Hopkins and Repatriation Commission [2009] AATA 339 (14 May 2009)

Last Updated: 14 May 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 339

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/6016

VETERANS' APPEALS DIVISION		)
	Re		FRANCIS JAMES HOPKINS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr J G Short (Member)

Date 14 May 2009

Place Adelaide

Decision

The Tribunal affirms the decision of the Repatriation Commission dated 15 June 2007 (as affirmed by the Veterans’ Review Board on 25 October 2007) to refuse to increase Mr Hopkins’ rate of pension beyond 100 percent of the general rate.

..............................................
J G SHORT
(Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – assessment – special rate – s 24(2)(a) – veteran ceased to engage in remunerative work for reasons other than his war-caused incapacity – not entitled to an increase in pension – decision affirmed

Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Braund [1991] FCA 422; (1991) 23 ALD 591
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996
Starcevich v Repatriation Commission (1987) 18 FCR 221
Sheehy v Repatriation Commission (1996) 66 FCR 569
Re Smith and Repatriation Commission [2004] AATA 1223

Re Reilly and Repatriation Commission (AAT 3455, 13 May 1987)

REASONS FOR DECISION

14 May 2009

Mr J G Short (Member)

INTRODUCTION

1. Mr Hopkins lodged a claim on 8 December 2006 for acceptance of tinea, ingrown toenails (both feet), bilateral pterygium and osteoarthrosis left knee. On the same date, Mr Hopkins also lodged an application for an increase in the rate of pension he was receiving.
2. On 15 June 2007, the respondent (the Commission) accepted as defence caused, all of the above-mentioned conditions and assessed pension at 100 percent of the general rate from and including 8 September 2006. The assessment considered the degree of incapacity flowing from the newly accepted conditions, together with previously accepted conditions of lumbar strain, medial meniscus tear right knee, lumbar spondylosis, bilateral sensorineural hearing loss, bilateral tinnitus and strain of the right ankle.
3. On 25 October 2007, the Veterans’ Review Board (the VRB) affirmed the Commission’s decision.
4. Mr Hopkins suggested that he satisfied the requirements of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) and consequently was entitled to the special rate of pension.

LEGISLATION

5. Sub-sections 24(1)(c) and s 24(2)(a) and (b) of the VE Act relevantly provide as follows:

“24(1) This section applies to a veteran if:
...
(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
...
(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; ...”
(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.”

If s 24(1) of the VE Act applies to Mr Hopkins, he will be entitled under s 24(4) to a pension at the special rate therein provided.

ISSUES FOR DETERMINATION

6. The Commission accepted that Mr Hopkins’ incapacity in this case was at least 70 percent. However, for a person under the age of 65 years, special rate of pension is only payable if all of the criteria set out in s 24(1) of the VE Act are met at the same time at any point during the assessment period which begins when the person claims a pension or makes an application for an increase in pension and ends when the Tribunal makes its decision.
7. The Commission initially indicated that it was satisfied that Mr Hopkins met the requirement that the applicant be permanently and totally incapacitated, that is unable to work more than eight hours a week. The Commission later withdrew its concession in that regard.
8. The Commission argued that Mr Hopkins had ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or war-caused disease and consequently was precluded from payment of one of the earnings related rates of pension (see ss 24(2)(a) and (b)).
9. The Commission suggested that Mr Hopkins had ceased to engage in remunerative work for the purposes of s 24(2)(a)(i). On 28 November 2003 he was made redundant and received a modest redundancy payment. That is the date he last performed any paid work.
10. Mr Hopkins submitted that, as he continued to seek employment after his redundancy, it was not until he received a report from the Veterans’ Vocational Rehabilitation Scheme on 16 March 2007, indicating a view that he was unsuitable for rehabilitation, that he ceased to engage in remunerative work. That is the date when he accepted that he could no longer work. The issue to be determined in this case, that is whether Mr Hopkins satisfied all of the requirements of s 24 of the VE Act, necessarily requires a finding of fact concerning the date upon which Mr Hopkins ceased to engage in remunerative work.

