Smith and Repatriation Commission [2003] AATA 66 (23 January 2003)

Last Updated: 28 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 66

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/363

VETERANS' APPEALS DIVISION

Re: LESLIE CLIVE SMITH

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

G.D. Friedman, Member

Associate Professor J.H. Maynard, Member

Date: 23 January 2003

Place: Melbourne

Decision: The Tribunal sets aside the decision under review and in its stead finds that the applicant satisfies the provisions of s.24 of the Veterans' Entitlements Act 1986 and disability pension is assessed at the special rate, with effect from and including 4 February 2002.

(sgd) B.H. Pascoe

Senior Member

VETERANS' AFFAIRS - whether entitled to pension at special rate - whether war-caused disabilities alone render incapable of undertaking remunerative work for more than eight hours per week - whether genuinely seeking remunerative work

Veterans' Entitlements Act 1986

REASONS FOR DECISION

23 January 2003 Mr B.H. Pascoe, Senior Member

G.D. Friedman, Member

Associate Professor J.H. Maynard, Member

1. This is an application to review a decision of the Veterans' Review Board (VRB) of 19 March 2002 which set aside the decision of the respondent of 3 July 2001, to assess the veteran's entitlement to a disability pension at 90 per cent of the general rate and, in its stead, increased the pension to 100 per cent of the general rate from 16 October 2001. However, the VRB did not accept that the veteran was entitled to a pension at the special rate under s.24 of the Veterans' Entitlements Act 1986 (the Act).

2. At the hearing the veteran, Mr L.C. Smith, was represented by Mr A. Larkin, of counsel. Owing to industrial action at the Department of Veterans' Affairs, there was no representation on behalf of the respondent. This was regrettable and, apart from the difficulties caused to the Tribunal, this lack of representation imposed difficulties on Mr Larkin in presenting his client's case.

3. The Tribunal had the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975. In addition, the following documents were filed by the parties:

Statement of Mr L. Smith, the applicant, dated 10 April 2002 Exhibit A1

Report of Dr E. Cole dated 9 August 2002 Exhibit A2

Clinical notes of Dr E. Hession, general practitioner Exhibit R1

Report of Dr L. Walton, dated 30 October 2002 Exhibit R2

Combined Impairment Assessment by Dr F.J. Morgan

dated 10 October 2002 Exhibit R3

Discharge Summary, Austin & Repatriation Medical Centre

19 November 2000 Exhibit R4

Report of Dr C.J. Percival dated 24 October 2001 Exhibit R5

4. Mr Smith was born on 21 June 1945 and served in the Australian Army (the army) from 20 April 1966 to 19 April 1971 and had operational service in South Vietnam from 3 October 1967 to 9 April 1968. He had accepted war-caused disabilities of:

Sensorineural hearing loss

Tinea

Post traumatic stress disorder

Psychoactive substance abuse or dependence

Irritable bowel syndrome

The first four of these disabilities were accepted on 17 October 1996 and the fifth from 4 February 2001.

5. Section 24 of the Act, insofar as is relevant in this case, provides:

24(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. Although not represented at the hearing, the respondent had filed a statement of facts and contentions on 6 December 2002. In that statement, the respondent conceded that Mr Smith met the requirements of s.24(1)(a) but contended that he failed to meet the requirements of s.24(1)(b) and (c) of the Act. In conclusion, the respondent proposed that the Tribunal should find that Mr Smith was entitled to pension at the intermediate rate under s.23 of the Act. That section is in similar terms to s.24 but applies where a veteran's war-caused incapacity renders him incapable of other than part-time or intermittent work involving less than 20 hours per week.

7. The work and location history of Mr Smith was set out in the VRB decision (at para 4) as follows:

...

As a licensed 'A' grade electrician, he worked full time in various electrician jobs with Goodyear, Dunlop, CIG, Southdown Press, Arcacia Tiles and lastly, with the Mt Eliza Centre from 1989 to 1994. When the Centre amalgamated with Frankston Hospital, his employment terminated along with other redundant staff, and he received a redundancy payment of some $20 000. After this, he invested in "Marions by the Bay" a coffee shop in Dromana. These premises were leased, and he borrowed $40 000 from the National Australia Bank to purchase equipment and cover other setting up costs. Unfortunately, the business was found to be unsuccessful after 6 months and in order to meet the loan repayments, the veteran was forced to sell his home in Rosebud. In receipt of a Newstart Allowance from 9 June 1995, he is now on a disability support pension from the Department of Social Security but has not been assessed as eligible for a DVA Service pension.

