VERNON WILSON and REPATRIATION COMMISSION
[2009] AATA 955
•15 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 955
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0900
VETERANS' APPEALS DIVISION ) Re VERNON WILSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date15 December 2009
PlaceAdelaide
Decision The tribunal affirms the decision under review.
D G Jarvis
(Signed)
(Deputy President)
CATCHWORDS
VETERANS' ENTITLEMENTS – disability pension – rate of pension payable – special rate – applicant genuinely sought to establish business of growing and selling flowers – incapacity from war-caused conditions – substantial cause of inability to do so – held that proposed activities would not constitute remunerative work – applicant ceased employment for reasons other than his war-caused incapacity – held that loss test not met – decision affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 24(1)(c), 24(2)(a)(i) and 24(2)(b)
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Magill v Repatriation Commission [2002] FCA 744
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
15 December 2009 Deputy President D G Jarvis Introduction
1. The applicant, Vernon Wilson, served in the Royal Australian Navy from 1 April 1966 to 31 March 1986. He had operational service in Vietnam in February 1969, and eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (VE Act) from 7 December 1972 to 31 March 1986. He is currently receiving a disability pension at 100% of the general rate.
2. On 18 April 2006 Mr Wilson lodged a claim with the respondent for pension at the special rate provided for in s 24 of the VE Act. A delegate of the Repatriation Commission refused to increase his pension beyond 100% of the general rate. This decision was subsequently affirmed on review by the Veterans’ Review Board (“VRB”). Mr Wilson has applied to this Tribunal for review of the Commission’s decision.
3. He currently has the following accepted disabilities, namely tinea, sensori-neural hearing loss, chronic bronchitis and emphysema, diabetes mellitus and peripheral neuropathy. He also suffers from a number of other disabilities that have not been accepted as related to his service; these include psoriasis, depressive disorder, post-traumatic stress disorder, alcoholic liver disease, heart problem, psychoactive substance abuse or dependence involving alcohol, cirrhosis of the liver, alcohol abuse and anxiety/depression. He is clearly very disabled from the combination of his various conditions.
4. Mr Wilson’s entitlement to pension at the special rate is to be determined under s 24 of the VE Act. The Commission acknowledges that he satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70 per cent of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in ss 24(1)(a)(i) and 24(1)(b) respectively of the VE Act.
Issue for Determination
5. The issue before the Tribunal is whether Mr Wilson satisfies s 24(1)(c) of the VE Act having regard to the ameliorating provisions of s 24(2)(b), that is:
·whether he is to be treated as having been prevented, by reason of incapacity from his war-caused injuries, from continuing to undertake remunerative work that he had been undertaking, having regard to steps he had taken with a view to establishing a business of growing and selling daffodil flowers; and
·whether in consequence of his war-caused injuries he is suffering a loss of wages or earnings on his own account that he would not be suffering if he were free of that incapacity.
6. I have reached the conclusion, for the reasons set out below, that Mr Wilson has not satisfied the requirements of s 24(1)(c) of the VE Act, and so is not entitled to a pension at the special rate.
Background
7. The following background facts are based upon Mr Wilson’s evidence, and were not in dispute.
8. Mr Wilson is now aged 59. He left school when he was aged 15 and joined the Navy. He trained as a mechanical engineer in the engine room and boiler room departments. He became qualified as a fitter machinist, a recognised trade. He also qualified to operate certain machinery and engines, and attained the rank of Petty Officer.
9. During his time in the Navy he served on a number of ships. A large portion of his time was spent at sea. His area of work was the engine room and boiler room. At times the conditions in the boiler room were extraordinarily oppressive and extremely difficult to cope with.
10. After 20 years’ service he left the Navy and undertook a three-month course in driving heavy equipment such as bulldozers and earthmoving equipment. He attained licences to do this, but did not in fact undertake that sort of work.
11. After he left the Navy he worked with the Tweed Shire Council as a fitter/machinist for 11 months. He then returned to sea in the Merchant Navy as a greaser. He enjoyed that employment, and continued it for about five years. He had begun to drink heavily during his Naval service, and continued to drink heavily in his subsequent employment. He had unrestricted access to alcohol during his time with the Merchant Navy, because he was the bar manager on board a ship. His first marriage broke up because he was spending too much time at sea, and because of his drinking problems.
12. He left the Merchant Navy in 1993 because he was not prepared to become a member of the union, and so was unable to go to sea. He had remarried, and then became a house husband, assisting with household tasks and with bringing up his children, so as to enable his wife to work. He once tried to work as a cleaner, but gave this up after only one night.
13. Mr Wilson’s drinking problem has been in remission since February 2003. He and his wife have lived in South Australia since returning there in 2003.
14. Just before he returned to South Australia, Mr Wilson became aware of pain in his feet. This gradually got worse, and he was eventually diagnosed with peripheral neuropathy at the Repatriation General Hospital. He has extreme pain, particularly in his legs and fingers, and suffers from a loss of sensation in his legs. This has led to problems with balance and being prone to falls, and he walks with a stick. He has significant daily doses of morphine for his pain.
