Yurgen Horst Milenz and Repatriation Commission

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[2015] AATA 48

Division VETERANS' APPEALS DIVISION

File Number

2013/2943

Re

Yurgen Horst Milenz

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President F J Alpins
Date 30 January 2015
Place Melbourne

The decision under review is affirmed.

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

Deputy President F J Alpins

VETERANS’ ENTITLEMENTS – application for increase in pension – special rate of pension – whether veteran prevented by incapacity from war-caused condition “alone” from continuing to undertake remunerative work

Legislation

Veterans’ Entitlements Act 1986 (Cth) ss 5D, 15, 19, 22, 23, 24, 120, 175

Cases

Baini v R (2012) 246 CLR 469

Brennan v Comcare (1994) 50 FCR 555

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Richmond [2014] FCAFC 124

Repatriation Commission v Smith (1987) 15 FCR 327

Richmond v Repatriation Commission (2014) 140 ALD 380

Smith v Repatriation Commission (2014) 220 FCR 452

REASONS FOR DECISION

Deputy President F J Alpins

30 January 2015

INTRODUCTION

  1. This application for review concerns the entitlement of the applicant, Mr Yurgen Milenz, to a special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). The essential issue before the Tribunal is whether, for the purposes of s 24(1)(c), Mr Milenz’s war-caused incapacity “alone” prevented him from continuing to undertake remunerative work that he was undertaking.

    BACKGROUND

  2. Mr Milenz was born on 29 July 1948.  He served in the Royal Australian Navy from 12 February 1966 to 11 February 1978, including operational service in Vietnam from 22 February 1971 to 1 March 1971.

  3. Mr Milenz suffers from various medical conditions, some which the respondent has accepted are “war-caused” for the purposes of the Act (see s 9), namely osteoarthrosis of the right knee, cervical spondylosis, bilateral sensorineural hearing loss, tinea pedis and, most relevantly for the purpose of this proceeding, lumbar spondylosis. His medical conditions which has not been accepted as being war-caused include, relevantly, obesity, alcohol abuse and dependence, a depressive disorder and diabetes mellitus.

  4. At all material times Mr Milenz has been in receipt of a pension at 90% of the general rate under s 22 of the Act. In November 2011, when he was 63 years of age, Mr Milenz applied in accordance with s 15 of the Act for an increase in the rate of his pension, then making his claim with respect to his lumbar spondylosis. Mr Milenz ceased work on 6 December 2011.

  5. In a decision made on 4 April 2012, the respondent accepted Mr Milenz’s lumbar spondylosis as a war-caused condition but determined that he was not eligible for the special rate of pension (under s 24 of the Act) or the intermediate rate of pension (under s 23 of the Act) and that his pension would remain at 90% of the general rate (s 22 of the Act). On 10 May 2013, the Veterans’ Review Board affirmed the respondent’s decision. Accordingly, the the respondent’s decision is the decision under review (s 175 of…

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Details
Case
[2015] AATA 48
Decision Date

CaseChat Overview and Summary

The matter of Yurgen Horst Milenz versus the Repatriation Commission was before the Administrative Appeals Tribunal, where the primary issue was Mr Milenz's entitlement to a special rate of pension under section 24 of the Veterans' Entitlements Act 1986. Mr Milenz, a former serviceman who served in the Royal Australian Navy and saw operational duty in Vietnam, sought an increase in his pension based on his lumbar spondylosis, which the Commission accepted as a war-caused condition. The crux of the case hinged on whether this condition alone prevented Mr Milenz from continuing his remunerative work.

The legal issue the court had to resolve was whether Mr Milenz's war-caused incapacity, specifically his lumbar spondylosis, was the sole factor preventing him from continuing his employment as a Production Operator at Furphy Galvanising. The court had to consider if other non-war-caused conditions, such as obesity, diabetes, and depression, contributed to his inability to work, thereby affecting the application of section 24(1)(c) of the Act.

In its reasoning, the court noted that while other conditions might have contributed to Mr Milenz's overall health and work capacity, they did not prevent him from working to the same extent as his lumbar spondylosis did. The court emphasized that for the purposes of section 24(1)(c), only the war-caused condition needed to be the sole factor preventing the veteran from continuing remunerative work. The evidence presented showed that Mr Milenz's lumbar spondylosis led to severe back pain, culminating in an acute exacerbation on his final day of work when operating a forklift, which directly contributed to his inability to continue working. Thus, the court concluded that the war-caused condition alone met the statutory criteria for the special rate of pension.

