Young and Repatriation Commission [2009] AATA 349 (15 May 2009)

Last Updated: 18 May 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 349

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5620

VETERAN'S APPEALS DIVISION		)
	Re		ROBERT LEWIS YOUNG

Applicant

And

REPATRATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 15 May 2009

Place Sydney

Decision

The Decision under review is Set Aside and this matter Remitted to the Respondent with the Direction that the Applicant is entitled to pension at the Special Rate pursuant to Section 24 of the Veterans Entitlements Act (1986) as and from 31 July 2006.

....................[sgd]........................
M D Allen
Senior Member

CATCHWORDS

VETERAN ENTITLEMENTS: Application for Special Rate pension - Veteran ceased work but then sought to re-enter the workforce because of family responsibilities following second marriage - Not disentitled by earlier voluntary retirement - Ability of Tribunal to reduce rate of pension in an application for review by the Veteran.

LEGISLATION

Veteran’s Entitlements Act (1986) : Ss 24(1) & (2); S 28; Ss 120(4) & (6)

CASE LAW
Re Beasley and Repatriation Commission [2009] AATA 237
Repatriation Commission v Smith (1987) 15 FCR 327
Fox v Repatriation Commission (1997) 24 AAR 527
Cavell v Repatriation Commission (1988) 9 AAR 534
Australian Securities and Investments Commission v Donald [2003] FCAFC 318; (2003) 136 FCR 7
Re Staffieri and Commonwealth of Australian (1986) 10 ALN; N36

Chambers v Repatriation Commission (1995) 36 ALD 207

REASONS FOR DECISION

Senior Member M D Allen

1. By application lodged the 19th day of November 2007, the Applicant sought review of a decision by the Respondent made the 7th day of February 2007 which increased his Disability pension to 100% of the General Rate but declined to increase it to the Special Rate.
2. The criteria for the grant of pension at the Special Rate are set out at section 24 of the Veteran’s Entitlements Act (“the VEA”) and read inter alia:

“24 Special rate of pension
(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.”

3. Pursuant to s 19 of the VEA, the date at which the Applicant’s claim for a Special Rate pension is to be assessed is the date his claim was received by the Respondent. In this matter, pursuant to Ss 21(2) of the VEA, the application day in this matter is 31 July 2006.
4. Ss 120(4) of the VEA mandates that the Respondent, and hence this Tribunal, shall decide the Applicant’s claim to its “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327, the Full Court of the Federal Court equated the term “reasonable satisfaction” to that of the civil standard proof, namely, proof on the balance of probabilities. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.
5. In considering what remunerative work the Applicant might undertake, s 28 of the VEA provides:

“28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”

6. As was pointed out by Davis J in Chambers v Repatriation Commission (1995) 36 ALD 207 at 210 :

“Paragraphs 28(8)(b) should be applied not technically or restrictively but sensibly and fairly with a view to ascertain the kinds of remunerative work which the veteran might reasonably undertake absent the war-caused injury or disease. Work experience is a guide but it does not delimit that ambit. In the examination of the matters which arise under paragraph 28(c), matters other than skills, qualifications and experience are taken into account. Every fact which bears upon the nature and extent of the physical and mental impairment of the veteran must be taken into account. And so also must every fact which bears upon the extent to which the physical and mental impairment has reduced the veteran’s capacity to undertake remunerative work of the kind which the veteran might reasonably undertake.”