EVIDENCE OF MR HOPKINS

11. Mr Hopkins was born on 9 December 1950 and on the application day (8 December 2006) he was 55 years of age. Mr Hopkins explained that he had left the Navy in December 1994 after 18.5 years of service. Mr Hopkins said that thereafter he worked in a clerical/electronics technician role for perhaps four different employers and then in May 2001 commenced work for Advanced Systems Pty Ltd as an electronics technician. He continued to perform those duties until 28 November 2003 when he, along with four others, was made redundant. Mr Hopkins received a redundancy payment approximating $10,000.
12. Mr Hopkins said that he then applied to Centrelink for benefits, but was told that there was a 13 week waiting period, reflective of his redundancy payment. He said that during this 13 week period, he applied for an average of 10 jobs a week, that is he lodged over 100 applications for employment. He said that none of those applications resulted in even a job interview. He said that on 12 February 2004, he had a fall at his parents’ home which exacerbated his back and knee conditions. He said that a few days later he received an offer of work from Mr Stringer (one of the other four employees who had been made redundant in 2003). He said that he explained to this potential employer that he had had a fall and the offer of employment was withdrawn.
13. Mr Hopkins said that on 25 February 2004, he began to receive unemployment benefits with an exemption so that he need not apply for jobs as he was providing a number of sickness certificates from his then general practitioner, Dr Scanlon, indicating that he could not work. Later in 2004, he was granted Disability Support Pension by Centrelink. On 8 December 2006, Mr Hopkins lodged his claim, effectively for special rate, the subject of this appeal.
14. Mr Hopkins was referred to the Veterans’ Vocational Rehabilitation Scheme on 19 February 2007 and on 16 March 2007 he received advice to the effect that he was unsuitable for their services. Mr Hopkins said that it was not until receiving this report that he concluded that he was unable to work.
15. Mr Hopkins told the Tribunal that after his fall at his parents’ home in February 2004, he believed he could work, although he would need some physiotherapy to do so. He said that he requested a referral from Dr Scanlon for physiotherapy, but that his requests were refused. Mr Hopkins said that although he held the belief that physiotherapy would allow him to return to the workforce, he believed that it was important not to change doctors as to do so might adversely affect his claim.
16. Mr Hopkins said that if he had been successful in obtaining employment, he would have immediately attended the Repatriation General Hospital for physiotherapy.
17. Mr Hopkins said that his referral to the Veterans’ Vocational Rehabilitation Scheme in February 2007 indicated that he always intended to resume employment and that consequently it was not until he was rejected by that service on 16 March 2007 that he considered he had ceased to engage in remunerative work.
18. Mr Hopkins said that he had contracted pneumonia during his naval service, but fully recovered and after leaving the Navy had never had any problems with his respiratory system. When referred to numerous sickness certificates provided by Dr Scanlon indicating, amongst other things, that he suffered from chronic obstructive airways disease and a shortness of breath, Mr Hopkins said that he had never read any of those medical certificates which he supplied to Centrelink prior to his Disability Support Pension being granted. Mr Hopkins re-iterated that he had never suffered a shortness of breath.
19. Mr Hopkins was then referred to a Work Capacity/Participation Assessment Report prepared for Centrelink and signed by Mr Hopkins on 13 October 2004. That report referred to Mr Hopkins as suffering from chronic obstructive airways disease which was considered by the author of the report to be permanent as his symptoms were likely to persist. The report referred to Mr Hopkins describing increased shortness of breath and having major difficulties with performing activities of daily living. The report indicated that Mr Hopkins was able to mow the lawn at a steady, slow pace, but indicates that he does become short of breath and has to break the activity over two days to mow the front and back lawns. Mr Hopkins said that he cannot recall meeting the author of this report. He suggested that if he did indicate that he needed two days to mow his lawns, it was due to the size of the lawns, not due to any shortness of breath. The report went on to indicate that Mr Hopkins’ impairment rating was 15 points.
20. Mr Hopkins was then referred to the reasons for decision in relation to an earlier claim for special rate, drawn by the Veterans’ Review Board on 12 December 2005. The final paragraph on page 6 of that report reads as follows:

“The Board pointed to an ability to work report completed by his LMO, Dr J Scanlon, on 16 June 2005 (folios 72 to 75). In that report she lists a number of non-accepted disabilities suffered by the applicant. Mr Hopkins said the main factors preventing him from working were his back and knees and breathlessness caused by his bronchiectasis. ...”

