[26]
(emphasis added).
[26] Commonwealth Parliamentary Debates, House of Representatives, 16 May 1985, pp. 2,646–7.
Since the 1985 changes, legislation was enacted in 1988 to reduce the requisite degree of incapacity for Special Rate pension to 70 per cent.
Eligibility for pension at the Special Rate is provided for at s 24 of the Act:
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.Intermediate Rate
Eligibility for a pension payable at the Intermediate Rate is provided for at section 23 of the Act, which has the same eligibility criteria as section 24, except that the veteran has a capacity for more than eight but no more than 20 hours work per week. However, as required by s 23(1)(d), it is necessary to consider eligibility for the Special Rate first, before turning to the Intermediate Rate. In effect, s 23 only applies if ss 24 or 25 do not apply to the veteran.
To qualify for the Intermediate Rate, a veteran must be rendered incapable of undertaking remunerative work other than on a part-time or intermittent basis. If the veteran is capable of undertaking work of a particular kind for 50 per cent of the time ordinarily worked by persons engaged in work of that kind on a full-time basis, or for 20 hours or more per week, they do not qualify.
In this matter, the Respondent concedes that, as a result of Mr Stevenson’s accepted conditions, at ‘some point during the assessment period it came to pass he couldn’t work more than eight hours per week’[27] because of disability arising from his accepted conditions and, consequently, s 23 does not apply.
[27] Mr Rudge closing submissions.
In Smith v Repatriation Commission [2014] FCAFC 53 (Smith), Buchanan J summarised the effect of the legislative provisions at ss 23 and 24 of the Act at [40]-[41], a summary which I respectfully adopt:
40 The effect of these statutory directions in the present case was that an assessment was required as to whether at any time during the “assessment period” a pension was payable in accordance with s 23 (intermediate rate) or s 24 (special rate). If so, the most recent such entitlement was to be determined as the rate of pension payable. The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable. Because this arrangement applies to applications for increase in pension, it commences from the premise that some level of pension at the general rate is already being paid.
41 The general rate of pension is assessed under s 22 of the Act. First, an assessment must be made under s 21A of the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions, which is prepared pursuant to the provisions of s 29 of the Act. Assessment of the degree of incapacity is to be determined in increments of 10 percent and is not to exceed 100 percent. Section 22 then provides an entitlement to the general rate of pension at the same percentage of the general rate as the percentage determination of incapacity. The appellant was entitled to the general rate of pension at 100 percent.
Buchanan J also elaborated at [47] upon the legislative requirements under s 24(1)(b) and (c) of the Act:
Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
The Full Court’s decision in Repatriation Commission v Richmond [2014] FCAFC 124 (Richmond), elaborated upon the ‘alone’ element of the test in s 24(1)(c) of the Act. Their Honours held at [57]-[59] that:
57. The first limb of s 24(1)(c) requires the decision-maker to decide whether the veteran’s war-caused injury or disease (or both) alone prevented him or her from continuing to undertake the remunerative work the veteran was engaged in. The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity.
58. The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.
59. In our view the authorities on the alone element of the test in the first limb are clear. In Cavell (at 539-540) Burchett J expressly approved the Tribunal’s statement that the use of “alone” in s 24(1)(c) means that any non war-caused factor which plays a part in the applicant’s inability to work or to obtain and hold remunerative employment is sufficient to displace the applicant’s case for a pension at the special rate.
Their Honours further stated at [65] that:
65. … While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.
The reasoning in Richmond was upheld in Repatriation Commission v Watkins [2015] FCAFC 10. In Summers v Repatriation Commission [2015] FCAFC 36 (Summers), the Full Court held at [194]:
In Richmond at [67]-[69] the Full Court reviewed the authorities in relation to the “alone” test and respectfully disagreed with Bromberg J. The Court held that s 24(1)(c) requires that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is of only secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied. Then, in the appeal from Bromberg J’s judgment in Repatriation Commission v Watkins [2015] FCAFC 10, per Kenny, Barker and Rangiah JJ, the decision at first instance was overturned. The Full Court said (at [61]) that the decision in Richmond was correct and applicable. We also consider Richmond to be correct.
Capacity to Undertake Remunerative Work
When considering what remunerative work a veteran can perform under s 23(1)(b) or s 24(1)(b) of the Act, decision makers must apply s 28 of the Act, which allows regard to be had only for the following factors:
(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).
The parties agree that, by virtue of Mr Stevenson’s managerial skills having degraded in the years after he ceased his fulltime fleet manager role in 2009, it is not reasonable to suggest he could have returned to such a managerial role. The Tribunal agrees and finds that the type of remunerative work against which Mr Stevenson’s capacity should be considered during the relevant period is part-time work, up to 27 hours per week, as a truck driver or in transport/warehouse roles.
Standard of proof and assessment period
In accordance with s 19(9) of the Act, the assessment period for Mr Stevenson’s eligibility commenced on 17 July 2013, which is the date he lodged his application for increased pension, and continues until determination of this matter by the Tribunal. Buchanan J elaborated upon the assessment period in Smith at [40]:
The effect of these statutory directions in the present case was that an assessment was required as to whether at any time during the “assessment period” a pension was payable in accordance with s 23 (intermediate rate) or s 24 (special rate). If so, the most recent such entitlement was to be determined as the rate of pension payable. The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable. Because this arrangement applies to applications for increase in pension, it commences from the premise that some level of pension at the general rate is already being paid.