7. Subsection 21A(1) of the VEA states inter alia that the degree of incapacity of a veteran from any war-caused injury or disease shall be determined according to the provisions of the approved Guide to the Assessment of Rates of Veteran’s Pensions (“GARP”). Paragraph 24(1)(a)(i) of the VEA then goes on to provide that to be entitled to pension at the Special Rate a veteran must have a degree of incapacity that has been determined to be at least 70% under the GARP.
8. In these proceedings, the Respondent submitted that the degree of incapacity occasioned to the Applicant by his sole war-caused disease of bilateral sensorineural deafness with tinnitus was to be determined pursuant to the said guide at 60% only.
9. This submission was made notwithstanding that a delegate of the Respondent had on 7 February 2007 determined that the Applicant was entitled to pension at 100% of the General Rate.
10. In Re Staffieri and Commonwealth of Australia (1986) 10 ALN; N36, the Tribunal held that once an application for review has been made, the whole of the decision is subject to review. If the whole of the decision is subject to review by the Administrative Appeals Tribunal (“AAT”) then it necessarily follows that the Tribunal, possessing all the powers of the decision maker (Cf ASIC v Donald [2003] FCAFC 318; (2003) 136 FCR 7) can review the rate at which pension was granted to the Applicant and decrease as well as increase that rate.
11. Paragraph 31(6)(a) the VEA makes clear that the Repatriation Commission (and hence this Tribunal upon review) has the power to revisit a decision and reduce the rate of pension payable. That the Tribunal can reduce the rate at which pension is paid is also envisaged by Ss 178(1) of the VEA which reads inter alia:

“(1) Where, on a review of a reviewable decision, the decision of the Administrative Appeals Tribunal expressly, or in effect:
...
(d) reduces the rate of a pension;
...”

12. The basis for the Respondent’s submission that the Applicant was entitled to pension at only 60% of the General Rate was the report and evidence of Dr Hooper an ear, nose and throat (“ENT”) surgeon . Dr Hooper’s evidence, as set out in his report of 12 November 2008, was that audiograms performed in 2001, 2003 and 2006 gave invalid results.
13. That the 2003 audiogram gave an invalid result is confirmed by the audiologist who carried out that test, Mr Lewis. In his report of 15 August 2003 he states:

“ The audiogram is not considered valid. The speech discrimination results, stapedial reflex, TEOAEs and Robert’s functional level would indicate better hearing thresholds then presented.”

14. In evidence, Mr Lewis was quite positive that the Applicant did not perform the hearing tests to the best of his ability as the results of a Transient Evoked Otoacoustic Emissions test (an objective physiological test of inner ear function) were inconsistent with the audiogram.
15. Neither Dr Hooper nor Mr Lewis were able to say what the Applicant’s hearing loss might have been as at July 2006. Dr Hooper did concede in cross examination that he was not in a position to say how bad the Applicant’s hearing was but that he did know that the Applicant has a severe hearing loss in the high range.
16. In evidence to the Tribunal, Mr Lewis referred to a report by Clinica Henson of Angeles city following an Auditory Brainstem Response test carried out on 4 December 2008 which stated:

“Threshold estimate were suggestive of severe hearing loss at 2-4 kHz. Bilateral”

and opined that that report was not inconsistent with the results obtained by ENT surgeon Dr Wells in 2002. Referring to the results obtained by a Dr Felix in his testing in 2006, Mr Lewis doubted the accuracy of those results given the 2002 results.

17. I am satisfied from the above evidence that the results of various hearing tests, including the test by Dr Felix relied upon by the Delegate of the Respondent to found his decision of 7 February 2007 are inaccurate.
18. On the other hand it is conceded by the Respondent’s witness, Dr Hooper, that the Applicant has a severe hearing loss in the high range. Dr Wells acknowledged that the Applicant does have significant tinnitus and that any assessment of the severity of that condition is subjective.
19. Although neither party has any onus of proof in these proceedings, to reduce the Applicant’s rate of pension to below 70%, I must be reasonably satisfied that the correct assessment according to the GARP is below that percentage.
20. As pointed out by Mr Turner, the Applicant’s solicitor, none of the Respondent’s witnesses could say what the Applicants degree of hearing loss was as at the application day. In these circumstances, I cannot be reasonably satisfied that as at that date the degree of incapacity suffered by the Applicant was below 70%.
21. In considering whether the Applicant meets the criteria for pension at the Special Rate as per s 24 of the VEA, the crucial question is whether the Applicant’s inability to engage in remunerative work is attributable to incapacity from war-caused injury or disease alone.
22. As to the “alone” test, Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 said that the true task of the Tribunal was:

“... to make a practical decision whether the veteran’s loss of remunerative work was attributable to his service-related incapacities and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality and as a matter in respect of which common sense is the proper guide.”