21. Mr Hopkins confirmed that he had told the VRB that breathlessness caused by his bronchiectasis was one of the reasons preventing him working, however he said that at no time had he suffered from breathlessness. He said that he told the VRB that he had as he thought that it was expected of him. He then suggested that he had a cold at the time. Mr Hopkins agreed that he had told the VRB something which he considered to be untrue.

CONSIDERATION

22. In considering the application of s 24(1)(c) of the VE Act, the Tribunal refers first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:

“1. What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity?”

23. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
24. The time at which the assessment under s 24(1)(c) is to be made is not the date when an applicant gave up work; the entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; Repatriation Commission v Braund [1991] FCA 422; (1991) 23 ALD 591.
25. As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial: Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J. Finally, the remunerative work must be substantial remunerative work which the veteran has effectively performed: Starcevich (supra) at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569.
26. I consider that the type of remunerative work which Mr Hopkins had been performing was that of clerical/electronics technician.
27. The second question in Flentjar is whether Mr Hopkins, by reason of his defence caused conditions, is prevented from continuing to undertake the type of work which I have found is relevant. I have considered the report of Dr Bird dated 23 November 2007, as clarified in a report dated 19 February 2008, indicating that Mr Hopkins’ accepted disabilities are themselves sufficient to prevent Mr Hopkins from working eight hours or more per week. I have also considered a report of Dr Graham Long, Occupational Physician, dated 3 November 2008 which is consistent with Dr Bird’s report. I find that Mr Hopkins is prevented by his war-caused conditions from undertaking remunerative work for eight hours or more per week.
28. As mentioned, I am required to make a finding as to the date Mr Hopkins ceased to engage in remunerative work. This will normally be the date that an applicant last worked. I accept however, that in some circumstances a person’s last date of work performance may not be considered the date he ceased to engage in remunerative work. It may be, for instance, that a person’s mode of employment is to engage in a series of contracts with different principals. Simply because one contract comes to an end and another has not yet commenced, does not mean that the person has ceased to engage in remunerative work.
29. Deputy President Jarvis commented in Re Smith and Repatriation Commission [2004] AATA 1223 at paragraph 41 as follows:

41. However, in my view it could not be said that Mr Smith had ceased to engage in remunerative work within the meaning of s 24(2)(a)(i) at the time when he was discharged from the RAAF. In applying this paragraph of the VE Act, the first step is to identify the time when the veteran has ceased to engage in remunerative work. As mentioned above, it is clear from the authorities that it is not appropriate under s 24(1)(c) to consider the cessation of particular employment with a particular employer. In my opinion, under s 24(2)(a) it is necessary to consider whether a state of affairs has been reached where it can be said that the veteran is no longer engaged in remunerative work. ...” The case of Re Smith is not on all fours with that of Mr Hopkins. In Re Smith, Deputy President Jarvis found that Mr Smith had not ceased to engage in remunerative work following his dismissal from the RAAF. In that case Mr Smith later found other employment. In Re Reilly and Repatriation Commission (AAT 3455, 13 May 1987) a decision of Deputy President R A Layton, Dr D A Dowie and Mr R B Rogers (Members), the Tribunal held that: “In considering the date of such cessation, in the case of a person who is employed by a third party, the date of cessation of employment may be easier to distinguish than in the case of a self-employed person, because with the former, there is either a resignation, retirement or dismissal. With a self-employed person, the date of cessation of employment may be the date of the winding up of a partnership or company, or it may be the date when the applicant last performed duties or it may be the date when the decision is made not to continue with activities. The relevant date should be a matter of fact finding.”

