Terrence Murray and Repatriation Commission

Case [2015] AATA 364

[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

  1. 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. 

  2. 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. 

  3. 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. 

  4. 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. 

  5. 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…

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AGLC
Terrence Murray and Repatriation Commission [2015] AATA 364
Case
[2015] AATA 364
Decision Date

CaseChat Overview and Summary

Terrence Murray, an applicant, and the Repatriation Commission, the respondent, appeared before the Administrative Appeals Tribunal (AAT). The dispute revolved around the applicant's eligibility for a higher rate disability pension than the 100 per cent general rate under the Veterans’ Entitlement Act 1985. The tribunal had to determine whether the applicant met the criteria for an intermediate rate pension, specifically if he was totally and permanently incapacitated from war-caused injury or disease. The central legal issue was whether the applicant's cessation from work and his subsequent health conditions qualified him for a higher rate pension, given the legislative provisions and amendments that intended to limit such pensions to severely disabled veterans who could not work.

The tribunal carefully examined the applicant's employment history and health records. It noted that the applicant had not been in full-time employment since 1993 and had ceased part-time work in 2005 and 2007 due to health issues. The tribunal found that the applicant's health problems, including respiratory issues and anxiety, were reported years after he had stopped working. The tribunal also considered expert medical opinions that did not conclusively link the applicant's current health issues to his war service. The tribunal concluded that the applicant did not satisfy the statutory requirements for an intermediate rate pension, as he had not been prevented from continuing remunerative work due to his war-caused incapacity. Consequently, the tribunal affirmed the decision of the Veterans' Review Board to reject the applicant's claim for a higher rate pension.

Orders

Orders of the court

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Background

Background to the litigation

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)

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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