Terrence Murray and Repatriation Commission
[2015] AATA 364
•27 May 2015
[2015] AATA 364
Division VETERANS’ APPEALS DIVISION File Number
2014/1288
Re
Terrence Murray
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Dr Roderick McRae, Member
Date 27 May 2015 Place Melbourne The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Member
VETERANS’ AFFAIRS - receipt of disability pension at 100 per cent of general rate - whether entitled to higher payment than 100 per cent of the general rate - ceased work, then backdated effective date of subsequently accepted war-caused diseases - factors preventing obtaining employed work - decision under review affirmed.
Legislation
Veterans’ Entitlement Act 1986 ss 15, 23, 24 and 28.
Cases
Flentjar v Repatriation Commission (1997) 48 ALD 1
Hendy v Repatriation Commission (2002) 72 ALD 112
Secondary Materials
Commonwealth, Parliamentary Debates, House of Representatives, 16 October 1985, 2178 (Clyde Holding, Minister for Aboriginal Affairs)
Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1994, 1809 (Kim Beasley, Minister for Finance)
REASONS FOR DECISION
Dr Roderick McRae, Member
27 May 2015
Mr Terrence Murray, the Applicant, is a 69 year old Vietnam veteran. He was called up for military service in July 1966, and had operational service at Vung Tau, South Vietnam from April 1968 to November 1968. His national service was from 13 July 1966 until 12 January 1969. He is morbidly obese, and is experiencing combined ischaemic and alcohol-associated cardiomyopathy causing congestive cardiac failure, combined with smoking-related emphysema, consequent to his high alcohol intake and very high (60 - 100 unfiltered cigarettes per day until about 2000) cigarette consumption.
On 31 October 2012 the Applicant sought review of a decision by the Veterans’ Review Board (VRB) dated 26 June 2012 to have the Repatriation Commission (the Commission) determine the rate of payment of the Applicant’s disability pension, seek[ing] the Special Rate. The Commission determined payment at 100 per cent of the general rate with effect from 27 February 2009. Accepted disabilities are localised osteoarthrosis affecting both knees, effective from 18 August 2002, and generalised anxiety disorder, hypertension, ischemic heart disease, tremor associated with anxiety, alcohol dependence and emphysema, all effective from 27 February 2009.
On 24 February 2014 the VRB affirmed the Commission’s decision that disability pension be paid at 100 per cent of the general rate. On 19 March 2014 the Applicant lodged an application for review of this decision with this Tribunal, claiming a fail[ure] to increase disability pension beyond 100% of general rate.
The issue before the Tribunal is whether the Applicant was entitled to payment of his service pension at above the general rate according to the requirements of ss 23 or 24 of the Veterans’ Entitlement Act 1986 (the Act) during the assessment period commencing 27 May 2009 (the assessment period). The Tribunal’s decision is that the Applicant is not entitled to payment above 100 per cent of the general rate.
The Applicant was represented by Mr T Smyth. The Respondent was represented by Mr G Purcell, a Repatriation Commission advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the T documents), and received other exhibits.
BACKGROUND
The context of the Applicant’s claim is informed by reference to the second reading speech when the Veterans’ Entitlements Bill 1985 was introduced, delivered to Parliament by the Hon C Holding, Minister for Aboriginal Affairs:
The TPI [total and permanent incapacity] 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 retired from work, possibly with whatever superannuation and other retirement benefits are available to the Australian workforce.
Under the TPI criteria in the VEB [Veterans’ Entitlement Bill], a pension is not payable at that rate unless at the time of determination that veteran is receiving a 100 per cent general rate pension, is totally and permanently incapacitated, and would be continuing in remunerative work but for a war-caused disability and thereby suffers an economic loss. I would not expect many veterans over the normal retirement age to qualify for payment of pension at this rate as there would usually be reasons other than the effect of a war-caused incapacity which precluded continuing in employment. If a person has had the usual span of working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable[1].
