Tunny and Repatriation Commission
[2008] AATA 243
•28 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 243
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4175
VETERANS' APPEALS DIVISION )
Re NEVILLE FRANCIS TUNNY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr B McPherson, Deputy President
Mr R G Kenny, MemberDate28 March 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes its decision that pension is payable at the special rate in accordance with s24 of the Veterans’ Entitlements Act 1986 with effect from and including 2 March 2006. ....................[Sgd]....................
Dr B McPherson
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and Entitlements –veteran in receipt of intermediate rate of pension – subsequent Repatriation Commission acceptance of ischaemic heart disease as war-caused - application for increase in pension – veteran now not able to undertake remunerative work for more than 8 hours per week – veteran prevented from undertaking remunerative work that he was undertaking – veteran suffering a loss of salary or wages or of earnings on his own account –– decision set aside
Veterans’ Entitlements Act 1986 ss 19, 23, 24, 119, 120 and 177
Flentjar v Repatriation Commission (1997) 26 AAR 93
Langley v Repatriation Commission (1993) 17 AAR 487
Hill v Repatriation Commission (2000) FCA 969Starcevich v Repatriation Commission (1987) 18 FCR 221
Hill and Repatriation Commission [2001] AATA 331.
REASONS FOR DECISION
28 March 2008 Deputy President B McPherson
Mr RG Kenny, Member
Background
1. On 15 March 2006, the Veterans’ Review Board (the Board) determined that disability pension was payable to Mr Tunny at the intermediate rate in accordance with the terms of s 23 of the Veterans’ Entitlements Act 1986 (the Act). Pension at that rate was paid to him with effect from 20 May 2004. The decision took into account incapacity associated with conditions accepted by the respondent as being war-caused under the Act. These were bilateral sensori neural hearing loss with tinnitus, diabetes mellitus, acquired cataracts in both eyes, post traumatic stress disorder and alcohol abuse. The Board, at that time, also took into account Mr Tunny’s employment history and his capacity to undertake remunerative work.
2. Following a further claim by Mr Tunny on 2 June 2006, a delegate of the Repatriation Commission accepted, on 1 February 2007, ischaemic heart disease as a war-caused disability but continued the assessment of pension at the intermediate rate. In so doing, it determined that he did not qualify for the special rate of pension under s 24 of the Act. That assessment decision was affirmed, on 2 July 2007, by the Board and Mr Tunny seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Issues and Legislation
3. Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case: see s 120(4) and s 119(1) of the Act, respectively. In that process, neither party bears an onus of proof: see s 120(6) of the Act. The procedure to be followed is provided for in s 19 of the Act. Subsection 19(5C) requires the rate of pension to be assessed from time to time during the assessment period. The term “assessment period” is defined in s 19(9) of the Act as the period starting on the application day and ending when the claim or application is determined. It is not disputed that the application day in this case was 2 June 2006 and that the assessment period runs from that day until the matter is determined by the Tribunal.
4. The issue raised by Mr Tunny is whether he meets the criteria for payment of the special rate of pension under s 24 of the Act. It is not in dispute that Mr Tunny was under 65 years of age at the time of his claim or that he is in receipt of pension at a rate greater than 70% of the general rate. Therefore, he meets the preliminary requirements of s 24(1)(aa), (aab) and (a)(i) of the Act for the special rate. Further, it is conceded by Mr Stoner, for the respondent, that Mr Tunny meets the incapacity component in s 24(1)(b) of the Act. This is that he is totally and permanently incapacitated in that his incapacity from his accepted disabilities is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The remaining component of the provision is s 24(1)(c) of the Act. This comprises two limbs which require that he:
·is, by reason of incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking (first limb); and
·is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity (second limb).
5. Mr Stoner also concedes that Mr Tunny satisfies the requirements of the first of those limbs. In the event that we accept Mr Stoner’s concessions, the issue for determination is whether Mr Tunny’s circumstances fall within the second limb of s 24(1)(c) of the Act.
