Vincent Lawler and Repatriation Commission
[2013] AATA 758
•24 October 2013
[2013] AATA 758
Division Veterans’ Appeals Division File Number
2012/3179
Re
Vincent Lawler
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member Date 24 October 2013 Place Sydney The Tribunal sets aside the decision under review and finds that Mr Lawler is entitled to receive pension at the Special Rate from 20 September 2010.
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Ms G Ettinger, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Service pension – Rate of pension – Whether prevented from continuing to participate in remunerative work due to accepted conditions alone – Whether a loss of salary, wages or earnings is suffered – decision under review set aside
LEGISLATION
Veterans’ Entitlements Act 1986 ss 19, 24, 120
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Connell (2011) 197 FCR 228
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
Ms G Ettinger, Senior Member
24 October 2013
SUMMARY
Mr Allen Lawler was 65 years old at the date of the hearing before this Tribunal, and served Australia in the Royal Australian Army in Vietnam between 1969 and 1970. He travelled to Australia from the UK in 1968, and was conscripted. He has a number of accepted war-caused conditions, and has been receiving pension at 100% of the General Rate.
Mr Lawler gave his evidence at the Tribunal in a frank and forthright manner, as also acknowledged by Mr Crowe who represented the Respondent Repatriation Commission at the hearing.
Mr Lawler has mainly worked in the construction industry in various capacities all his life.
Mr Lawler’s final job in 2009 was 12 months as a customer relations manager, dealing with defects in his employer Galliford Try’s then recently completed construction project. Mr Lawler says that at the time he was notified of the termination of his employment on 17 July 2009, he had been doing a good job, and had wanted to stay working to the age of 65, but was very aware of his disabilities. He said that both he and the management at Galliford Try in the UK, had been very aware of the problems with his back, and how that restricted him.
He said that the notice of redundancy in 2009 pushed him over the edge. He said that he fell in a heap. He was depressed and consulted a psychiatrist a few weeks later. He told me that he has not sought work since that time as he was mindful no one would employ a person with the disabilities he has.
I note that Mr Lawler has the following conditions accepted as war-caused: sensori-neural hearing loss accepted in 1993, intervertebral disc prolapse and post traumatic stress disorder (PTSD), both accepted in 2009.
Mr Crowe contended that the termination of employment from the construction company in 2009, was in connection with the global financial crisis (GFC), and that for Mr Lawler it signified the end of his working life. He no longer sought employment following that.
The letter informing Mr Lawler of the termination of his employment is not available. However, I am satisfied from Galliford Try’s letter of 1 July 2010 explaining the reasons for Mr Lawler’s redundancy, which was before me at page 82 of the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”), suffices to explain why Mr Lawler was selected for redundancy. I am satisfied that it was Mr Lawler’s war-caused conditions alone which stopped him from participating in remunerative work. I am satisfied on the basis of that letter and the other evidence before me, that Mr Lawler is eligible to receive pension at the Special Rate. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
The Tribunal must decide whether the Applicant is entitled to a pension at the Special Rate, and notes that the relevant or assessment period for considering the Applicant’s entitlement is from 20 September 2010 to the date of this decision.
I am satisfied, and there is no dispute, that Mr Lawler meets the 70% threshold in section 24(1)(a) of the Veterans’ Entitlements Act 1986 (the Act), and that he is receiving pension at 100% of the General Rate. There is also no dispute, and I accept that Mr Lawler is totally and permanently incapacitated, that is to say, his incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature that it renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
The only issue remaining at the end of the evidence, as conceded by Mr Crowe, was in regard to the redundancy from Galliford Try, and whether Mr Lawler was prevented, (taking into account the assessment period), from continuing to undertake remunerative work due to his accepted conditions alone, and would consequently suffer a loss of wages or salary.
Since Mr Lawler was under the age of 65 when he ceased work, an additional consideration is the ameliorating provision in section 24(2)(b) of the Act.
