Waldock and Repatriation Commission
[2004] AATA 263
•15 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 263
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/523
VETERANS' AFFAIRS DIVISION ) Re
WILLIAM WALDOCK
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date15 March 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Mr S. Webb, Member
CATCHWORDS
VETERANS' ENTITLEMENTS – invalidity service pension - special rate – prevented from working 8 or more hours per week by service related incapacity alone – not prevented from continuing in remunerative employment by service related incapacity alone – decision affirmed
Veterans’ Entitlements Act 1986 ss 15, 19, 23, 24, 28, 119, 120(4)
Jackman v Repatriation Commission (Fed C of A, Tamberlin J, 30 June 1997, unreported)
Cavell v Repatriation Commission (1988) 9 AAR 534
Banovich v Repatriation Commission (1986) 69 ALR 395
Forbes v Repatriation Commission [2000] FCA 328
Flentjar v Repatriation Commission (1997) 48 ALR 1
Repatriation Commission v Hendy [2002] FCAFC 424
Gauntlett v Repatriation Commission (1991) 32 FCR 73
Chambers v Repatriation Commission (1995) 129 ALR 219
Grant v Repatriation Commission [1999] FCA 1047
Berry v Repatriation Commission (1992) 27 ALD 330
Fox v Repatriation Commission (1997) 45 ALD 317
REASONS FOR DECISION
15 March 2004 Mr S. Webb, Member 1. William Waldock is claiming payment of his disability service pension at the special rate. This application arises from rejection of his claim by the Repatriation Commission on 5 September 2002 and, on review, by the Veterans’ Review Board on 27 February 2003.
issues
2. The issues that arise for determination are:
(a)whether Mr Waldock is totally and permanently incapacitated by his service related disabilities alone, and if so
(b)whether that service related incapacity, alone, prevents him from continuing to undertake remunerative employment and, in consequence, causes him a loss of earnings that would not otherwise have occurred.
legal principles
3. Mr Waldock’s application is under the Veterans’ Entitlements Act 1986 (“the Act”). The reasonable satisfaction standard of proof applies (s.120(4)) and the approach to be adopted should be “guided by commonsense with an eye to reality” (see Jackman v Repatriation Commission (Fed C of A, Tamberlin J, 30 June 1997, unreported) and Cavell v Repatriation Commission (1988) 9 AAR 534).
4. Under the Act, disability pension is only payable at the special (s.24) or intermediate (s.23) rates in certain circumstances. Mr Waldock’s claim under s.15 of the Act is for payment at the special rate. In order to so qualify Mr Waldock must satisfy all of the criteria set out at s.24 of the Act at a point in time during the assessment period (see Banovich v Repatriation Commission (1986) 69 ALR 395). The assessment period starts on the day Mr Waldock made his application to increase the rate of his disability pension and finishes on the day his application is decided (s.19).
5. Eligibility for payment of a pension at the special rate is contingent upon the veteran’s service related incapacity being such, of itself alone, to render him or her incapable of undertaking eight or more hours of paid employment per week (s.24(1)(b)). The only matters that the decision-maker shall have regard to when assessing any such incapacity are set out at s.28 of the Act. In the event that the requisite state of satisfaction is achieved on that question, the decision-maker must then determine whether that service related incapacity, alone, prevents the veteran from continuing to undertake remunerative work that he or she had previously undertaken and causes him or her to suffer a consequential loss of earnings that would not otherwise have occurred (s.24(1)(c)). Both limbs of the paragraph must be satisfied.
6. The Act provides guidance, in relation to the application of s.24(1)(c), in the form of provisions that are widely referred to as ‘ameliorating provisions’ at s.24(2). S.24(2) is constructed in two parts that cross-relate to the two limbs of s.24(1)(c). Both parts must be satisfied for eligibility for pension at the special rate to be established (see Forbes v Repatriation Commission [2000] FCA 328 at pars 14 and 15). The questions arising under s.24(1)(c) were set out in the oft quoted judgement of Branson J in Flentjar v Repatriation Commission (1997) 48 ALR 1 at 5:
“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?”
7. As Nicholson J observed in Forbes case (above) at par 33 “any factor having employment consequences which played a part in the applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant’s case for pension at the special rate”. This approach was reaffirmed by the Full Federal Court in Repatriation Commission v Hendy [2002] FCAFC 424.
