Furnell and Repatriation Commission [2011] AATA 149 (7 March 2011)

Last Updated: 8 March 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 149

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos 2009/4724 & 2009/4729-30

VETERANS' APPEALS DIVISION		)
	Re		ANTHONY FURNELL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member K Bean Mr SJ Ellis AM (Member)

Date 7 March 2011

Place Adelaide

Decision

The decisions under review are affirmed.

..............................................
K BEAN
(Senior Member)

CATCHWORDS

VETERANS' AFFAIRS – Veterans' entitlements - Rate of disability pension – Special rate – Application of ameliorating provisions – Veteran must have ceased looking for work in order to satisfy s 24(2)(b) – Veteran has not ceased looking for work – Veteran’s accepted disabilities are not the substantive cause of his inability to obtain remunerative employment – Decisions under review affirmed.

Veterans’ Entitlements Act 1986 ss 19(9), 24
Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625
Re Martin and Repatriation Commission (1987) 13 ALD 83
Conway v Repatriation Commission [2003] FCA 704
Re Hornery and Repatriation Commission [1998] AATA 602; (1998) 52 ALD 317

Fox v Repatriation Commission (1997) 45 ALD 317

REASONS FOR DECISION

7 March 2011

Senior Member K Bean Mr SJ Ellis AM (Member)

INTRODUCTION

1. The applicant, Mr Furnell served in the Royal Australian Navy from 27 July 1968 to 26 July 1989, rising to the rank of warrant officer. As a result of his service he suffers from a number of medical conditions including lumbar spondylosis, post-traumatic stress disorder (PTSD) and a depressive disorder.
2. Following his service, Mr Furnell worked for the Adelaide City Council in a variety of roles, until leaving that employment in June 2001. He has not worked since that time and in October 2004 he first applied for payment of disability pension under the Veterans’ Entitlements Act 1986 (the VE Act) at the special rate. He has made a number of further claims and applications, some relating to liability for particular conditions and some to assessment of his rate of pension, ultimately culminating in the decision of the Veterans’ Review Board (VRB) of 11 September 2009. In that decision the VRB reviewed three separate decisions of the Repatriation Commission (the Commission) and determined that Mr Furnell’s depressive disorder was a defence caused condition, but declined to increase his rate of pension to the special rate. In procedural terms, that outcome resulted from the VRB affirming two of the decisions of the Commission and setting aside one.
3. Mr Furnell has now sought review of that decision by this Tribunal.

PROCEDURAL HISTORY, LEGISLATION AND ISSUES

4. In order to establish that he is entitled to be paid disability pension at the special rate, Mr Furnell must demonstrate that he satisfied all of the requirements of s 24 of the VE Act at one time during the assessment period. The assessment period is defined in s 19(9) of the VE Act as the period commencing on the day a particular claim or application was made and ending on the date that the claim or application is determined. As Mr Furnell has made a number of claims and applications relating to different conditions, it is appropriate that we consider and set out the assessment periods which apply in respect of each of the decisions under review.

Decisions under review and the applicable assessment periods

5. The details of each of the reviewable decisions before us together with the assessment periods to which they relate are as follows:

(a) the decision of the Repatriation Commission (affirmed by the VRB) dated 6 July 2006 relating to a claim lodged on 25 May 2006, being a claim for acceptance of conditions of the right wrist and both big toes. The right wrist condition was accepted with effect from 25 February 2006 and the “big toes” condition was rejected under the name “bi-lateral congenital hallux valgus”. Therefore the assessment period relating to the right wrist condition starts on the date of the application relating to that condition, which is 25 May 2006;

(b) the decision of the Repatriation Commission (affirmed by the VRB) dated 10 November 2006 which flowed from the earliest of the applications, which was lodged on 19 October 2004. This decision continued pension at 100 percent of the general rate, nothwithstanding the decision of this Tribunal that liability should be accepted for lumbar spondylosis. Therefore the assessment period relating to Mr Furnell’s back condition (and the other conditions which were accepted following lodgement of his first claim) begins on 19 October 2004; and

(c) the decision of the VRB dated 11 September 2009 which decided that Mr Furnell’s condition of depressive disorder was defence-caused and that incapacity from that condition commenced on 4 January 2008, but that Mr Furnell should continue to receive disability pension at 100 percent of the general rate[1]. The claim for depressive disorder was made on 4 April 2008 which means that the assessment period in respect of that condition begins on that date.

6. As to the accepted conditions, there is no dispute that they are:

(a) allergic rhinitis;

(b) cataract in the left eye;

(c) displaced left ocular prosthesis;

(d) hypertension;

(e) post-traumatic stress disorder;

(f) alcohol dependence or alcohol abuse;

(g) fracture of the right lower arm;

(h) bi-lateral sensineural hearing loss;

(i) tinnitus;

(j) lumbar spondylosis;

(k) carpal tunnel syndrome of the right wrist;

(l) osteoarthrosis of the right wrist; and

(m) depressive disorder.

Legislation and issues

7. Section 24 of the VE Act relevantly provides as follows:

“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....”

