Solomon and Repatriation Commission [2003] AATA 799 (22 July 2003)

Last Updated: 18 August 2003

DECISION AND REASONS FOR DECISION [2003] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/1115

VETERANS' APPEALS DIVISION	)
	Re	ROGER ALAN SOLOMON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President , Don Muller

Date 22 July 2003

Place Townsville

Decision

The Tribunal affirms the decision under review.

............Signed............................

D.W. MULLER

Deputy President

CATCHWORDS

Veteran's Affairs - whether the Applicant's war-caused disabilities alone prevented him from continuing to undertake remunerative work- whether the applicant genuinely seeking remunerative work

Veterans' Entitlements Act 1986 subsections 24 (1) (c) and 2 (b)

WRITTEN REASONS FOR ORAL DECISION

Deputy President Don Muller

1. This is an application for review of a decision of the Repatriation Commission dated 14 March 2002 to continue the Applicant's disability pension at 100% of the general rate. On 16 August 2002 the Veterans' Review Board affirmed the decision of the Respondent and refused to grant the Applicant a Special Rate pension pursuant to section 24 of the Veterans' Entitlements Act 1986 ("the Act").

2. The Applicant gave oral evidence at the hearing and the Tribunal had the following documents before it:

(a) The documents provided pursuant to section 37 Administrative Appeals Tribunal Act 1975 , Exhibit 1;

(b) The Applicant's Statement dated 7 April 2003 , Exhibit 2;

(c) The Supplementary Statement of the Applicant dated 11 June 2003, Exhibit 3;

(d) Report of Dr Michael Likely dated 4 August 2000, Exhibit 4; and

(e) Report of Dr Michael Likely dated 26 April 2002, Exhibit 5.

3. The relevant legislation is as follows:

"24 Special rate of pension

(1) This section applies to a veteran if:

(aa) ....

(aab) .....

(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) ....

(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 or 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."

4. The only question for determination by the Tribunal is whether the Applicant satisfies the "alone" test in subsection 24(1)(c) of the Act, or the ameliorating provisions in subsection 24(2) (b) of the Act.

5. The Applicant was born on 30 June 1943 and at the time of the hearing was 60 years of age.

6. The Applicant served in the Australian Army for nearly 24 years, from 29 May 1962 until 11 April 1986. He had operational service in Borneo for eight months from December 1964 to August 1965, and in Vietnam for 12 months from May 1966 to May 1967. He was a member of the combat engineers' group that operated heavy earthmoving machinery to build air strips, roads and earth platforms for administration headquarters.

7. The Applicant has a number of war-caused disabilities for which he receives a disability pension at 100% of the General Rate. The Applicant's war-caused disabilities are as follows:

(a) Bilateral Pterygia;

(b) Hyperhidrosis Feet and Hands;

(c) Anxiety State;

(d) Bilateral Sensori- Neural Hearing Loss;

(e) Post Traumatic Stress Disorder ("PTSD"); and

(f) Alcohol Dependence or Alcohol Abuse.

8. The Applicant also suffers from several disabilities which are not war-caused:

(a) Allergic Conjunctivitis;

(b) Ischaemic Heart Disease ;and

(c) Polycythemia Vera.

9. After discharge from the Army in April 1986, the Applicant had a break from work for two to three months before looking for work. In the second half of 1986, he was chatting to a friend at a golf club, when the friend told him about a job going at the nursery at Lavarack Barracks. The Applicant successfully applied for the job. His duties were to operate a slasher at the live firing range, to mow the ovals and grasses around the camp, and to occasionally borrow a grader or bulldozer from the engineers to grade the roads or to shift soil. He was employed by the Department of Defence.

10. In 1992 the Applicant was at work at Lavarack Barracks, burning some rubbish in a creek bed, when he began to feel ill. He drove home and then to a doctor's surgery where he collapsed. He had a heart attack. He was diagnosed as having Ischaemic Heart Disease and Polycythemia Vera which is a blood condition in which the red cell count may be very high, causing headaches, clotting of veins and in some cases, haemorrhages.

11. After his heart attack, the Applicant was off work for about one month. When he returned to work he was put on light duties for one month. He was then transferred to a job inside, in the stores section of a warehouse. He remained in the stores section from 1993 to 1997. During that period he became computer literate, was promoted three times and eventually was placed in charge of the warehouse.

12. In 1996 the Applicant was diagnosed with PTSD and Anxiety Disorder, which were accepted by the Respondent as being war-caused.

13. In 1997 the Applicant had some difficulties at his work, where he was wrongly accused of harassing another employee. In response to this accusation he took ten months of sick leave. In June of 1998 he returned to work but he was transferred back to the live firing range, driving tractors, slashers, graders and dump trucks.

14. In early 1999, the Applicant and about 170 other workers at Lavarack Barracks, were told that the work around the firing range and the other maintenance work that they were doing would be contracted out to a private firm. They were told that most employees would lose their jobs. The Applicant gave evidence that upon being given this information he began to look for other work. However, he was unsuccessful, mainly because potential employers were not interested in someone who was still employed at the time.