8. Factors which may prevent a veteran from continuing to undertake the kind of work he or she had previously been undertaking, and may, therefore, disentitle a veteran from qualifying for a pension at the special rate, include but are not limited to:
· medical conditions that are non-service related (see Forbes (above) at pars 39 and 40),
· age (see Gauntlett v Repatriation Commission (1991) 32 FCR 73 at par 10),
· labour market considerations (see Chambers v Repatriation Commission (1995) 129 ALR 219 at p.231),
· economic factors (see Grant v Repatriation Commission [1999] FCA 1047 at par 8), and
· time out of the workforce (see, Berry v Repatriation Commission (1992) 27 ALD 330 at pp.332 to 333), being mindful of the comments of Madgwick J in Hendy’s case (above) at par 40.
factual context
9. The following facts arise from the evidence and are not in dispute.
10. Mr Waldock was born on 23 April 1939. He is married and lives with his wife. He has four children.
11. Mr Waldock is paid a disability service pension at 100 percent of the general rate. He made an application to increase the rate of his pension to the special rate on 21 May 2002.
12. He has operational service in Vietnam from 21 October 1966 to 27 April 1967 and eligible service from 7 December 1972 to 7 April 1978. Mr Waldock enlisted in the Australian Army at the age of 18 in 1957 and was discharged in 1978. He served in transport, armoured cavalry and tank trials units. He attained the rank of sergeant and was “tank trained”.
13. After leaving the Army in 1978, Mr Waldock was engaged in employment as a concrete truck driver. Subsequently, he purchased an eight-ton tray truck and was engaged as a self-employed truck driver delivering general cargo. After a time he sold the tray truck and purchased a 16-ton tip truck and was engaged delivering sand on a sub-contract basis. Mr Waldock ceased employment as a sub-contract truck driver in 1994 and did not thereafter engage in any remunerative employment.
14. Mr Waldock underwent left knee reconstruction surgery in or about 2002 in consequence of osteoarthritis.
summary findings
15. Mr Waldock’s accepted service related disabilities are post traumatic stress disorder, left perceptive deafness, hypertension, migraine, bilateral sensori-neural hearing loss, bilateral tinnitus, malignant neoplasm of the colon and erectile dysfunction. Mr Waldock’s claims for acceptance of his lumbar spondylosis and osteoarthritis of both knees in 1994 were rejected. Those conditions are not accepted as service related.
16. The degree of Mr Waldock’s service related incapacity is 100 percent.
17. Mr Waldock will be 65 years old on 23 April 2004. He ceased remunerative employment in 1994.
18. Mr Waldock’s vocational, trade and professional skills, qualifications and experience are in the areas of truck driving, delivery work, infantry soldering and armoured cavalry operations. The kinds of remunerative work that a person with Mr Waldock’s skills, qualifications and experience might reasonably undertake is truck driving, delivery work, physical labour and work relating to military service.
19. His accepted service related conditions, alone, render him incapable of undertaking such remunerative work for periods aggregating more than eight hours per week.
20. I am reasonably satisfied on the balance of probabilities, and with an eye to reality, that Mr Waldock is not prevented from continuing in remunerative employment by his service-related conditions alone. Other factors that prevent his continuance in remunerative employment, which are not insignificant include his osteoarthritis and his advancing age. It follows that I am not satisfied that Mr Waldock is suffering a loss of earnings because of his service-related conditions alone. His loss of earnings is also the result of factors that are not related to his service.
21. Mr Waldock is not able to find relief in the ameliorating provisions at s.24(2). I am satisfied that Mr Waldock ceased remunerative employment for reasons other than his service related conditions alone. His osteoarthritis of both knees and lumbar spondylosis were contributing factors. In Mr Waldock’s submission his service-related conditions were the substantial cause of that cessation and his subsequent failure to obtain remunerative employment. That may be so. However, I am not satisfied that Mr Waldock was genuinely seeking remunerative employment during the relevant period.
decision
22. It follows that Mr Waldock is not entitled to a disability service pension at the special rate. The decision under review is affirmed.