8. The respondent does not dispute that Mr Furnell satisfies ss 24(1)(aa), 24(1)(aab), 24(1)(a), 24(1)(b) and 24(1)(d). Further, Mr Hemsley, who appeared as counsel for the applicant, conceded at the hearing that Mr Furnell does not satisfy s 24(1)(c) other than by relying on the relevant “ameliorating” provision in s 24(2), namely 24(2)(b).
9. It follows that the issue for our determination is whether, at any time during the assessment period, Mr Furnell has satisfied the test prescribed by s 24(2)(b).
10. Breaking that test down into its separate elements, we are required to consider:

(a) whether Mr Furnell has been genuinely seeking to engage in remunerative work;

(b) whether he has ceased to do so; and

(c) if so, whether his war-caused incapacity is the substantial cause of his inability to obtain remunerative work.

11. We propose to consider each of these issues in turn, having regard to the evidence before us and the contentions of the parties.

HAS MR FURNELL BEEN GENUINELY SEEKING REMUNERATIVE WORK?

12. As to the extent of the efforts which must be made by a veteran to satisfy this test, in Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625, the Full Court of the Federal Court said (at [28]):

“The primary judge interpreted the word ‘seeking’ to mean ‘attempting to’ or ‘trying to’. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant ‘do’ something. On the other hand the word ‘genuinely’ is used in the sense of ‘sincerely’ or ‘honestly’. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.”

13. At [30]-[32] the Court also observed that the person must have been genuinely seeking to engage in remunerative work at some time during the assessment period.
14. In relation to his attempts to seek work, Mr Furnell said that he finally left his employment with the Adelaide City Council in June 2001. Immediately after that he was mainly occupied in seeking medical treatment, although he did make some attempts to look for work. He later sought some assistance with obtaining work and approached the Veterans’ Vocational Rehabilitation Service (VVRS) (a service for veterans operated by the Commonwealth Rehabilitation Service (the CRS)) in October or November 2004[2]. After his second interview with the job placement officer however, he fell as he was leaving the VVRS offices and injured his wrist. He said that the two main jobs which had been discussed as possibilities for him prior to this fall were as a car park attendant or cashier. Unfortunately, he said he had not been able to obtain further assistance from the VVRS subsequently as he had not been medically cleared following the fall in which he injured his wrist[3].
15. Nevertheless, after his wrist had healed, he said that he had continued to apply for various jobs he thought he could do and which were not too far from his home in Hahndorf. He said he applied for various jobs advertised in the Mount Barker Courier, and supplied a list of these annexed to his statement[4]. The list provided by Mr Furnell records the details of 18 positions apparently advertised between 4 February 2004 and 11 February 2009. Mr Furnell said in his evidence that he enquired about all of these positions.
16. Mr Furnell also said in his evidence that he had received an offer of work at a

property known as “The Tenmile” in September 2007. He also supplied a copy of a letter from “The Tenmile Pty Ltd” which was annexed to his statement[5] and dated 24 September 2007.

17. As to the circumstances in which he received this letter, he explained in his evidence that he knew the family who ran the property, the Tomneys, and would see them socially from time to time. He said before he received the letter, from Lawrence and Mary Tomney, they had telephoned him to see if he was willing to come out to the property and work as a driver. He said that he told them he was not able to, for reasons connected to his accepted conditions, but they sent the letter in any event. When he received the letter, he phoned them and explained again that he was unable to accept the offer as his licence had been downgraded and he had “a crook back”[6].
18. In relation to Mr Furnell’s evidence as to his attempts to seek remunerative work, the advocate for the respondent, Mr Crowe, conceded and we also accept that his approach to the VVRS and his applications for the jobs listed in the annexure to his statement constituted genuine attempts to seek employment for the purposes of s 24(2)(b). Mr Crowe also submitted that the offer of employment from “The Tenmile” did not appear to have been the result of any approach by Mr Furnell and was therefore not properly considered to be an example of an attempt on his part to seek remunerative employment. We accept that submission and it follows that we consider Mr Furnell’s genuine attempts to seek work are limited to his approach to the VVRS and his applications for various positions between 2004 and 2009 as detailed in the annexure to his statement.

HAS MR FURNELL STOPPED SEEKING TO ENGAGE IN REMUNERATIVE WORK?

19. Mr Crowe submitted that in order for his claim to succeed, it was necessary for Mr Furnell to establish that he had stopped seeking remunerative work, as well as that the substantial cause for his inability to obtain remunerative employment was his accepted incapacity. Mr Crowe did not direct us to any authorities in support of that proposition, however as a matter of construction and logic, we consider it to be correct.
20. We note that s 24(2)(b) is intended to ameliorate the effect of the “alone “ test by permitting veterans who are unemployed but for whom their war-caused incapacity is the substantial cause of their inability to obtain employment, to qualify for the special rate of pension. As the Tribunal noted in Re Martin and Repatriation Commission (1987) 13 ALD 83:

“If s 24(2)(b) were not in the Act, veterans who had been unemployed at the time when their incapacity became so severe as to remove their capacity for work would never be able to qualify for pension at the special or intermediate rate.”

