Vahdat and Repatriation Commission

[2005] AATA 1047

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1047

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/978

VETERANS' APPEALS DIVISION		)
Re		BIZHAN VAHDAT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal       Senior Member P McDermott

Dr GJ Maynard, Member

Date21 October 2005  

PlaceBrisbane

Decision We set aside the decision of the Veteran’s Review Board and substitute a decision that Mr Vahdat is entitled to receive a pension at the special rate with effect from 16 February 2002.

…........[Sgd]................

P McDermott

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - disability pension - whether entitled to special rate - Veterans' Entitlements Act s 24 - whether war-caused diseases prevented veteran from continuing remunerative work s 24(c)-alone test.

Veterans’ Entitlements Act 1986 (Cth) s 24, Part 2

Repatriation Commission v Braud (1991) 23 ALD 591
Flentjar v Repatriation Commission 1997 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Alexander (2003) 75 ALD 329
Giesen v Repatriation Commission [2005] FCA 846
Forbes v Repatriation Commission (2000) 31 AAR 381
Peacock v Repatriation Commission [2004] FCA 1449
Pollivette Ltd v Commercial Union Assurance Co Pty Ltd [1987] 1 Lloyd’s Rep 379
Hornery and Repatriation Commission (1998) 52 ALD 317
Leane v Repatriation Commission [2003] FCA 889.
Fox v Repatriation Commission (1997) 45 ALD 317

REASONS FOR DECISION

21 October 2005	Senior Member P McDermott
Dr GJ Maynard, Member

Introduction

1.      We have to decide whether Mr Bizhan Vahdat should receive a pension at the special rate pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). Mr Vahdat is a veteran who is already receiving a pension for war-caused injuries and war-caused diseases under Part 2 of the Act. A delegate of the Repatriation Commission (“Commission”) has determined that Mr Vahdat is entitled to be paid pension at 100% of the general rate under the Act. Mr Vahdat contends that the Commission erred in determining the rate of pension payable to him and that he should receive a pension at the special rate.

Legislative Framework

2.      A veteran such as Mr Vahdat who is in receipt of a pension may make an application for an increase in the rate of pension: see s 15.

3.      The Commission is required to consider and determine the claim or application of a veteran: see s 18.

4.      The Commission is required to consider the rate or rates at which a pension would have been payable during the assessment period, and also the rate at which the pension is payable: s 19(5C).  The assessment period commences on the day on which a claim or application is received, and ends on the day when the claim or application is determined: s 19(9).

5. A pension under the Act may be paid at the general rate (s 22), the intermediate rate (s 23), or the special rate (s 24).

History of the Matter

6.      Mr Vahdat had operational service with the Australian Army in Vietnam from 18 February 1969 to 11 February 1970.  He also has eligible service as a member of the Defence Forces from 7 December 1972 to 24 September 1976.

7.      On 16 May 2002 Mr Vahdat lodged a claim for disability pension in respect of disabilities which he described as bilateral sensorineural hearing loss with tinnitus; lumbar spondylosis; hiatus hernia; and gastro-oesophageal reflux disease.

8.      A delegate of the Commission has determined that a number of conditions of Mr Vahdat are war-caused.

9.      On 12 June 2002 the delegate accepted the conditions of bilateral sensorineural hearing loss with tinnitus, lumbar spondylosis and gastro-oesophageal reflux disease as war-caused with effect from 16 February 2002.

10.     On 14 July 2004 the delegate accepted the conditions of post traumatic stress disorder and depressive disorder as war-caused with effect from 15 May 2002.

11.     The delegate has determined that Mr Vahdat would be granted a pension at 100% of the general rate, with effect from 16 February 2002.

12. We mention that section 20 of the Act permits the Commission to back-date pension payments to a date three months prior to the date on which a claim for pension was lodged, hence the effective dates of 16 February 2002 and 15 May 2002.

13.     Mr Vahdat applied to the Veterans’ Review Board for review of the delegate’s decisions. On 30 September 2004, the Veterans’ Review Board affirmed the determination of the Commission. The Board decided that Mr Vahdat should continue to receive a pension at 100% of the general rate.

14.     Mr Vahdat has now applied to this Tribunal to review the decision of the Veterans’ Review Board.

15. The applicant, in order to be eligible for a special rate pension, must satisfy all of the provisions of s 24 during the assessment period: see Repatriation Commission v Braud (1991) 23 ALD 591.

16. Before the hearing of this application, the Commission conceded that Mr Vahdat satisfied the requirements for the payment of a pension at the special rate pension with the exception of s 24(1)(c) of the Act. The Commission also contended that s 24(2)(b) was not satisfied in this case.

17. We consider that the dispute between Mr Vahdat and the Commission is properly confined to whether the requirements contained in s 24(1)(c) of the Act are satisfied.