In 1996, with their remaining resources, the veteran and his wife, a school teacher, bought a vacant block of land at Koondrook on the Murray River near Barham. While his wife stayed with friends in Blairgowrie, the veteran camped on the property and commenced the organisation of having a house built on the land, assisted by loan from "Carry On". The house is now built to lock-up stage and 6 months ago, after having a septic tank installed by a plumber friend, he obtained a certificate of occupancy to live in the house. His son had come up for a while to help put up the plaster ceiling. While the veteran has done the wiring for the house, and can do jobs like painting, the house is still incomplete as he said he lacks the interest and funds to do much. The veteran said his wife had joined him to live in Koondrook for a while, but then left to accept a job at Broken Hill, teaching in the school of the air.

The veteran has tried to obtain work in the Barham area, but without success. Asked whether he had explored the possibility of setting up as an electrical contractor, he said he had thought about it but did not have the energy or resources. He would need an outlay of $20 000 to set up business and after his last experience, was wary of another financial disaster. Besides, he said, there was a surfeit of electrical contractors in the district. With his disabilities and time out of the workforce, he also did not believe he would be competitive enough now.

8. In his statement filed with the Tribunal and in his oral evidence, Mr Smith said that he had not been coping well in his job with the Mt Eliza Centre prior to being made redundant. He said he was regularly irritable and short tempered and had disputes with his supervisor, which, at one point, resulted in physical assault. While he could not be certain, he believed that his temper, irritability and excess drinking after work was a significant factor in being selected for redundancy. He believed, also, that his irritability and aggressiveness was a material factor in the failure of the coffee shop. Since moving to Koondrook, Mr Smith has had three short term jobs. These were one day at Barham Services Club, two weeks at Barham Golf club and one month at Leahy's Contractors. All of these appeared to be specific contract jobs for the periods worked. Mr Smith had provided 22 letters between July 1994 and December 1996 responding negatively to job applications with a wide variety of prospective employers. He said that, during this period, he completed two CES courses aimed at improving job prospects. Mr Smith acknowledged that he had tended to "lose it" at job interviews and become aggressive with the regular negative responses from employers. He was unsure whether critical references from his former employer had been a factor.

9. Based on the evidence of Mr Smith and the medical evidence before the Tribunal, particularly that of Dr Whitaker and Dr Percival, we have no difficulty in agreeing with the finding of the VRB that he satisfies s.24(1)(b) of the Act in that his war-caused conditions of post traumatic stress disorder (PTSD) and psychoactive substance abuse or dependence, alone, are such to render him incapable of undertaking remunerative work for periods of aggregating more than eight hours per week. This view is supported strongly by Dr Cole. The respondent's psychiatrist, Dr Walton, with reservations, could not assert that Mr Smith's accepted conditions did not prevent him working more than eight hours per week.

10. We disagree, however, with the VRB conclusion that Mr Smith does not satisfy s.24(1)(c) on the basis that his cessation of work in 1994 did not result from his war-caused disabilities and he has not been genuinely seeking to engage in remunerative work. Whilst we are satisfied that his war-caused disabilities were a factor in him being made redundant in 1994, it cannot be said that they were the sole reason. However, we are satisfied that he did genuinely and actively continued to seek to engage in remunerative work until, at least, September 1998 when he applied unsuccessfully for a cleaner's job with the Barham Bowling Club. We also accept the evidence of Mr Smith that he would be continuing to seek remunerative work if he considered that he had the capacity to perform such work. He has difficulty concentrating, tires easily, and cannot drive any distance as a consequence of his medication. We are satisfied that his war-caused disability is a substantial cause of his past and present inability to obtain such work. It could be said that, once we are satisfied that these disabilities alone render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week, then it would seem a natural consequence that such incapacity has to be a substantial cause of an inability to obtain remunerative work. We do accept that Mr Smith was genuine in his desire to be able to work but his war-caused disabilities alone prevent him from both obtaining or undertaking such work.

11. As a consequence, we find that Mr Smith satisfies the requirement of s.24 of the Act so as to entitle him to the special rate of pension and, therefore, set aside the decision under review. It should be noted that, as indicated earlier, the respondent sought a decision to assess the pension at the intermediate rate. The basic differences between the two rates is whether the veteran is capable of working no more than 8 hours per week or between 8 and 20 hours per week. The other criteria for qualifying for either intermediate or special rate are similar. We find that he is incapable of working more than 8 hours per week.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

G.D. Friedman, Member

Associate Professor J.H. Maynard

(sgd) Catherine Thomas

Clerk

Date of Hearing: 11 December 2002

Date of Decision: 23 January 2003

Counsel for applicant: Mr A. Larkin

Solicitor for the applicant: Williams Winter Higgs

Solicitor for the respondent: Mr R. Douglass, Advocate with the Department of

Veterans' Affairs