Thompson and Repatriation Commission
[2005] AATA 675
•15 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 675
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2003/773
VETERANS' APPEALS DIVISION ) Re KEITH THOMPSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott
Dr GJ Maynard, MemberDate15 July 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – special rate – whether the issue of the “remunerative work that the veteran was undertaking” was properly addressed – whether applicant was prevented from working due to war-caused injury or war-caused disease – whether applicant was “genuinely seeking to engage in remunerative work” – “substantial test” – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 19(5), 23, 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 31 AAR 381; (2000) 58 ALD 394
Peacock v Repatriation Commission [2004] FCA 1449
Repatriation Commission v Braund (1991) 23 ALD 591
Giesen v Repatriation Commission [2005] FCA 846
Hornery and Repatriation Commission (1998) 52 ALD 317
Leane v Repatriation Commission [2003] FCA 889
Fox v Repatriation Commission (1997) 45 ALD 317
Hendy v Repatriation Commission [2002] FCA 602, (2002) 72 ALD 112REASONS FOR DECISION
15 July 2005 Senior Member P McDermott
Dr GJ Maynard, Member1. The applicant, who was born on 31 August 1944, seeks review of a decision made by a delegate of the respondent.
Decision Under Review
2. The decision was made by a delegate of the respondent on 19 February 2003. In this decision, the delegate determined that bilateral sensorial hearing loss with tinnitus and chronic bronchitis and emphysema were service related. The delegate assessed his pension at 100% of the general rate with effect from 27 August 2002. The claim for chronic gastritis was refused and determined not to be service related. The delegate declined to award the applicant a pension at either the special or intermediate rate. As the applicant was under 65 years of age, the delegate also determined that the applicant was ineligible for the extreme disablement adjustment.
3. The Veteran’s Review Board affirmed the delegate’s decision on 10 June 2003. The Board determined that the applicant is ineligible for pension at the special or intermediate rates: see ss 23 and 24 of the Veterans Entitlement Act 1986 (“the Act”).
4. The criteria for the special rate is identical to the intermediate rate with the exception that the intermediate rate is based on a criteria that a veteran undertake less than 20 hours per week rather than less than 8 hours per week which is required for the special rate.
Current Issues for Resolution
5. The claim for chronic gastritis, which was the subject of the decision, was not made before the Veteran’s Review Board.
6. The applicant claims the special rate of pension: Applicant’s Statement of Facts and Contentions, contention 8. No claim is made for an intermediate rate of pension.
Special Rate of Pension
7. To be entitled to receive a special rate of pension, the applicant must satisfy the requirements of s 24 of the Act.
8. The respondent has conceded that the applicant satisfies the requirement of both s 24(1)(a) and s 24(1)(b) of the Act. The Tribunal considers that the concessions are properly made by the respondent particularly bearing in mind the report of Dr Bruce Lawford. The respondent has submitted that the applicant does not satisfy the requirement in s 24(1)(c) of the Act.
9. The Tribunal considers that the fact that a concession having been made that s 24(1)(b) is satisfied does not in every case necessarily lead to a finding that s 24(1)(c) is satisfied: see Applicant’s submissions, paras 9-11. The respondent had submitted that in Peacock v Repatriation Commission [2004] FCA 1449 the court had failed to appreciate the distinction between the separate tests required for s 24(1)(b) and s 24(1)(c). This submission was made with the greatest respect to the Court. The Tribunal does not agree with the submission having regard to the fact that the court at [22] recognised that ”the questions are not identical”.
Service of the Applicant
10. The applicant served in the Australian Army from 14 August 1967 until 13 August 1970.
11. The applicant had operational service in Vietnam from 19 November 1968 until 29 October 1969. In Vietnam he served as a dispatch rider and driver.
