Walker and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 667

Walker and Repatriation Commission (Veterans’ entitlements) [2015] AATA 667 (4 September 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/5851
Re	Paul Walker
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date	4 September 2015
Place	Canberra

The decision under review is affirmed.

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

Deputy President Gary Humphries

Catchwords

VETERANS’ ENTITLEMENTS – application for increase in pension – s 23 of Veterans’ Entitlements Act 1986 – intermediate rate of pension – whether veteran’s war-caused incapacity renders him incapable of undertaking remunerative work other than on a part-time basis or intermittently – whether veteran capable of undertaking work for 20 or more hours per week – decision under review affirmed.

Legislation

Veterans’ Entitlements Act 1986 (Cth) ss 23, 24

Cases

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 101 FCR 50

REASONS FOR DECISION

Deputy President Gary Humphries

4 September 2015

1. On 27 October 2011 Paul Walker submitted an application to the Repatriation Commission for an increase in disability pension under s 15 of the Veterans’ Entitlements Act 1986 (the Act).

2. On 6 February 2012 a delegate of the Repatriation Commission (the Commission) refused his claim and found that his pension remained payable at 100% of the general rate. On 20 March 2012 Mr Walker lodged an application for review of the Commission’s decision with the Veterans’ Review Board.  On 20 August 2014 the Veterans’ Review Board affirmed the Commission’s decision.

3. On 12 November 2014 Mr Walker applied to the Administrative Appeals Tribunal for review of the Veterans’ Review Board decision.

   Background

4. On leaving school at the age of 16 Mr Walker started an apprenticeship as a chef.  Despite not completing the apprenticeship he obtained employment as a cook until 1988. 

5. Mr Walker served in the Australian Army between 1989 and 1997 and was employed as a mechanic.  After being medically discharged from the Army in 1997 he settled in Seymour and commenced a picture framing business.  At its peak, this was a booming business, according to Mr Walker.  He worked in that business until 2004, when the onset of knee and back pain led him to sell the business.  He told the Tribunal that his doctor advised him to cut down the hours he was spending in the business. In 2004 he applied for and was granted a Disability Support Pension.

6. Between 2004 and 2006 he travelled with his family within Australia and then settled in the Albury area.  After about 18 months of unemployment, in 2008 he commenced part-time work at Lighting Bonanza, a business operated by his sister-in-law in Albury.  The sister-in-law described this arrangement in the first instance as a favour to my sister (Paul’s wife). He continues to work part-time in that business.

7. Mr Walker told the Tribunal that he applied for various positions on his family’s arrival in Albury, and sought placement on the books of employment agencies. He said he had a total lack of success in securing any positions, though he also indicated that he did not seek some (e.g. as a cook) because he felt his condition would render him incapable of carrying them out. He reported doing military “medal-mounting” as a hobby at home, though he charges customers who approach him for this service. During the peak period for medal mounting around Anzac Day, he reported doing about 10 hours of work of this nature per week.

8. Mr Walker conceded that during 2012 he did sometimes work more than 8 hours per week at Lighting Bonanza, when the demands of the business called for additional hours.

9. The Commission accepted that Mr Walker had the following war-caused disabilities:

   ·osteoarthrosis of the left knee;

   ·lumbar spondylosis;

   ·thoracic spondylosis;

   ·sensorineural hearing loss with tinnitus;

   ·adjustment disorder with depressed mood.

10. In 2010, Mr Walker’s GP indicated that he was capable of working for 20 hours per week. However, a report by occupational physician Dr Graham Boothby of 22 April 2013 noted that Mr Walker’s maximum capacity to work was about 8 hours a week at that time, but that, if he lost significant weight, stopped smoking and improved his overall physical fitness, he could work between 15-20 hours per week in a best case scenario. Dr Boothby initially identified his back and knee condition as contributing collectively about 70 percent of his inability to undertake paid work, with the other 30 percent made up of his morbid obesity, ankle pain and nicotine addiction (these 3 latter conditions being non-accepted injuries). In a later opinion, he revised this apportionment to 5 percent ankle pain, zero for obesity and nicotine addiction and 25 percent for adjustment disorder with depressed mood.