Under s 120(4) of the Act, the standard of proof for assessment or reassessment of the rate of pensions is ‘reasonable satisfaction.’ To be reasonably satisfied, a decision maker must consider that a piece of evidence is more likely than not to be true. Beaumont J (Northrop and Spender JJ concurring) explained in Repatriation Commission v Smith (1987) FCR 327 (at 335) that the Tribunal should ask itself:
...whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other…
ISSUE BEFORE THE TRIBUNAL
There is no dispute that Mr Stevenson’s claim satisfies the requirements of ss 24(1)(aa) and 24(1)(aab) of the Act, because he made a valid application for a pension increase under s 15 of the Act and had not yet turned 65 when making his claim. His degree of service-related incapacity has been assessed at 100 per cent, which means he also satisfies s 24(1)(a)(i) of the Act. The Respondent concedes Mr Stevenson currently satisfies s 24(1)(b) of the Act, in that his defence-caused conditions render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Having regard to the evidence, it is clear that s 25 of the Act, relating to temporary payment of pension at Special Rate, does not apply to Mr Stevenson, because he could not be said to be temporarily incapacitated. The requirement at s 24(1)(d) of the Act is consequently satisfied.
The key issue to be resolved is whether Mr Stevenson is entitled to disability pension at the Special Rate, rather than 100 per cent of the General Rate. That turns on whether Mr Stevenson satisfies the ‘alone test’ at s 24(1)(c), or the ‘ameliorating provision’ at s 24(2)(b) of the Act.
There are two limbs to s 24(1)(c) of the Act,[28] which may be informed by ss 24(2)(a)-(b):
(a)The first limb requires that Mr Stevenson is, by reason of incapacity from his accepted conditions alone, prevented from continuing to undertake the remunerative work that he was undertaking. This limb may be ameliorated by s 24(2)(b);[29] and
(b)The second limb is that, as a consequence of the first limb, Mr Stevenson is suffering a loss of salary or wages that he would not be suffering if free of his accepted incapacity. The operation of the second limb is amplified by s 24(2)(a).[30]
[28] Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law, Federation Press, 3rd ed. 2016, 219 [24.06].
[29] Repatriation Commission v Richmond [2014] FCAFC 124, [21] (Middleton, Murphy and Rangiah JJ).
[30] Ibid [22].
KEY CONTENTIONS
Mr Stevenson contends that he satisfies the alone test,[31] or, in the alternative, satisfies the ameliorating provision.[32] Ms Spencer submits on his behalf:
[31] ASFIC, paragraph 52.
[32] Ibid.
(a)The critical inquiry for the Tribunal is what Mr Stevenson ‘probably would have done if he had none of his service disabilities during the assessment period,’[33] and ‘why he did not return to the workforce’[34] after the Safeway redundancy. In the Applicant’s submission, ‘the only reason why he left the workforce was because he was incapacitated by his war-caused conditions and thus no longer able to work’;[35]
(b)There is extensive evidence about the impact of Mr Stevenson’s accepted conditions on his ability to work and the progressive deterioration of his accepted conditions over time;[36]
(c)Mr Stevenson enjoyed his work and, but for his accepted disabilities, would have used his heavy truck and forklift licences to get ‘general driving jobs’[37] and would have continued in the workforce until age 67 or 68.[38] Moreover, he had the work experience, skills, attributes, and references that would have made him a competitive candidate, but for his accepted disabilities;[39]
(d)Statements from four of Mr Stevenson’s former work colleagues at Safeway, who performed the same work he did and were also made redundant,[40] show that each went on to obtain further driving work and all but one continued to work at the time of their statements;[41]
(e)In respect of the hypothetical exercise required by the first limb of s 24(1)(c) of the Act, Mr Stevenson had good prospects of remaining in the workforce until age 67-68;[42]
(f)Contrary to the Respondent’s submissions, age, alcohol consumption, lack of fitness and out-of-date managerial skills did not prevent Mr Stevenson from continuing to engage in the remunerative work he was undertaking;[43]
(g)The Respondent misconceives the nature of the enquiry required under s 24(2)(a)(i) of the Act, ‘which is concerned with the applicant deciding to leave the workforce for reasons other than incapacity from war-caused injury or disease, and not merely the circumstances in which the applicant’s last remunerative position came to an end;’[44]
(h)The fact that the applicant was made redundant from his last employment is not a matter that disentitles him from special rate of pension. The relevant enquiry is the reason why he left the workforce, which was because of his accepted conditions alone;[45] and
(i)The applicant made a genuine attempt to engage in remunerative work, but because of his accepted disabilities, he considered he could never pass a medical test required to obtain a driving job. He had accordingly stopped seeking to engage in remunerative work.[46] Moreover, Ms Spencer submitted there was nothing in the Act requiring more than one attempt to be made in relation to work, for an applicant to be considered to be genuinely seeking to engage in remunerative work.