Accepted Claims
12. The applicant has a number of accepted claims relating to his service. As well as the claims for bilateral sensorial hearing loss with tinnitus and chronic bronchitis and emphysema which were the subject of the decision of the delegate of the respondent on 19 February 2003. The applicant also has accepted claims for pathological substance abuse (alcohol) and post traumatic stress disorder.
Evidence of the Applicant
13. In evidence, the applicant stated that he left the Army in 1970. He then was employed as a labourer. Due to his substance abuse, he was convicted of assaulting his wife and imprisoned for two years.
14. In 1977, he was employed as a linesman with Queensland Rail. This involved skilled and heavy work. On 17 May 1990, he injured his back and was given workers’ compensation payments until 27 August 1990. Within a week of returning to work, his back injury was aggravated and he was given workers’ compensation payments until 15 October 1990. He sued Queensland Rail for a permanent partial disability of his lumbar spine and accepted a payment in settlement of his claim.
15. In 1992, he accepted a voluntary redundancy payment from Queensland Rail.
16. There are a number of reasons why he accepted a voluntary redundancy payment. Before he left Queensland Rail, he had a lot of time off work because of his orthopaedic condition and the removal of skin cancers. He stated in evidence that one reason which made him accept a voluntary redundancy was the fact that he had this time off work. He was concerned that his time off work would be detrimental to his being kept on at Queensland Rail. He was also mindful of his back injury.
17. The respondent tendered evidence in the form of an employment questionnaire that was completed on 5 November 2003 by the Co-ordinator, Personnel Administration, Human Resources, Queensland Rail. The applicant gave his authority to provide the information in the questionnaire. The questionnaire states that the reason for the termination was “Voluntary Retirement/Redundancy”. The questionnaire also states that the employment of the applicant would not have been terminated for other reasons in the foreseeable future. That evidence was not contradicted by any other evidence.
18. After the applicant accepted the voluntary redundancy payment from Queensland Rail he received unemployment benefits and then sickness benefits until 7 December 1994 when he was given an invalidity service pension. The sickness benefit was given for degenerative changes to his lumbar spine and multiple skin cancers that have prevented him from working.
19. Whilst the applicant was in receipt of a new start allowance, he applied for a number of positions some of which were advertised. He had some employment as a parking attendant at bingo premises in Nudgee in 1994. He lost that position because of his consumption of alcohol.
20. His most recent employment was on a fishing trawler in 1997. However, in cross-examination he admitted that this employment was to assist a friend. It was not a position that he was suited to because he lacked the strength to do trawler work. This work would also not be suitable because of his orthopaedic condition.
Flentjar Questions
21. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, Branson J, with whom Beaumont and Merkel JJ agreed, stated that in considering whether s 24 (1)(c) of the Act applied in a case there had to be the consideration of the following four questions:
(i)What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
(ii)Is the veteran, by reason of war–caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(iii)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?
(iv)If the answers to question 2 or 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 was free of that incapacity?
22. In considering these questions, the Tribunal has to have regard to the situation during the assessment period: see Forbes v Repatriation Commission (2000) 31 AAR 381 at 384 per R D Nicholson J; and Peacock v Repatriation Commission [2004] FCA 1449 at [37] per Dowsett J.
23. The applicant in order to be eligible for a special rate pension must satisfy all of the provisions of s 24 of the Act during the assessment period: see Repatriation Commission v Braund (1991) 23 ALD 591.
Type of Remunerative Work
24. It is clear that the reference to remunerative work in s 24(1)(c) of the Act is a reference to the type of work in which the applicant had engaged and was not limited to his last form of employment or to a particular job with a particular employer: see Forbes v Repatriation Commission at 385 per R D Nicholson J. The respondent submitted that the relevant remunerative work undertaken by the applicant was work of a manual labouring nature which would include driving duties. The applicant in his army service was a driver.
