Strike and Repatriation Commission

[2006] AATA 606

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 606

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   Q2005/491

VETERANS' APPEALS DIVISION		)
Re		WILLIAM LESLIE STRIKE AS LEGAL PERSONAL REPRESENTATIVE OF CLAUDE ARTHUR STRIKE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date  7 July 2006

PlaceBrisbane (Heard in Townsville)

Decision The decision under review is affirmed.

..............................................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – special rate of pension – incapacity from war-caused injury ‘alone’ did not prevent the veteran from undertaking remunerative work – incapacity not substantial cause of inability to obtain remunerative work – decision under review affirmed

Veterans’ Entitlement Act 1986 s 24(1)(c), s 24(2)(b), s 126

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47

Magill v Repatriation Commission [2002] FCA 744

Hall v Repatriation Commission (1994) 33 ALD 454

Conway v Repatriation Commission (2003) 37 AAR 486

REASONS FOR DECISION

7 July 2006	Deputy President P E Hack SC
INTRODUCTION

1.Mr Claude Strike served in the Australian Regular Army between 1964 and 1981. He saw operational service in Borneo and South Vietnam.

2.On 27 September 2004 when he was aged 59 years Mr Strike made application for an increase in the disability pension paid to him under the Veterans’ Entitlements Act 1986 (the Act). Mr Strike applied for a pension at the special rate, that is, on the footing that he was totally and permanently incapacitated.

3.The claim was refused by the Commission and that decision was affirmed by the Veterans’ Review Board. Thereafter, Mr Strike sought a review of the decision in this Tribunal. In March 2006 Mr Strike died however his claim is preserved by operation of s 126 of the Act and his legal personal representative (Mr William Strike) is treated as the claimant.

THE ISSUES

4.Having regard to the various concessions that have been made before and during the hearing two issues fall to be determined. Stated shortly, they are,

·whether Mr Strike’s incapacity from war-caused conditions alone prevented him from working (the s 24(1)(c) issue); and

·whether the ameliorating provisions of s 24(2)(b) apply.

BACKGROUND

5.There was no dispute as to the facts. What follows is common ground. Mr Strike left school after Grade 7 and then entered the workforce. He pursued unskilled occupations until he joined the Army in 1964. He had two periods of army service between 1964 and 1981. After discharge he worked mainly with plant and equipment – backhoes, graders and trucks. From February 1984 to January 1997 he was employed by Comalco at Weipa, initially as a labourer, but gradually obtaining more skilled employment. Mr Strike’s statement makes reference to him having worked in the Comalco kaolin plant until it shut down operations in December 1996. It is not clear from the material the precise nature of the work undertaken by Mr Strike at that plant. I infer from its description as a plant and from the evidence of Mr Strike having “worked in the control room” before starting at the kaolin plant that he worked in a similar capacity at the kaolin plant.

6.When the kaolin plant shut down Mr Strike and another 25 to 30 employees were made redundant. The company found alternative employment for many of the other workers but no alternative employment was offered to Mr Strike. Mr Strike attributed that to the fact that he was frequently in conflict with other staff, had periods of absences (to dry out from excessive alcohol consumption) and on occasions attended work affected by alcohol.

7.In mid January 1997 when Mr Strike finished at Weipa he was just short of his 43^rd birthday. It would seem that by that time he had been diagnosed with post traumatic stress disorder, a condition accepted as service related. But there is evidence of considerable other non-service related afflictions. When he lodged a claim for an invalidity service pension in May 1997 he described himself as having supraspinatus in the right shoulder and asthma. Both conditions were said to be deteriorating. In relation to the right shoulder there is evidence in the report of Dr Monro that Mr Strike was involved in compensation proceedings in relation to his right shoulder and was “paid out in March 1997”. He told Dr Monro that he had a 20% loss of function of the right shoulder as a result.

8.The material includes a medical report undertaken by Dr Crowe in June 1997 which reported Mr Strike as suffering from the following non-service conditions,

·      chronic obstructive airways disease (since 1993),

·      heart failure (1993),

·      supraspinatus injury (April 1995) and surgical repair (August 1996),

·      obesity.

Dr Crowe subsequently reported in September 1997 in answer to the question why Mr Strike was no longer involved in his earlier employment at Weipa, “shoulder injuries, April 1995”.

9.It is pertinent to note some comments made by Dr Monro, a specialist in rehabilitation medicine, albeit in April 1999. After detailing the particular conditions Dr Monro observed,

The features with examination were mainly effected [sic] by his considerable obesity and his poor respiratory function, with fairly active bronchial difficulties.

Dr Monro did describe the PTSD as the “predominant influence” upon Mr Strike’s work prospects.

10.It is also relevant to note Mr Strike’s personal history after leaving Weipa in January 1997. He moved to South Mission Beach and lived in a shed and caravan for 10 months while a house was constructed for him. He undertook the concreting of the driveway. He applied for an invalidity service pension in May 1997.

11.Mr Strike says that he made some efforts to gain employment at South Mission Beach but it was difficult to describe those efforts as other than half hearted. I shall discuss those matters further below.

12.There is one matter of minor controversy which is the date by which Mr Strike had become totally and permanently incapacitated because of his accepted conditions. It is submitted by Mr Honchin of counsel, who appeared for the applicant, that the date was sometime in 1998. Reliance was placed upon a report of Dr Likely. But Dr Likely concluded that Mr Strike had been “unable to work since April of 1996”. That opinion is at odds with the fact that Mr Strike worked up until mid January 1997. But Dr Likely who saw Mr Strike in September 1998 considered that his PTSD alone was responsible for Mr Strike’s inability to hold down any form of remunerative employment at that time.

13.In my view the evidence supports a finding that Mr Strike was totally and permanently incapacitated by reason of the PTSD alone at least by September 1998.

