Van Der Hoek and Repatriation Commission

[2005] AATA 383

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 383

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/112

VETERANS' APPEALS  DIVISION		)
Re		HERMAN VAN DER HOEK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date29 April 2005

PlaceHobart

Decision The Tribunal sets aside the decision under review and substitutes a new decision that the applicant is qualified for payment of disability pension at the Special Rate with effect from 12 December 2002.

[Sgd Mary Imlach]

Senior Member

CATCHWORDS

Veterans' Affairs - disability support pension - special rate - degree of incapacity - capability for undertaking remunerative work - war-caused condition alone prevents remunerative work.

Veterans' Entitlements Act 1986 - s24

Hendy v Repatriation Commission [2002 FCA 602

Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

29 April 2005 Miss Mary Imlach (Senior Member)         

1.      This is an application by Herman Van Der Hoek (“the applicant”) for a review of a decision of the Veterans’ Review Board (“the VRB”) dated 12 July 2002 which affirmed a decision of the Repatriation Commission (“the respondent”) that the applicant’s disability pension should continue to be paid at 100 per cent of the General Rate, and rejected his claim that he was entitled to a pension at the Special Rate.

2. At the hearing, the applicant was represented by Mr Christopher Webster, solicitor and the respondent was presented by Mr Michael Castle of the Department of Veterans’ Affairs. The evidence before the Tribunal comprised the documents provided pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). The applicant and a witness for the applicant, Dr Mark Slatyer gave oral evidence at the hearing.

Background

3.      The applicant was born on 22 May 1939 and is now aged 65.    At the application date he was 61 years of age.    He served in the Australian Navy from 1959 to 1971 including Malaya and Vietnam.   The respondent has accepted that the following conditions from which the applicant suffers are related to his service; cervical spondylosis, ischaemic heart disease, bilateral sensori-neural hearing loss and bilateral tinnitus.

4.      After discharge from the Navy in 1971, the applicant was employed as a security guard for a period of about 12 months.    He ceased work on 31 January 1972 and claimed he did so because of his cervical spondylosis.

5.      On 2 August 2001, the applicant was granted a disability pension at 100 per cent of the General Rate with effect from 18 December 2000, but was denied a pension at the Special Rate.   On 22 August 2001 the applicant lodged a claim against the decision of a delegate of the respondent that he was ineligible for the Special Rate of pension.

6.      The decision of the respondent of 2 August 2001 was affirmed by the VRB on 2 July 2002 and, on 12 June 2003 the applicant lodged an application for a review by this Tribunal

Applicable Legislation

7. The sole issue between the parties is the rate at which disability pension should be paid to the applicant. The applicant claims he is entitled to be paid at the Special Rate. Pension will be paid at the Special Rate if the requirements of s24 of the Veterans’ Entitlements Act 1986 (“the Act”) are satisfied.   In the case of the applicant, who had not turned 65 before the claim was made, the following provisions are relevant:

“24(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(a)       either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(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; and

(d)       section 25 does not apply to the veteran.

(2)       For the purpose of paragraph (1)(c):

(a) 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; and

(b)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.”

8.      Section 21A provides for the assessment of the degree of incapacity of the veteran according to the provisions of the Guide to the Assessment of Rates of Veterans’ Pensions, currently in its fifth edition (“GARP V”) prepared by the respondent and approved by the Minister for Veterans’ Affairs.

The applicant’s Evidence

9.      The applicant left school at the age of 14.   He started work on the state railways in Western Australia where he remained for about 5 years.   During this time he also served a period of National Service with the Army, and had an involvement with the CMF.

10.     The applicant enlisted with the RAN in 1959 when he was 19 years old.    He described himself as having been in excellent health at that time.    He served in the RAN from 1959 to July 1971 at which time he was invalided out and was judged to be permanently unfit.

11.     The applicant said that after he left the Navy, he obtained full-time employment with Haines Security in Sydney as a security guard.   The job involved security patrol of shops in several suburbs and included security as a gate guard at a factory.

12.     The applicant found it difficult to perform the work as a security guard as he could not stand up for any length of time or sit down for any length of time.    He had to wear a surgical collar and was armed at all times.   He said that the pain got too bad and after trying his hardest for a year he felt that he could not handle the job any more.

13.     The applicant ceased employment as a security guard in 1972.    He has not had any substantive employment since that date.   He has had a number of what he called “hobby jobs” given to him by friends who were helping him out.

14.     In 1991, the applicant developed ischaemic heart disease and underwent angiograms which proved he had four blockages.    He had a coronary quadruple bypass done in August 1992.    His ischaemic heart disease was accepted as service-related on 2 August 2001.

15.     In September 1999, the applicant was hospitalised for a fortnight due to severe nose bleeding.    He said that prior to the hospitalisation he had had an alcohol problem, but the effect of his hospitalisation was that he stopped drinking and smoking.

16.     The applicant stated that he did not regard himself as having an alcohol problem now and that the only problem to his mind which prevented him from working was his spine. 