[1] Commonwealth, Parliamentary Debates, House of Representatives, 16 October 1985, 2178 (Clyde Holding, Minister for Aboriginal Affairs)
Clause 17 of the Veterans’ Affairs (1994 - 95 Budget Measures) Legislation Amendment Act 1994 amended s 24 of the Act by adding s 24(2A). In the second reading speech by the Hon K Beasley, Minister for Finance, stated:
The second initiative relates to changes to the eligibility criteria for special and intermediate rate pensions. … The criteria for these higher rates of disability pension were changed in 1985 when it became clear that the outmoded terminology of the old Repatriation Act was enabling these pensions to be paid to veterans who had completed a full working life, after retiring on superannuation and other retirement benefits. This was never intended. The original intention of these higher levels of pension was to compensate those severely disabled veterans who could not work to support their families on their return from service. It was to be in only very rare cases that any veteran beyond the normal retirement age would be eligible for such rates of pension.
…, the changes being made by this bill reinforce that intention. They will mean that these pensions will not normally be granted to veterans over 65. An exception to this rule will apply if the veteran was engaged in remunerative work after the age of 65 and that work was in the same business or employment in which the veteran had been working for 10 continuous years[2].
[2] Commonwealth, Parliamentary Debates, House of Representatives, 9 June 1994, 1809 (Kim Beasley, Minister for Finance)
The Tribunal is aware of the judicial consideration of the construction of the relevant subsections of the Act and their statutory interpretation when some ambiguity arises. However, the Tribunal notes that the consideration of those subsections is often isolated to the particular subsection.
The Applicant is a single man from Melbourne. Following his matriculation, he commenced a Bachelor of Commerce degree study at University of Melbourne, successfully completing year one of the studies, but failed all subjects in year two, and departed that course. He held clerical-based or non-skilled labouring positions until his enlistment in the Australian Army in 1966.
He was trained in ordinance and undertook clerical duties. He was not drafted to go overseas, but with some two months of his term to be completed, he requested a transfer to Vietnam and signed on for a further six months to ensure this occurred so that he could access a war service loan. He worked as a clerk in the RAAME workshop with 17 Construction Squadron in Vung Tau, South Vietnam, from 15 April 1968 to 26 November 1968 as an Acting Corporal. He did not experience enemy contact or combat situations. Upon his return to Australia, he noticed head shaking, diagnosed by Dr B Gilligan, a neurologist, as a benign essential tremor in 1974. The diagnosis was re-confirmed by the same neurologist in 1992.
He was employed in the public service in the Department of Defence as a clerk. He became self-conscious about his head movements particularly in group meetings, which occurred more frequently as he obtained more management responsibility. After three months sick leave, he resigned from the public service in 1976 and travelled to England for a holiday, but remained there for some four years, undertaking casual work including managing a car park. Upon his return to Australia in the early 1980s, he worked in a Robert Timms coffee making factory as a night shift machine operator for some two years, following which a mate found him a carpentry job and trained him on the job, however, he gained no qualifications. He worked as a cleaner for some six and a half years, then returned to carpentry with a labour hire firm for some two years, then drove a food van for Ajax Foods in Cheltenham for some two and a half years.
In 1991 he purchased an old church at Netherby, western Victoria with a view to it becoming a holiday house. Netherby is isolated, with a population of about 20. It is some 33 km north of Nhill in the Wimmera of western Victoria, which itself is approximately half way between Melbourne and Adelaide, and is the administrative headquarters of the Shire of Hindmarsh. The surrounding areas comprise primary producer farms with the main industry being agriculture. Following retrenchment in 1992, he was unable to maintain rental payments in Chelsea, and moved to Netherby, where he has continued to reside. He received unemployment benefits for some five months. He undertook various types of non-skilled manual work. This part time work included cleaning a local hotel, and some maintenance handyman work at a local school and local farm properties.
The Applicant was employed full time for six months in 1993 assisting with the operations of a local business using a mobile sheep dip apparatus. Outside of this employment, he continued to obtain what piecemeal non-skilled maintenance-type work was available, including truck driving, re-stumping barns, building renovations and as a shearing shed rouseabout.