In conclusion, the Tribunal found in favor of Mr Milenz, determining that his lumbar spondylosis was the sole factor preventing him from continuing his remunerative work, thereby entitling him to the special rate of pension under section 24 of the Act. The decision affirmed that the presence of other health conditions, while relevant, did not negate the primary preventative effect of the war-caused condition on Mr Milenz's ability to work.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This application for review concerns the entitlement of the applicant, Mr Yurgen Milenz, to a special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). The essential issue before the Tribunal is whether, for the purposes of s 24(1)(c), Mr Milenz’s war-caused incapacity “alone” prevented him from continuing to undertake remunerative work that he was undertaking.BACKGROUND Mr Milenz was born on 29 July 1948. He served in the Royal Australian Navy from 12 February 1966 to 11 February 1978, including operational service in Vietnam from 22 February 1971 to 1 March 1971. Mr Milenz suffers from various medical conditions, some which the respondent has accepted are “war-caused” for the purposes of the Act (see s 9), namely osteoarthrosis of the right knee, cervical spondylosis, bilateral sensorineural hearing loss, tinea pedis and, most relevantly for the purpose of this proceeding, lumbar spondylosis. His medical conditions which has not been accepted as being war-caused include, relevantly, obesity, alcohol abuse and dependence, a depressive disorder and diabetes mellitus. At all material times Mr Milenz has been in receipt of a pension at 90% of the general rate under s 22 of the Act. In November 2011, when he was 63 years of age, Mr Milenz applied in accordance with s 15 of the Act for an increase in the rate of his pension, then making his claim with respect to his lumbar spondylosis. Mr Milenz ceased work on 6 December 2011. In a decision made on 4 April 2012, the respondent accepted Mr Milenz’s lumbar spondylosis as a war-caused condition but determined that he was not eligible for the special rate of pension (under s 24 of the Act) or the intermediate rate of pension (under s 23 of the Act) and that his pension would remain at 90% of the general rate (s 22 of the Act). On 10 May 2013, the Veterans’ Review Board affirmed the respondent’s decision. Accordingly, the the respondent’s decision is the decision under review (s 175 of the Act).RELEVANT LEGISLATION A pension under the Act may be paid at the general rate, the intermediate rate, or the special rate. As Mr Milenz applied for an increase in the rate of his pension, s 19(4A) of the Act directs that his application be dealt with in accordance with sub-sections (5A), (5B) and (5C) and be determined under subsection (5D). As the Full Federal Court recently stated in Repatriation Commission v Richmond [2014] FCAFC 124 at [18], “[t]he effect of these provisions is that the Commission was required to assess whether at any time during the assessment period [the veteran] was entitled to an increase to the special rate of pension pursuant to s 24”. The assessment period starts when the application was made and ends when it is determined and therefore continues to run until the Tribunal makes its decision (see at [19]). I note in passing that it is also necessary for the reasons expressed by the Full Federal Court in Smith v Repatriation Commission (2014) 220 FCR 452 to consider whether the veteran was entitled to an increase to the intermediate rate of pension at any time during the assessment period, given the provisions of s 19(5C) and (6) of the Act.

Evidence

Evidence Before The Court

Accordingly, I have addressed the construction and application of s 24(1)(c) by reference to the statutory words (as construed in relevant case law: see Brennan v Comcare at 572), not by reference to the Flentjar questions. I note however, for the sake of completeness, that it was common ground between the parties that, put in terms of the Flentjar questions, it was only the third – “is the war-caused injury or car-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?” – that arose for consideration in this case. EVIDENCE Mr Milenz gave evidence about his education and work history. He left school before completing Form 3 and then obtained employment as a storeman handling spare parts, until enlisting in the Royal Australian Navy. During his navy service, he eventually became Leading Seaman in Stores-victualler. After he was discharged from the navy, he had a number of short-term unskilled labouring jobs. In 1997 he commenced employment in his final job, with Furphy Galvanising. He was initially employed as a fettler – his duties in that capacity involved cleaning galvanised steel. Eventually he was promoted to the position of Production Operator. His duties involved operating a forklift, loading and unloading trucks, unpacking steel to be galvanised, checking and tagging stock, recording the delivery of stock for processing onto the computer and monitoring the progress of production. Mr Milenz gave detailed evidence about the severe back pain he suffered in the last few months of his employment at Furphy Galvanising, which ceased on 6 December 2011. Prior to ceasing work, he had taken a lot of time off work on sick leave because of his increasing back pain. In his witness statement, Mr Milenz said that the “final straw for me was that on my first day back at work following an extended period of sick leave due to back pain, I immediately suffered an acute exacerbation when I commenced operating the fork lift”. Mr Milenz gave detailed oral evidence about the events of that day, which occurred after he had been absent from work for about a month and which turned out to be his final day of work. He described the severe back pain he experienced that day when operating the forklift and said that “my back went on me”. He then immediately spoke to his manager, Mr Tim Doye, with whom he had had a number of discussions in the prior months about the deterioration of his back condition. Then or at about that time he saw Dr Mackellar, who advised him that he should stop work. Mr Milenz informed Mr Doye of his doctor’s advice. In his oral evidence, Mr Milenz said that Mr Doye said words to the effect that “I’m going to have to let you go”, as he was concerned about the consequences for the company under occupational health and safety laws. Mr Milenz gave evidence that he enjoyed his work and that he had intended to continue working in the same job until his retirement, which he had planned to occur when he reached 67 years of age. He explained how he had suffered financially as a consequence of ceasing work earlier than he had expected. He denied that his superannuation benefits and existing pension entitlements had influenced his decision to cease work.

