Van As and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 789

Van As and Repatriation Commission (Veterans’ entitlements) [2015] AATA 789 (9 October 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/2073
Re	Kevin Van As
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean Senior Member
Date	9 October 2015
Place	Melbourne

The Tribunal sets aside the decision under review with regard to chronic obstructive pulmonary disease with effect from 21 November 2012. The remaining elements of the decision are affirmed.

.................[sgd]................................

Dr Damien Cremean

VETERANS AFFAIRS — War-caused injury or disease − Emphysema − Special Rate − alone − substantial cause

Legislation

Veterans Entitlements Act 1986 (Cth), sections 24(1)(c), 24(2)(b)

Cases

Repatriation Commission v Richmond   (2014) 226 FCR 21

Repatriation Commission v Watkins (2015) 228 FCR 573

Secondary Materials

Repatriation Medical Authority, Statement of Principles for Chronic Obstructive Pulmonary Disease, No. 37 of 2014

REASONS FOR DECISION

Dr Damien Cremean

9 October 2015

1. The Applicant seeks review of the decision by the Veterans’ Review Board (the Board) on 6 February 2014 affirming the Respondent’s decisions of 5 December 2012 (V 13/0078)  and 26 February 2013 (V12/0451A).

2. These affirmed decisions refused the Applicant’s claim for his emphysema to be accepted as being war-caused under the Veterans’ Entitlements Act 1986 (Cth) (the Act) and, second, continued his disability pension under that Act at 100% of the General Rate.

3. As to the former the Applicant contends he satisfies the Statement of Principles for Chronic Obstructive Pulmonary Disease (SOP) and that under the Act his emphysema should be accepted as war-caused.

4. As to the second part of the decision, the Applicant contends he satisfies the requirements of section 24(1)(c) of the Act with respect to Special Rate.

5. The Applicant, who undertook National Service in the Australian Army from 5 June 1972 to 26 April 1974, has the following accepted disabilities: dislocated left hip; ischaemic heart disease; and major depressive disorder (chronic). Rejected disabilities are alcohol abuse; hypertension; and emphysema.

6. At the hearing the Applicant gave sworn evidence as did his brother Mr Brett Van As. Both were cross-examined, as were Doctors Pomorin and Farnbach who gave evidence by telephone. Numbers of documents including medical reports were also received into evidence.

Entitlement

1. The Respondent stated that it was prepared to leave it to the Tribunal to decide whether  the Applicant’s emphysema should be determined to be an accepted condition or not.

2. I am satisfied, on the balance of probabilities, that the Tribunal should determine that the  Applicant’s emphysema is indeed an accepted condition under the Act.

3. The Applicant, as submitted by his voluntary advocate Mr Reynolds, in my view satisfies the requirements of the SOP. The Board was reasonably satisfied, as am I, that the Applicant suffers the diagnosed condition of emphysema. Under paragraph 3 (b) of the SOP emphysema is included in the definition of chronic obstructive pulmonary disease.

4. I am not in any doubt, on the evidence, that the Applicant’s chronic obstructive pulmonary disease is due to the great many years he has spent smoking — probably far in excess of the five packet years referred to in paragraph 6(a) of the SOP as a risk factor. The Applicant still smokes. My attention was drawn by Mr Rudge, advocate for the Respondent, to a   Medical History dated 23 May 1974 which records the Applicant smoking six cigarettes per day. A Claimant Report — Cigarette Smoking signed by the Applicant on 29 June 2001 records him saying that in 1972 he was smoking 15+ cigarettes per day which increased to 40 P/Day in 1973 due to [s]tress from being in the Army and the Fact that I did Not Want to be in the Army.  A medical report from Dr Robin Hunter dated 20 November 2007 records the Applicant then smoking one packet of cigarettes a day and states that he had been doing so for the past 35 years. It is true the Applicant gave sworn evidence that he began smoking before service, which is not quite consistent with the Claimant Report. Nevertheless, I am sufficiently satisfied that, during service, and as a result of service, including peer pressure, his habit took hold. He not only maintained the habit, he increased it. I am satisfied that his smoking habit has continued thereafter (with some occasions when he has briefly given it up or cut back) and that as a result of that habit he has developed emphysema as identified in a scan and by respiratory function tests referred to by Dr Robyn Horsley in a report dated 16 October 2014. Her report, in turn, referred to a report by Associate Professor Holmes dated 15 April 2013. In that report Professor Holmes stated that the CT scan of the Applicant’s chest carried out on 19 February 2013 showed mild COPD with mild emphysematous changes.