From 1994 the Applicant was employed by K. H. Rintoule Pty Ltd on a permanent part time basis as a bus driver. He maintained a heavy vehicle driver’s licence, which required him to meet medical standards, and was renewed from 22 April 2004 with an expiry date of 22 April 2014. Additionally, bus drivers required two-yearly medical tests conducted by the Taxi Directorate, which he had always passed, and he did not expect to have any difficulty with the next one. The work comprised morning and afternoon split shifts each of about an hour driving a school bus some 50km comprising two “loops” of off-main-road, single lane, gravel carriageways collecting farm children attending a primary school or a secondary school to present them to a common pick up point for another bus to complete their delivery to their school. He worked 10 hours per week, Monday to Friday as these two split shifts, but was paid for 15 hours per week by arrangement with his employer, to allow for additional sweeping time, window cleaning time, refuelling time or tyre changing time.
Whilst undertaking this part time driving position, he obtained additional non-skilled work as available undertaking work as a carpenter and as a painter, until about January 2005, when he only undertook the regular bus driving employment.
The Applicant left this employment at the end of the school term in June 2005, some weeks prior to his 60th birthday. On 7 July 2005 he applied for the Service Pension on the basis of his age of 60 years, which was granted.
The Applicant worked for the Shire of Hindmarsh for three to a maximum of five hours per week from 4 December 2006 to 17 June 2007 as part of their home help program. He had not sought employment since this time.
On 27 May 2009 the Applicant lodged a claim for ischaemic heart disease (IHD), essential tremor, hypertension and anxiety/stress. On 22 September 2009, a delegate of the Repatriation Commission (the Commission) accepted the claim for IHD and rejected the other claims. This resulted in the Applicant’s pension being increased to 80 per cent of the general rate from 27 February 2009.
Following review by the Veterans’ Review Board (VRB) on 26 June 2012, it was determined that generalised anxiety disorder, alcohol dependence, tremor associated with anxiety, hypertension and emphysema were war-caused. The matter was remitted to the Commission, and on 16 August 2012 the Applicant’s pension was increased to 100 per cent of the general rate with effect from 27 February 2009.
Subsequent health events include placement of a coronary arterial stent in each of March and July 2009, severe laceration of his left hand digits requiring plastic surgery intervention in September 2012, and partial left shoulder joint replacement surgery on 16 May 2013 for a left shoulder rotator cuff injury sustained in January 2013.
WITNESS STATEMENTS
The Applicant stated that after he left university, he had undertaken clerical work with a firm in Hawthorn which manufactured tin cans. He was called up in the fifth intake into the Australian Army from 13 July 1966 at 21 years of age. He did ordinance and clerical work, spending approximately eight and a half months in Vietnam. After his discharge from the Army in 1969, he worked in the public service, but was self-conscious of a head tremor, particularly in meetings with other people, such that he felt foolish. He took sick leave, then travelled to and spent some four years in the England. When he returned to Australia he worked in a Robert Timms coffee making factory as a night shift machine operator for some two years, following which a mate taught him carpentry, but for which he gained no qualifications. He worked as a cleaner for some six and a half years, then returned to carpentry with a labour hire firm for some two years, then drove a food van for Ajax Foods in Cheltenham for some two and a half years.
He purchased a property in Netherby, but following retrenchment from his workplace, he was unable to afford rent in Cheltenham so moved to Netherby in about 1991. He worked for about six months full time to Christmas 1993 with a mobile sheep dipping business. He drove a school bus (originally a 36 seater, reducing to a 22 seater when fewer potential students existed) for K. H. Rintoule Pty Ltd from 1994 to June 2005, as two one hour periods of about 50 kilometre in each of the morning and afternoon transporting school children to be collected by a larger bus to complete taking them to their schools, and then returning them in the afternoon. He stated he ceased employment as over time the anxiety was getting to me with several 4 - 17 year old children in the bus on foggy or wet narrow roads with the potential to meet large vehicles. He had experienced a few close calls.