Applicant’s Evidence as to Attempts to Work After 2003
15. The applicant gave the following evidence as to his ability and attempts to engage in remunerative work after he returned to South Australia.
16. In April 2004 he and his wife moved into a house at Longwood in the Adelaide Hills. He began to look around for work, but was not able to pursue his trades; he was unable to undertake the fine work of a fitter and turner, or to stand for a day. In addition, his narcotic medication precluded work as a fitter and turner or even as a boiler watchman.
17. In the spring of 2004 he observed daffodils emerge from a patch of land where they had apparently previously been planted. He had observed that they generally grew well in the hills. His witness statement records:
“As a result I formed the intention to try growing daffodil flowers commercially and to use that as a springboard for growing other plants and flowers if possible.
In the spring and summer of 2004, my family and I began preparing for this project.
I began by undertaking extensive research. This included buying and borrowing books, working with a neighbour who is a retired nursery man.” (exhibit A5, page 6)
18. Mr Wilson said that he did a significant amount of preliminary work. He approached local gardening experts to maximise his knowledge of growing daffodils, and arranged for a local drilling contractor to come to the property, and was advised that they would easily be able to sink a bore. He inquired of several local stores who indicated that they would take flowers. He also spoke to a local councillor who grows flowers for a living, and he gave advice on planning and setting up the property, including using shrubs as windbreaks. Mr Wilson planted those on this recommendation.
19. Mr Wilson’s witness statement continues:
“I estimate that I worked 10-15 hours per week once we decided to proceed in preparatory work. Once we decided to proceed, I would have started out with hands on work at that rate.
I began working at that rate as well as supervising my family in helping. I chose that work because it was something that I could stop when I could not cope.
Eventually I slowed down to the point where I could not proceed. I just couldn’t put my foot on the fork to turn the soil because the pain was so bad and I couldn’t bend over for fear of over balancing. I did not give up willingly and it was only when I discovered it with my doctor that I discontinued my efforts (sic)” (exhibit A5, page 7)
20. Mr Wilson said further that he cleared a large portion of the property, about 40 metres by 60 metres, and prepared the soil, fertilised it and grew beans as legumes to enrich the soil with nitrogen. He also weeded, turned and spread top dressing on a smaller area of 30 metres by 5 metres. In addition, there was an area with a diameter of about 20 metres where daffodils were already growing.
21. He says in his witness statement:
“In my second season at the house, we ran a test planting of daffodils specifically for the purpose of growing them and selling them. By that stage, I had been diagnosed with Peripheral Neuropathy and my inability to work in the garden was becoming more apparent.
We planted approximately 20 x 8 metre rows in two different spots on the property to assess different aspects of the property.
That planting was successful and we harvested a number of bunches of daffodils, which we sold from the roadside adjacent to our house.
We did not make a lot of money but I believe that there was the potential for us to grow more. … The following year we bought more bulbs but we also lifted and divided a number of the bulbs that were growing wild and in the 8 x 20 metres rows we had already planted. At least that was the plan.
I had some assistance from my wife and from the children and by the time we came to planting out, we had over 1000 bulbs ready to plant, in addition to a number that we had not been able to lift.” (exhibit A5, pages 7 – 8)
22. At that stage his peripheral neuropathy became really bad, and he was unable to dig and weed or plant out bulbs. His children and his wife (who was working fulltime) were not able to do all of the work. As a result, a comparatively small number of bulbs were planted out by his wife, but the project failed as a commercial venture.
23. Mr Wilson said that he has continued to be alcohol free, and there is nothing that prevents him from working other than the fact that he can hardly walk and is in constant pain from his peripheral neuropathy. He also suffers from various effects including mood swings, dizziness, tiredness and headaches, from the medication he takes, and he is now addicted to morphine. His witness statement concludes:
“I would have continued to move towards setting up the property for commercial flower growth were it not for the fact that I simply can’t do any of that work at this stage because of my peripheral neuropathy.” (exhibit A5, page 9)
24. In the course of his evidence, Mr Wilson provided the following further information. The bulbs that were bought in had been obtained from a mate, and he paid $250 for a plastic garbage bin full of bulbs. He also bought some bulbs from a nursery near Stirling, and his wife purchased a very small quantity from a nursery in Victoria. He would have spent close to $1,000 in seeking to establish the business, including the cost of tools. However, he had not kept a record of what he had spent or what he had received. He had sold daffodils on the side of the road by placing them in a bucket, and people would buy them on an honour system. He estimated that he had received $100 to $200 for selling the daffodils. He had not sold any daffodils through local shops. He had bought half a bag of blood and bone for about $28, and had used osmocote, which he already had. His expectation was not that he would establish a “multi-million dollar” business, but that he would use the business as a back up for his family.
Legislation
25. If s 24(1) of the VE Act applies to Mr Wilson, he will be entitled, under s 24(4), to a pension at the special rate therein provided.
26. Sections 24(1)(c), s 24(2)(a) and 24(2)(b) of the VE Act relevantly provide as follows:
“24(1) This section applies to a veteran 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; and
…
(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;
(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.”