23. The Applicant’s evidence was that he was born on the 18th July 1943 and entered the Royal Australian Navy in February 1962. After discharge from the Regular Naval Forces of the Commonwealth in 1971, he was employed by General Motors originally as a personnel officer and then as an industrial officer. He also had a period of service in the Naval Reserve. The Applicant left General Motors in 1980 and was the company secretary of a company in Albury. That company went into liquidation so the Applicant then assisted his wife in running a florist business in Port Douglas from 1990 to 1994. In particular he was responsible for the book-keeping of the business. In 1994 he commenced work as a limousine driver in Port Douglas until he was forced to stop driving because of his retinal detachment.
24. The Applicant made a claim to have retinal detachment accepted as a war-caused injury but that claim was refused. A claim for the payment of Service pension on the grounds of invalidity made at that time was also refused.
25. Subsequently the Applicant’s retinal detachment was rectified and he commenced work as a tourist bus driver for a Port Douglas company trading as Express Chauffeured Coaches and Limousines (“Express Coaches”) in about 2000.
26. Although the Applicant has referred to himself in other documents as a tourist coach driver, his evidence was that he was employed in driving a small bus transporting tourists between Cairns airport to Port Douglas and return. He ceased work with that company on 18 July 2003, being the date he became eligible for a Service pension on the basis of his age (60 years).
27. Cross examined about the work he did for Express Coaches, the Applicant revealed that whereas he initially obtained work for twenty hours a week for the last 6 months or so of his employment, he was occupied mainly in the company’s yard. His driving was restricted to less than 8 hours a week and he did not work more than 2 days a week, being paid an hourly rate for the time he did work. I find there is much force in the Respondent’s submission that, in fact, the Applicant ceased full time work in 1998.
28. Both in his evidence and in a lifestyle questionnaire completed by him and dated 25 August 2006, the Applicant presented himself as being severely disabled by his hearing loss.
29. I have the utmost difficulty in accepting the Applicant’s evidence as to the extent of his incapacity in that I find that in the past he has made false statements in seeking to obtain benefits under the VEA.
30. When claiming to have his detached retina accepted as war-caused, the Applicant signed a form in which it was stated that the alleged cause of his incapacity was:

“Due to gun-line duties – exposed to exploding shells during Vietnam service”

31. Cross examined, the Applicant conceded that neither of the ships upon which he served whilst in Vietnamese waters were on the gun line nor had they fired their guns at that time. Neither had the Applicant been exposed to exploding shells.
32. Another matter going to the Applicant’s credit is evidence he volunteered with regard to him owning a hotel in Beechworth, Victoria. The Applicant stated that he owned the hotel for 2 years from 1977.
33. In a document lodged with the Respondent and dated 30 October 1998, the Applicant set out his employment history. He confirmed the accuracy of that history early in his cross examination. In particular he stated that as at 1980, he was a senior industrial officer at General Motors at Fisherman’s Bend in Victoria. His work history is that it was in 1980 he left General Motors and became a company secretary for a company in Albury.
34. It was only when being cross examined by the Respondent’s counsel regarding his ability to undertake jobs in the hospitality industry that the Applicant said he had applied for that the Applicant, for the first time, volunteered the information that he had owned an hotel in Beechworth and worked in that hotel. Without more, the dates simply do no correspond and I cannot understand why the existence of the hotel work had never been mentioned by the Applicant until cross examined as to his ability to undertake such work.
35. As stated, the picture given in the Applicant’s lifestyle questionnaire is that of a man severely incapacitated by his hearing loss. This contrasts with the notes of his general practitioner in Port Douglas who, on 3 August 2004, noted:

“active; walks and swims daily”

36. After his retirement from the workforce in 2003 upon receipt of the Service pension, the Applicant continued to live in Port Douglas until in 2006 he relocated to the Philippines where he now lives with his second wife, who he married in 2004, and 2 young children.
37. In his claim for a Service Pension made in July 2003, the Applicant stated that his reasons for ceasing work were:

“Hearing Disability / Retirement Pension”

He stated that at that time it was not his intention to go back to work. That state of affairs has subsequently changed as he now has 2 young children to support and thus he began to seek employment in Angeles city where he now resides.