He stated he left the Hindmarsh casual gardening job due to his knees and breathing. He liked to work alone. He discussed this with his general medical practitioner, Dr Munawar, all the time. He had few interests, and tended to prefer his own company.
The Applicant stated that he successfully passed his two yearly medical assessments required by the Taxi Directorate to drive a school bus, (the last was about one year before he ceased the work) and he was not concerned that he would not pass any following ones.
Dr Kaplan, specialist psychiatrist, examined the Applicant on 3 June 2014 for his routine 75 - 90 minutes and provided a report dated 6 June 2014. He had perused the VRB decision and Dr Munawar’s medical reports (but not his clinical notes). He did not put weight on Dr Gelb’s 2011 report, or Dr Seabridge’s 2009 report; he formed his own opinion, which was based on what the Applicant told him. He did not know that there was no reference to anxiety symptoms with the Applicant’s general practitioner until about July 2012 in the context of an application for disability pension. He stated that had he known, he would have asked why he had not discussed it with his general practitioner previously.
He stated he made his diagnosis of generalised anxiety disorder on the basis of the information the Applicant told him, including the aggravation with stressful situations. It was his opinion that physical problems prevented the Applicant from working more than mental health issues. He did not think the accepted war-caused psychiatric generalised anxiety disorder and alcohol dependence would prevent him from undertaking remunerative work for periods aggregating more than eight hours per week (s 24(1)(b) of the Act), or 20 hours per week (s 23(2)(b) of the Act). He considered the Applicant had no other psychiatric disabilities. The Applicant’s head tremor could be consistent with generalised anxiety disorder, particularly if an organic cause is excluded by a neurologist. He thought it was clear the Applicant left the Department of Defence job because of his embarrassment with his head tremor. He did not think the Applicant was dishonest. A decreased range of emotion can be consistent with anxiety or being despondent.
APPLICANT’S SUBMISSIONS
The Applicant submitted that he met the criteria for payment of the special rate of disability pension some time between 27 May 2009 and September 2012, when he suffered a non-war-caused injury to his left hand and digits which required plastic surgical intervention to correct. He relies on his own evidence as to his experiences whilst driving the school bus, the associated anxiety, and his shortness of breath. He relies on medical reports written following assessments several years after the cessation of employment, in the context of seeking to have more diagnoses accepted as war-caused, and looking post hoc to circumstances with hindsight that followed a subsequent backdating of effective date of health diagnoses that had become accepted as war-caused.
RESPONDENT’S SUBMISSION
The Respondent conceded that the Applicant meets the requirements of sections 23(aa), (aab) and (a)(i) and sections 24(aa), (aab) and (a)(i) of the Act. The Respondent submits that the Applicant’s case is based on s 24, but that section is not relevant as the Applicant was not in full time employment since 1993. He states that the first reporting of respiratory issues to the Applicant’s specialist general practitioner is in April 2008, several years after the Applicant had ceased working, but the Applicant seeks to rely on this diagnosis as a cause of his ceasing regular part time work in June 2005 and more limited part time work in June 2007. He states that the first reporting of anxiety issues is in July 2012, several years later again, but the Applicant seeks to rely on this diagnosis as a cause of his ceasing regular part time work in June 2005 and more limited part time work in June 2007. There is no evidence of significant health problems or the seeking of medical advice related to his personal decision to cease work.
OTHER EVIDENCE
Dr C Seabridge, consultant psychiatrist, provided a report dated 17 September 2009. He noted the self-consciousness associated with the Applicant’s head tremor, but did not demonstrate clinically significant problems in his living that would be attributable to an anxiety based disorder and he has not attracted treatment for such a disorder.