LEGISLATION
Section 24 of the Act relevantly states:
(1) This section applies to a veteran if:
…
(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
…
(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.
…
The standard of proof is pursuant to section 120(4) of the Act, which is on the balance of probabilities. The assessment period is from 20 September 2010 to the date of publication of this decision, (section 19 of the Act). The earliest date of effect would be 20 September 2010.
CONSIDERATION OF THE EVIDENCE AND CONCLUSIONS
Mr Lawler left school at the age of 16 when he had completed his ‘O-levels’ in the UK. He told me that he travelled to Australia aged 19, and was conscripted in 1968. He was discharged from the Army after he served in Vietnam for a year, and in 1970, worked in the field density testing laboratory in Darwin where his hearing, (later accepted as a war-caused disability), was interfering with his work. He said that he returned to the UK in 1973, and remained there after meeting his wife and marrying in 1975.
Mr Lawler said that he worked in the construction industry for most of his life, initially as a carpenter specialising in windows and doors. He said that his back condition prevented him from working in heavy duty construction, and he moved into management. He said that he even ran his own window company until 1992 when the business failed.
Mr Lawler said that he joined a major construction company in 1997/98, first as a finishing foreman, then site manager. He said that during the six years with the company, his back pain caused him to walk in a manner which alleviated the pain and pressure from his back. He said that he had developed a strange gait which was noticed by his managers. He left in 2005, and joined another company from which he was dismissed after four months. He said that the company realised that his back pain and mobility caused him not to be fit to continue.
Mr Lawler told me that he then joined an agency who arranged an interview at a major construction company. He says that it did not go further because they became aware of his mobility issues. He subsequently obtained employment with Morrison’s where he had a position as general foreman running the site, which included opening up, closing, and dealing with sub-contractors and safety issues. In recognition of Mr Lawler’s mobility problems, he was not employed on heavy construction work.
When the company was taken over, Mr Lawler continued to work for the new company, Galliford Try. Mr Lawler’s last job there, for twelve months in 2008/09, was as a customer relations manager dealing with customers and sorting out defects in Galliford Try’s recently completed construction project.
Mr Lawler said that he overheard decision makers in the company talking about his declining physical capabilities. He said that he avoided ladders, but because he wanted to continue working, he would seek to minimise his disability in discussion with his superiors. He characterised his change of appointment to a customer relations manager, which was not as physically demanding as a foreman’s job, with consideration for the mobility problems he was suffering. Mr Lawler said that he enjoyed the new role, and carried it out well although he noted that increasing hearing difficulties were having an impact on his performance of this role.
Mr Lawler said that when he received the notice of termination out of the blue on 17 July 2009, he had been doing a good job despite his (accepted) conditions. He said that he had wanted to stay working to the age of 65, but was mindful of his disabilities, restricting his hearing, and his mobility. He said, however, that the termination gave him a shock. The notice pushed him over the edge, he fell in a heap, and consulted a psychiatrist a few weeks later. I noted that whilst Mr Lawler relied more on his back condition while arguing his case for special rate, his PTSD had already been accepted as war-caused in March 2009. He told me that he completed and signed off three major jobs at Galliford Try, but did not work out the three months’ notice period as a doctor signed him off sick.
Mr Lawler told me that he has not sought work since the time of the redundancy, as he is aware that no one would employ a person with the disabilities he has. He added that he was well known in the construction industry and had he not been suffering the accepted disabilities, he would have been very employable, and had in fact intended to work till age 65.
I note that Mr Lawler has the following disabilities accepted as war-caused, sensori-neural hearing loss accepted in 1993, intervertebral disc prolapse and post traumatic stress disorder both accepted in 2009.