Consideration
27. Under s 120(4) of the VE Act, the Commission (and this tribunal standing in the shoes of the Commission when it considers applications for review) must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
28. A veteran’s entitlement to pension at the special rate must be considered as at the time of the application to the Commission, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged with the Commission and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; Repatriation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996.
29. Section 24(1)(c) of the VE Act provides for two conditions of entitlement for pension at the special rate. The first condition is the “alone” test, that is the veteran must, by reason of incapacity from war-caused injury or disease alone be prevented from continuing to undertake remunerative work that the veteran was undertaking. The second condition is the “loss” test, that is as a result of being so prevented, the veteran must suffer a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if he or she were free of the incapacity from the war-caused injury or disease.
30. In the present matter it was not suggested on behalf of Mr Wilson that his war-caused conditions alone prevent him from continuing to undertake remunerative work that he was undertaking, or that those conditions alone prevented him from proceeding with his plans to establish a business of growing and selling daffodil flowers. As mentioned above, Mr Wilson has a number of non-accepted conditions, and these no doubt play a part in preventing him from undertaking relevant remunerative work, so that he would be unable to satisfy the “alone” test in s 24(1)(c) of the VE Act.
31. However, it is well established that the “alone” test in s 24(1)(c) must be read subject to s 24(2)(b): Forbes v Repatriation Commission (2000) 101 FCR 50. Section 24(2)(b) is ameliorative of s 24(1)(c), in the sense that provided that a veteran is “genuinely seeking” to engage in remunerative work, he or she need only establish that incapacity from war-caused injury or disease is “the substantial cause” of inability to obtain remunerative work, rather than the sole cause of that inability, and s 24(2)(b) will also apply even where a veteran has not been engaged in remunerative work at the relevant date: Magill v Repatriation Commission [2002] FCA 744, at [8]. In the present matter, Mr Wilson had not been engaged in remunerative work during the assessment period, because notwithstanding his preparation to engage in the daffodil flowers business, that business had not been established during the assessment period. However, that does not preclude a claim under s 24(1)(c).
32. I am satisfied from the evidence of Mr Wilson that he was genuinely seeking to establish his daffodil flower business, and that but for his war-caused conditions, he would be continuing to seek to engage in that business, and that his incapacity from war-caused conditions is the substantial cause of his inability to engage in that business.
33. However, I am not satisfied that the business would have constituted “remunerative work” within the meaning of s 24(2)(b) of the VE Act. Mr Wilson’s plans never came to fruition, and so inevitably there was no evidence as to a history of trading, which would have revealed such things as the quantity of flowers produced, the gross amounts received on the sale of the flowers, the identity and category of the purchases of the flowers, the labour required to produce the flowers or the cost of doing so. Further, there is no evidence of any business plan revealing sales or profit forecasts. The evidence before me indicates that the steps that he had undertaken prior to abandoning the project were limited and entailed minimal financial outlay, and that insignificant sales had been made. Whilst I accept that Mr Wilson had genuine aspirations to establish the proposed business, and for the business to produce only a modest income, I am not satisfied that his intended efforts would have produced business activities of a size or scale that could be described as “remunerative work” within the meaning of s 24(2)(b) of the VE Act.
34. As mentioned above, the second requirement of s 24(1)(c) for entitlement to pension at the special rate is that by reason of incapacity from war-caused conditions, the veteran must be 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 the incapacity. This requirement, referred to as the “loss” test, is to be read with s 24(2)(a).
35. Under s 24(2)(a)(i) a veteran is taken not to be suffering such a loss if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from the war-caused condition.
36. In the present matter, it is common ground that Mr Wilson ceased to engage in remunerative work in 1993 because he was unable to go to sea without joining the union, which he was not prepared to do, and also because of non-accepted conditions. In those circumstances he is deemed by s 24(2)(a)(i) not to be suffering a loss of wages or of earnings on his own account, and therefore he cannot meet the “loss” test in s 24(1)(c). He does not therefore meet the requirements for entitlement to pension at the special rate.
37. For the sake of completeness, I add that in some circumstances where s 24(2)(b) applies, that is where the veteran has never been engaged in remunerative work, or is not during the assessment period engaged in remunerative work but had earlier ceased to engage in remunerative work because of incapacity from a war-caused injury or disease, it would follow that his or her deemed inability from that incapacity to continue to seek to engage in remunerative work would produce a loss of wages or earnings on his or her own account. However, the present matter is not such a case, because as mentioned above, Mr Wilson is deemed by s 24(2)(a)(i) not to have suffered a loss because of his reasons for ceasing to engage in remunerative work in 1993.
Decision
38. The Tribunal affirms the decision under review.
I certify that the 38 preceding paragraphs are a true
copy of the reasons for the decision herein of Deputy President D G JarvisSigned: .....................................................................................
B. Bills Admin AssistantDate/s of Hearing 25 September 2009
Date of Decision 15 December 2009
Counsel for the Applicant Mr G Hemsley
Solicitor for the Applicant Hemsley & Co
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent Department of Veterans’ Affairs
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