Ability of the Applicant to Undertake Remunerative Work
25. One issue in this case is whether the applicant is capable of undertaking remunerative work.
26. Dr Bruce Lawford, a Consultant Psychiatrist, in his report considered that the applicant’s psychiatric conditions are impacting upon the ability of the applicant to undertake remunerative work. Considering the applicant’s skills, qualifications and experience, and the kind of work which he might reasonably undertake, Dr Lawford concluded that the applicant does not have the capacity to work for more than 8 hours a week.
27. Professor Ivor Jones, a Consultant Psychiatrist, in his report concluded that “it is most improbable that he would be able to resume paid employment”. Professor Jones stated that there are a number of conditions which impact on the work capacity of the applicant. He remarked: “There are arthritic symptoms, bronchial symptoms and what are probably secondary dyspeptic symptoms in addition, impacting on his work capacity. Even without these symptoms, I doubt that he would be able to resume work”. He considered that the “greater part of his symptoms as the consequence of the chronic alcoholism”.
28. Professor Jones, however, observed that there were “equivocal pathology findings” about alcohol abuse. He pointed to the Queensland Medical Laboratory report which disclosed that the results of the carbohydrate deficient transferrin revealed a total transferrin of 2.9% which although raised “is not high enough to indicate probable recent alcohol abuse”.
29. Another report was obtained from Dr Keith Adam who is a Specialist in Occupational Medicine. Dr Adam stated: “I believe he could work more than eight, but less than 20 hours per week”. Dr Adam stated that “his knee conditions would still impose significant restrictions on his functional ability”. His extensive solar skin damage would mean that he would need the “use of protective clothing and sunscreen or alternatively working indoors”.
30. Under cross-examination, Dr Adam admitted that his opinion on the applicant’s ability to undertake remunerative work was based on his examination of the orthopaedic conditions. The report of Dr Adam did not consider the severity of the accepted conditions and the consequences for the employment of the applicant. Although to fairly assess the report of Dr Adam, it should be borne in mind that the applicant had informed him that he sought a TPI pension on the basis of his skin condition. The applicant also stated his “back plays up” and that he “also suffers from painful knees”. The applicant also emphasised his orthopaedic conditions when he appeared before the Veteran’s Review Board.
31. In considering this second question formulated by Branson J in Flentjar v Repatriation Commission at 5, the respondent concedes that the applicant is not able to undertake remunerative work by reason of a war-caused disease.
32. Having regard to the third question formulated by Branson J in Flentjar v Repatriation Commission at 5, the Tribunal finds that the war-caused disease is not the only factor that prevents the veteran from continuing to undertake that work.
33. The Tribunal finds that the applicant’s non-accepted conditions as well as his accepted conditions prevent the applicant from working.
34. In considering this matter where an applicant has both war-caused and non war-caused conditions, the Tribunal has endeavoured to adopt a common sense approach: see Forbes v Repatriation Commission at 388 per R D Nicholson J. The Tribunal has had regard to the totality of the medical evidence in this case.
35. The Veterans’ Review Board had evidence from Dr A Thompson, a local general practitioner, who stated that the applicant’s back and skin conditions prevent him from working.
36. Professor Jones, in giving an opinion on conditions which impact on the work capacity of the applicant, stated: “The matter is complex”. He remarked that there are “arthritic symptoms, bronchial symptoms and what are probably secondary dyspeptic symptoms” which impact on his work capacity. Whilst Professor Jones considered: ”While the clinical picture, therefore, is complex and multifactorial, I would regard the greater part of his symptoms as the consequence of the chronic alcoholism despite the equivocal pathological findings”. Professor Jones did not in his report state that this condition alone is the cause of the inability of the applicant to undertake remunerative work. The report did not focus upon the orthopaedic conditions of the applicant.
37. There is a difference of opinion amongst the medical practitioners on whether the applicant is able to undertake any remunerative work at all. Professor Jones stated: “I doubt that he would be able to resume work”. Other specialists consider that the applicant has the ability to undertake some remunerative work. Dr Lawford, concluded that the applicant does not have the capacity to work for more than 8 hours a week. Dr Adam, stated: “I believe he could work more than eight, but less than 20 hours per week”. In these circumstances, the weight of opinion is that the applicant has the capacity to work 8 hours per week.