THE SECTION 24(1)(c) ISSUE

14.Section 24 sets out several criteria that must be satisfied before the pension is payable at the special rate. Here the respondent concedes that all but that required by s 24(1)(c) are satisfied. That paragraph provides,

(1) This section applies to a veteran if:

…

…

(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…

15.Guidance in the application of s 24(1)(c) has been provided by the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1. At pages 4-5 Branson J, with whom Beaumont and Merkel JJ agreed, described the issues as being,

(1) What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?

(2)  Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

(3) If the answer to question two is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

(4) If the answer to questions two and three are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

16.Her Honour went on to say of question four that it threw up for consideration the question of what the veteran would have done if he had none of his service disabilities. And, in approaching that question, I am 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”: Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47, 54-55 at [37]. That case identified time out of work before the assessment period, lack of recent work experience and increasing age as being relevant considerations saying,

The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period.

17.It seems clear enough by reference to Mr Strike’s work history that the remunerative work for the purposes of s 24(1)(c) was plant or machinery operation. Equally, and by reference to the reports of the medical practitioners, it seems clear enough that an affirmative answer must be given to question two.

18.     But, in my view, the difficulty for Mr Strike arises with question three.

19.As at 27 September 2004, which is the start of the assessment period, Mr Strike had both accepted and rejected conditions that affected his capacity to undertake work. Whilst the accepted conditions of PTSD and alcohol abuse are conditions that would have affected Mr Strike’s capacity to undertake work of the nature previously undertaken by him I consider that the conditions that were not war-caused – chronic obstructive airways disease, heart failure, the supraspinatus injury and obesity – would also have considerably affected his capacity to undertake such work. Thus I conclude that it was not the war-caused conditions alone that prevented Mr Strike from undertaking, or continuing to undertake, the remunerative work.

20.But even if I had been persuaded that war-caused conditions were the only factors preventing him from undertaking work I would have found question four against Mr Strike. Mr Strike moved to South Mission Beach when he was made redundant. He applied for a service disability pension. On the most favourable view of the evidence his attempts to seek work were half-hearted. He says that he approached locals for work but was unsuccessful. He did obtain a job driving a slasher for about an hour but “got angry” and left. It is not clear on the material what he got angry with or why. Additionally, he made a brief enquiry about bus driving but determined that it was not for him.

21.The conclusion that I draw from the evidence is that redundancy came at a convenient time for Mr Strike. It enabled him to give up what must have been fairly arduous work and move to a tropical beach area to retire, sustained by a service pension. Perhaps he may have liked to pursue part-time work or work on an occasional basis. But I am satisfied that, absent his war caused conditions, but with those that were not war-caused, he would not have been still working in September 2004 at the age of 50.

22.Accordingly I am satisfied that s 24(1)(c) was not made out in Mr Strike’s case.

THE SECTION 24(2) ISSUE

23.Section 24(2)(b) is relied upon by Mr Strike as having the effect of ameliorating the conclusion that s 24(1)(c) is not satisfied. It is in these terms,

(2) For the purpose of paragraph (1)(c)

(a) …

(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 the 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.

24.The effect of this paragraph was described by Drummond J in Magill v Repatriation Commission [2002] FCA 744 at paragraph [8] in these terms,

If…the veteran has not been engaged in remunerative work at the relevant date, he or she will still be able to satisfy the ‘alone’ criterion in   s 24(1)(c) even though the war-related incapacity is not the sole cause of the veteran’s inability to obtain work, provided the veteran nevertheless meets the requirement of s 24(2)(b).

Those requirements were identified by his Honour at paragraph [7] as being,

·that he or she has been genuinely seeking to engage in remunerative work, and

·that he or she would, but for a war-caused 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.

25.I accept that a realistic approach must be taken to the efforts made by Mr Strike to find employment: Hall v Repatriation Commission (1994) 33 ALD 454,461; Conway v Repatriation Commission (2003) 37 AAR 486 at [9]. In the latter case Dowsett J said, at [8],

As I understand par 24(2)(b), there must be an inquiry as to whether or not the relevant applicant has been genuinely seeking to engage in remunerative work in the past, that is prior to his becoming incapacitated for the purposes of s 24. Then it is necessary to inquire whether or not he would be continuing to seek to engage in remunerative work had he not been incapacitated, and whether the incapacity is the substantial cause of his inability to obtain remunerative work. The “genuinely seeking” test relates to the work history of the applicant rather than to efforts which he might make after he becomes incapacitated.

26.But where, as I have found, Mr Strike retired to South Mission Beach once he was made redundant it is impossible to conclude that thereafter, and until he became incapacitated, he was genuinely seeking employment. Moreover, I do not consider that he would have been continuing to seek to engage in remunerative work had he not been incapacitated only by his war-caused conditions. If his war-caused conditions are put to one side, one is left with a man who has significant other physical conditions that make even semi-skilled work like operating plant or machinery quite arduous. It was, I think, more likely that Mr Strike would have continued to “retire”, sustained by a service pension, at South Mission Beach. In saying that I do not overlook that Mr Strike had a solid work history prior to being made redundant however that history is not at odds with the notion that Mr Strike had had enough of work by January 1997.

27.     Thus I conclude that s 24(2)(b) does not aid Mr Strike’s case.

CONCLUSION

28.It follows that in my view the decision of the Repatriation Commission under review should be affirmed.

I certify that the 28  preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Leisa Pendle, Associate

Date of Hearing  14 June 2006
Date of Decision   7 July 2006
For the Applicant   Mr D Honchin of counsel
  Ms M Wallace, Purcell Taylor Lawyers
For the Respondent                   Mr J Stoner, Department of Veterans’ Affairs