Thomson and Repatriation Commission

Case •

[2002] AATA 404

•

28 May 2002

DECISION AND REASONS FOR DECISION [2002] AATA 404

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2001/22

VETERANS' APPEALS   DIVISION     )          
           Re      DAVID HENRY THOMSON         
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date28 May 2002

PlaceHobart

Decision      The Tribunal sets aside the decision under review of the Veterans' Review Board dated 24 January 2001 in so far as it assessed the applicant's disability at 100% of the General Rate and determines that the applicant is entitled to the Special Rate of pension pursuant to the provisions of s.24 of the Veterans' Entitlements Act 1986 with effect from 22 March 1999.   
  [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Veterans' Entitlements – disability pension – application for special rate – accepted disability dysthymic disorder - accepted disability alone prevented the applicant from engaging in remunerative work.
Veterans' Entitlements Act 1986 – s24
Banovich v Repatriation Commission 69 ALR 395

REASONS FOR DECISION

28 May 2002           Ms A F Cunningham (Part-time Member)   

  1. The applicant has sought the review of a decision made by the Veterans' Review Board (VRB) on 24 January 2001 which (a) affirmed a decision of the Repatriation Commission of 15 May 1999 assessing a disability pension at 90% of the General Rate, and (b) affirmed that part of a decision of the Repatriation Commission of 8 September 1999 which assessed the applicant's disability pension at 100% of the General Rate from and including 22 March 1999.

  2. The applicant's claim is for a Special Rate of pension pursuant to the provisions of s24 of the Veterans' Entitlements Act 1986 ("the Act"). The VRB determined that the applicant failed to satisfy s24 of the Act and in particular that his war-caused disability alone prevented him from working for periods aggregating more than 8 hours per week". The VRB determined that a disability pension at a 100% of the General Rate was appropriate.

  3. The applicant gave oral evidence before the Tribunal and was represented by Mr R Webster. The Respondent was represented by Mr M Castle who called no evidence. The T documents were submitted pursuant to the provisions of s.37 of the Administrative Appeals Tribunal Act 1975.

  4. It was conceded by Mr Castle on behalf of the respondent that the applicant meets the following requirements of s24; namely:

    (i)he has made a claim for an increase in pension;

    (ii)he has not yet turned 65 years of age;

    (iii)his degree of incapacity from war-caused injuries was at least 70%, being accepted at 100%.

  5. The issue for the Tribunal to determine falls under the provisions of sub-section 1(b) that is, whether the veteran's incapacity from war-caused injury is "of itself alone" such to render the applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week and whether, as a result, the applicant is suffering a loss of salary or wages or earnings that he would not be suffering if he were free of that incapacity.

  6. The requisite standard of proof provided by s120(4) of the Act, is that the Tribunal must decide the issue "to its reasonable satisfaction".

  7. It was Mr Castle's contention that there was no evidence before the Tribunal that the applicant's accepted disabilities were the substantial cause of his inability to obtain work.

  8. The war-caused disability relied upon by the applicant was that of dysthymic disorder which was accepted by the Administrative Appeals Tribunal on 8 July 1998, as a  war-caused disability with effect from 13 September 1994.

  9. The applicant's evidence was that in January 1994 he had entered into an arrangement with Mr Stuart Beechey for him take a couple of fishing trips in the applicant's boat.   The applicant said that he was not well at the time and  the arrangement was that he would undertake the paperwork and receive a percentage of the catch.    Out of this percentage, the applicant paid for the fuel and running expenses.    It was the applicant's intention to resume fishing in his boat following the arrangement.   However the boat was unfortunately caught by a freak wave and sank with Mr Beechey losing his life in the accident.  The boat was never recovered and was uninsured.

  10. The applicant said that between January 1990 and 1993 he spent most of his time at sea with the exception of the periods closed to fishing.   He said that his dysthymic disorder had caused him problems during his periods at sea and whilst on occasions he was able to cope, there were others when he was not.

  11. Following the loss of his boat, the applicant registered with the Glenorchy office of the CES.   He said that although he was prepared to take on any employment because of his financial situation, he did not receive any offers of employment.   Whilst he was prepared to try employment, he said that he had concerns that his dysthymic disorder may have prevented this.

  12. The applicant said that he first sought treatment for his dysthymic disorder at least by the early 1990's, if not before.   He received treatment from Dr Robert Wilson who stated in a report dated 13 March 1995 "… now his injury has prevented his return to work".   (T 10)  

  13. The applicant also informed the Tribunal of an injury that he sustained to his left shoulder during Christmas 1993 when he fell off a ladder.    The injury required surgery which was successful.   As a result, the applicant said that he must take care with weight-bearing, suffers stiffness in his neck and has difficulty standing for long periods of time.