[33] Ibid [13].
[34] Ibid.
[35] Ibid [14].
[36] Ibid [15].
[37] Transcript 17, [42].
[38] Ibid [16]. See also Transcript, 105, [19]-[21].
[39] Ibid [17].
[40] Exhibits A2-A5.
[41] Applicant’s Closing Submissions, 6 [19].
[42] Ms Spencer referred the Tribunal to Redden v Repatriation Commission [2015] AATA 273 (Redden).
[43] Applicant’s Closing Submissions, 7 [23]. In that regard, the Tribunal was referred variously to Repatriation Commission v Richmond (2014) 226 FCR 21; Repatriation Commission v Strickland (1990) 22 ALD 10; and Flentjar v Repatriation Commission (1997) 48 ALD 1.
[44] Ibid, 10 [39]. Ms Spencer refers in this regard to Smith v Repatriation Commission (2014) 220 FCR 452 at [10], [48], [70]; and Banovich v Repatriation Commission (1986) 69 ALR 395.
[45] Ibid 11 [40].
[46] Ibid 11 [43].
Mr Rudge for the Respondent submits that:
(a)Mr Stevenson does not satisfy the alone test because he ceased work for reasons other than his accepted disabilities. Mr Rudge submits that Mr Stevenson:
‘…was unemployed at 64 years of age as a result of the outsourcing of his job and consequent redundancy; he is aerobically unfit; and suffers from sleep apnoea, asthma[47] and a left shoulder disability. In addition his General Practitioner expressed concern about the effects of alcohol on his driving. On 22 August 2013 Dr Kim Teo reported “I am concerned about his unsafe level of drinking alcohol which affects his diabetes and ability to drive[48]...Dr Teo reported that he “continues to binge drink alcohol.” It is submitted that these factors contribute to the preventative effect and collectively prevent him from competitively applying for work.’[49]
[47] The Respondent’s reliance on asthma was withdrawn after the receipt of Dr Hart’s July 2018 report (Exhibit R6). Based on Dr Hart’s report, the parties and the Tribunal accept that Mr Stevenson suffers from the accepted condition of Simple Chronic Bronchitis alone and not asthma, which was previously raised in some of the expert medical evidence.
[48] Exhibit R1, 42.
[49] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 26 March 2018, paragraph 20.
(b)In relation to s 24(2) of the Act, Mr Stevenson ceased remunerative work because of an outsourcing decision at Safeway and the redundancies that followed, not as a result of his accepted disabilities (s 24(2)(a)(i));
(c)Mr Stevenson had work capacity at the time of his redundancy. Notwithstanding the dated nature of his management competencies after ceasing the full-time fleet operations manager role in 2009, Mr Stevenson retained his heavy vehicle and forklift licenses and expressed a desire to continue working until 67 or 68 years of age.[50] But after deciding not to proceed with a redeployment opportunity at Linfox, he made no further applications for driving work – including those that may not have involved exposure to fumes or other substances affecting his bronchitis. Mr Rudge pointed to Mr Stevenson’s oral evidence about why he did not apply for other jobs:
[50] Transcript, 105 [19]-[21].
Yes, I thought about it. I was just so downhearted, third time being retrenched. I’ve always got work before that. I spoke to some other people that were going for work, my age and younger, and the biggest thing in my mind is getting knocked back at the medical…I should have went for a job and went for a medical…I knew myself, because as the operations manager, sending people for medical interviews I didn’t have a hope in hell.[51]
[51] Transcript, 98 [35]-99 [2].
(d)Mr Stevenson was not genuinely seeking remunerative work within the meaning of s 24(2)(b) of the Act;
(e)Mr Stevenson agreed that being 64 years of age at the time of his redundancy in 2013 was a concern to him, and that younger drivers had better prospects of obtaining work.[52] Taken together, in the context of his retrenchment in 2013, Mr Stevenson’s age and the fact he did not apply for further work, constitute preventative factors to his employment;
[52] Ibid 34 [20]-[25]. See also Exhibit R1, 72 [18].
(f)The Tribunal should have regard for the Full Court’s elaboration on s 24(1)(c) of the Act in Richmond at [58] and [65]:[53]
[53] The Full Court in Richmond referred to Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47, holding at [63] that: ‘The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under section 24(1)(c) of the Act. (emphasis in original)
58. … to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.
65. … While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.
