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…
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- Case
- [2019] AATA 520
- Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered the case of Mr. Stevenson, who sought to be granted a pension at the Special Rate under the *Veterans' Entitlements Act 1986* (Cth). The dispute centred on whether Mr. Stevenson's degree of incapacity from war-caused injury or disease was such that it alone prevented him from undertaking remunerative work. The Repatriation Commission had previously decided against granting the Special Rate pension.
The Tribunal was required to determine if Mr. Stevenson met the criteria for the Special Rate pension, specifically the "alone test" under section 24(1)(c) of the Act. This involved assessing whether his incapacity from war-caused injury or disease was the sole reason preventing him from continuing remunerative work and causing a loss of earnings he would not otherwise suffer. The Tribunal also had to consider whether any ameliorating provisions of the Act applied, and whether other factors, such as age, lack of recent work experience, or non-war-caused conditions, contributed to his inability to work.
The Tribunal affirmed the decision under review, finding that Mr. Stevenson did not satisfy the "alone test." While acknowledging his accepted war-caused conditions, the Tribunal found that other factors, including his redundancy due to outsourcing, his age (64 at the time of redundancy), and concerns regarding his alcohol consumption, played a significant role in preventing him from undertaking remunerative work. The Tribunal relied on the principle established in *Richmond* that for the Special Rate to apply, the incapacity from war-caused injury or disease must be the sole reason for being unable to work, and the presence of other contributing factors, even if secondary, would disqualify a veteran from this higher rate of pension. Furthermore, the Tribunal found that Mr. Stevenson's efforts to seek employment after his redundancy did not constitute a genuine and ongoing search for remunerative work as contemplated by the Act.
The Tribunal was required to determine if Mr. Stevenson met the criteria for the Special Rate pension, specifically the "alone test" under section 24(1)(c) of the Act. This involved assessing whether his incapacity from war-caused injury or disease was the sole reason preventing him from continuing remunerative work and causing a loss of earnings he would not otherwise suffer. The Tribunal also had to consider whether any ameliorating provisions of the Act applied, and whether other factors, such as age, lack of recent work experience, or non-war-caused conditions, contributed to his inability to work.
The Tribunal affirmed the decision under review, finding that Mr. Stevenson did not satisfy the "alone test." While acknowledging his accepted war-caused conditions, the Tribunal found that other factors, including his redundancy due to outsourcing, his age (64 at the time of redundancy), and concerns regarding his alcohol consumption, played a significant role in preventing him from undertaking remunerative work. The Tribunal relied on the principle established in *Richmond* that for the Special Rate to apply, the incapacity from war-caused injury or disease must be the sole reason for being unable to work, and the presence of other contributing factors, even if secondary, would disqualify a veteran from this higher rate of pension. Furthermore, the Tribunal found that Mr. Stevenson's efforts to seek employment after his redundancy did not constitute a genuine and ongoing search for remunerative work as contemplated by the Act.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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 FRAMEWORKSection 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 pensionMr 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 RateEligibility 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.
Evidence
Evidence Before The Court
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
Decision
Reasons for decision
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
Ratio Decidendi
Legal Principle Established
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).