31. Mr Hopkins argued that he did not cease employment on 28 November 2003, that is the date he last worked due to a redundancy, but rather he ceased to engage in remunerative work on 16 March 2007, when he received a report from the Veterans’ Vocational Rehabilitation Scheme indicating that he was not suitable for their services.
32. Mr Hopkins argued that he continued to apply for jobs subsequent to his redundancy. He referred to sending at least 100 applications for employment between 28 November 2003 and 25 February 2004.
33. Mr Hopkins said that he destroyed all of his job applications as he did not wish to confuse any of those applications with subsequent applications which he may need to record on Centrelink application for payment forms. Mr Hopkins said that he did not receive any interviews as a result of all of these job applications.
34. The Commission attacked Mr Hopkins’ credibility. The Commission suggested that Mr Hopkins had manipulated his evidence in order to advance his claim for special rate.
35. Mr Hopkins’ answers in cross-examination to questions dealing with his respiratory function do, in my view, impact adversely upon his credibility. Mr Hopkins admitted telling the VRB, in relation to an earlier claim, that one of the factors preventing him working was “breathlessness”. Mr Hopkins conceded that he had made a statement to the VRB knowing it to be false.
36. I find that the suggestion that Mr Hopkins made over 100 applications for employment between November 2003 and about February 2004 and failed to retain copies of any of those applications, none of which resulted in a job interview, and the suggestion that Mr Hopkins believed that physiotherapy would allow him to return to the workforce, yet he failed to obtain that perceived necessary treatment and his suggestion that he did not read any of the sickness certificates provided by his then general practitioner, Dr Scanlon, and consequently did not note that she had recorded him as suffering from shortness of breath and chronic obstructive airways disease, are implausible.
37. Whether Mr Hopkins did or does suffer from chronic obstructive airways disease did not in itself prove determinative of issues before the Tribunal. However, his admission that he provided evidence which he understood to be false, to the VRB at an earlier hearing, does adversely affect his credibility.
38. In this case, I consider the date Mr Hopkins ceased to engage in remunerative work was the date he last performed work, that is on 28 November 2003. He applied for Centrelink benefits shortly thereafter, provided medical certificates indicating that he could not work and consequently he obtained an exemption for applying for jobs. He was eventually provided with a Disability Support Pension.
39. I have concluded that in this case, as is commonly the case with employed workers, the last date Mr Hopkins performed work (about 28 November 2003) was the date he ceased to engage in remunerative work. It is clear that he ceased to do so because he was retrenched. In these circumstances, s 24(2)(a)(i) of the VE Act applies. This section provides that an applicant shall not be taken to be suffering a loss of salary or wages by reason of incapacity if that applicant “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”.
40. I am also not satisfied that s 24(2)(b) applies in this case, that is the ameliorating provision which applies where an applicant satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, and that he or she would, but for that incapacity, be continuing to seek to engage in remunerative work and that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage.
41. For this last-mentioned section to apply, I must be able to find that Mr Hopkins was genuinely seeking to engage in remunerative work or would be continuing to seek to engage in remunerative work, but for the substantial effect of his accepted disabilities.
42. Mr Hopkins argued that he stood ready to work if he could find employment, until he received the report of the Veterans’ Vocational Rehabilitation Scheme (T33) on 16 March 2007. That is, for a period of a little over three months after the commencement of the assessment period. In relation to this suggestion, I have noted that Mr Hopkins believed that he could only work if he undertook a course of physiotherapy, but failed to do so. Mr Hopkins said that he did not undertake a course of physiotherapy because his then general practitioner, who had been treating him since May 1998, had refused his request for such a referral. His suggested reasoning appears improbable. Mr Hopkins himself said that if he had been offered a job, he would have immediately attended the Repatriation General Hospital in order to obtain physiotherapy. The implausibility of this suggestion, along with the other circumstances of this matter and Mr Hopkins’ concession that he had deliberately misinformed the VRB in 2005, has led me to a view that Mr Hopkins was not genuinely seeking to engage in remunerative work at any time during the assessment period.

CONCLUSION

43. Having found that Mr Hopkins ceased to engage in remunerative work for reasons other than his defence caused disabilities, Mr Hopkins fails to satisfy all of the requirements of s 24(1)(c) of the VE Act and consequently his claim for an earnings related pension fails. The decision under review is affirmed.
    

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

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

Associate

Date of Hearing 17 April 2009

Date of Decision 14 May 2009

Advocate for the Applicant Self-represented

Advocate for the Respondent Mr A Crowe

DVA