  14. The Tribunal must decide whether the applicant's inability to undertake remunerative work is due solely to his war-caused disability or some other reason, for instance, the loss of his fishing vessel.

  15. The Tribunal was referred to the full Federal Court decision in Banovich and Repatriation Commission (1986) 69 ALR 399 in support of the applicant's contention that whilst the loss of the applicant's fishing vessel may have been the reason why the applicant was unable to resume fishing at that time, this factor alone would not be a bar to a subsequent entitlement to a Special Rate of pension if at the time of the claim, the applicant was prevented by his war-related incapacity alone from continuing with that remunerative activity. The Court stated at page 402:

    "Consistently with that use, the phrase `remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job.   It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity – and by that incapacity alone – from continuing in that field of remunerative activity."

  1. The applicant's claim for pension entitlement pursuant to the provisions of s24 of the Act was made on 22 June 1999. In his claim form (T162) at paragraph 32, the applicant indicated that ill health was the reason why he stopped working.

  2. In the impairment assessment report prepared by Shane Wright and dated 8 September 1999, the assessor has stated (page 209) "the veteran cannot work".   Reference has already been made to the statement made by Dr Wilson that the applicant's injury (dysthymic disorder)  prevented his return to work.

  3. Whilst the loss of the applicant's fishing vessel in 1993 may have prevented his return to fishing at that time, the question remains whether at the time of the applicant's claim in June 1999, he was prevented from engaging in remunerative work because of his war-caused injury or because of other factors.

  4. The full Federal Court in the decision of Banovich said at page 402:

    "We accept that the loss referred to in para [1](b)(iii) (the equivalent of s24(1)(c))   may be caused either by a loss of existing employment or by an inability to obtain new employment.   There is no difficulty in regarding either circumstance as preventing the member `continuing to undertake' remunerative work.   But it is, in our opinion, erroneous to read the phrase `remunerative work that the member was undertaking' as referring to a particular job with a particular employer."
    The term "remunerative work" is used in a Schedule in a context which indicates an intention to refer to work generally … (See paragraph 15 above).

  5. The question remains therefore, as to whether the applicant's failure to obtain further employment, for instance, when he registered with the CES, was because of his dysthymic disorder or due to other reasons. As stated in sub-section 2(b) of s24:

    "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."

  6. The veteran's own evidence was that whilst he was prepared to "try", he was doubtful whether he could undertake any employment offered by CES because of his dysthymic disorder.

  7. The Tribunal was referred to the AGR Medical Opinion  (at T18) prepared by Dr Brigden on 16 December 1998, where in response to the question at paragraph one:

    "Does the veteran's war-caused injury or disease, when considered by itself alone, prevent or restrict his ability to undertake remunerative work:   Responded YES.

and further in response to the question:

"If yes, why is he so prevented or restricted?

Dr Brigden responded:

"Dysthymic disorder (depression/anxiety)."

In response to the question:

"How many hours per week can the veteran work?"

Dr Brigden responded:   "Nil"
The reason being:   "As above".

  1. Whilst the applicant may have had doubts as his ability to undertake any work offered to him by the CES because of his dysthymic disorder, Dr Brigden's report suggests to the Tribunal that the applicant's war-caused injury of itself would prevent his ability to undertake remunerative work.   The Tribunal is satisfied on the basis of the evidence before it that the applicant satisfies the requirements of sub-section 2(b) in that he has genuinely been seeking to engage in remunerative work and that his incapacity is the substantial cause of his inability to  obtain such remunerative work noting that the work need not be the type of work that the applicant was engaged in immediately prior to him ceasing work.

  2. As Dr Brigden has stated  that the applicant could not work for any hours in a week, the further requirement contained in sub-section 1(b) "for periods aggregating more than 8 hours per week", is also satisfied.

  3. The Tribunal accordingly sets aside the decision under review of the Veterans' Review Board dated 24 January 2001 in so far as it assessed the applicant's disability at 100% of the General Rate and determines that the applicant is entitled to the Special Rate of pension pursuant to provisions of the s.24 of the Act with effect from 22 March 1999.

    I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

    Signed: K L Miller    .....................................................................................
      Personal Assistant

    Date/s of Hearing  13 March 2002
    Date of Decision  March 2002
    Counsel for the Applicant        Mr R M Webster
    Solicitor for the Applicant          
    Counsel for the Respondent    Mr M Castle
    Solicitor for the Respondent    Department of Veterans' Affairs

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