reasons for the decision
23. Making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant legislation and caselaw.
credit
24. Issues of credit were agitated during the hearing. Mr Waldock asserted that he had lied about the extent and severity of incapacity related to his osteoarthritis and lumbar spondylosis in pursuit of previous claims lodged with the Repatriation Commission (T36, f117 and 118) and in evidence before the Veterans’ Review Board (Exhibit R4 page 13). Those claims were not successful. His evidence under oath was that he “had been put up to it by Peter Lofdahl, an advocate provided by the Returned Servicemen’s League”.. There is no evidence before me to corroborate Mr Waldock’s contention. Nevertheless I am compelled to conclude that there are serious issues concerning Mr Waldock’s credit as a witness. In the first instance, it appears on his own account, that he is a man who would either lie or misrepresent the truth in order to achieve a benefit and in so doing perpetrate a fraud. Secondly, even if there was evidence that he was put up to fraud by an advocate, which there is not, Mr Waldock cannot shirk responsibility for his own actions and his own decision to knowingly perpetrate such a fraud. Thirdly, the reliability of Mr Waldock’s evidence is placed in question to the extent that I am compelled to place little or no weight upon it without corroboration.
25. Even if Mr Waldock’s claims were found to be true, and I make no such finding, serious concerns about his credibility as a witness and the reliability of his evidence remain. Nonetheless the matters he has raised are serious matters that may require further investigation by relevant authorities. Any attempt to abuse the veterans’ entitlements scheme by such deceitful means is shameful and cannot be tolerated. Such behaviour is detrimental to the beneficial operation of that scheme on which many worthy veterans rely and must be condemned.
26. Even if these issues had not come forward, I would be compelled by the evidence to find that Mr Waldock’s memory is faulty and his evidence is not reliable. I am satisfied that Mr Waldock has consumed alcohol to excess over an extended period commencing on service and thereafter continuing to the present. By his own admission he has difficulty remembering dates and placing events in the chronology of his life.
27. Considering all this and being mindful of s.119 of the Act, I cannot place weight on Mr Waldock’s evidence concerning matters that are in dispute without appropriate corroboration.
total and permanent incapacity
28. I am reasonably satisfied that the incapacity caused by Mr Waldock’s accepted service related conditions is such that it, alone, renders him incapable of undertaking remunerative work aggregating more than 8 hours per week.. I am persuaded to that conclusion by the preponderance of the medical evidence, especially the evidence of Dr Chase and Dr White.
29. Dr Chase formed the opinion that Mr Waldock’s knee and poor physical condition, which are not accepted service related conditions, made a “lesser contribution” to his inability to work. That may be the case but I do not comprehend Dr Chase’s evidence to mean that Mr Waldock’s psychiatric and other accepted disabilities do not of themselves alone render him incapable of remunerative work. Dr Chase makes a clear statement to the contrary, which I accept: “Mr Waldock is not able to work because of b) his psychiatric and other accepted disabilities” (Exhibit R3, p.5).
30. Dr White expressed his strong opinion that the extent of Mr Waldock’s alcohol abuse was “not consistent with life” and would, alone, render him incapable of remunerative employment. It is a fact that Mr Waldock’s abuse of alcohol was accepted by the Repatriation Commission as war-caused in the context of his claim in relation to hypertension (Exhibit R5).
31. On this evidence, I am persuaded to the requisite degree of satisfaction that Mr Waldock’s service related incapacities are of such nature, of themselves alone, to render him totally and permanently incapacitated for the purposes of s.24(1)(b) of the Act.
continuing to undertake remunerative employment and loss of earnings
32. I am not satisfied that Mr Waldock’s service-related incapacities, alone, prevent him from continuing to undertake the remunerative employment that he was undertaking. Nor am I satisfied that he has suffered a loss of earnings by reason of those service-related incapacities alone.
33. In this matter it is appropriate to follow the steps set out in the Flentjar case (above). First, I am satisfied on the evidence that the remunerative employment Mr Waldock was undertaking, for the purpose of s.24(1)(c) of the Act, was truck driving and delivery work. Second, I am satisfied that Mr Waldock’s service-related incapacities are such, of themselves alone, to render him incapable of undertaking that employment for more than eight hours per week. Third, I am not satisfied that those service-related incapacities are the only factors preventing him from continuing in that employment. In consequence, the fourth question in the Flentjar (above) formulation, concerning loss of earnings that would otherwise not have occurred, either does not arise or must be answered in the negative.