    The legislation

11. Section 23 of the Act provides as follows:

    Intermediate rate of pension

    (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’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

    (c) 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 from that incapacity; and

    (d) section 24 or 25 does not apply to the veteran.

    (2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

    (a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

    (b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

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

    (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:

    (i) if 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;

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

    (iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.

12. Section 24, establishing the eligibility criteria for the special rate of pension, is in substantially similar terms to s 23, except that the veteran is required to be totally and permanently incapacitated, defined to mean that the war-caused injury or disease renders the veteran incapable of undertaking remunerative work for more than 8 hours per week.

13. The assessment period for Mr Walker’s eligibility commenced on 27 October 2011, the date he lodged his application for increase in pension, and continues until determination of this matter by the Tribunal.

    Issues

14. Mr Walker seeks the intermediate rate of pension pursuant to s 23 of the Act. The Commission conceded that Mr Walker meets s 23(1)(aa), (aab) and (a)(i) of the Act, that is, he has made a claim under s 15 of the Act for an increase in pension; he had not turned 65 years of age when the application was made; and his degree of incapacity has been determined to be at least 70%.

15. For reasons set out below the Tribunal finds that s 24 (special rate) and s 25 (temporary special rate) do not apply in Mr Walker’s case (s 23(1)(c)).

16. Therefore, Mr Walker’s eligibility under s 23 rests on whether Mr Walker’s war-caused incapacity, by itself:

    (a)renders him incapable of undertaking remunerative work other than on a part-time basis or intermittently, within the meaning of s 23(1)(b) of the Act; and

    (b)prevented him from continuing to undertake remunerative work that he was undertaking and that he has thereby suffered a loss of earnings within the meaning of s 23(1)(c) of the Act.

    Consideration

17. As to whether s 23(1)(b) is met, s 28 requires the decision-maker to identify the kind of remunerative work that Mr Walker could reasonably undertake:Flentjar v Repatriation Commission  (1997) 48 ALD 1. The Commission contended that he may be capable of being employed as a chef, a mechanic, a picture framer, in a clerical/administrative role or in security. The Tribunal accepts, as submitted by Mr Walker, that some of these occupations once practised by him, however, would now be beyond his capacity, for example as a mechanic.

18. Section 23(2)(b) indicates that a veteran capable of working 20 or more hours per week (in an occupation not covered by paragraph (a) of that subsection, as would seem to be the case here) does not meet the test in s 23(1)(b). Mr Walker’s most recent experience of work has been at Lighting Bonanza. His weekly record of working hours for parts of 2011 and 2012 was tendered, showing that in some weeks he worked a standard 8 hours but in others worked for up to 33.75 hours. Mr Walker indicated that this work was often difficult for him, and generally only undertaken beyond his standard 8 hours when special circumstances existed, including: school holidays; owner’s need for security, [owner] unable to work. These hours appeared to be in addition to the hours which he worked at home doing medal mounting, up to 10 hours per week during the period around Anzac Day. His wife told the Tribunal that he would typically be physically exhausted at the end of weeks in which he worked extended hours at the shop. There was also evidence that the demand for his services at the shop was reducing because of changes in staffing policy.

19. Dr Ronald Haig, consultant orthopaedic surgeon, in his report on Mr Walker for the Commission, indicated that he believed Mr Walker was capable of full-time employment. Mr Walker told the Tribunal of his frustration at having made many fruitless attempts to secure employment around Albury. The Tribunal notes however that the test in s 23 is not whether the veteran is capable of finding work but whether, in the perhaps-highly hypothetical eventuality that work is offered to him, he is capable of undertaking it for the required number of hours to satisfy the section.