(g)The decision in Richmond has been followed in recent cases, including in Repatriation Commission v Watkins [2015] FCAFC 10; (2015) 144 ALD 17;[54]
(h)Dr Teo’s clinical notes reflect her concerns about Mr Stevenson’s unsafe level of alcohol consumption, which not only affected his diabetes, but she stated could also affect his ability to drive.[55] Moreover, alcohol dependence continued to be listed in Dr Teo’s clinical management plan dated February 2015 and it did not appear Mr Stevenson’s drinking declined after the death of his wife. Dr Teo’s evidence was that if an employer had asked for a medical report, she would have to say she was concerned about Mr Stevenson’s alcohol consumption in relation to his driving. But Mr Stevenson had only expressed interest in one possible redeployment opportunity with Linfox around the time of his redundancy, which he had decided not to proceed with, and had not subsequently applied for other work;
(i)Mr Rudge disagreed with Ms Spencer’s submission regarding what constituted ‘genuinely seeking to engage in remunerative work.’ Ms Spencer had stated during her closing submissions that there was nothing in the Act requiring more than one attempt to be made in relation to potential work, for it to be considered ‘genuinely seeking to engage in remunerative work.’ Mr Rudge drew the Tribunal’s attention to Leane v Repatriation Commission [2004] FCAFC 83 at [30]-[35] and Summers v Repatriation Commission [2015] FCAFC 36 [196]; [199]; and [202] (Summers). Their Honours in Summers at [202]-[203] held that:
202. We also agree with Her Honour’s view (at [84]) that, by the use of the present tense in s 24(2)(b) through the use of the words “genuinely seeking to engage in remunerative work”, Parliament intended to convey an activity that may be ongoing or incomplete rather that a reference to an activity which is satisfied by a single attempt such as a phone call. Her Honour considered that the phrase contemplates at least a course of conduct by the veteran. Like the primary judge, we do not accept that a decision-maker is obliged to find that a veteran satisfied s 24(2)(b) if there is a single piece of evidence about a single attempt to seek work during the assessment period (no matter how long)…
203. The evidence before the Tribunal was that Mr Summers made an approach to…and rang a…store once, after a four-year absence from employment, having considered himself retired. On a fair reading of its reasons the Tribunal did not consider that Mr Summers was honestly or sincerely seeking employment, that is, his attempts were not genuine…
(j)In relation to the ‘substantial cause’ preventing a veteran from continuing to undertake the remunerative work they were undertaking, Mr Rudge drew the Tribunal’s attention to Anthony Fox v Repatriation Commission [1997] FCA 176 , in which Kiefel J held that:
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.
[54] The Court held at [61]: where the court held at [61]: It cannot be said that the decision in Richmond is ‘plainly wrong’. Indeed, we considered it to be correct and applicable in this appeal. As a consequence, we decided that the appeal must be allowed.
[55] Transcript, 61 [46]-[47]; 62 [11]-[13]; 65 [33]-[36]; 68 [27]-[36]; 80 [41]-[45]; 81 [44]-[45]. See also Exhibit R4, 14-17; 633; 641; 646.
MEDICAL EVIDENCE
The Tribunal has had regard to the medical evidence in the documents lodged by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents),[56] as well as Mr Stevenson’s clinical notes from the Casey Medical Centre,[57] the report of occupational physician Dr Robyn Horsley dated 23 November 2017,[58] the report of consultant psychiatrist Dr Chris Grant dated 28 Sep 2017,[59] the report of consultant respiratory physician Dr David Hart dated 26 July 2018, and the oral evidence of Dr Teo and Dr Horsley during the hearing.
[56] Exhibits R1 and R2.
[57] Exhibit R4.
[58] Exhibit R3.
[59] Exhibit R5.
Evidence of Dr Teo
Dr Teo has been treating Mr Stevenson since about 2000 and in her oral evidence elaborated upon many of his conditions and the treatments prescribed for them. She stated that the reason Mr Stevenson ceased work in early June 2013 was because he was made redundant[60] and if he had not been made redundant, he could have continued to perform his part-time driving job for some time.[61]
[60] Transcript, 65 [5].
[61] Ibid [12]; See also Transcript, 68, [3]-[4].
In response to a question about Mr Stevenson’s capacity to work in the period since he ceased work, Dr Teo responded: ‘His…co-morbidities…worsened over time and he hasn’t got a capacity for work…’.[62] She opined, however, that only his accepted disabilities prevented his ability to work, and his non-accepted conditions like sleep apnoea, diverticulitis and gout had no preventative effect on his work capacity. Dr Teo states:
I really didn’t think that he was employable…he was having a lot of coughing fits and he was…having problems with breathlessness and I didn’t think he would pass the medical based on that…but I didn’t give him a definite “No, you’re not fit to work.’[63]
[62] Transcript 61 [7].
[63] Transcript 71, [30]-[34].
Dr Teo expressed concerns about Mr Stevenson’s alcohol consumption and ability to drive,[64] stating that ‘when he wasn’t driving he would…binge drink and he had been doing that for many years.’[65] She considered that Mr Stevenson’s drinking had changed since 2013, in that he drank less now than during the more stressful period when his wife was still alive and requiring care.[66] Dr Teo stated, however, that Mr Stevenson ‘has a problem with alcohol [and] appears to be a highly functioning alcoholic’ with ‘an effect on his health.’[67]
[64] Ibid 62 [12]-[13].
[65] Ibid 58 [45]-[46].
[66] Ibid 68 [40].
[67] Ibid 70 [34]-[38].