Mr Lawler claims that he is totally and permanently incapacitated for work in employment for which he is suited. The Respondent accepted this. However, Mr Lawler says that he is prevented by his war-caused conditions alone, from participating in remunerative work, and has suffered a loss of earnings as a result. He accordingly claims that he is eligible for pension at the Special Rate. The Respondent disagrees with the assertion that Mr Lawler was prevented by his war-caused conditions alone, from participating in remunerative work at the time of the redundancy. Further, the Respondent argues that the termination was as a result of the downturn in work due to the GFC, and that he has not sought work since that time because he considered it the end of his working life.
The medical evidence
Dr Mukherjee, Mr Lawler’s general practitioner, and Mr Stamer, a consultant orthopaedic surgeon, supported Mr Lawler’s claim that he was unable to do construction work due to his accepted disabilities alone, the main cause being the intervertebral disc prolapse at L5-S1. Dr Mukherjee wrote to the Veterans’ Review Board in November 2011 stating he could confirm his medical opinion that at the time Mr Lawler ceased work, he was extremely disabled with the condition affecting his back and right knee. I feel that he had reached a stage where he could not continue any gainful employment the way he was suffering with his problems. Dr Mukherjee also commented on Mr Lawler’s sensori-neural hearing loss and PTSD.
Dr Karim, a consultant psychiatrist, confirmed Mr Lawler suffers significant distress and reduced quality of life due to his PTSD.
In addition to the T-documents, and Mr Lawler’s evidence, I had the benefit of evidence from Dr S Awbery, occupational physician, who attended by telephone from the UK.
Dr Awbery’s comprehensive report (Exhibit A2) was prepared following an examination of Mr Lawler in February 2013. Dr Awbery referred to the termination of employment in the following terms:
… He was unable to cope with any manual tasks as he had previously, his work in the last few years having become purely customer-focused.
Having been made redundant he became clinically depressed which had a negative impact on his Post-traumatic stress disorder exacerbating his symptoms of hopelessness, and low mood and increasing his social isolation…
Mr Lawler, did not therefore believe that he would be employable and did not actively seek any employment after his redundancy. The feelings of inadequacy and low self-esteem are part of the accepted disability …
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… It is difficult to ascertain for how long Mr Lawler could have carried on working in his previous job had he not been made redundant but at the time of my assessment he would not have been fit to do so. Pain is subjective and there is poor correlation of symptoms and work capacity with radiological and MRI findings. As long as a person is gainfully employed and pleased to be so, the tolerance of pain levels may be sustained in order to maintain the status quo…
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It is my opinion based on the above that Mr Lawler’s conditions prevent him from undertaking suitable employment taking into account his skills and experience. His accepted disabilities preclude him from doing so to a significant degree. It is also my opinion in the light of the above that he would have been incapable of doing so from the [sic] shortly after the time of his redundancy since it was this which triggered the exacerbation of the Post-traumatic stress disorder …
Dr Awbery confirmed the above-noted views in her oral evidence. She emphasised that at the relevant time Mr Lawler was trying to reduce the physical nature of his work, and was struggling with his back pain. Dr Awbery also confirmed that as a result of Mr Lawler’s accepted disabilities, he would not have been able to find work following his redundancy.
Whether Mr Lawler was, as a result of his accepted conditions, alone, rendered incapable of undertaking remunerative work
The letter notifying Mr Lawler of his termination of employment is not available. However, I had a letter of Galliford Try, Mr Lawler’s last employer dated 1 July 2010 which stated that the letter notifying Mr Lawler of the redundancy was dated 17 July 2009. Relevantly the letter of 1 July 2010 stated:
When completing the redundancy selection assessment, Productivity (quality, quantity and reliability) was a key feature of the marks awarded. Due to Mr Lawler’s deteriorating mobility, he was specifically marked down on the ‘quantity’ element and this contributed towards his being selected for redundancy ahead of other individuals in that redundancy pool. It is conceivable that had Mr Lawler’s mobility not have been impaired that he would not have been selected. Equally, had Mr Lawler not been selected for redundancy at that time it is highly likely that his medical condition would have significantly affected his capability to carry out his role over the coming weeks and months.
