Jackson and Repatriation Commission [2009] AATA 449 (22 June 2009)

Last Updated: 22 June 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 449

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/5528

VETERANS' APPEALS DIVISION		)
	Re		DESMOND JACKSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr M Denovan, Member

Date 22 June 2009

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...................[Sgd]...........................
Member

CATCHWORDS

VETERANS’ AFFAIRS – Disability Pension – Meaning of “remunerative work” – Work must continue for more than a very short period – War-caused disabilities not the only factors preventing veteran from continuing to undertake remunerative work – Special rate of pension not payable – Decision affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 24(1), 24(2)

Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1

Jackman v Repatriation Commission (FCA, unreported, No NG521 of 1996, 30 June 1997)

Re Banovich and Repatriation Commission (1986) 9 ALN N223

Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47

Sheehy v Repatriation Commission (1996) 41 ALD 205

White v Repatriation Commission [2001] FCA 1585; (2001) 114 FCR 494

REASONS FOR DECISION

22 June 2009

Dr M Denovan, Member

1. Desmond Jackson, the applicant, served with the Australian Army as a national serviceman. He served on operational service in South Vietnam from 5 February 1968 to 28 May 1968. The Repatriation Commission, the respondent, has accepted liability for posttraumatic stress disorder (“PTSD”), internal derangement of the left knee, bilateral sensorineural hearing loss with tinnitus and lumbar spondylosis.
2. In a decision of the respondent dated 8 November 2007, disability pension was assessed at 100% of the general rate.
3. The applicant applies for review of that decision on the basis that he should be granted payment at the special rate, pursuant to s 24 of the Veterans’ Entitlements Act 1986 (“the Act”).
4. The respondent accepts that s 24(1)(a) and s 24(1)(b) of the Act are satisfied in this matter. The issue before the Tribunal is whether the applicant satisfies s 24(1)(c) of the Act.
5. In order to resolve the dispute in this case, I must:
   • firstly, determine what nature of remunerative work the applicant was undertaking;
   • secondly, determine whether the applicant’s accepted disabilities alone prevent him from continuing to undertake that work; and
   • thirdly, determine if the applicant is suffering a loss of wages or earnings due to his accepted disabilities alone.
6. After having careful regard to the evidence, I have decided that the applicant’s accepted conditions are not the only factors that prevent him from continuing to undertake remunerative work, and that the loss of salary, wages or earnings the applicant experienced is not due to the effects of his accepted disabilities alone. I have therefore decided to affirm the reviewable decision. I explain my reasons below.

LEGISLATION

7. Section 24(1)(c) of the Act provides that in order to receive the special rate of pension, a veteran must be:

“... 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 ...”.

8. Sections 24(2)(a) and 24(2)(b) of the Act are also relevant and provide as follows:

“24(2)(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
24(2)(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”.

THE FACTUAL BACKGROUND

9. The applicant was born in 1945. With the exception of two years of National Service, almost all of the applicant’s employment was with the Postmaster-General’s Department and its successive entities, Telecom and Telstra. The applicant started with this organisation in 1962 and ceased in August 1999, when he accepted a redundancy.
10. In September 1999, the applicant commenced work with Roycliffe Pty Ltd (“Roycliffe”). He ceased working for that company in March 2000.
11. Following cessation of work with Roycliffe, the applicant bought land at South Kolan in Queensland and engaged a builder to build a house there.
12. On 18 August 2005, the applicant applied for service pension on the basis of age.
13. On 1 August 2007, the applicant submitted a claim for “psychiatric condition/s”.
14. Dr Marshall May, psychiatrist, examined the applicant on 1 July 2007 and 2 September 2007 and diagnosed PTSD.
15. In a decision dated 8 November 2007, the Repatriation Commission accepted liability for “post traumatic stress disorder”, and assessed disability pension at 100% of the general rate.
16. On 25 January 2008, the applicant requested a review of that determination (to the extent that it related to the rate of pension), by the Veterans’ Review Board.
17. On 3 November 2008, the Veterans’ Review Board affirmed the determination in respect of the rate of pension.
18. The applicant applied to this Tribunal for review on 24 November 2008.