Alone Test

18. We have to consider the operation of s 24 (1) (c) of the Act which enables payment at the special rate of pension, if:

“(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”.

19.     This subsection contains a requirement that the incapacity from a war-caused injury or war-caused disease or both “alone” prevents a veteran from continuing to undertake remunerative work that the veteran was undertaking.

20.     In Flentjar v Repatriation Commission 1997 48 ALD 1 (“Flentjar”) at 5, Branson J (with whom Beaumont and Merkel JJ agreed) re-formulated the requirement as a question:

“… 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?”

21.     We should mention that an application for special leave to appeal from the judgment of the Full Federal Court in Flentjar was refused with costs by Gaudron and Callinan JJ on 19 May 1998, Gaudron J remarked:

“The Court is of the view that there is no reason to doubt the correctness of the decision of the Full Federal Court. Accordingly, special leave is refused … with costs.”

22.     In Repatriation Commission v Hendy [2002] FCAFC 424, a Full Court of the Federal Court (Whitlam, Emmett and Stone JJ) on 19 December 2002 said at par 37:

“The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work.”

23.     In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, Burchett J has observed that the “true task” of this Tribunal in considering s 24(1)(c), is “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities and not to something else as well.  It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”

24.     In Repatriation Commission v Alexander (2003) 75 ALD 329 at 334 Spender J emphasised that the test under s 24(1)(c) of the Act “is whether war-caused conditions, alone, prevent the respondent from continuing to undertake remunerative work that he had been undertaking”.

25.     Recently in Giesen v Repatriation Commission [2005] FCA 846 Gray J remarked, at [23], in discussing the “alone” test in s 24(1)(c):

“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”.

Evidence before the Tribunal

26.     Mr Vahdat, in his evidence before us, emphasised that the welfare of his family was of paramount concern to him.  When he returned from Vietnam he was employed as a computer operator for 13 years in Canberra.  He transferred to the Department of Industry and Commerce and worked for a time with Bougainville Copper as a computer operator.  His most recent employment was with the Australian Taxation Office (“ATO”) from 1992.  He resigned from the ATO in 1999.

27.     Mr Vahdat explained that his wife had contracted cancer and had died in 1998.  Both his wife and he were of the Baha’i faith.  He stated that watching his wife slowly dying and suffering was difficult for him.

28.     In his statement Mr Vahdat said: “We had been married for a long time and naturally I grieved at her death but not excessively and her death was not my reason for resigning my position from the Australian Taxation Office.  Her death was connected to my decision in this sense that I no longer had the need and motivation to work to support her.  For many years work had been a torment for me and upon her passing I no longer needed to endure that torment.”

29.     At one time Mr Flynn, who supervised Mr Vahdat at the Australian Taxation Office made an offer for Mr Vahdat to resign on medical grounds to maximise his retirement benefit but that did not eventuate.  Mr Vahdat said: “As it turned out, Mr Flynn did not make that offer to me again and my resignation was not on medical grounds”.

30.     The evidence before us included reports from Dr Peter Norris of the Walton Bridge Medical Centre [T-Docs, pp 15-22; ex. A4].  Dr Norris reported that Mr Vahdat has been attending the Walton Bridge Medical Centre since 1993.  Dr Norris has been treating Mr Vahdat since March 2002.

31.     Dr Norris stated that Mr Vahdat had suffered from symptoms of anxiety and depression over the years and had been treated with anti-depressants.  Dr Norris stated that about the time that Mr Vahdat had resigned from the ATO he “was on anti-depressants and valium”.  Dr Norris is of the opinion that Mr Vahdat was not able to perform his duties at the ATO due to his anxiety and depression.

32.     Dr Jonathan Hargraves, in a report, has made a diagnosis of chronic post traumatic stress disorder and dysthymic disorder.  Dr Hargraves is of the opinion that Mr Vahdat is totally unfit for work and that the principal reason why he is unfit for work is “because of the psychiatric condition that developed as a result of his stressful experiences in Vietnam” [T-Docs, folio 55].

Flentjar Questions

33.     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 has to be the consideration of the following four 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 related 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 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?

34.     In considering these questions we must have regard to the situation during the assessment period: see s 19(5). See also Forbes v Repatriation Commission (2000) 31 AAR 381 at 384 per R D Nicholson J; Peacock v Repatriation Commission [2004] FCA 1449 at [37] per Dowsett J.

Type of remunerative work

35. 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 (2000) 31 AAR 381 at 385 per R D Nicholson J.

36.     We consider that the relevant remunerative work undertaken by the applicant was work which involved the operation of computers.

37.     In considering this second question formulated by Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 we conclude that the applicant is not able to undertake remunerative work by reason of a war-caused disease. We have had regard to the report of Dr Jonathan Hargraves. We have already mentioned that in his report Dr Hargraves has made a diagnosis of chronic post traumatic stress disorder and dysthymic disorder. Dr Hargraves is of the opinion that Mr Vahdat is totally unfit for work.

