Walker and Repatriation Commission (Veterans’ entitlements)

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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…

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Details
Case
[2015] AATA 667
Decision Date

CaseChat Overview and Summary

In the matter of Walker and Repatriation Commission, the applicant, Mr Walker, sought an increase in his pension under section 23 of the Veterans’ Entitlements Act 1986. Mr Walker, a former Australian Army serviceman, had been granted a Disability Support Pension due to war-caused disabilities. The central legal issue was whether Mr Walker’s war-caused incapacity rendered him incapable of undertaking remunerative work other than on a part-time basis or intermittently, and whether he could work for 20 or more hours per week. This hinged on interpreting the provisions of section 23(1)(b) and (c) of the Act, which stipulates that a veteran must be incapable of undertaking remunerative work for a certain number of hours due to their war-caused incapacity.

The Tribunal examined Mr Walker’s work history and the nature of his disabilities. Although Mr Walker claimed significant limitations due to his disabilities, the Tribunal found that his work records indicated he could work more than 20 hours per week. His employment at Lighting Bonanza showed he worked up to 33.75 hours in some weeks, and he also undertook up to 10 hours per week of income-producing work at home. Despite the discomfort and difficulty he experienced, the evidence suggested that Mr Walker was capable of working the required hours. Thus, the Tribunal concluded that Mr Walker did not meet the criteria under section 23(1)(b) of the Act.

As a result, the Tribunal affirmed the decision under review, denying Mr Walker’s application for an increase in pension. The Tribunal’s decision was grounded in the evidence that Mr Walker could work more than 20 hours per week, contrary to the requirements of section 23(1)(b) of the Act.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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.