Summers and Repatriation Commission
[2005] AATA 1150
•18 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1150
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/607
VETERANS’ APPEALS DIVISION )
Re JOHN MAURICE SUMMERS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date 18 November 2005
Place Townsville
Decision The Tribunal affirms the decision under review.
...................[Sgd]..................................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS - veterans’ entitlements - special rate of pension - remunerative work - whether prevented from continuing remunerative work
Veterans’ Entitlements Act 1986 s 5Q, 19, 24, 28
Repatriation Commission v Hendy (2002) 76 ALD 47
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) FCR 327Cavell v Repatriation Commission (1988) 9 AAR 534
REASONS FOR DECISION
18 November 2005 Ms M J Carstairs, Member 1. John Maurice Summers has applied for an increase in the rate of his disability pension. The respondent has assessed Mr Summers as eligible for payment at the 100% general rate of pension and he now seeks the higher, loss-of-earnings related payment, known as special rate. Mr Summers last worked as a cleaner in a part-time capacity in 1997 for about 25 hours per week, cleaning at shopping centres. He obtained that work after accepting a redundancy package in 1996 from the Xstrata Copper Refinery where he had worked for some 13 years. Mr Summers has not worked since 1997.
2. Entitlement to the special rate of pension requires, amongst other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than 8 hours per week, by reason of war-caused disability. The respondent says that Mr Summers is not entitled to special rate of pension because there is insufficient evidence to conclude that he cannot work 8 hours per week and, in addition, there are reasons other than war-caused disability that account for Mr Summers not undertaking remunerative work.
3. The respondent has accepted that Mr Summers’ conditions of post traumatic stress disorder (PTSD), lumbar spondylosis, ischaemic heart disease, chronic bronchitis and emphysema arise from his war service. Mr Summers was injured in a motor vehicle accident some years ago and sustained fractures to his right leg and had to have reconstructive surgery to his knee. He told me that the accident occurred a long time ago; he recovered and worked on despite his leg injury and he only suffers a restriction in the range of movement of the right knee that would not impede his working. The respondent agreed that the right leg condition plays no material part in preventing Mr Summers working.
4. The respondent also conceded that Mr Summers’ alcohol disorder – another medical condition that has not been accepted as related to his army service – does not prevent him undertaking work.
5. A more significant factor affecting Mr Summers is bilateral foot problems. His claims for bilateral pes planus and osteoarthritis in both feet have been rejected by the respondent. The claim for pes planus being related to army service was formally withdrawn at the hearing.
ISSUES
6. The procedure for determining claims for special rate of pension is set out in s19 of the Veterans’ Entitlements Act 1986 (the Act). Section 19(5C)(a) of the Act requires the rate of a pension to be determined during the assessment period. That term is defined in s19(9) of the Act as meaning:
….the period starting on the application day and ending when the claim or application is determined.
7. The application day in this case was 4 February 2003 and the assessment period runs from that day. At the application day, Mr Summers was sixty-three years of age, and he is now aged 65.
8. The provisions for special rate of pension are set out in s24 of the Act. Mr Summers satisfies some of that section’s requirements. Firstly, he was aged under 65 years when he claimed for an increased rate of pension, so he satisfies s24(1)(aa) and s24(1)(aab) of the Act. He receives 100% of the general rate of pension, so he satisfies s24(1)(a) of the Act which requires that he receive at least the 70% rate of payment.
9. The matters in s24(1)(aa), (aab), (a) and (b) being satisfied, the substantive issues in dispute are whether Mr Summers satisfies s24(1)(b) and (c) of the Act.
10. Section 24(1)(b) requires that war-caused disabilities, taken in isolation, must prevent Mr Summers from undertaking remunerative work for more than 8 hours per week.
11. Section 24(1)(c) then deals with two issues:
§ whether a person’s loss of remunerative work is attributable to war-caused incapacities and not to something else as well; and
§ whether the person is suffering a loss of earnings that he would not be suffering in the absence of war-caused incapacities.
12. The Federal Court in Flentjarv Repatriation Commission (1997) 48 ALD 1 said that s24(1)(c) of the Act requires answers to the following questions :
1. What was the relevant "remunerative work that the veteran was undertaking" ..?
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 2 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 answers to questions 2 and 3 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?
13. The operation of s24(1)(c) is ameliorated for those aged under 65 by the provisions of s24(2)(b) of the Act. Section 24(2)(b) permits veterans under 65 years old, who might not have met the special rate tests at the time they ceased working, to retain their eligibility if they are genuinely seeking work and their service-related incapacity remains the substantial cause of the inability to undertake remunerative work.