I have noted Mr Lawler’s evidence that he does not know how many others were made redundant in 2009, when he was, although there could have been large numbers.
I noted that Mr Crowe conceded that the Respondent accepted Mr Lawler is totally and permanently incapacitated, and is prevented from continuing to participate in remunerative work, but note also the Respondent’s submission that the reason Mr Lawler left work following the notice of redundancy was not due to his accepted conditions alone. Mr Crowe contended that the dismissal from the construction company in 2009, was in connection with the global financial crisis (GFC), and further that Mr Lawler treated and perceived it as the end of his working life and did not seek further work.
I rely on Mr Lawler’s description of his increasing problems with mobility, his hearing problems, and PTSD, and on the medical evidence of Dr Awbery and the other doctors as noted above.
I need to consider whether Mr Lawler is, by reason of incapacity from his war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking, and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that he would not be suffering if he were free of that incapacity. In doing so, the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 identified the following questions to be asked:
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?
Consideration must also be given to section 24(2)(a) and section 24(2)(b) of the Act in situations such as Mr Lawler’s where he ceased employment before the age of 65. I consider his remunerative work below, and note that if the answers to any of questions 2, 3 or 4 is no, the special rate of pension is not payable.
As to the relevant remunerative work, I am mindful that pursuant to the Act, that means any remunerative activity. In Mr Lawler’s case, work in the construction industry was his relevant remunerative work, and in the 12 months prior to his redundancy, that had been changed to a customer relations focused position which I accept was to accommodate Mr Lawler’s back condition, an accepted condition pursuant to the Act.
In Repatriation Commission v Hendy (2002) 76 ALD 47, the Full Federal Court said that the task of the Tribunal was:
… to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. … The Tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
I have also noted that the Full Federal Court in Repatriation Commission v Connell (2011) 197 FCR 228 held at [28] that:
… in the context of the beneficial nature of the Act … “remunerative work” should not receive a restrictive interpretation. There is no valid reason to confine the expression to work of a particular type. “Remunerative work that the veteran was undertaking” should not be confined to the actual type of work involved but should also be referrable to its nature and quality. A person who works as a painter on a full-time basis but who, due to incapacity, can now only do that work on an intermittent or part-time basis is not continuing to perform the same remunerative work. The restricted nature of the work gives it an entirely different character…
I am satisfied that Mr Lawler is, and was at the date of the redundancy, by reason of incapacity from his war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking. Accordingly, I need to consider whether he has suffered a loss of earnings (Flentjar, question 4).
I refer also to sections 24(2)(a) and (b) of the Act. As Mr Lawler left work before the age of 65, he could be entitled to the ameliorating provision provided in section 24(2)(b) of the Act. That would apply if he had genuinely sought remunerative work after being made redundant, and was substantially prevented from obtaining employment due to his accepted conditions alone. In that regard Mr Lawler’s evidence was that he did not look for work after leaving Galliford Try. He said that he knew he could not obtain further work in the construction industry as a result of his accepted disabilities, particularly his back, and had been disguising the extent of his disabilities for some time.
I am satisfied from the evidence that Mr Lawler ceased to engage in remunerative work for reasons of incapacity from his war-caused injury or disease alone. I accept his evidence that he would have worked to the age of 65 if he could have. The answer to the Flentjar questions 2, 3, and 4 are yes. Accordingly, Mr Lawler satisfies the conditions required to receive pension at the Special Rate.
DECISION
The Tribunal sets aside the decision under review and finds that Mr Lawler is entitled to receive pension at the Special Rate from 20 September 2010.
I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
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Associate
Dated 24 October 2013
Date of hearing 10 October 2013 Counsel for the Applicant Mr C Colborne Solicitor for the Applicant Mr G Isolani, KCI Lawyers Advocate for the Respondent Mr A Crowe, Department of Veterans’ Affairs
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