Evidence of Dr Horsley
Dr Horsley refers, in her report dated 23 November 2017, to the comprehensive medical requirements needed to renew Mr Stevenson’s heavy combination truck licence, including annual medical examinations from his general practitioner, an endocrinologist, biennially from an optometrist, and an ‘annual report from his sleep apnoea doctor.’[68] She opines that even if he were to currently apply for a truck driving role, he ‘would have difficulty in passing a pre-employment medical, even though his licence continues to be valid’ and that ‘compared with other candidates, his application would not be competitive.’[69] Dr Horsley considered that, at the age of 68, ‘Mr Stevenson has come to the end of his working life’ without ‘any realistic capacity to work 8 or 20 hours per week.’[70] Dr Horsley considered that his age, time out of the full-time workforce (eight years),[71] and poor aerobic fitness were further factors preventing him from competitively applying for work.[72] Dr Horsley stated that the alcohol consumption history she took from Mr Stevenson (‘moderate’) was different to that taken by Dr Teo (‘binge drinking’). She expressed concern that Dr Teo had not notified transport authorities about Mr Stevenson’s alcohol abuse, which was a reportable obligation.[73]
[68] Exhibit R3, 4 [6.0].
[69] Ibid 12.
[70] Ibid.
[71] Transcript, 79 [26]-[27].
[72] Exhibit R3, 13; Transcript 78 [5].
[73] Transcript, 81 [44]-82 [11].
Evidence of Dr Hart
The report of consultant respiratory physician, Dr David Hart, dated 26 July 2018 makes clear that Mr Stevenson suffers from chronic simple bronchitis - an accepted condition. Dr Hart concludes that Mr Stevenson does not suffer from chronic obstructive pulmonary disease, asthma or bronchiectasis. The Tribunal accepts Dr Hart’s evidence in preference to the differential diagnoses in evidence. He has had the benefit of reviewing all of the expert medical opinions about Mr Stevenson’s respiratory issues and his report focuses on what the parties agreed on 26 June 2018 was an irresoluble issue arising from conflicting medical evidence. There is no dispute between the parties that Dr Hart’s evidence resolves the issue about the precise nature of Mr Stevenson’s respiratory condition.
In relation to the symptoms and severity of Mr Stevenson’s chronic simple bronchitis, Dr Hart notes:
…he has long periods of time between infective flare-ups when his symptoms are quite manageable with just a morning coughing but once or twice a year he has more significant flare-ups, presumably caused by intercurrent infection during which time his coughing is ferocious and he has recently been in hospital several times.
In terms of how much this condition limits his activities, it is almost impossible to tease out the degree of restriction he experiences from his obesity, damaged left ankle and lymphoedema.[74]
[74] Exhibit R6, 4-5.
VicRoads documents produced under summons
The VicRoads records obtained under summons were accepted into evidence[75] and disclose:
(a)As at 19 February 2019, Mr Stevenson was endorsed to drive a heavy combination vehicle with an expiry date of 11 July 2024. VicRoads wrote to him on 15 January 2019 stating: ‘Having looked at your report(s), we are pleased to see there is no medical reason for you not to drive heavy vehicles’;
(b)Since 2009, Mr Stevenson has been required to provide regular medical reports from his general practitioner to satisfy VicRoads that he was suitable to retain his heavy vehicle category licence. The Tribunal notes a number of medical records from Dr Teo between 2010 and 2015, in which she certifies Mr Stevenson meets the national medical standards to hold a licence to drive a bus or heavy truck;
(c)Specialist reports were provided to VicRoads from an endocrinologist between 2012 and 2018 confirming Mr Stevenson’s ability to drive a heavy vehicle safely; and
(d)Specialist reports were provided to VicRoads from a sleep specialist between 2012 and 2018 confirming Mr Stevenson’s ability to drive a heavy vehicle safely.
[75] Exhibit T1.
TRIBUNAL CONSIDERATION
Mr Stevenson resigned from his role as a fleet operations manager at Safeway in November 2009, some three-and-a-half years before ceasing work altogether at the age of 64. The reasons for his resignation and transition to a part-time driving role included: his wife’s declining health and a desire to spend more time with her; the effects of his medical conditions - particularly those affecting his breathing and mobility; disagreements with his direct supervisor at Safeway; and to assume carer responsibilities for his wife’s niece. Mr Stevenson received Carer Allowance for his wife while she was at home and subsequently while caring for his wife’s niece. His reduction in hours and work responsibilities from late 2009 was motivated, in part, by a commendable sense of duty to members of his family in declining health.
Mr Stevenson continued to work for Safeway until being made redundant in June 2013. He demonstrated a work capacity from late 2009 to June 2013 of 27 hours per week, comprising nine hour shifts on three days per week.[76] As a result of his numerous comorbidities, Mr Stevenson’s licence required regular review by VicRoads, encompassing medical reports from his general practitioner and some specialists. In May 2012, Dr Teo referred Mr Stevenson for a number of specialist examinations, including by an endocrinologist at VicRoads’ request. Notwithstanding any disabilities arising from Mr Stevenson’s accepted and non-accepted conditions, Dr Teo has consistently declared to VicRoads that Mr Stevenson met the national medical standards to hold car, motorcycle, light truck, boat, bus and heavy truck licences.[77] Mr Stevenson’s licences were subsequently renewed and as at early 2019 he continued to retain his heavy vehicle and other licences – the former remaining current until 11 July 2024.[78]
[76] Transcript, 10 [45].
[77] Exhibit R4, 551.