38. Recently in Giesen v Repatriation Commission [2005] FCA 846 Gray J remarked, at [23], in discussing the “alone” test in s 24(1)(c) of the Act: “The ‘alone’ test is a very strict test. It focuses upon the last remunerative work that a veteran was undertaking, and on the cause or causes preventing the veteran from continuing to undertake that remunerative work”. In applying this test of Gray J, the last remunerative work that the applicant was undertaking was his employment with Queensland Rail. The Tribunal finds that the cause preventing the applicant from continuing to undertake that remunerative work was his acceptance of a voluntary redundancy payment.
39. In view of the negative finding to the third question formulated by Branson J in Flentjar v Repatriation Commission at 5, it is not necessary to answer the fourth question.
40. It has not been submitted that s 25 of the Act applies to the applicant: see s 24 (1)(d) of the Act.
Section 24(2)
41. It is now necessary for the Tribunal to consider the application of s 24(2) of the Act.
42. Recently, in Giesen v Repatriation Commission Gray J remarked at [24]: “The opening words of s 24(2) indicate clearly that both of the paragraphs in that subsection are to be used in the application of the ‘alone’ test in s 24(1)(c))”.
Section 24 (2)(a)(i)
43. Dowsett J in Peacock v Repatriation Commission at [37] observed that favourable answers to the four Flentjar questions would not necessarily result in a favourable outcome for the applicant. This is because it is also necessary to address s 24(2)(a)(i) of the Act. Under this provision, a person shall not be taken to be suffering a loss of salary or wages, or of earnings on his own or her own account, by reason of that incapacity if the veteran has ceased to engage in remunerative work for reasons other than his accepted disabilities.
44. The respondent has contended that the applicant ceased his last remunerative work of over 8 hours per week due to reasons other than his accepted disabilities: see Respondent’s Statement of Facts and Contentions, contention 5.2.
45. In this case, the applicant ceased to engage in remunerative employment in 1992 when he accepted a voluntary redundancy package from Queensland Rail. He did not cease work because of any incapacity. There is evidence, which is not contradicted, that his employment would not have been terminated if he had not accepted the redundancy package.
46. In these circumstances, the Tribunal finds that the applicant ceased to engage in remunerative employment for a reason other than a war-caused injury or war-caused disease. That reason being his acceptance of a voluntary redundancy payment from Queensland Rail.
Section 24(2)(b)
47. Dowsett J in Peacock v Repatriation Commission at [20] observed: “Paragraph 24(2)(b) operates in certain circumstances to ameliorate the consequences for a veteran of failing to satisfy the requirements of para. 24(1)(c)”.
48. The Tribunal must consider the possible application of this ameliorating provision which applies where a veteran has not attained the age of 65 years: see s 24(2)(b) of the Act.
49. For the applicant to satisfy the requirements of s 24(2)(b) of the Act the applicant must satisfy the respondent that he has been genuinely seeking to engage in remunerative work, that he would, but for the incapacity, be continuing to seek to engage in remunerative work and that the incapacity is the substantial cause of his inability to obtain remunerative work in which to engage. In view of the presence of the conjunction “and” in paragraph (b), both elements of paragraph (b) need to be satisfied by the applicant before the paragraph can apply.
50. The Veteran’s Review Board, after hearing evidence from the applicant, concluded that the applicant had not sought work since 1994. The applicant in his statement of 10 February 2005 detailed his attempts to gain employment. When he lived in Mackay, he stated that he applied for positions that were not advertised. After he moved to Brisbane, he applied for a position with Main Roads at Deagon. This was in 1994 and was not an advertised position. The only evidence that the applicant gave of applying for an advertised position was in 1996 or 1997 when he applied for a position working for mini skips at Wooloowin. He applied for this position by going into the business.