Submissions
Mr Stoner
6. Mr Stoner submitted that, when Mr Tunny was granted pension at the intermediate rate, he had a residual capacity to undertake remunerative work on a part-time basis or intermittently which, in accordance with s 23(2) the Act, means up to 20 hours per week. He noted, however, that Mr Tunny has not been engaged in any form of remunerative work since he was granted the intermediate rate of pension. In his statement of facts and contentions, he also wrote that Mr Tunny had not sought any work since the granting of the intermediate rate. Mr Stoner submitted that, because Mr Tunny had not been in remunerative work while receiving the pension at the intermediate rate, he had not suffered a loss of salary, wages or earnings on his own account as a result of his decreased capacity for work from up to 20 hours per week to a maximum of 8 hours per week. He submitted that the loss he is presently experiencing is the same loss that he suffered, and has continued to suffer, as at the date from which he met the eligibility requirements for pension at the intermediate rate.
7. Mr Stoner argued that, in order to meet the requirements for the special rate, all of the requirements of s 24 of the Act had to be met during the assessment period. This required an additional loss, in that period, over and above that which was demonstrated for the purposes of qualifying for the intermediate rate.
Ms Frizelle
8. For Mr Tunny, Ms Frizelle submitted that s 24(1)(c) of the Act is identical in its terms to s 23(1)(c) of the Act and that, because Mr Tunny had been granted the intermediate rate of pension under s 23 of the Act, he therefore satisfied s 23(1)(c) it and it followed that the requirements of s 24(1)(c) were also satisfied. She submitted that the relevant remunerative work was the type of office administration he had undertaken until 2004. She submitted that he ceased that work in May 2004 solely because of his accepted disabilities and that, by reason thereof, he suffered a loss of income at that time. This was a continuing loss, extending into the current assessment period. She submitted that it was not necessary for him to show any additional loss of salary or wages or of earnings on his own account beyond that which he had already suffered on that continuing basis following cessation of his last remunerative work. In any event, she also submitted that his inability to obtain employment because of his accepted disabilities, in itself, constituted a loss for the purposes of s 24(1)(c) of the Act.
Evidence
9. Most of the factual aspects of this matter are not in dispute. Mr Tunny has had two employed positions since leaving the army. From 1968 until 1990, he did clerical work with a company in Brisbane. He then worked as the office manager with Bachmann Plant Hire in Ipswich where he experienced difficulty with some of the customers because of the effects upon him of his post traumatic stress disorder. His general medical practitioner, Dr Michael Skiba, advised him to cease work because of this condition and provided him with a letter, dated 13 May 2004, to the employer confirming that opinion. An employer’s report, dated 11 June 2004, was in evidence. It advised that Mr Tunny had been employed on a permanent full-time basis with the Bachmann Group from 22 August 1990 until 18 May 2004 and that his employment was terminated on medical grounds. Mr Tunny has not engaged in remunerative work since then and was granted the service pension from 16 September 2006.
10. Mr Tunny was treated by psychiatrist Dr Lillian Cameron from May 2003 until she retired. His treatment has been continued by psychiatrist Dr John Gibson. Dr Gibson provided reports dated 5 October 2005 and 16 May 2007 in which he expressed the opinion that, because of post traumatic stress disorder alone, Mr Tunny was incapable of working more than 8 hours per week in any field for which he was reasonably qualified by education, training and experience.
11. After 15 March 2006 when he was granted pension at the intermediate rate, Mr Tunny registered for employment with Centrelink. At an interview with a Centrelink officer, Mr Tunny was told that attempts would be made to match him to job opportunities. He has not been advised of any such positions by Centrelink but continued to look in his local Ipswich newspaper during the week and in the Brisbane Courier Mail on Saturdays for vacant positions. In May 2006, he approached his former employer and also a local company, J A Evans and Co, about employment opportunities. He was advised that no work was available for him at that time.
12. Mr Tunny said that his registration with Centrelink was done on the advice of an advocate with the Veterans’ Support Centre in Toowong. The advocate told him that looking for employment was “one of the criteria” that he needed to satisfy in order to qualify for the special rate of pension. However, in his evidence, he said that this was not the reason he looked for work. Rather, he did so because he wanted to get back to work and believed he could do some clerical work as long as it was without interaction with customers.