34. Mr Waldock’s claim fails “the alone test” at s.24(1)(c) of the Act.
factors not related to service
35. On Dr Chase’s evidence, Mr Waldock’s knee and his general poor health are factors that contribute to prevent Mr Waldock from continuing in remunerative employment. Mr Waldock disputed that osteoarthritis in his knee prevented him from continuing in employment, stating that since left knee replacement surgery on 15 June 2001 his knee had been “perfect”.. The evidence of Dr Geddes, Orthopaedic Surgeon, sheds some light on that claim (Exhibit R1, p.57). Dr Geddes reviewed Mr Waldock on 7 December 2001 and reported “His activities are not greatly restricted by his knee.” Previously, Dr Geddes reported on 27 March 2001 that Mr Waldock complained of bilateral knee pain (Exhibit R1, p.54). Dr Geddes reported:
“… a restricted range of movement, more so on the left side than the right side… He has mild swelling of both knees. Range of movement was to approximately 115 degrees on both sides… I have also arranged for injections of local anaesthetic and steroid into his knees to see whether this helps his discomfort.”
36. On Dr Geddes evidence it appears that Mr Waldock suffered problems in both his knees, despite the fact that approval was only given for a course of Synvisc for his left knee (Exhibit R1, p.49 – p53). That conclusion is supported by Dr Cardwell’s reports dated 12 January 1999 (T8, f34 and f35), 24 November 1994 (T13, f47) and 24 May 1994 (T10, f40). A report by Dr Risbey dated 30 April 2002, one month prior to Mr Waldock’s application to increase his pension, adds weight to the medical evidence on this point. Dr Risbey noted “a worsening of the state of his knee joints. This was of course secondary to his gross obesity” (T41, f151). I note that Dr Risbey is a Psychiatrist and his report is dated more than 10 months after Mr Waldock’s left knee replacement surgery. The subsequent report of Dr S. Arasu, dated 6 August 2002 confirms osteoarthritis in both knees as the cause of impairment (T44, f175). Mr Waldock’s claim that his knees do not cause him any problems and do not contribute to prevent him from continuing in employment stands in stark contrast to this medical evidence. Even if I was to accept his evidence in relation to his left knee subsequent to surgery, I cannot accept his evidence in relation to his right knee. I am persuaded by the medical evidence to which I have referred that the osteoarthritis in Mr Waldock’s knees gives rise to incapacity that contributes to prevent him from continuing in employment. That incapacity is not related to his service.
37. There are other factors that must be considered. Mr Waldock claimed that he has no problems with his back, having previously sought acceptance by the Repatriation Commission and subsequently, on appeal, by the Veterans’ Review Board, that his lumbar spondylosis was war-caused. Dr Arasu noted Mr Waldock’s denial of previously claimed symptoms and reported a “good” range of movement (T44, f175). On this evidence, I am satisfied that lumbar spondylosis does not cause incapacity sufficient to prevent Mr Waldock from continuing in employment, despite his claims in other places to the contrary.
38. Mr Waldock gave evidence that “high interest rates” and “recession in the industry knocked me out of trucking” and subsequently claimed that one of the reasons he was unable to gain employment was “recession”, claiming that event also adversely affected his previous employer, Mr Calautti. His evidence was that he sold the business “as a going concern” before the downturn in the building industry worsened because it would not be profitable for him to employ a driver in place of himself. There is nothing before me to corroborate or contradict this evidence from Mr Waldock. That being the case, and in fairness to Mr Waldock, I do not place great weight upon it. However, I am compelled to the conclusion that there is merit in Mr Waldock’s account. I accept as reasonable, on the balance of probabilities, that he would have considered the implications for his trucking business of any emerging trends or signs in the building industry on which that business was dependent when deciding his future in 1994. The timing of his decision, I am satisfied, was determined with those implications in his mind. However, there is no evidence before me that the apparent recession in 1994 in the building industry in Western Australia where Mr Waldock had conducted his business continues to this day. I am satisfied that recession was a factor in Mr Waldock’s decision to leave remunerative employment, but I am not satisfied to the requisite degree that any such recession prevents Mr Waldock from continuing in employment during the relevant period for present purposes.