Dr J Gelb, consultant psychiatrist, provided a report dated 11 November 2011, in the context of an appeal of a VRB decision rejecting hypertension, essential tremor and anxiety/stress as being war-caused. He had met with the Applicant on several occasions and satisfied [him]self that [the Applicant’s] anxiety symptoms could be easily provoked. He reported that benign essential tremor and the tremor characteristic of an anxiety disorder are almost indistinguishable. He preferred that it was associated with anxiety from the Applicant’s Vietnam service.
Dr P Haynes, consultant occupational physician, provided a report dated 18 August 2014 related to an examination on 4 August 2014. He assessed that the Applicant’s physical disabilities at June 2005 were not sufficient to for him to cease work as a school bus driver. He reported he was told by the Applicant that the Applicant ceased that work due to anxiety-related issues. He was advised by the Applicant that the Applicant ceased gardener/handyman work in June 2007 due to shortness of breath.
LEGISLATION
Section 23 of the Act provides that
23 Intermediate 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’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.
(3A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) (as affected by subsection (2)) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 24 or 25 does not apply to the veteran.
(3B) For the purposes of paragraph (3A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1)(b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or
(c) the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.
(4) Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $619.80 per fortnight.
(5) The rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4) or (5) of this section, reduced in accordance with section 25A.
Section 24 of the Act provides that
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.
(2A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3) This section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.
(4) Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $919.40 per fortnight.
(5) The rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4) or (5) of this section, reduced in accordance with section 25A.
FINDINGS
The Applicant had national service from 13 July 1966 to 12 January 1969. He had operational service in Vung Tau, South Vietnam, from 15 April 1968 to 26 November 1968.
At the time of his claim for an increase in his disability pension under s 15 of the Act for the purposes of s 19(9) of the Act, the assessment period commences on 27 May 2009. The Applicant was under 65 years of age, specifically 63 years old, and had a determined degree of incapacity from war-caused injury or war-caused disease, or both, of at least 70 per cent, specifically 100 per cent.
The Applicant’s accepted disabilities are localised osteoarthrosis affecting both knees effective from 18 August 2002, and generalised anxiety disorder, hypertension, ischemic heart disease, tremor associated with anxiety, alcohol dependence and emphysema, all effective from 27 February 2009.
Pursuant to s 28 of the Act, the Applicant has work experience in clerical and non-skilled work as a school bus driver, but potentially capable of driving any form of heavy vehicle. Additional non-skilled work types included house/ business painter/ maintenance man/ handyman (painting and carpentry)/ cleaner, and gardener. The most recent general nature of work skills is that of a non-skilled manual worker.
The Applicant ceased full time work in late (pre-Christmas) 1993.
The Applicant was engaged in non-skilled part time work from 1994 to June 2005. The nature of the part time work was as a school bus driver, but licenced to drive any form of heavy vehicle. Additional non-skilled work types during all but the last six months included house/ business painter, maintenance man/ handyman, and gardener.
On 2 January 2003 the Applicant was assessed to have 20 per cent incapacity effective from 18 August 2002 for localised osteoarthrosis affecting both knees.
The Applicant maintained a heavy vehicle driver’s licence, which required, inter alia, the meeting of medical standards, and was renewed from 22 April 2004 with an expiry date of 22 April 2014. The Applicant successfully passed his two yearly medical assessments required by the Taxi Directorate to drive a school bus about one year prior to his ceasing that work in June 2005, and his own evidence was that he was not concerned that he would not pass any following medical assessments.
The Applicant ceased his regular part time work at the end of the second school term in June 2005, very near his 60th birthday.
A reasonably contemporaneous medical assessment on 14 February 2005, near but prior to the time of the cessation of part time work, was conducted by Dr M Benjamin at the Applicant’s usual general practice. This recorded [h]as been well, is here for a BP check and scripts. Looks well. There is no mention of any work-related health issues, including anxiety or dyspnoea. He is recommended a three month review, and the Applicant returns five months later on 19 July 2005, with [n]o wheeze, no crep[itation]s. Blood pathology tests are ordered for review in one month, which are all normal, and he is to be seen in three months. A medical examination for a drivers’ licence is undertaken on 1 November 2005 by a different general practitioner. There is no reference to symptoms or signs of anxiety or dyspnoea at any point around the cessation of work in June 2005. There are no medical reports stating he cannot work less than eight hours per week, or less than 20 hours per week.