5. I also regard the Applicant’s well-entrenched smoking habit as closely associated with his heavy drinking over the years. I believe that it also took hold during his service years – particularly due to events occurring during those years. I note though that alcohol abuse has been rejected twice as a war-caused condition.

6. In all the circumstances I am satisfied on the balance of probabilities that the Applicant’s emphysema should be determined to be an accepted disability of chronic obstructive pulmonary disease with effect from 21 November 2012 and that the decision of the Board on that issue must be set aside.

Assessment

1. I now turn to the second limb of the Applicant’s contention. The requirements of the Act for Special Rate are set out in section 24(1)(c) if paragraphs (aa), (aab),(a) and (b) of section 24(1) have been met and section 25 does not apply:

   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 of that incapacity.

2. Section 25 of the Act does not apply in this case and there is no doubt that paragraphs (aa), (aab), (a) and (b) of section 24 (1) have been met. The issue is solely whether the Applicant comes within section 24 (1)(c).

3. That issue focuses principally on the word “alone” in the section. But the effect of that word in the section is ameliorated to some extent, as has been said,  by section 24 (2)(b) of the Act by which for the purposes of section 24(1)(c):

   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.

4. At the same time section 24(2)(a) of the Act specifies that for the purposes of section 24 (1)(c):

   a veteran who is incapacitated from war-caused injury or war-caused disease, or both, 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 if:

   (i)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

   (ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason.

5. The word alone in section 24(1)(c) has been the subject of much analysis in the authorities. In Repatriation Commission v Richmond (2014) 226 FCR 21 the Full Federal Court expressed its agreement with the primary judge who had said:

   The authorities…establish that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.

   The Full Court also quoted the primary judge as saying that, while this may be seen as a harsh result, it arises from the plain words of the section and that extrinsic materials

   indicate the legislature had intended that the special rate to be reserved for a

   limited category of veterans.

6. In the more recent case of Repatriation Commission v Watkins (2015) 228 FCR 573 the Full Federal Court, comprising different judges, observed (at [60]) that although it was not bound by the decision in Richmond, it would expressly decline to depart from it, being of the view not only that that judgment was not plainly wrong but was indeed correct and applicable.

7. I am of the view that the Applicant has made genuine efforts on several occasions to obtain work in the rural Whorouly area and has been unsuccessful. They include attempts to obtain work as a labourer and as a milker of cows . I am not satisfied, however, that he has been unsuccessful in his endeavours by reason of his war-caused injury or war-caused disease − or both − alone within the meaning of section 24(1)(c) of the Act. Indeed, Mr Reynolds in the course of his submissions indicated he had concerns over this very issue.

8. Mr Rudge in his submissions said that a collection of factors, mostly not related at all to his accepted disabilities, was preventing the Applicant from obtaining work. I agree with this view. Chief among these factors has been the Applicant’s long history of alcohol abuse – possibly more correctly described as one of binge drinking. An Alcohol Questionnaire signed by the Applicant and dated 20 September 2010 says that in January 1974 he was drinking up to 10 pots (of beer) per day; in 1995 he was drinking 10 pots per night plus three or four spirits and [b]inge drink[ing] at weekend. By 2007 he was binge drinking up to three times a week and consuming 18 cans at one time. The Applicant could not recall filling in this Questionnaire − which, I agree, does not appear to be in his handwriting − but he did sign it. The evidence generally in any event was that the Applicant has consumed extraordinarily high levels of alcohol in his lifetime. The report by Dr Pomorin dated 22 June 2015 would indicate that the Applicant’s has recently reduced his alcohol consumption. But he has not stopped drinking altogether. These days he may only be consuming five stubbies a week − perhaps wrongly recorded by Dr Farnbach in his report of 24 September 2014 as five stubbies a day. But even at five stubbies a week Dr Farnbach said that the Applicant has a problem because he suffers from alcohol dependence, and not merely alcohol abuse as mentioned by Dr Pomorin. This is a lifelong condition because the risk of relapse is so high. I certainly accept however that the Applicant is now very careful not to drink and drive, having only recently regained his motor car licence. He also must care for his partner who is unwell.