20. The evidence before the Tribunal suggests that Mr Walker works, albeit with considerable discomfort, for more than 20 hours in some weeks. The work records at Lighting Bonanza suggest as many as 33.75 hours in some weeks. This is in addition to as many as 10 hours per week work at home medal-mounting, which is income producing to the Walker household. Though this work may be uncomfortable, even occasionally painful, for him, and in reality is less likely in the future to be available to him because of changes in policy at Lighting Bonanza, the evidence suggests that Mr Walker is capable of working hours of that kind, and therefore does not meet this requirement of the subsection.

21. Because he is capable of working 20 or more hours per week, Mr Walker does not meet the requirements for the special rate of pension under s 24(1)(b). Similarly, as there is no issue here of temporary incapacity he is not eligible for a temporary payment at the special rate under s 25.

22. The other test in s 23(1)(b) which Mr Walker must meet is that his accepted disabilities alone render him incapable of undertaking the required hours of remunerative work. The Federal Court in Forbes v Repatriation Commission (2000) 101 FCR 50 couched the relevant test (in relation to the analogous s 24(1)(c)) as follows (at [40]):

    …it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.

23. The first report of occupational physician Dr Boothby identified Mr Walker’s back and knee condition as contributing between them about 70 percent of his inability to undertake paid work, with the other 30 percent made up of his morbid obesity, ankle pain and nicotine addiction. Although Mr Walker submitted this report to the Tribunal in support of his application for review, he disputed Dr Boothby’s assessment of the contribution made to his inability to work by his obesity, ankle pain and nicotine addiction. In particular he indicated that, although obese, he was no longer morbidly so.

24. Mr Walker confirmed in his submission to the Tribunal that occupational therapists and occupational physicians had advised him he could work up to 8 hours per week, but that if he lost a heap of weight he could work for up to 15 or 20 hours a week. The conclusion from this evidence – that his obesity is a factor in his inability to work – is difficult to escape.

25. In a supplementary report dated 18 March 2014, Dr Boothby modifies his earlier apportionment of the causes of Mr Walker’s inability to work, by removing obesity and nicotine addiction as factors but retaining ankle pain at 5 percent. In doing so, he indicates that the obesity and nicotine addiction are directly linked to Mr Walker’s adjustment disorder with depressed mood, in that the latter is acting as a significant barrier to your managing these conditions successfully. Dr Boothby was not called as a witness.

26. The Tribunal does not interpret Dr Boothby in his report of 18 March 2014 to be saying that Mr Walker’s obesity and nicotine addiction are now subsets of the accepted condition of adjustment disorder with depressed mood. Rather, the assumption is that his mental illness is making it more difficult for him to manage his non-accepted conditions.

27. The Tribunal accepts that, at one level, Mr Walker is better placed to understand what inhibits him from working than is Dr Boothby. However, it does not accept that the contribution made by those three non-accepted conditions is nil. Clearly, under the provisions of s 23(1)(b), any contribution from a non-accepted condition to an incapacity to work renders it impossible for a veteran to claim that his accepted condition alone has so incapacitated him. The Tribunal finds that that is the case here.

28. Accordingly, it is unnecessary to determine whether Mr Walker meets the “second alone test” provided by s 23(1)(c).

29. The test for both the intermediate and special rates of pension is stringent. A veteran may be entitled to a service pension based on disabilities caused by military service, but to meet the bar for these higher rates of pension requires a higher degree of disability. The evidence here suggests that Mr Walker comes close, but does not reach, the higher test in s 23. It follows that the Tribunal must affirm the decision of the Veterans’ Review Board of 20 August 2014 to deny Mr Walker the intermediate rate of pension.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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

Associate

Dated 4 September 2015

Date(s) of hearing	25 June 2015
Applicant	In person
Advocate for the Respondent	Mr Gerard Purcell, Department of Veterans' Affairs