14. Section 24(2)(a) makes plain that loss of earnings referred to in s24(1)(c) will never be established where there are other reasons why a person has ceased to engage in remunerative work or other reasons prevent the veteran from engaging in remunerative work.
15. Thus the issues are:
· Are Mr Summers’ accepted disabilities of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for 8 hours per week?
· Do Mr Summers’ accepted disabilities alone prevent him from continuing to undertake remunerative work that he was undertaking, causing a loss of income?
16. The analysis in Flentjar can be applied to the second issue as there are a number of considerations that must be addressed within s24(1)(c) of the Act. The term remunerative work is used in two different senses in s24(1)(b) and s24(1)(c) of the Act. This is adverted to further below.
BACKGROUND
17. Mr Summers served with the Australian Army for over 20 years. His period of full-time service (1961 to 1982) included war service both in Malaya as part of the Far Eastern Strategic Reserve and two periods of service in Vietnam: 1966 to 1967 and 1968 to 1969. After taking his discharge from the army, Mr Summers worked in clerical positions in the printing and the engineer’s office at the Xstrata Copper Refinery before taking a redundancy package when the refinery laid off about 1,000 employees. Mr Summers registered with the (then) Commonwealth Employment Service (CES). That agency was unable to help him obtain full-time work but he did secure part-time work as a cleaner at Woodlands Supermarket commencing in 1997 and having to finish later that year.
IS MR SUMMERS UNABLE TO WORK 8 HOURS PER WEEK?
18. It is a requirement for special rate of pension that a person is unable to work for 8 hours per week for reasons of war-caused incapacity taken on their own. Mr Summers told the Veterans’ Review Board (VRB) at the hearing in April 2004 that he believed then that he was capable of working 25 hours per week in light duties but that kind of work had not become available to him. When questioned about his answer to the VRB he agreed that he probably had said to them that he could do light work but thought that he might have nominated 10 hours rather than 25 hours as his response. Nevertheless, he agreed that he felt capable of working in a light cleaning job for more than 20 hours per week.
19. Those doctors who addressed the question of Mr Summers’ capacity to work thought that he was less able than this. Dr Likely (exhibit A2) said that he considered Mr Summers was unable to do 8 hours of work per week since about 1997 because of his PTSD, which he thought led to lethargy, concentration loss, proneness to angry outbursts and inability to associate with others. Dr I Fraser (exhibit A3), Mr Summers’ general practitioner, agreed and thought he was not suitable for rehabilitation.
20. However, another of Mr Summers’ treating doctors, Dr R Nan Tie (exhibit R2), who completed a report when Mr Summers claimed service pension in 1998, stated that he considered Mr Summers was suitable for light work, whether skilled or unskilled, though he was unsuitable for any moderate or heavy work because of the restricted movement of the right leg, arthritis in his feet and lower back as well as his angina. Dr Nan Tie’s report did not address the number of hours Mr Summers might have been able to sustain skilled or unskilled light work. When Mr Summers was questioned on what Dr Nan Tie had written in 1998, he said he thought that it was a fair comment by Dr Nan Tie that he could carry out light work.
21. Mr Summers also said that he has taken himself off medication for PTSD some 9 to 12 months ago after discussing with his general practitioner, who told him he could do so as long as he reduced the medication slowly. He also said that after having stents implanted for his heart condition in 1998 this procedure had to be repeated in 2000 and 2004 but he is not having angina attacks at present and he is only required to see his cardiologist annually.
22. Taking all this evidence into account, I was not satisfied that Mr Summers is unable to work for 8 hours per week by reason of war-caused disability. Mr Summers does not think he is and I have no reason to discount his evidence even though the reports of Dr Likely and Dr Fraser say otherwise. Dr Likely has seen Mr Summers on only three occasions and is not treating Mr Summers on an ongoing basis. He gave evidence that he drew the conclusions from symptoms that he assessed at the initial interview with Mr Summers in 1997. However, I was not satisfied that Dr Likely was sufficiently familiar with symptoms during the assessment period. He was not aware that Dr Fraser had agreed to Mr Summers ceasing all medication for the condition. It also seems to me that Dr Fraser’s bald conclusion in 2002 that Mr Summers was unable to work 8 hours per week in any remunerative employment was inconsistent with taking no medication for the condition at all.