9. But there is no doubt in my mind that alcohol has been a dominant influence in the Applicant’s life since at least his time of service − and I have no doubt either that he has consumed as much as he has in part due to recollecting an episode during service when a fellow soldier beat his (that soldier’s) baby daughter to death shortly after a confrontation between himself and the Applicant. The Applicant still remembers this incident vividly and broke down in evidence when recounting it. It has obviously haunted him for a very long time and some comfort has been found in alcohol. Heavy smoking has in my view accompanied the Applicant’s consumption of alcohol.

10. The problem, however, is that alcohol abuse is not an accepted disability. I note Mr Rudge’s submission that the Applicant’s video business was functioning poorly because of his alcohol consumption and ultimately was sold off. But in light of the evidence of Mr Brett Van As, and in the absence of documentation, I am not in a position to make findings about the financial viability of the business when it was sold.

11. Mr Rudge referred to other factors preventing the Applicant from getting work, including  his limited work skills, his time away from the workforce and other medical conditions. As regards the first of these my attention was drawn to the comments of Elfi Luca of SCOPE who wrote to Mr Reynolds on 11 September 2012 that the Applicant does not have a licence and has limited computer skills which limit his job seeking and employment opportunities. This was three years ago and since that time the Applicant has regained his licence. He said also in evidence that he has acquired some basic computer skills. But Ms Luca’s overall assessment was bleak: the Applicant has limited skills and as an older job seeker we have had no real responses to employment. As to the Applicant’s time out of the workforce the point made by Mr Rudge is that the Applicant has not worked since 2006 when his video business was sold off. I am not satisfied that that in itself would prevent the Applicant getting work in that people often do successfully return to work after long periods of absence. I expect though that time out of work compounds with age and limited skills to make the Applicant’s work prospects very poor indeed or non-existent, especially in a rural area.

12. The other medical conditions referred to by Mr Rudge include the Applicant’s damaged right hip and a lower back problem. His damaged right hip would, I agree, of itself be significantly limiting to a man of advancing years, restricting various movements and reducing significantly the kinds of remunerative work which he could undertake. When this is considered in addition to his lower back problem, the Applicant has a very reduced number of jobs, if any, open to him. Indeed, realistically, as Dr Horsley said in her report in October 2014, the Applicant has come to the end of his working life.

13. I find on the evidence that the Applicant’s war-caused injuries or war-caused diseases, or both, alone, do not prevent the Applicant from undertaking remunerative work. He is prevented also by the various non war-caused disabilities and factors. I am satisfied that these, on their own, without his war-caused disabilities, would be sufficient to prevent him from getting work. This means, following the decision in Richmond, that the alone test under section 24(1)(c) is not satisfied. Non war-caused disabilities on their own in my view result in the Applicant’s inability to work.

14. Mr Reynolds also submitted that the Applicant could fall within section 24(2)(b) of the Act. As I have said I accept that the Applicant has been genuinely seeking work. But I am not satisfied that the substantial cause of his lack of success in that regard is due to his war-caused injury or war-caused disease or both. Again I refer to and adopt Mr Rudge’s expression − a collection of factors is preventing the Applicant from obtaining employment and I refer to the non war-caused disabilities and other factors discussed above. I am not satisfied that I should find on the evidence that the Applicant’s war-caused disabilities are even the substantial cause of his inability to obtain work. His war-caused disabilities are perhaps one cause of that inability but are not in my view the only cause or even the substantial cause. In my view, although his heavy drinking over the years has had its marked effect, his other medical conditions − including his right hip condition and his lower back problem − have had a significant impact in leading to his joblessness. To these must be added other factors such as age, time out of the workforce and skill level. I should add I cannot see that his emphysema has contributed to his lack of success in obtaining employment.

15. I therefore reject the argument based on section 24(2)(b) that by use of that provision the Applicant is able to overcome the effect of section 24(1)(c).

16. I am satisfied on the evidence that on the balance of probabilities the Applicant does not qualify for Special Rate.

17. Accordingly, the Board’s decision on that issue must be affirmed.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean

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Dated 9 October 2015

Date(s) of hearing	24 September 2015
Advocate for the Applicant	Mr Reynolds
Advocate for the Respondent	Mr Rudge