Consideration
13. Ms Frizelle in her written submission and Mr Stoner in his statement of facts and contentions made brief reference to issue estoppel. It was not argued by them. We are satisfied that the doctrine is not relevant in this matter where the task is to consider whether or not the terms of s 24 of the Act are met during the assessment period on the evidence as it pertains to that period. Mr Tunny’s claim of 2 June 2006 is separate from that which led to the earlier decision to grant the intermediate rate and all of the relevant material must be considered afresh in the context of s 24 of the Act and in the new assessment period[1].
[1] Langley v Repatriation Commission (1993) 17 AAR 487 at 493, 495.
14. For the purposes of applying s 24(1)(c) of the Act, the Federal Court in Flentjar v Repatriation Commission[2] said that a proper application of the provision requires consideration of the following questions:
1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
[2](1997) 26 AAR 93
15. It is not disputed and we are satisfied that the relevant remunerative work that Mr Tunny was undertaking was that of a clerical nature in which he engaged from 1966 until 2004. Again, it is not disputed and we are satisfied on the medical evidence before us that Mr Tunny’s accepted disabilities prevent him from continuing to undertake that work and that those disabilities are the only factor causative of that situation. As noted above, those matters were conceded by Mr Stoner and we are reasonably satisfied that Mr Stoner’s concessions have been properly made. That leaves the 4th of the Flentjar questions to be considered. It relates to the second limb of s 24(1)(c) of the Act.
16. That second limb is qualified by the terms of s 24(2)(a)(i) of the Act. Mr Tunny will not be taken to be suffering a loss of salary or wages, or of earnings on his own account by reason of his service-related incapacity, if he ceased to engage in remunerative work for reasons other than that incapacity. The evidence is that Mr Tunny ceased work because of the effects of his accepted disabilities, in particular his post traumatic stress disorder. We are satisfied that the qualifying provision does not apply to his circumstances.
17. Of the cases cited in argument by Mr Stoner and Ms Frizelle, the only one which is specifically concerned with the potential transition from the intermediate to the special rate of pension is the Federal Court decision in Hill v Repatriation Commission[3]. This was an appeal from a decision of the Tribunal in 2000 which had continued Mr Hill at the intermediate rate. Wilcox J allowed Mr Hill’s appeal and remitted the matter to the Tribunal for further hearing.
[3] (2000) FCA 929.
18. In that case, Mr Hill served in the Royal Australian Air Force from 1958 to 1978 and then worked for the Department of Defence in a civilian capacity until he accepted a redundancy package in March 1989 at age 53 years. His evidence was that the only reason he took that package was because all of the effects upon him of disabilities accepted as having been related to his service. He then engaged in dog-breeding, an interest which he had also pursued during his years of employment. This activity was found by the Tribunal and the Federal Court not to constitute remunerative work. This meant that Mr Hill had not been in work after March 1989.
19. The Repatriation Commission accepted, under the Act, a range of conditions as being related to his service and granted him a pension at the general rate for the associated incapacity. The matter of assessment of the appropriate rate of pension eventually came before the Tribunal which, on 16 April 1993, granted him the pension at the intermediate rate in accordance with s 23 of the Act with effect from 19 January 1990. On 5 March 1996, Mr Hill applied for an increase in his pension. This was rejected by the Repatriation Commission, by the Veterans Review Board and, in turn on 3 February 2000, by the Tribunal. It was this decision which came before Wilcox J in the Federal Court.