[78] Exhibit R4, 551; 554; 573-574. Mr Stevenson underwent a Vic Roads Medical, encompassing review by an endocrinologist in May 2012 (about a year prior to his acceptance of a redundancy and ceasing work).
In the years leading up to and at the time of ceasing work, Mr Stevenson suffered from a number of conditions that were not accepted as service-caused. These include alcohol dependence, diverticulitis, hypertension, shoulder problems, gout, and a reference in the T-documents to a right ankle pension claim in April 2004.[79] Mr Stevenson’s evidence, however, is that the reference to a right ankle problem by his RSL advocate is erroneous.[80]
[79] Ibid 345.
[80] Transcript, 50 [8].
The Tribunal notes the references in evidence to recurrent diverticulitis with ‘mild severity.’[81] Dr Teo’s evidence is that Mr Stevenson’s diverticulitis was intermittent[82] not chronic, and did not affect his capacity to work. Mr Stevenson’s evidence was that he had suffered up to five attacks of diverticulitis a year over many years, but it hadn’t worried him and he still worked.[83] He stated he was scheduled to ‘see another surgeon on 8 August (2018)[84] and described diverticulitis as ‘little pockets in the bowel that get infection…[that]…can cause vomiting, constipation, diarrhoea and very uncomfortable.’[85] He said three colonoscopies and gastroscopies had been performed in response to his diverticulitis in recent years and during a stay in hospital just a few weeks prior to the hearing, he had been told by his doctor that parts of his bowel may need to be removed.[86]
[81] Exhibit R4, 13; 39; 50; 374; 681. See also Transcript 72 [3]-[6]; 73 [13].
[82] Transcript 66 [46]-67 [2].
[83] Transcript, 41 [7]-[10]
[84] Ibid 40, [26]-[27].
[85] Ibid [31]-[32].
[86] Ibid [37]-[45].
The Tribunal notes the references in evidence to hypertension, which Dr Teo states was controlled through medication.
The Tribunal notes the references in evidence to increasingly chronic shoulder problems experienced by Mr Stevenson, after falling through his ceiling at home in 2004,[87] which required a rotator cuff repair in January 2008. He also injured his left shoulder at work in March 2013,[88] which caused him pain and trouble sleeping. This persisted and on 12 April 2013, Dr Teo referred him for further radiological inquiry and corticosteroid injection.[89] Dr Teo’s evidence, however, is that Mr Stevenson’s shoulder problems did not impact upon his capacity for work.[90]
[87] Exhibit R4, 61; 67; 365; 366; 369-373; 542.
[88] Ibid 30.
[89] Ibid 29.
[90] Transcript, 67 [25]-[27].
The Tribunal notes the references in evidence to Mr Stevenson experiencing gout for almost 20 years since 1999, requiring medication.[91] Dr Teo’s evidence is that gout did not have a preventative effect on Mr Stevenson’s employability, because he was able to work with intermittent gout.[92]
[91] Exhibit R4, 80; 365; 577; 587; 681.
[92] Transcript, 67 [30]-[32].
The Tribunal notes the numerous references in the clinical notes between 2007 and 2016, to medical practitioner concerns about Mr Stevenson’s alcohol consumption as follows:[93]
(i)8 October 2014: ‘has been off the grog for 8 weeks prior to Jen died but has been back on it planning to stop drinking again this week.’[94]
(ii)5 November 2014: ‘We also discussed whether he should stay off alcohol for a while. He is worried about the people working in Bundaberg.’[95]
(iii)7 September 2015: ‘I still encourage him to think about giving up alcohol. I don’t think he will do it.’[96]
(iv)8 February 2016: ‘He does consume too much alcohol, often 2 bottles of spirits at a time...’[97]
[93] Exhibit R4, 14; 56; 58; 78; 488; 577; 587; 624; 681.
[94] Ibid, 17.
[95] Ibid 465.
[96] Ibid 481.
[97] Ibid 480.
The Tribunal notes the different history Dr Horsley recorded from Mr Stevenson at their consultation in November 2017, namely that his alcohol consumption was ‘moderate.’[98] In response to a question from Ms Spencer, Dr Horsley agreed that based on the history Mr Stevenson had given her about avoiding alcohol prior to driving, it could be seen as indicative of someone who was able to manage their alcohol intake without it affecting their work.[99]
[98] Transcript, 80 [47].
[99] Ibid 86 [42].
The evidence supports a conclusion that alcohol dependence has been a long-standing issue affecting Mr Stevenson’s health. Dr Teo said that Mr Stevenson ‘seems to be a highly functioning alcoholic,’ whose drinking had ‘an effect on his health.’[100] She said he has been a binge drinker for many years.[101] Based on what Mr Stevenson had told her, she thought his drinking had decreased after his wife’s death. That said, Dr Teo was concerned alcohol could affect Mr Stevenson’s ability to drive,[102] including at the time of his retrenchment in 2013. In response to a question about whether she would have expressed her concerns about Mr Stevenson’s drinking on a medical report if he had applied for jobs after his retrenchment in 2013, Dr Teo stated she would have wanted a ‘guarantee that he wouldn’t be drinking and driving.’[103] Dr Teo stated:
I’ve never had evidence that he ever did drink and drive, he always denied that. But I had concerns about his level of drinking being safe.[104]
[100] Ibid 70, [37].