APPLICANT’S POSITION

19. The applicant claims that his condition of PTSD was the reason he ceased work, first with Telstra and then with Roycliffe. He claims it is due to this condition that he failed to seek work of the same type after his contract with Roycliffe finished.
20. The applicant claims that the reason he was offered a redundancy by Telstra was because he did not get along with people, and that this also affected the grading of his work performance by his superiors. Because he was aware of this he was stressed, and felt that he had no choice but to accept the redundancy offer.
21. The applicant considers that Roycliffe did not extend his contract for similar reasons. He thinks his supervisors at Roycliffe felt there was something wrong with him. As a result of losing two jobs, the applicant claims his PTSD worsened and he was unable to look for further employment.
22. The applicant claims that he worked for a sawmill for three and a half days in 2002, that he was renumerated for his services with goods, and that he was unable to continue this work due to pain that was caused by his lumbar spondylosis. Ms Frizelle, counsel for the applicant, contended that this work should be regarded as remunerative work.
23. Ms Frizelle relied on the evidence of Dr May to support the contention that the applicant ceased work, and has been unable to re-enter the workforce, due to his accepted conditions alone.

CONSIDERATION

24. Counsel for both parties referred me to the decision of Branson J in Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1 at 4-5. There, her Honor said that a proper consideration of s 24(1)(c) of the Act requires 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. 2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. 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. 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 own account that he would not be suffering if he were free of that incapacity?”
   
25. As regards the first question in Flentjar, the applicant told me that he trained to be a linesman and worked in that capacity with the Postmaster-General’s Department from 1962 to 1973. That work involved digging holes, sitting in manholes and running cables. In 1973, he went to training school and in 1975 became an instructor. At that time, his work involved training people in classrooms about how to lay cables. The applicant progressed to computerised systems training and was able to use these skills to perform similar work for Roycliffe after he accepted a redundancy package from Telstra.
26. The applicant said that in 2002, he commenced work at a sawmill, a job he had never done before. He was required to drive a truck and perform heavy labour such as lifting and guiding timber on a sawbench. The applicant was not paid any money for that work, which he performed for three and a half days only. He claims to have received goods in lieu of monetary payment, including wood and other material that he needed for his house. The applicant claims the value of those goods were equal to the value of his labour for three and a half days.
27. I accept the submissions of Mr Kelly, for the respondent, that the type of remunerative work the applicant was undertaking was the use of his skills learned at the Postmaster-General’s Department and its successive entities.
28. I also accept Mr Kelly’s submission that the work performed at the sawmill for three and a half days was not remunerative work.
29. The Full Federal Court in Sheehy v Repatriation Commission (1996) 41 ALD 205 held that, in order to satisfy the requirements of s 24(1)(c) of the Act, a veteran must have successfully performed substantial remunerative work. Past remunerative work does not satisfy the terms of s 24(1)(c) of the Act unless it continued for more than a very short period.
30. The applicant recognised that his physical disabilities may interfere with his capacity to work at the sawmill, even for the required trial period of one week. He was noted by Mr Tim Moodie, his employer at the sawmill, to be limping after two days. He was unable to complete even one week’s work. It cannot be said that he successfully performed the work at the sawmill.
31. Whilst work can be remunerative even if a person is not paid money[1], I am not convinced that the applicant was given goods in specie instead of money earned. Mr Moodie makes no mention of any form of remuneration being given to the applicant for his work.
32. I did not find the applicant a credible witness. His story has evolved over time, and much of his oral evidence at the hearing was inconsistent with his previous statements. The applicant first mentions that he was given wood and other material in his statement dated 26 February 2009. He told the Tribunal that whilst no rate of pay had been discussed with Mr Moodie, the applicant knew him to be a fair man who would have paid him fairly had he been able to perform the work at the sawmill. The applicant did not claim to have made a prior agreement to accept wood and other material instead of money. The owner of the sawmill was a friend of the applicant’s neighbour, and lived in close proximity. The passage of materials to the applicant, if it occurred, could have been for a multitude of reasons. In my opinion, it is not evidence of remuneration. I consider the fact that the applicant was not given any salary or earnings as further evidence that he was unable to complete the work successfully, even for a very short time.
33. The applicant did not perform work at the sawmill successfully and only stayed there for a very brief period. Work at the sawmill cannot, therefore, be regarded as remunerative work that the applicant was undertaking for the purposes of s 24(1)(c) of the Act. Even if the work at the sawmill could be regarded as remunerative work, my decision would not alter, due to the reasons given below.
34. Mr Kelly concedes that the answer to the second Flentjar question is yes. I am satisfied from the evidence before me that by reason of his war-caused conditions, the applicant has (at least since the date of his application for pension) been prevented from continuing to undertake the type of remunerative work which he had previously undertaken at Telstra and at Roycliffe.
35. As the applicant was unable to perform work at the sawmill, it may be accurate to say that his war-caused disabilities prevented him from undertaking that work. However, the applicant was certainly not prevented from continuing to undertake that remunerative activity, as he did not successfully perform the duties for which he was employed for any significant period of time. Therefore, the answer to the second Flentjar question in relation to the sawmill work would be no, even if I had considered that work to be remunerative.
36. The third question in Flentjar refers to the “alone” test in s 24(1)(c) of the Act. The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was explained in Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 at 54-55 [36]- [37] as follows:

“[36] The tribunal’s task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
[37] The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. 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 [sic] 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. ... (H)aving considered any or all of the factors which may have contributed to a 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”.

37. Further on this point, in Jackman v Repatriation Commission[2], Tamberlin J stated that:

“A presumption of continuance is not appropriate to the determination the AAT has to make under s24(1)(c). It is well accepted that the relevant date of assessment is the date of application, not retirement: Banovich v Repatriation Commission (1986) 69 ALR 395. The AAT must make its determination as at the time of application, taking into account all considerations relevant to the specific case in question. Where the application date is close to the retirement date the weight to be given to the applicant’s circumstances at the time of retirement will be greater than in cases, such as the present, where there is a lengthy period of time between the dates. In such cases other significant factors such as age and time out of the work force can become important and relevant considerations: Repatriation Commission v Wilson (1996) 43 ALD 77; Repatriation Commission v Braund [1991] FCA 422; (1991) 23 ALD 591. It is not sufficient for the AAT to be satisfied that at the date of retirement the applicant satisfied s24(1)(c): Braund at 595. This is not the question before the AAT”.

38. The applicant is nearly 64 years old. At the beginning of the assessment period the applicant was nearly 62 years old. Even if the applicant was free of his war-caused disabilities, his lack of recent work experience and lengthy time out of the workforce would likely make it difficult for him to obtain work of a similar nature to that he was performing for Telstra in the later years and for Roycliffe. His age would not necessarily impair his capacity to teach or to perform computer work, however it would certainly reduce his chances of obtaining manual work, such as laying cables.
39. By his own admission, the applicant has not been seeking to engage in remunerative work during the assessment period. Section 24(2)(b) of the Act does not apply to the applicant’s circumstances.
40. For completeness, I will consider the fourth question in Flentjar: whether, if the applicant has been prevented by his war-caused conditions alone from undertaking remunerative work, he has suffered a loss of wages or earnings that he otherwise would not have suffered.
41. This question must be considered by reference to s 24(2)(a)(i) of the Act, which in effect provides that in order to be taken to be suffering a loss of wages or earnings, a veteran must not have ceased to engage in remunerative work for some reason other than the veteran’s incapacity from war-caused conditions.
42. Mr Kelly submitted that because the applicant ceased work with Telstra by accepting a voluntary redundancy package, and then ceased work with Roycliffe when his contract terminated, he has suffered a loss of wages or earnings for reasons other than his war-caused disabilities.
43. As previously stated, I did not find the applicant a credible witness.
44. I accept that the applicant may have felt stressed by the “back stabbing” and other circumstances that he perceived existed around the time he was offered a redundancy package. However, he told the Tribunal that continuing his employment with Telstra would not have been possible because the training center was closing and work of a similar nature was no longer available in Brisbane.
45. The applicant told the Tribunal he considered that his employers at Roycliffe thought something was wrong with him, yet he told the Veterans’ Review Board that he felt those employers were happy with his work performance. The applicant has also stated, on several occasions, that whilst he was not told why his contract with Roycliffe came to an end, he was employed for longer than originally anticipated, and that he thought Telstra had stopped giving work to Roycliffe. I find that the applicant left both Telstra and Roycliffe for reasons other than his service related incapacities.