Submissions – Applicant

17.     Mr Webster for the applicant submitted that the applicant’s age and the period of time that he was out of the workforce were not incompatible with the applicant obtaining work as a security guard.   Mr Webster referred the Tribunal to Dr Slatyer’s evidence and his answer when asked whether or not the applicant had any other medical or incapacitating conditions, he replied that the applicant certainly had ischaemic heart disease, which was stable and that he was overweight and drank some alcohol, but that he did not believe that these things were the causes which could exclude him from work.  Mr Webster contended that the evidence of Dr Slatyer was that there were no other conditions other than the service related conditions which he saw, which would prevent the applicant from working.

18.     Mr Webster submitted also that in relation to the question of alcohol raised by the respondent’s representative in cross-examination, the evidence of the applicant that he has not drunk alcohol to excess since 1999 was not inconsistent with the report from Dr Sale, which stated that his problem with alcohol was in remission.

19.     Mr Webster referred to the decision in Hendy v Repatriation Commission [2002 FCA 602, to support his contention that the Tribunal is required to consider the effect, contribution to and relative weight to be attached to all or any of the veteran’s non-service caused conditions during the assessment period and then determine whether these conditions prevent the veteran from working.

Submissions - Respondent

20.     Mr Castle noted that there was no dispute that the accepted disabilities of the applicant would be enough on their own to prevent employment, but he submitted that the Tribunal must go further and see if there are any other reasons why he would not obtain employment as at the date of his application which was 18 December 2000.    The serious issue Mr Castle contended was whether the age of the applicant and the period he was out of the work force prevented him from gaining employment.

Consideration of Law and Findings

21. The issue for the Tribunal to determine is whether the applicant satisfies s24(1)(b) of the Act, that is, whether the applicant’s disabilities render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The applicant’s treating physician Dr Mark Slatyer considered the applicant’s “multiple medical problems preclude him from work now or in the future and he should be considered as 100% totally and permanently incapacitated”.

22.     The applicant’s general practitioner, Dr Shaw, certified in his medical report for permanent unemployability dated 23 January 1990, that after examination of the applicant he was of the opinion that the applicant was permanently unemployable and that he did not consider having regard to the applicant’s physical/mental condition, age, environment and employment experience that the applicant could be assisted by rehabilitation treatment or training to obtain regular remunerative employment.

23.     The applicant’s contention that he was incapacitated for work solely because of his cervical condition was supported further by the medical report of Dr Mark Wearne dated 7 July 1996.

24.     The Tribunal accepts the applicant’s evidence and that of his doctors that he no longer had an alcohol problem after 1999 and that it had finished before 2001, the date of the application by the applicant for the pension.

25. The Tribunal notes the applicant presented as a credible witness. His account of his inability to carry out his job as a security guard for Haines Security in Sydney in the light of the evidence of his treating physician and general practitioners lead the Tribunal to be reasonably satisfied that the applicant is incapable of working more than eight hours per week, thereby satisfying s24(1)(b) of the Act.

26.     The respondent contended that it was the applicant’s age and the number of years that he was out of the work force which were significant components of the applicant’s incapacity for work.

27.     Mr Webster argued for the applicant that the Tribunal is required to consider the effect, contribution to and relative weight to be attached to all or any of the veteran’s non-service-caused conditions during the assessment period and determine whether these conditions prevent the veteran from working.   He referred the Tribunal to the decision in Re Hendy to support his contention.    In Hendy’s case Madgwick J said:

“It seems clear however that it is not within the intendment of the legislation that decision-makers might resort, under the rubric of labour market factors, to the mere consequences of a veteran's service-related disability for the purpose of defeating the veteran's claim. Among other things, if a service-related condition incapacitates a veteran for particular work, it will be more or less true in every case that, as time goes by, the veteran's ability to re-enter the workforce will tend to be impaired on account of lack of recent experience of that work, absence from the workplace generally and, for older veterans, their increasing age. There would have been little point in providing for a work incapacity pension if the direct consequences of the incapacity could defeat the right to the pension.”

28.     The general observations of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 to which Mr Webster referred the Tribunal are relevant in this case:

“A practical approach is needed and one that recognises the underlying beneficial nature of the legislation.   The conclusion appears inescapable that the applicant had performed remunerative work in no trivial degree for several months as his last effort to work.    There was ample material to suggest that it was his war-caused incapacity alone which had prevented him from continuing to undertake that work.   Whether other factors prevented him from re-engaging in more onerous kinds of work that he had previously undertaking was beside the point.   In any case here, the particular other factors may, in part, have been no more than necessary consequences of his accepted disability on factors that it might be unjust, having regard to the statute’s evident purposes, and therefore unintended by the statue, to be taken into account.”

29.     In the light of the medical evidence and the applicant’s oral evidence, the Tribunal considers that the evidence overwhelmingly supports the conclusion that it is the applicant’s accepted war-caused injuries of (1) cervical spondylosis; (2) ischaemic heart disease; (3) sensori-neural hearing loss; and (4) bilateral tinnitus which alone incapacitated the applicant for work.

30. With regard to s24(2)(b) the Tribunal also accepts the applicant’s evidence that it was his incapacity from war-caused injuries that prevented him from obtaining employment.

31. The Tribunal concludes that the applicant also satisfies s24(1)(c) and thus satisfies all the relevant s24 requirements for qualification for payment of the disability pension at the Special Rate.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  15 February 2005
Date of Decision  29 April 2005
Counsel for the Applicant         Mr C P Webster
Solicitor for the Applicant          Wallace Wilkinson and Webster
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Department of Veterans' Affairs