51. The Tribunal finds that the applicant has not been “genuinely seeking to engage in remunerative work” within the meaning of s 24(2)(b) of the Act. There must be some objective signs of his actively seeking employment: see Hornery and Repatriation Commission (1998) 52 ALD 317; and Leane v Repatriation Commission [2003] FCA 889. This is not satisfied in this case where the applicant applied for only one advertised position. The applicant on that occasion did not make an application in writing. He did not state whether he provided any references on that occasion. There is also no evidence of any application being made during the assessment period.
52. The applicant in order to satisfy s 24(2)(b) of the Act must also show that the incapacity is the “substantial cause” of his inability to obtain remunerative work in which to engage.
53. In Fox v Repatriation Commission (1997) 45 ALD 317 at 320 Kiefel J stated that there must be some “direct causal connection between the incapacity and the inability to obtain remunerative work”.
54. The respondent has pointed to the statement of the applicant that in looking for work “it was plain to me that they were always made aware, by the questions they asked, that I had some disabilities namely my solar skin damage problem and my back condition”. There is no evidence that the accepted condition precluded his employment.
55. In these circumstances, the Tribunal rules that the applicant is not assisted by s 24(2)(b) of the Act.
Whether Section 24(2)(b) Applies to a Veteran Who has Ceased to Engage in Remunerative Work
56. The Tribunal is concerned whether s 24(2)(b) of the Act applies where a veteran has ceased to engage in remunerative work. In Hendy v Repatriation Commission [2002] FCA 602, (2002) 72 ALD 112 at [55], Madgwick J described s 24(2)(b) of the Act as a safety net provision dealing with veterans who, following their military service, have been unable to get back into the workforce, thus making s 24(1)(c) of the Act inapplicable.
57. Recently, in Giesen v Repatriation Commission Gray J remarked at [23]: “I take the view that s 24(2)(b) of the VE Act provides a substitute test for the ‘alone’ test in s 24(1)(c), and that the substitute test is available only to veterans who have not engaged in remunerative work at any relevant time. The “alone” test is a strict test”. Gray J added: “It is difficult to imagine that the legislature intended that a veteran should be able to avoid the application of this strict test, and to take the benefit of the much liberal ‘substantial cause’ test in s 24(2)(b), simply by satisfying the decision-maker that he or she had been genuinely seeking to engage in remunerative work and would be continuing so to seek it”. In discussing the “substantial cause” test in s 24(2)(b), Gray J stated at [24]: “The words ‘who has not been engaged in remunerative work’ have been inserted quite deliberately. They must have been intended to form an element of the conditions under which the ‘substantial cause’ test is to operate. They are particularly apt to make that test applicable to the case of a veteran who has not engaged in remunerative work at all, and who therefore could not satisfy the ‘alone’ test”.
58. The respondent referred to the second reading speech of the Minister who introduced the special rate provision where it was stated that the special or TPI rate pension was never intended to apply “to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian workforce”: see Acting Minister for Veterans’ Affairs, House of Representatives Debates, Vol. 142, p. 2646, 17 May 1985.
59. The Tribunal, however, is not prepared to make a ruling that s 24(2)(b) of the Act does not apply in this case where a veteran has ceased to engage in remunerative work. The Tribunal does not consider that it would be fair to make such a ruling because the respondent has not submitted that the provision is not applicable in this matter: Respondent’s Submissions, para. 37. The Tribunal bases this decision on the ground that the applicant does not satisfy the “genuinely seeking to engage in remunerative work” and “substantial cause” tests in s 24(2)(b) of the Act.
Decision
60. The Tribunal affirms the decision under review.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr GJ Maynard, Member
Signed: J Lauriston
Administrative Assistant
Date/s of Hearing 15 April 2005
Date of Decision 15 July 2005
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr J Kelly, Departmental Advocate
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