The Applicant undertook part time work as a gardener for up to five hours per week from 4 December 2006 to 17 June 2007 with the Shire of Hindmarsh. Dr S Munawar, who completed the 19 and 20 July 2012 medical impairment assessments, is first recorded as being consulted by the Applicant at this practice on 14 December 2007, makes no reference to any remarkable clinical features, consistent with the other general practitioners who examined him throughout 2007. Attendances over the cessation of work time in 2007 were for repeat antihypertensive prescriptions.
On 8 August 2008 Dr Munawar records [n]o respiratory distress. On 19 July 2012 he records pt came for investigation of disability pension, with the [r]eason for contact recording GAD (Generalised Anxiety Disorder), and the first record of [a]lcohol assessment changed 19 July 2012, recoding Standard drinks on a day drinking alcohol: 8.
There is no evidence the Applicant engaged in remunerative work after the age of 65 years.
The Tribunal notes that the determination of war-caused ailments was remitted to the Commission for reconsideration on 26 June 2012, some five years after the cessation of part time work. The rate of pension was increased on 16 August 2012, but with effect from 27 February 2009, itself towards two years after the last part time work concluded.
The Tribunal considers that there is no evidence of health problems causing the Applicant to cease work in either June 2005 or June 2007. Specifically, there is no objective contemporaneous evidence that he was prevented by his retrospectively accepted war-caused incapacity from working more than eight or 20 hours per week. There is no objective contemporaneous evidence that he was prevented by his retrospectively accepted war-caused incapacity from working any time duration, including full time work. The medical evidence is consistent with a person retiring at a convenient time for his employer close to his 60th birthday. The Applicant’s health has subsequently continued to deteriorate as a result of the vicissitudes of his life choices.
The subsequent claims for various increments to level of incapacity in 2009, back dated to 27 February 2009, have permitted a post hoc and serendipitous (the Applicant turned 65 in July 2010; the assessment period commences 27 May 2009 ability to apply for an increased rate of pension, which is beyond the intention of the Parliament.
The Tribunal finds that there is no objective contemporaneous evidence the Applicant has ceased to engage in remunerative work related to his incapacity from war-caused injury or war-caused disease, or both. The Tribunal thus finds the Applicant ceased to engage in remunerative work for reasons other than his incapacity from his war-caused injury or war-caused disease, or both. Specifically, the Tribunal finds that the reason(s) the Applicant ceased employment was not for war-caused injury or war-caused disease, or both, alone. This includes his personal choice to receive the service pension in 2005 at 60 years of age and his geographically remote, sparsely populated area where suitable employment opportunities are scarce. The Tribunal finds that once the Applicant ceased all forms of remunerative work in June 2007, there is no evidence he has been genuinely seeking to engage in any remunerative work.
CONCLUSION
The Applicant satisfies ss 23 (1)(aa), (aab) and (a)(i) and ss 24(1) (aa), (aab), and (a)(i) of the Act. However, the Tribunal is not reasonably satisfied that the Applicant’s circumstances meet the provisions of ss 23 (1)(c) or 24 (1)(c) the Act.
The Tribunal concludes that the Applicant did not satisfy the requirements necessary to receive a disability pension at more than 100 per cent of the general rate.
DECISION
Accordingly, the decision to reject the claim for a higher rate than 100 per cent of the general rate was the correct decision. The Tribunal affirms the decision of the VRB made on 24 February 2014.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Dr Roderick McRae, Member ...........................[sgd]..................................
Associate
Dated 27 May 2015
Dates of hearing 12 and 13 February 2015 Counsel for the Applicant Mr T Smyth Solicitors for the Applicant Williams Winter Solicitors Advocate for the Respondent Mr G Purcell, Repatriation Commission
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