46. The reference to “remunerative work that the veteran was undertaking” in s 24(1)(c) of the Act is to be read as a reference to the type of work that the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223. Had the applicant intended to continue working in a similar line of work after the Roycliffe contract came to completion, and was prevented from doing so due to his war-caused disabilities alone, then he would be regarded as suffering a loss of wages or earnings for the purposes of s 24(1)(c) of the Act. I do not accept, however, that that was the case.
47. Although the applicant knew his contract with Roycliffe was short-term, at no time did he make any attempts to organise future employment. There is no evidence that he had an intention of working after the Roycliffe job finished. I do not accept the applicant’s claim that the loss of the Roycliffe job devastated him, aggravated his PTSD condition and was the only reason he sought no further employment in the same field. There was no reason for him to form that belief, given his initial two month contract was extended until a time he believed that the company had no further work. The applicant told the Tribunal that, had the job at Roycliffe continued to be available, he would still be working there.
48. After finishing at Roycliffe, the applicant purchased property at South Kolan outside of Bundaberg, Queensland. He initially lived in a caravan and then organised the building of a dwelling. The applicant engaged businesses located in Bundaberg to complete this task. It was not until February 2002, when the dwelling had an acceptable level of amenities, that the applicant turned his mind back to finding employment[3].
49. The applicant has stated that whilst he had symptoms he now recognises to be due to PTSD, these did not interfere with his work either at Roycliffe or as a computer systems operator at Telstra because these jobs were very isolated and suited his needs. I do not accept the applicant’s claim that he did not seek to re-engage in similar work to that which he was performing at Telstra or Roycliffe because of PTSD. Dr May opined that PTSD was the reason the applicant ceased remunerative work. In forming this opinion, Dr May relied on the history given to him by the applicant, a history I have found lacking in credibility. Further, as the treating psychiatrist, Dr May possibly lacks objectivity. As Dr May first saw the applicant in July 2007, he is unable to provide contemporaneous evidence. Similarly, there is no contemporaneous medical evidence about the depression condition the applicant claims to have been suffering from at the time he ceased remunerative employment. I note that, at that time, the applicant had separated from his wife and found his financial position compromised after the resulting property settlement.
50. I find that the applicant is not suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of his war-caused incapacities.

CONCLUSION

51. In summary, I am not satisfied that the applicant’s war-caused conditions are the only factors that prevent him from continuing to undertake remunerative work. Also, I am not satisfied that the applicant is suffering a loss of salary, wages or earnings that he would not be suffering if he were free from his war-caused incapacities. Thus, s 24(1)(c) of the Act is not satisfied and the applicant is not entitled to the special rate of pension.
52. The Tribunal affirms the decision under review.
    

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member.

Signed:..................[Sgd]............................................................

Mátyás Kochárdy, Research Associate

Date of Hearing 15 May 2009

Date of Decision 22 June 2009

Counsel for the Applicant Ms A Frizelle

Solicitor for the Applicant G Couper Solicitors

For the Respondent Mr J Kelly, Departmental Advocate

---

[1] White v Repatriation Commission (2001) 114 FCR 494.
[2] FCA, unreported, No NG521 of 1996, 30 June 1997.
[3] T4, folios 92-93.