Williams and Repatriation Commission

[2005] AATA 127

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2005] AATA 127

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/161

VETERANS' APPEALS DIVISION		)
Re		BRUCE HOTSPUR WILLIAMS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member WJF Purcell
Member JG Short

Date1 February 2005

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – pension for war-caused conditions appropriately assessed at 80 percent of general rate – is applicant, by reasons of incapacity from war-caused conditions alone, prevented from continuing to undertake remunerative work – reasons other than incapacity from war-caused conditions – ameliorating provisions – applicant capable of working more than eight hours per week – decision affirmed 

Veterans’ Entitlements Act 1986 s 24

ORAL REASONS FOR DECISION

1 February 2005   Senior Member WJ Purcell
  Member JG Short

1.      This is an application for review of a decision of the Veterans’ Review Board (VRB) of 29 January 2003, which set aside a decision of a delegate of the respondent (the Commission) dated 7 June 2002, and substituted a decision that the applicant’s Disability Pension be assessed at 70 percent of the General Rate from 4 March 2002 to 27 October 2002, and at 80 percent of the General Rate from 28 October 2002.

2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the parties.  Mr Ower appeared as counsel for the applicant, who gave oral evidence.  Mr Doube appeared for the Commission, which called Mr C Jones, Human Resources Manager, Auspine, and Mr M Plummer, Harvesting Manager, Auspine, as witnesses.  They gave their evidence by way of telephone link-up.

3.      The applicant, who is 56 years of age, has been in receipt of Disability Pension for his war-caused conditions of sensorineural hearing loss, gastro-oesophageal reflux disease and post-traumatic stress disorder (PTSD) with alcohol dependence, since his application dated 9 March 2001 was accepted, with effect from 9 December 2000.  The rate was 50 percent.

4.      On 4 March 2002, the applicant lodged an application, for an increase in his rate of pension.  The Commission increased it to 60 percent of the General Rate on 7 June 2002.  The applicant applied to the VRB for review, and on 29 January 2003 the VRB made the decision under review, setting aside the decision, and assessing the pension at 70 per cent of the General Rate from 4 March 2002, and at 80 per cent of the General Rate from 28 October 2002.

5. The applicant, who ceased work on 30 April 2003, maintains that he is qualified for pension at the Special Rate, in accordance with s 24 of the Veterans’ Entitlement Act 1986 (the Act), which, as far as is relevant for the purpose of this review, provides:

“(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 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

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

(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.

…”

6. The Commission concedes that the applicant satisfies the first criterion for the Special Rate pension, s 24(1)(a) of the Act, in that he is in receipt of pension at least 70 percent of the General Rate. The Commission concedes also, that the applicant satisfies the second criterion, s 24(1)(b) of the Act, in that the evidence suggests that incapacity from his war-caused conditions is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

7. The Commission contends that the applicant does not satisfy the third criterion, s 24(1)(c) of the Act, in that although it concedes that he has suffered a loss of income since 30 April 2003, it asserts that he did not cease work through incapacity from his war-caused conditions alone, and is not suffering a loss of earnings on his own account, by reason of incapacity arising from his war-caused conditions.

8.      The applicant gave oral evidence, in which we consider he deliberately over-emphasised the effects of his PTSD and alcohol dependence upon his working ability, whilst being less then frank about the effect on his business of the termination of his contract with Auspine.  Of course, we do not reject all his evidence, but look to other more acceptable testimony to corroborate the applicant's evidence, and to support our findings of fact in important areas.

9.      The two employees of Auspine, Messrs Jones and Plummer, impressed us as knowledgeable, down-to-earth, and honest witnesses, who gave their evidence in a straightforward and objective manner.  We prefer their evidence to that of the applicant in any area of dispute in the evidence.

10.     The applicant, who had been the manager of a timber mill at Mount Gambier for 10 years, decided to purchase a post peeling business where the owner had an open ended verbal contract with Auspine.  He carried on the business for seven years, from 1996 until April 2003.  It was called BH and CM Williams.  They trimmed pine trees so that these could be used for posts in fences.  The logs ranged from 1.5 to 3.6 metres in length.  The applicant and another employee would travel out to where the trees had been cut, put the trees through a machine which would strip off the bark.  The posts would then be stacked to be collected by another company.  He also had another contract person who was a casual, who he called upon from time to time.  His work initially was solely in the south-east region, as a contractor to Auspine at Mount Gambier, under the continuing verbal agreement. 

11.     The applicant said in evidence that he was finding it difficult to continue with his work as a result of his PTSD and alcohol abuse.  He started reducing his hours of work from about March 2001.  He says that he found that he was very tired at work because he was not sleeping well, he was short-tempered, easily agitated.  In addition, there was not quite the amount of work available, and he reduced his staff to one person only, a Mr Grass.

12.     The applicant gave evidence that in early 2001, Auspine offered him a six month contract in Tasmania.  Auspine wanted to sell 100 hectares of its land in Tasmania, and needed to fell all the trees.  It was the same type of work he was doing in Mount Gambier, where he was paid $28 per cubic metre for the 35 metres per day he stripped.  He was to be paid $8 per metre more; and Auspine was to ship his equipment to Tasmania, and return it to Mount Gambier at the end of the contract, in about January/February 2002.