23. The term remunerative work in s24(1)(b) is to be understood in terms of s28 of the Act which provides, amongst other things, that the person’s vocational trade and other skills be taken into account. It is a wide concept and Mr Summers has a number of vocational skills upon which he could draw though these seem to have been acquired in the workplace more than through formal qualifications. There was no indication that either Dr Likely or Dr Fraser looked at the question in any depth. In view of what medical treatment Mr Summers requires, and in view of his own assessment that he can work more than 20 hours per week as long as the work is not too heavy, I prefer his evidence on the number of hours that he could possibly work to that of Dr Likely and Dr Fraser.
WHAT REMUNERATIVE WORK WAS MR SUMMERS UNDERTAKING?
24. Remunerative work is broadly defined in s5Q(1) of the Act as including any remunerative activity, and the relevant remunerative work referred to in s24(1)(c) is not limited to that most recently undertaken: Repatriation Commission v Hendy (2002) 76 ALD 47. The parties agreed, and I accept, that the remunerative work that Mr Summers was undertaking within the meaning of s24(1)(c) includes his skills and training in the defence forces as a signalman/driver, his clerical skills which were essentially light duties and the light to medium light skilled work constituted by his last work as a cleaner.
DID WAR-CAUSED DISABILITY PREVENT MR SUMMERS CONTINUING TO UNDERTAKE REMUNERATIVE WORK?
25. The evidence about Mr Summers’ last work included his statement dated 2 December 2004 (exhibit A1), his claim for service pension made in 1998, and his evidence to the VRB and to this Tribunal.
26. In his claim for service pension in March 1998 (exhibit R1), Mr Summers nominated as the causes of his invalidity, a combination of angina, arthritis in his right leg, osteoarthritis in both feet, chronic bronchitis and emphysema and stress. However, where the question asked what matters he considered were affecting his employment, he said:
“I needed to rest approx. every 10 mins. due to tiredness, & arm & chest pains, for which I take Imdur medication daily & Nitroglobin Spray when necessary….
I have a problem talking with co-workers, noise and crowds in general. I am dubious of driving the car on my own because of the Angina attacks.
27. In answer to a question on the 1998 claim form concerning his ability to undertake retraining he said that he seemed to have lost a lot of concentration. With reference to osteoarthrosis of both feet and leg injuries, he indicated that he had had no treatment in the previous 12 months. From these matters addressed in his claim for service pension, it is noteworthy that he emphasised his heart condition as well as the effects of stress as being the matters affecting him when he was working, that is, two conditions accepted as being related to his war service. He also said in his oral evidence that angina symptoms were prominent when he was working as a cleaner in 1997 causing him to take constant rest breaks to relieve the symptoms.
28. I am mindful that the matters that I must address within s24(1)(c) relate to Mr Summers’ capacity to continue to undertake remunerative work within the assessment period. However, the reasons why a person ceases work can be of particular significance when addressing the question of why a person is or is not prevented from continuing to undertake remunerative work in the assessment period. I accept his evidence about the effects of his angina symptoms and heart condition when he was working.
29. In looking at the question of whether war-caused disability prevented Mr Summers continuing in remunerative work, I noted the consistency of his statements in his service pension form completed a number of years before his claim for special rate of pension. The evidence showed that once he started working in cleaning his heart problems came to the fore. This may well have been coincidental rather than causative but it seems that his hospitalisation for his heart condition saw the effective end of his employment life. However, Mr Summers also told me that when he came out of hospital he would have liked to get his job back but was unable to because the cleaning business had folded.
30. I concluded that the second of the Flentjar questions should be answered “yes” in Mr Summers’ case. It is more probable than not that Mr Summers’ combined conditions of PTSD, lumbar spondylosis, ischaemic heart disease, chronic bronchitis and emphysema would prevent him from undertaking any of the remunerative work that he has undertaken in the past. He has continued to have heart problems that have required stents to be inserted three times which suggests that the problem is ongoing and when this condition is combined with other significant accepted disabilities I conclude that the combined impact of war-caused disabilities prevented Mr Summers continuing in remunerative work in the assessment period.
IS WAR-CAUSED DISABILITY THE ONLY FACTOR PREVENTING MR SUMMERS UNDERTAKING REMUNERATIVE WORK?
31. Mr Summers told me that his foot condition was a problem to him when he was engaged in his last work as a cleaner. He said that his feet become sore if he walked on them a lot. His cardiologist had commented favourably in August 2002 (T4, p47) that Mr Summers was walking 5 kilometres a day and had no cardiac symptoms. Mr Summers told me that he has now stopped walking for exercise because it was too painful.