39. Mr Waldock was 63 years of age when he applied to increase his disability service pension to the special rate. He is now almost 65 years old. As noted by Dr Chase, he is in poor general health and is obese. He has not been in the work force or in remunerative employment since 1994. Mr Waldock contended that he gave up and was prevented from obtaining remunerative employment because of the effects of his accepted service related conditions, especially his Post-Traumatic Stress Disorder, and in consequence “gave up” seeking employment. I accept that his service-related conditions may have been the substantial reason for his withdrawal from the workforce and effective retirement, but they were not the only reason. Other factors included osteoarthritis in his knees and economic factors. He has now been out of the workforce for ten years. That period is a relevant factor, especially at his age, and it is reasonable to expect that it would contribute to prevent him from obtaining remunerative employment of the requisite kind. I am reasonably satisfied, on the balance of probabilities and with the benefit of having observed Mr Waldock during the hearing, that these factors in combination are factors that play a part in preventing Mr Waldock from continuing in remunerative employment.
40. Absent Mr Waldock’s service-related incapacities and, in the hypothetical, it is possible that he may have continued in or sought remunerative work in 1994 and thereafter. However, considering all of the evidence that is a conclusion that cannot be reached on the balance of probabilities. Other factors were involved in his cessation of employment, that is the osteoarthritis in his knees and, by his own account, recession in the industry in which he was previously employed. In this context his age, his poor general health, his obesity and the time he has spent out of the workforce are also relevant considerations.
ameliorating provisions
41. Mr Waldock claimed comfort in the ameliorating provisions at s.24(2) of the Act. I am satisfied that there is no comfort for Mr Waldock in those provisions.
42. Considering s.24(2)(b) of the Act, I am reasonably satisfied that Mr Waldock has not been genuinely seeking remunerative work since ceasing employment in 1994. The evidence is that Mr Waldock approached his previous employer for work on one occasion after many years (T45, f176). He claimed that he approached people known to him in the industry but was not successful in gaining employment because of his poor reputation, which he claimed was the result of his Post Traumatic Stress Disorder. There is no evidence to corroborate Mr Waldock’s claims concerning this point.
43. Nonetheless Mr Waldock’s claims must be considered in relation to his submission that he “gave up” and ceased looking for work because his service related conditions were the substantial reason for his failure to obtain employment. I am not persuaded by the evidence that Mr Waldock’s service-related incapacity was the operative factor which, more than any other, explains his failure to obtain or seek employment (see Fox v Repatriation Commission (1997) 45 ALD 317 at pp. 319 and 320). Other factors of significance which were operative in his employment failure include the osteoarthritis in his knees, his poor general health and a downturn in the industry in which he had worked. I am reasonably satisfied that Mr Waldock’s service-related incapacity was not the substantial cause of his failure to seek or obtain employment. If I was wrong in that conclusion it does not follow that Mr Waldock would find the relief he seeks under s.24(2).
44. Considering s.24(2)(a) I am satisfied that Mr Waldock is not suffering a loss of earnings on his own account by reason of his service-related incapacity alone. Factors other than his service-related incapacity were involved in his ceasing to engage in employment and those factors are operative in preventing him from engaging in employment. Those factors include osteoarthritis in his knees, poor general health and obesity, his age and time spent out of the workforce and, by his own account, recession in the industry in which he was previously employed. I am compelled to conclude, therefore, that Mr Waldock is not suffering a loss of earnings because of his service-related incapacities pursuant to s.24(2)(a) of the Act.
conclusion
45. Mr Waldock’s claim to increase his disability service pension to the special rate is not made out. There are factors preventing him from continuing in remunerative employment that are not related to his service. This being the case, there is no basis on which to construct eligibility for payment of pension at either the special rate pursuant to s.24 of the Act or the intermediate rate pursuant to s.23 of the Act. It follows that the decision under review must be affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of MR SIMON WEBB, MEMBER
Signed: A. Krilis .......................................................................................
AssociateDate/s of Hearing 10 February 2004
Date of Decision 15 March 2004
Solicitor for the Applicant Mr Brian Winship
Advocate for the Respondent Mr Nigel Bunn
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