20. Wilcox J noted that, at the date of Mr Hill’s claim and, therefore, at the commencement of the assessment period, he had not been engaged in remunerative work for almost 7 years. Relying upon Starcevich v Repatriation Commission[4], his Honour concluded that this did not necessarily prevent his last employment from being considered in the application of s24(1)(c) of the Act, saying:
“Starcevich establishes that consideration of the question whether the veteran was, at application day, “prevented from continuing to undertake remunerative work that the veteran was undertaking”, and thereby lost income, is not confined to consideration of the question whether the veteran would then have been working in his or her most recent employment………..Nor is it fatal to a claim of prevention from continuing to undertake remunerative work in some sphere, that the veteran has worked at something else in the meantime, or that there is a substantial temporal gap between a cessation of work in that sphere and the date of the application. It may make it difficult for the veteran to obtain a favourable factual finding, but they do not mean the previous work is to be excluded from consideration”[5]
[4] (1987) 18 FCR 221
[5] Hill and Repatriation Commission [2001] AATA 331 at [36]
21. Wilcox J said that, while it was a question of fact for the Tribunal to determine whether or not Mr Hill ceased work solely because of his accepted disabilities, if it did so, the Tribunal was then required to consider whether it was probable that Mr Hill, absent those accepted disabilities, “would have been engaged in that type of work at the date of his application seven years later”. The Tribunal, in Hill’s case, had not approached the matter in that way. Rather, it determined that, as Mr Hill had not worked or sought any work since being granted the intermediate rate of pension, there was no loss of earnings by him. His Honour said it was erroneous for the Tribunal to limit its task to the determination of the extent to which Mr. Hill’s position had changed since the intermediate rate of pension was granted.
22. The matter was remitted by the Federal Court for further hearing and redetermination by the Tribunal. It was reheard in 2001 before Deputy President Purvis[6]. There, the Tribunal found that Mr Hill had accepted the redundancy in 1989 solely because of his accepted disabilities, that the 7 year period between his cessation of work and the commencement of the assessment period did not, in itself, play a part in preventing him from continuing to undertake remunerative work of the type that he had previously undertaken and that, at that date, he was capable of working no more than 8 hours week. It found that this diminution of capacity represented a deterioration in his accepted disabilities since the granting of the intermediate rate of pension in 1993. The Tribunal was satisfied that, at the start of the assessment period, Mr Hill was still under the retirement age of 65 years and that, absent his accepted disabilities, would not have retired from the type of work he had been doing until 1989. As we read that decision, it follows that, as at the start of the assessment period, he was, though not working at that time, suffering the relevant loss required to satisfy s 24(1)(c) of the Act.
[6] Hill and Repatriation Commission [2001] AATA 331.
23. We are satisfied that the observations of Wilcox J in the Federal Court and their application, subsequently, by the Tribunal in Mr Hill’s case are applicable in this matter.
24. On the material before us, we are satisfied that Mr Tunny ceased work in 2004 solely because of his accepted disabilities. He has not worked since and, therefore, at the commencement of the assessment period, had been unemployed for a little more than two years. His evidence was that he made efforts to obtain further employment during that time and, whilst this may have been motivated to some extent by the advice of a veteran’s advocate, we accept his evidence that he genuinely wanted to obtain further work. Indeed, his evidence, in that regard, was not challenged in cross-examination. We do not accept the contention that satisfaction of s 23(1)(c) of the Act means that, without more, s 24(1)(c) thereof is also satisfied. In order to meet the requirements of the second limb of s24(1)(c) of the Act, there must be a loss of salary, wages or earnings and this must be referrable to the assessment period. We do not accept the contention that, in order to demonstrate such a loss, a veteran must have exercised the residual work capacity which is inherent in the grant of pension at the intermediate rate. The loss will be established if, at the commencement of the assessment period, absent the accepted conditions, it is probable that the veteran would have continued in the type of employment he had enjoyed previously. We are satisfied that Mr Tunny meets that description. He was still under the normal retirement age of 65 years on the application day and his capacity for employment had reduced since he was granted the intermediate rate of pension due not only because of the deterioration in the disabilities accepted by the Repatriation Commission at that time but also because of the impact upon him of his ischemic heart disease which was accepted subsequently. We are satisfied that his inability to be engaged in work at that time resulted in a loss of salary, wages or earnings in the assessment period.
25. Mr Tunny meets the requirements for the payment of the special rate of pension under s 24 of the Act. Pension is payable to him under that provision with effect from 2 March 2006, a date set in accordance with the terms of s 177 of the Act and agreed by the parties.
Decision
26. The Tribunal sets aside the decision under review, accordingly.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B McPherson and Member RG Kenny,
Signed:…………[Sgd]…………………………..
Research AssociateDate of Hearing 6 March 2008
Date of Decision 28 March 2008
Counsel for Mr Tunny Ms Ann Frizelle
Solicitor for Mr Tunny G Couper
Counsel for the Respondent Mr John Stoner , Departmental Advocate
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