15. Very few of the 170 workers were re-engaged by the new contractors. The Applicant thought that only about 17 or 18 were re-engaged.

16. The Applicant was made redundant on 25 March 1999. He has not worked since.

17. On 19 April 1999, the Applicant applied for a service pension on the grounds of invalidity. His application stated that the following conditions prevented him from working:

(a) Ischaemic Heart Disease

(b) Post Traumatic Stress Disorder

(c) Anxiety State

(d) Polycythemia Vera

18. The Applicant was granted the service pension on the grounds of invalidity, with effect from 22 April 1999.

19. The Applicant first made a claim for disability pension at the Special Rate on 22 October 1999. His claim was rejected. He has since made a further four claims on:

* 24 February 2000

* 23 October 2000

* 1 May 2001

* 18 February 2002

20. In his application form for Special Rate pension stamped 9 February 2000 the Applicant stated that his mobility was limited due to his shortness of breath and pains in the chest. In addition, he answered question 14 regarding social activities with:

"I don't do a lot due to depression, chest pain, my main things are reading and TV."

21. The Applicant's application for pension at the Special Rate, made on 18 February 2002 and subsequently rejected by the Respondent and the Veterans' Review Board, is the application that is the subject of this review by the Tribunal.

22. On 20 February 2002, a few days after the Applicant's latest application for pension at the Special Rate, the Applicant had a telephone conversation with Greg Ross from the Repatriation Commission. That discussion is recorded in a file note of Mr. Ross:

"I discussed the ameliorating provisions, and explained that as he was on SPPI since 22/04/99...it would be difficult to convince a delegate that he had been genuinely seeking work. I then explained that even if he could satisfy the delegate that in the month that he was unemployed that he was genuinely seeking remunerative work, an assessment would have to be made as to the substantial reason that he did not gain employment. Was it substantially his accepted conditions......Mr Solomon said that in all his attempts to find work (at the time of his redundancy), his age was the main factor that prevented him from gaining employment. Mr Solomon said that he never told any prospective employer about his medical conditions, so this was not a factor.

23. The Tribunal notes that the Applicant ceased work in March 1999, due to a restructure in the work place. It was not because of his war-caused disabilities.

24. The Applicant gave evidence to the Tribunal that he did not look for work from the time of his redundancy in March 1999, until the year 2002.. He thought that if he looked for work and became employed, his disability pension payments would be reduced. He wanted to avoid that outcome.

25. The Applicant claimed in his evidence that he has not been able to obtain remunerative work because of his PTSD, not his Ischaemic Heart Disease. He also claimed to have been genuinely seeking to engage in remunerative work since early 2002, but that he has been unsuccessful in doing so.

26. The Tribunal accepts that the Applicant's PTSD is a serious condition. However, the Applicant's Ischaemic Heart Disease, Polycythemia Vera and his age, also present significant hurdles to the Applicant's ability to engage in remunerative employment. He said so himself in his application for service pension. The fact that he made a decision not to look for work between March 1999 and early 2002, has also been a significant cause of his failure to obtain work.

27. Therefore, the Tribunal concludes that it is not the Applicant's war-caused disabilities alone that have prevented him from continuing to engage in remunerative work. Section 24(1)(c) of the Act is not satisfied in the Applicant's case.

28. The remaining question for the Tribunal is whether the Applicant satisfies section 24(2)(b) of the Act. That is, whether he has been genuinely seeking to engage in remunerative work.

29. The Applicant gave evidence that he applied for a number of positions in July 2002, but that he was unsuccessful.

30. There is no satisfactory independent evidence as to why the Applicant was totally unsuccessful in obtaining work. It is clear from the job descriptions and required qualifications that the Applicant had no chance of being considered for some of the positions he applied for. Also in the case of one job that was on offer in Papua New Guinea, the Applicant gave evidence that he told the employer that he had a heart condition. The employer immediately lost interest in the Applicant. The failure to obtain these positions was clearly not because of war-caused disabilities. Indeed, the Tribunal does not accept that the job applications for these positions amounted to genuinely seeking to engage in remunerative work.

31. The Tribunal notes that the Applicant did not begin to make a show of looking for work until after he spoke to Mr. Ross in February 2002. It was then that he discovered that to be successful in his claim for the Special Rate he should be looking for work. The Applicant's main flurry of job seeking activity occurred about one month before his hearing at the Veterans' Review Board on 16 August 2002. In the Tribunal's view the Applicant's activities look more like an attempt to "work the system" rather than a genuine attempt to obtain remunerative work.

32. The Tribunal does not accept that the Applicant has been genuinely seeking to engage in remunerative work and concludes he does not satisfy subsection 24(2)(b) of the Act.

33. The Tribunal affirms the decision to reject the claim for disability pension at the Special Rate.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.

Signed: .......................................................................................

C. O'Donovan, Associate

Date/s of Hearing 22 July 2003

Date of Decision 22 July 2003

Written reasons for decision 14 August 2003

Counsel for the Applicant Mr. D. Honchin

Solicitor for the Applicant Purcell Taylor

Respondent Mr. J. Kelly, departmental advocate