38. The Respondent submitted that paragraph 24(2)(a)(i) of the VEA defeated the Applicant’s claim for pension at the Special Rate. That paragraph denies a claim for Special Rate if, as in the Applicant’s case, the veteran ceased to engage in remunerative work for reasons other that his war-caused incapacity. In the Applicant’s case, I find that he ceased work because the Service pension was available to him.
39. Notwithstanding the restrictions of paragraph 24(2)(a)(i) of the VEA, I believe that parapgraph does not apply to a veteran who having voluntarily ceased to engage in remunerative work then actively seeks to re-enter the workforce. There may be many reasons why a retired veteran might seek to re-enter the workforce and the Applicant’s case is a very good illustration, namely, the undertaking of responsibilities to a new family. Another example might be veterans who, for a variety of reasons, find they have to support their grandchildren.
40. In circumstances such as the Applicant’s, namely a veteran seeking to re-enter the workforce, I consider that the restrictive effects of paragraph 24(2)(a)(i) are inapplicable and the Applicant in this matter, being under 65 as at the application day, is entitled to the ameliorating provisions of paragraph 24(2)(b) of the VEA.
41. As to those provisions, Kiefel J (as she then was) in Fox v Repatriation Commission (1997) 24 AAR 527 at 529 said:

“The words ‘the substantial cause’ require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it.”

42. The Respondent pointed to other incapacities suffered by the Applicant. Given the Applicant’s evidence corroborated as it was by his current general practitioner, Dr Guzman, I am satisfied that his diabetes mellitus type II and essential hypertension are under control by diet and that his detached retina has been adequately corrected. The only incapacities that affected the Applicant’s ability to engage in employment are his war-caused incapacities of bilateral sensorineural hearing loss with tinnitus.
43. Reference is made in the report from the United States Department of Veteran’s Affairs examination of the Applicant to his suffering from an inability to maintain his balance. This alleged incapacity was explained by the Applicant as resulting from a strict diet which has now been modified however, in any event, I do not see that condition as affecting his ability to work.
44. The Applicant tendered 6 letters from organisations and individuals in Angeles city referring to his applications for employment. The Respondent compared these applications for employment to the manufactured employment applications rejected by the Tribunal (Deputy President Hack) in Re Beasley and Repatriation Commission [2009] AATA 237.
45. Whereas I reject as false and misleading the undated letter from Express Coaches, four of the other letters refer to advertised positions so that I can, and do, draw the inference that there were genuine job opportunities for which the Applicant was not only qualified but was considered. I find the other position, with Opsmiles Angeles, apparently a charity, to also be genuine.
46. The real test is similar to that proposed by Beaumont J in Repatriation Commission v Smith supra at 337 where His Honour said:

“The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities. The starting point is an examination of the prospects of employment, including self employment, in southern Tasmania in early 1985 for a healthy 69 year old plumber.”

47. The letters tendered by the Applicant reveal that for a then 63 (or 65) year old Australian in Angeles city in the Philippines, there did exist remunerative employment which was open to a person of his age and qualifications.
48. I would only state that neither party raised for consideration the Applicant’s residential status in the Philippines although he is, I note, married to a Philippine national, nor was his entitlement to obtain employment in that country raised.
49. Although I believe that the Applicant has not been fully frank in his dealings with the Respondent and his evidence to this Tribunal leaves much to be desired, I am reasonably satisfied that he has genuinely been attempting to engage in remunerative work, and his explanation as to why is compelling, and that the substantial cause of his inability to so engage in remunerative work is incapacity from his war-caused bilateral sensorineural deafness with tinnitus alone.
50. The decision under review is therefore set aside and this matter remitted to the Respondent with the direction that the Applicant is entitled to pension at the Special Rate pursuant to section 24 of the VEA as and from 31 July 2006.
    

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed: ...........................[sgd].....................................................

M Corcoran, Associate

Date/s of Hearing 7 & 8 May 2009

Date of Decision 15 May 2009

Solicitor for the Applicant Turner Coulson

Counsel for the Respondent Mr G Purcell