32. Mr Summers said that his doctor has told him that nothing can be done for his foot condition. He said that he can rest to relieve the pain and gets relief also by rubbing linament on his feet but he acknowledged that his feet ache if he is required to stand more than 10 to 15 minutes and he said that he thought the condition of his feet was deteriorating.
33. Mr Summers had nominated osteoarthrosis of both feet as one of the conditions on which he was basing his claim for invalidity service pension in 1998. Dr Watson, consultant in rehabilitation medicine, in a report dated 18 January 2005 (exhibit A5) noted that Mr Summers has severe flat feet and secondary osteoarthritic change in the ankle. He said Mr Summers:
….has clinical evidence of osteoarthritis of the ankles consistent with the effects of long term weightbearing in gross pronation of the feet causing excessive abnormal mechanical stresses on the ankle joint. This has within the last year been treated ineffectively by rheumatologist Dr Peter Keary by steroid injections.
34. I was satisfied, accepting Mr Summers’ evidence about the impact of his foot condition and the medical evidence concerning that condition, that it is a factor that contributes to preventing Mr Summers undertaking remunerative work, not only work as a cleaner but also clerical and administrative work that he has done in the past. In an earlier report (T5, pp51-52), Dr Watson had said that he accepted what Mr Summers had told him that he did not cease work due to foot pain and said that he could continue to work with this condition. However, Dr Watson stated in that report that he was assessing what part might be played by the foot condition in terms of ability to work for 8 hours a week which is not the question addressed in s24(1)(c). Furthermore, Mr Summers’ statements to him about the impact of his foot condition were at odds with his evidence at the hearing. The medical evidence, including that of Dr Nan Tie in 1998, indicates that the foot problem is not a minor condition that would be easily tolerated and Mr Summers’ evidence reinforced this view.
35. In respect of the third Flentjar question I also took into account that Mr Summers was sixty-three at the start of the assessment period and was about fifty-eight when he stopped work. This is a substantial period of time to be out of the employment market and this is particularly so as people become older when age itself can be an impediment to employment. He told me that he had obtained little effective assistance from the CES when he left full-time employment at Xstrata Copper Refinery when he was made redundant and it seems that since then he has relied on only informal contacts and friends to check if there might be a job available. He also said that he was having trouble when undertaking clerical duties in keeping up with advancements in computer programmes. The length of time since he has been undertaking clerical duties would present difficulties in re-entering that kind of work. I accept that the most recent remunerative work that he undertook – cleaning – was not skilled work and so time out of the workforce would have less of an impact. Nevertheless, this amount of time out of the workforce when combined with his age, is more likely than not an impediment to securing further employment as a cleaner, particularly as he had only worked in that capacity for about a year and also only part-time.
36. The questions addressed within s24(1)(c) are to be examined from a practical perspective. In Cavell v Repatriation Commission (1988) 9 AAR 534 the Federal Court said:
…It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
37. Section 24(1)(c) involves an hypothetical excise which involves consideration of what Mr Summers probably would have done in the assessment period in the absence of his accepted disabilities. In Repatriation Commission v Smith (1987) FCR 327 the Court said:
As has been said the question posed by s24(1)(c) is one of hypothetical facts. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities.
38. I accept Mr Summers’ evidence that he would take any work that he could get but nevertheless when all the evidence is taken into account what has happened is that he ceased full-time employment when Xstrata Copper Refinery reduced its workforce and he took a redundancy. He was then in his late 50s and it was not easy for him to find any work that reflected his experience in civilian employment. At the start of the assessment period he was 6 years older, in his early 60s, and this is a time that is well-recognised as presenting difficulties for people seeking employment however well-motivated they may be to work. He had a foot disability that could not be described as having a minimal impact on him in his employment. For these reasons the third of the Flentjar questions must be answered “no” and Mr Summers cannot satisfy s24(1)(c).
39. For completeness I note that Mr Summers said that he has looked sporadically for work and he would take any job if he could get it but there was no evidence of a committed attempt to look for work seriously. He makes only casual enquiries of friends and in the local neighbourhood. No questions of the possible application of s24(2)(b) arise on the evidence in this case.
40. Mr Summers does not satisfy s24(1)(b) or 24(1)(c) of the Act and so his claim for special rate of pension must fail.
DECISION
41. The Tribunal affirms the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 16 November 2005
Date of Decision 18 November 2005
Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor
For the Respondent Mr J Stoner, Departmental Advocate
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