13.     The applicant gave evidence that he accepted the contract, and Auspine guaranteed him the same level of work in Mount Gambier when the Tasmanian work had finished.  He employed another worker recommended by Mr Grass, and they travelled to Tasmania where the applicant remained for 10 days to set up the equipment.  He returned to Mount Gambier, and says that he felt more relaxed because he was not working in the field.  He remained in daily contact with his employees, and on three or four occasions he travelled to Tasmania when the machinery needed adjustment or was not working.  His last visit was in November 2001.  He said in evidence that after his employees and his equipment returned to Mount Gambier in April 2002, his contracting work continued.  His tax returns disclose that in the financial year ending June 2000, his gross income from tree peeling was $171, 706, the profit $40,560.  In the year ending June 2001, his gross income was $183,467, the profit $57,605.  In the year ending 30 June 2002, his gross income was $249,580, the profit $60,217.

14.     The applicant said in evidence that in November 2002 he received a letter from Auspine advising that the company had undertaken a review of its operations, and intended to reduce its production of roundwood by 75 percent from 31 December 2002.  The letter stated that there would be a three year contract open for tender for one contractor, on the basis that the log peeling would take place on a "static site" (ie a site not in the forest).  The applicant says that he discussed the matter with the Harvesting Manager, Mr Plummer, who told him that he would need to lease the site, place his equipment on the site, and the logs would be delivered to the site.  The company would pay an extra $1 per cubic metre - a total of $29 per cubic metre - to cover the cost of the rental.  The applicant said in evidence that the only reason he did not apply for the contract was that he did not feel that he could apply for a three year contract, when he was not sure how his health would hold, in the light of his PTSD and his alcohol dependence.  The applicant continued his contract with Auspine until April 2003, when he gave his two employees one week's notice and sold his equipment.  His tax returns for the year ended June 2003 disclosed that in the nine months the business continued, the gross income from the peeling contract was $152,483.55.

15.     Mr Jones said in evidence that there were about eight peeling contractors working with Auspine in 2002.  The company review indicated that an examination of the costs and return from smaller diameter roundwood (used mainly for vineyards and on farms) indicated that better results could be achieved by different processes.  In addition, the demand for vineyard trellising had peaked, and there was a forecast reduction in demand.  Auspine was at that time the largest producer of treated roundwood.  The predicted reduction in volume by 75 percent did come into effect in 2003.

16.     Mr Plummer said in evidence that he recalled the letter of November 2002, and at that time some of the providers had already ceased work with Auspine because of reduced production.  All contracts were to cease on 31 December 2002; but there was some extra work available, and the applicant took advantage of that work, and continued on until that work ceased in March 2003.  He said that expressions of interest were sought, and the successful harvester was Merritt Logging, who had worked with Auspine before.  They needed to sub-contract to a log peeling organisation.  He understood that Merritt Logging had discussions with the applicant, but does not know if the applicant applied for the work.

17.     Mr Plummer said in evidence that prior to the review, he had a budget at Auspine of $100 million.  After 31 December 2002, there was a small demand only for round logs, not as strong as the mid 1990s, early 2000s.  Where there had been 15 to 20 log peelers in the district (the Green Triangle), there are now only four or five who continued in the business.

18.     It is our view, on the whole of the evidence, that the applicant, whilst suffering from the accepted conditions of PTSD and alcohol dependence, was able to cope adequately with his previous work as a timber mill manager, and then as manager/proprietor of the log peeling business from 1996 until he received notification in November 2002 that his verbal contract with Auspine would cease on 31 December 2002.  He would have to compete then, with those of the 15 to 20 peeling groups who chose to apply for the one contract.  On the evidence, the business had been running profitably, despite the applicant's war-caused conditions.  When he purchased the business in 1996, the former proprietor had an ongoing contract with Auspine, and the business was viable.  After 31 December 2002, the applicant's contract ceased, and he chose not to apply for the new contract.  He had no ongoing business, nor goodwill, to sell to a potential purchaser, so he chose to sell the equipment when the additional work ceased at Auspine.  But on the evidence, it was only after receipt of the letter from Auspine in November 2002 that the applicant decided to sell the business.

19. We are reasonably satisfied on the evidence, that the applicant's cessation of work, whilst related in part to his accepted conditions of PTSD and alcohol dependence and their effect on his ability to work, resulted from Auspine's termination of his contract with effect from 31 December 2002. We are reasonably satisfied on the evidence, that the applicant did not cease to engage in remunerative work by reason of his war-caused disabilities alone. We are reasonably satisfied on the evidence, that the applicant ceased to engage in remunerative work for reasons other than his incapacity from his war-caused conditions, and that he does not satisfy s 24 of the Veterans’ Entitlements Act 1986.

20.     For these reasons, the Tribunal affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJ Purcell and Member JG Short

Signed:         .....................................................................................
  Associate

Dates of Hearing  31 January 2005 and 1 February 2005
Date of Decision  1 February 2005
Counsel for the Applicant         Mr S Ower
Solicitor for the Applicant          Tindall Gask Bentley
Counsel for the Respondent     Mr G Doube
Solicitor for the Respondent     DVA