[101] Ibid 58 [45].
[102] Ibid 61 [47].
[103] Ibid 62 [8].
[104] Ibid [11].
Mr Stevenson agreed in his oral evidence that he was still continuing to binge drink approximately 18 months after his wife’s death and retrenchment, because he liked the taste but could go weeks without alcohol.[105] He claimed to have never had a problem with drink driving or lost his licence, because of his strict rule of ‘12 hours from bottle to throttle.’[106]
[105] Ibid 50 [13].
[106] Ibid 35 [25].
The Tribunal is satisfied on the evidence that Mr Stevenson’s alcohol consumption was a persistent concern in relation to his driving capacity and health. On Dr Teo’s evidence, had Mr Stevenson applied for work after his retrenchment, his alcohol abuse may have been a preventative factor impacting his employability. The Tribunal makes no finding in this regard however, because Mr Stevenson did not apply for any jobs after being retrenched. The potential preventative effect of his alcohol dependence on employability was never tested.
The Tribunal finds Mr Stevenson’s employment with Safeway did not cease because of any medical condition(s) alone – either accepted or non-accepted. It ceased in early June 2013 when he was made redundant with approximately 200 other drivers at Safeway. It is noteworthy that, in the two years prior to his redundancy, Mr Stephenson’s presentations to Dr Teo relate to issues including stress associated with his wife’s and niece’s declining health, uncertainty at work, rashes, ingrown toenails, cellulitis, gout, diabetes / sleep apnoea / cholesterol / alcohol abuse management, lesion removal, licence renewal, cyst and solar keratosis removal, diet and exercise control, treatment for left shoulder and thumb injuries, blood tests, and medical authorisation for disability parking. His medical presentations prior to retrenchment are inconsistent with someone who is compelled to cease remunerative work because of their defence-caused incapacity alone. To the contrary. His general practitioner, who knew his medical conditions and limitations best, considered that Mr Stevenson could have continued to work after his retrenchment at Safeway, albeit for an indeterminate period. It is also clear, from the summons records produced by VicRoads, that Dr Teo has not previously considered there was a medical reason why Mr Teo should not continue to hold his heavy vehicle and other licences, which he continues to hold to the present day.
Prior to his redundancy at Safeway, Mr Stevenson held heavy vehicle and semi-trailer licences since 1985. His evidence is he had never failed to have them renewed,[107] which is supported by the material obtained under summons from VicRoads. That was despite the renewal process requiring periodic reports from his general practitioner and a number of specialists.[108] At the time of his redundancy in June 2013, the Tribunal is reasonably satisfied that Mr Stevenson had a work capacity of 27 hours per week and held the necessary light rigid, heavy rigid and semi-trailer licences[109] to continue remunerative employment as a driver. As at 15 January 2019, the summonsed material from VicRoads indicates that there is no medical reason why he cannot continue to drive heavy vehicles.
[107] Transcript, 8 [27].
[108] Transcript, 16 [20]–[36].
[109] Transcript, 17, [35].
Mr Stevenson identifies former truck driving colleagues at Safeway who were made redundant at the same time he was, but who successfully gained driving jobs.[110] These men were approximately four to five years younger than Mr Stevenson and, on his own evidence, had better prospects in the transport industry than he did.[111] In any event, the circumstances of these four other men are distinguishable from Mr Stevenson’s in that they did apply for driving jobs after their redundancy, whereas Mr Stevenson made no work applications. There is a dearth of evidence about the comparative health and personal circumstances of these men, but Mr Oliver appears to have obtained a full time truck driving job immediately after being made redundant. Mr Lee obtained a driving job within 5-6 weeks of his redundancy. Mr Boucher obtained a driving job a few months after being made redundant. Mr Graham took six months off ‘to have a break from work’ and was then employed as a truck driver. In contrast, Mr Stevenson considered a single redeployment opportunity as a truck driver with Linfox prior to being made redundant, but decided not to proceed with that redeployment opportunity and made no further applications for work. Mr Stevenson states that if someone had offered him a job without a medical clearance being required, he ‘most probably would have went to it.’[112] However, his course of conduct is plainly inconsistent with someone who wanted to continue working for two or three more years.[113] A person wanting to continue working would have applied for work.
[110] Exhibits A2; A3; A4; and A5.
[111] Transcript, 34 [20]-[26].
[112] Ibid 105 [37].
[113] Ibid 17 [2].
Mr Stevenson was aged 64 at the time of his redundancy. His previous managerial skills had clearly diminished in currency after he ceased fulltime work in 2009. In an employment questionnaire dated 5 September 2013, he cites ‘age’ as one of the reasons preventing him from being employed.[114] As the months and years passed, his attractiveness to the transport and warehousing industries would have been affected by his increasing age, time out of the workforce, and diminishing skill set. That is confirmed by the evidence of Dr Horsley, who saw Mr Stevenson when he was aged 68. She submits that on the date of their consultation he had been out of the fulltime work force for some eight years, which, coupled with his age and poor level of aerobic capacity, were preventative factors in him regaining work. These factors, coupled with Mr Stevenson’s numerous comorbidities (both accepted and non-accepted), would have acted to his detriment in the labour market.