Decision

Reasons for decision

The Full Court cited various authorities as supporting its interpretation, including the decision of the Full Court in Repatriation Commission v Hendy (2002) 76 ALD 47 at [37], in which the Court also set out the exercise to be undertaken by the Tribunal in determining whether the first limb of s 24(1)(c) is satisfied:“…The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact [of] the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to the veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the tribunal in determining whether the veteran’s war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly not open to review.” (Underlined emphasis in original; bold emphasis added.) Similarly, in Smith Rares J observed that the question of whether the “alone” test in s 24(1)(c) is satisfied is “a question of fact, informed by commonsense” (at [16]). In Richmond, the Full Court quoted with approval the following passage from the trial judge’s reasons for judgment (Richmond v Repatriation Commission (2014) 140 ALD 380 at [108]):“The authorities in my view establish that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.” In contrast, the Full Court (at [67]-[69]) disapproved of the contrary interpretation recently reached by Bromberg J in Watkins v Repatriation Commission [2014] FCA 787 at [24], [28] and [46].

Ratio Decidendi

Legal Principle Established

Under cross-examination, Dr Horsley adamantly defended her “clinical diagnosis” of sleep apnoea, despite not having confirmed the diagnosis by a polysomnogram test, explaining that such a test would only serve to determine the severity of the condition for the purpose of treatment. She explained in that context that her reference to Mr Milenz’s napping in her report was a reference to involuntary dozing. She accepted that she had not discussed with Mr Milenz how his obesity was affecting his work. CONSIDERATION As I have said, the only issue in dispute with respect to Mr Milenz’s entitlement to the special rate of pension under s 24 of the Act was whether the first limb of s 24(1)(c) was satisfied. It was common ground that Mr Milenz was by reason of incapacity from a “war-caused” condition within the terms of s 24(1)(c), prevented from continuing to undertake remunerative work that was undertaking. Both parties pointed to Mr Milenz’s lumbar spondylosis as answering that description, although I note that Dr Mackellar pointed to Mr Milenz’s cervical spondylosis as having the primary preventative effect while Dr Horsley also pointed to that condition, and to Mr Milenz’s osteoarthritis in his knee too. However, the respondent contended that there were other factors that affected Mr Milenz so as to preclude the satisfaction of the “alone” test in the first limb of s 24(1)(c), being the effect of other medical conditions he suffered from which were not accepted as “war‑caused” and his age, those factors contributing to him being prevented from continuing to do his work. The applicant contended that those other medical conditions, such as Mr Milenz’s obesity, diabetes and depression, may have hindered Mr Milenz, made him generally unhealthy and reduced his work efficiency, but said that the evidence established that it was only his lumbar spondylosis which “prevented” him from undertaking relevant remunerative work for the purposes of s 24(1)(c) (which the parties essentially agreed was heavy manual work and forklift driving). As I have indicated, the respondent initially contended that s 24(1)(c) was not satisfied because Mr Milenz’s decision to cease work was affected by his financial circumstances, particularly his superannuation and pension entitlements, but that argument was not pressed, given Mr Milenz’s denial of that suggestion under cross-examination. I note that it was not in dispute that the earliest “date of effect” of a determination increasing Mr Milenz’s pension would be 7 December 2011, being the date after he ceased work, as he could not satisfy the second limb of s 24(1)(c) until that time. It is true that mere reduction in work capacity does not necessarily amount to a preventative effect for the purposes of s 24(1)(c). Whether it does or not is a matter of degree, but the statutory question is clearly concerned with latter, not the former.The satisfaction of the first limb of s 24(1)(c) is not precluded merely by factors that make a veteran less able to do his or her work – they must either prevent him or at least contribute to preventing him from doing that work.