38.     Having regard to the third question formulated by Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, we have to consider whether the war caused disease is the only factor that prevents the veteran from continuing to undertake that work.

39.     We conclude that Mr Vahdat’s war caused disease is the only factor that prevents him from working.

40.     In considering this matter we have endeavoured to adopt a common sense approach: see Forbes v Repatriation Commission (2000) 31 AAR 381 at 388 per R D Nicholson J.

41.     In applying the test formulated by Gray J, the last remunerative work that the applicant was undertaking was his employment with the ATO.

42.     We must consider the cause preventing the applicant from continuing to undertake that remunerative work with the ATO.

43.     There is some evidence before us that it was his resignation to accept a position in Israel. Mr Flynn stated: “Around May 1999 Ben informed me that he had been offered an overseas position in Israel. Ben advised me that it involved spending a number of years studying the Baha’i faith in that country”.  However, Mr Vahdat stated that the position in Israel was an unpaid position and he accepted it merely to occupy himself.

44.     In considering this third question we must also consider the report of Dr Hargraves who considered: “After his wife died, he went to Israel and did some voluntary work for the Baha’i church”. (T-Docs – folio 55)

45.     Dr Hargraves considers: “So while the death of his wife was the precipitant to stopping work, the issues in Vietnam and subsequent psychological issues were probably the underlying cause for his inability to continue work after his wife died”.

46.     We consider that Dr Hargraves’ expert evidence should be given considerable weight in our fact finding process in view of the fact that he has given an objective view regarding matters within his expertise: see Pollivette Ltd v Commercial Union Assurance Co Pty Ltd [1987] 1 Lloyd’s Rep 379 at 386.

47.     We accordingly give a positive finding to the third question formulated by Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5.

48.     We must now consider the fourth question formulated by Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 in view of the fact that our answers to question 2 or 3 are, in each case, yes.

49.     We consider that the veteran is 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.

50. It has not been submitted that s 25 applies to the applicant: see s 24 (1)(d).

Section 24(2)

51. It is now necessary for the Tribunal to consider the application of s 24(2) of the Act.

52.     Recently, in Giesen v Repatriation Commission [2005] FCA 846, 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 (2)”.

Section 24(2)(a)

53.     Dowsett J in Peacock v Repatriation Commission [2004] FCA 1449 at [37] observed that favourable answers to the four Flentjar questions would not necessarily result in a favourable outcome for the applicant.

54. This is because it is also necessary to address s 24(2)(a)(i). Under this provision a person shall not be taken to be suffering or 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.

55.     Having regard to the evidence of Dr Hargraves we find that Mr Vahdat ceased to engage in remunerative employment because of a war-caused disease.

Section 24(2)(b)

56.     Dowsett J in Peacock v Repatriation Commission [2004] FCA 1449 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)”.

57. We are required to 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).

58.     Mr Vahdat was under 65 years of age at the commencement of the assessment process namely 64 years and two months.

59. For Mr Vahdat to satisfy the requirements of s 24(2)(b) he must satisfy the Commission 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 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.

60.     We find that Mr Vahdat has been “genuinely seeking to engage in remunerative work” within the meaning of s 24(2)(b). There must be some objective signs of his actively seeking employment: see Hornery and Repatriation Commission (1998) 52 ALD 317; Leane v Repatriation Commission [2003] FCA 889. This is satisfied in this case where Mr Vahdat gave evidence of his attempts to seek work.

61. Mr Vahdat in order to satisfy s 24(2) (b) must also show that the incapacity is the “substantial cause” of his inability to obtain remunerative work in which to engage.

62.     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”.

63.     We consider that potential employers would be aware of the incapacity of Mr Vahdat.  Dr Hargreaves has commented on the fact that Mr Vahdat stated that he failed the aptitude test to work as a shelf-packer for Coles.  Before his service in Vietnam Mr Vahdat had completed an electrical engineering degree at the Imperial College in London.

64. In these circumstances we find that Mr Vahdat satisfies the requirements of s 24(2)(b).

Conclusion

65. We consider that Mr Vahdat satisfies the requirements of s 24 of the Act to be paid a pension at the special rate.

Decision

66.     We set aside the decision of the Veteran’s Review Board and substitute a decision that Mr Vahdat is entitled to receive a pension at the special rate with effect from 16 February 2002.

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr GJ Maynard, Member

Signed:         Jeff Mills

Legal Research Officer

Date/s of Hearing  19 August 2005
Date of Decision  21 October 2005
For the Applicant  Mr R Anderson of Counsel
  Terence O'Connor, Solicitor
For the Respondent                  Mr M Smith, Departmental Advocate