[114] Exhibit R1, 72.
In terms of the ameliorating provision at s 24(2)(b) of the Act, Mr Stevenson states he did not apply for any further employment after being made redundant at Safeway because he came to the realisation that he ‘was simply unfit for any remunerative work (even on a part time basis).’ That is a personal judgement rather than a medical one. Dr Teo did not tell Mr Stevenson to cease remunerative work; and her evidence is he could have continued working for some time after the 2013 redundancy.[115] Given that Mr Stevenson was working for 27 hours per week at the time of his redundancy, while concurrently attending to the needs of his wife who was in full time care, and caring for his wife’s niece, I do not accept he ‘was unfit for any remunerative work (even on a part time basis).’
[115] Transcript, 68 [3]-[4].
CONCLUSION
After 20 years of service with the RAN, Mr Stevenson spent almost 30 years in the transport industry as a truck driver and manager. He has enjoyed what can only be considered to be the usual span of a working life, receiving his superannuation entitlements and other retirement benefits, as well as retrenchment benefits, on a number of occasions from jobs he took after his Defence service.
In 2009, Mr Stevenson resigned from his full-time fleet operations manager role at Safeway because of his wife’s deteriorating health, the effects of his medical disabilities, the time-intensive nature of his managerial duties, and conflict with his manager. He subsequently worked as a heavy vehicle driver at Safeway for 27 hours per week until being made redundant in early June 2013. This enabled him to spend more time with his wife who was in full time care and to look after his wife’s niece, for which he received a Carer Allowance. It is to Mr Stevenson’s credit that he was able to continue working as a part-time driver despite the illness of close relatives and an extensive list of accepted and non-accepted medical conditions. His sense of duty and commitment to close family members, as stated previously, is commendable.
He was retrenched in 2013 with approximately 200 other drivers after Safeway decided to outsource its transport operations. He was then aged 64, an age when most people are considering retirement. Despite his numerous medical conditions, his heavy vehicle licence was renewed approximately a year earlier following specialist medical testing required by VicRoads. He continues to hold a heavy vehicle licence as at the date of these reasons. Mr Stevenson had clear work capacity of at least 27 hours per week at the time he was retrenched and his general practitioner considers he could have continued working after that time for an indeterminate period. But Mr Stevenson did not apply for any jobs after being retrenched. His decision not to do so was a personal decision rather than one based on medical advice.
In relation to any incapacity Mr Stevenson suffered, the incapacity referred to in s 24(2)(b) of the Act must be that incapacity caused by a war-caused injury or war-caused disease (s 24(2)(a)). The Tribunal is not satisfied Mr Stevenson’s defence-caused incapacity alone caused him to cease remunerative work and then prevented him from continuing to work after his retrenchment in June 2013. Other non defence-caused incapacities and factors impacted his decision to cease remunerative work.
The time Mr Stevenson had spent out of the full-time workforce since 2009, the fact he was retrenched at the age of 64, the combined health effects of his numerous comorbidities – both accepted and non-accepted – and his poor level or aerobic fitness, also had a preventative effect on his employability. They preclude him from satisfying the alone test at s 24(1)(c) of the Act. Had he applied for further driving jobs, the evidence shows that concerns about Mr Stevenson’s alcohol dependence may also have constituted a preventative factor affecting his employability. That was never tested, however, because Mr Stevenson didn’t apply for further work after leaving Safeway.
In relation to the ameliorative provisions in s 24(2) of the Act, the Tribunal is not reasonably satisfied Mr Stevenson engaged in an active and genuine pursuit of remunerative work as a part-time truck driver or in other transport-related/warehousing roles consistent with his career skillset. Approximately six weeks prior to his retrenchment at Safeway, he considered and rejected a single redeployment opportunity with Linfox. He made no further employment enquiries or applications, because he did not want to ‘get knocked back at the medical.’[116] Mr Stevenson conceded in his oral evidence that on reflection, he should have tested his job prospects.[117] It cannot be said on the evidence that Mr Stevenson genuinely sought to engage in remunerative work after his redundancy.
[116] Transcript, 98 [37].
[117] Ibid 98 [40].
The Tribunal is reasonably satisfied that Mr Stevenson did not cease remunerative work because of his defence-caused incapacities alone. Nor were his defence-caused incapacities alone the substantial cause preventing him from obtaining the sort of remunerative work he was doing. He therefore did not suffer a loss of salary or wages by reason of his defence-caused incapacities alone. The Tribunal is also satisfied that Mr Stevenson did not genuinely seek to engage in remunerative work.
FINDING
It follows that Mr Stevenson is not entitled to disability pension at the Special Rate and the Tribunal affirms the decision under review.
74. I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
...................[sgd]...............................................
Associate
Dated: 21 March 2019
Dates of hearing: 25-26 June & 19 December 2019
Counsel for the Applicant: Ms Fiona Spencer Solicitors for the Applicant: Williams Winter Advocate for the Respondent: Mr Ken Rudge
Department of Veterans’ Affairs
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