21. It must follow however from the terms of the provision and the context in which it operates that the veteran is no longer seeking remunerative work as well as being unable to obtain it. It would be an odd result for a veteran to be found to qualify for the special rate of pension, notwithstanding that he or she was continuing to seek paid employment.
22. Further we consider this proposition to be consistent with the observations of Dowsett J in Conway v Repatriation Commission [2003] FCA 704 at [8] as follows:

“ As I understand par 24(2)(b), there must be an inquiry as to whether or not the relevant applicant has been genuinely seeking to engage in remunerative work in the past, that is prior to his becoming incapacitated for the purposes of s 24. Then it is necessary to enquire whether or not he would be continuing to seek to engage in remunerative work had he not been incapacitated, and whether the incapacity is the substantial cause of his inability to obtain remunerative work. The "genuinely seeking" test relates to the work history of the applicant rather than to efforts which he might make after he becomes incapacitated. Although the construction of the section is not an easy matter, this appears to have been the view taken by the Tribunal in Re Hornery and Repatriation Commission [1998] AATA 602; (1998) 52 ALD 317 at 331. I consider it to be correct.”

In the decision expressly approved by Dowsett J in Conway, Re Hornery and Repatriation Commission [1998] AATA 602; (1998) 52 ALD 317, the Tribunal said (at [332]):

“Section 24(2)(b) refers to a veteran who "has been genuinely seeking to engage in remunerative work" and in the Tribunal's view, this being a special provision to ameliorate s.24(1)(c) insofar as its effect is that the alone test there does not apply, it was intended to apply where the veteran's genuine and active pursuit of work, that is, his or her efforts to obtain work were brought to an end by incapacity from war-caused injury or disease. By saying that, the Tribunal does not mean to say that incapacity from war-caused disease or war-caused injury must have supervened at such time as the veteran was seeking on a daily or weekly basis to find work but in the Tribunal's view it must supervene at such a time as the veteran can properly be said to have been genuinely seeking to find remunerative work, with there being "some objective signs of active pursuit of remunerative work" (Re Bonner above)).”

23. We therefore accept Mr Crowe’s submission that, in the circumstances of this matter, before we can be satisfied that Mr Furnell qualifies to be paid disability pension at the special rate, we must be satisfied that he has ceased seeking to engage in remunerative work.
24. Turning to the evidence before us on this question, it is apparent from the list of positions attached to Mr Furnell’s statement that he has been seeking to obtain employment as recently as 11 February 2009. In his statement, he said:

“Notwithstanding all of that, I have continued to try and obtain work. I have applied for a number of positions and I attach hereto a handwritten summary of the positions that I have applied for over the past few years. Separately I have also approached businesses with the possibility of employment.
I have applied for employment in positions that I thought that I could fulfil and work categories that I thought that I could do.
I have applied for those at times when those advertisements have appeared and I have applied at times when I feel well enough to apply for work.”

25. In his oral evidence, the following exchange occurred between Mr Hemsley and Mr Furnell:

“And have you – other than the list that you supplied, have you applied for any other jobs? --- Only when I see them, you know, by walking in. But most of the time when you walk in, they are very – someone has – you know, has taken them or – you know, at least for what I got around ... anyway. They get taken pretty quickly....”[7]

26. Later in his evidence however, the following further exchange also occurred between Mr Furnell and Mr Hemsley:

“Mr Furnell, if you were able to would you be working today? --- Yes.
Is there anything else that you can point to that would indicate that to the Tribunal? --- Well, I would quickly hurry back to the CRS and – and hunt around for a position that is suited, and that is for sure. At the moment I just sit and watch the grass grow.”[8]

27. In the most recent medical report which is before us, the report of Dr Long, Occupational Physician, dated 25 May 2009, he records the following by way of background in relation to Mr Furnell:

“He said that he thought he could obtain alternative employment of a simpler nature (eg security work), but found that he was unable to obtain subsequent employment in spite of the assistance of CRS and job seeking agencies.”[9]

28. On the evidence which is before us therefore, there is a degree of uncertainty as to whether Mr Furnell has in fact ceased seeking to engage in remunerative work. Mr Furnell did not expressly say that he had in his evidence and in order to find that he had ceased seeking to engage in remunerative work, we would need to infer this from some of the statements he made in his evidence, such as the exchange with Mr Hemsley quoted at paragraph 26 above. In written submissions provided after the hearing at the request of the Tribunal, Mr Crowe conceded that he could “see how such an inference can be drawn”[10]. In his further written submissions, Mr Hemsley noted that this concession supported the applicant’s case[11].
29. There are a number of matters however which emerge on the evidence and detract from our confidence in drawing such an inference. One is that in his exchange with Mr Hemsley, Mr Furnell said that if he felt fit enough he would “hurry back to the CRS”. He also made it clear in his statement and oral evidence however that, although he had not been able to obtain assistance from the CRS since injuring his wrist, that had not stopped him from looking for work. There is a degree of inconsistency therefore in him saying on the one had that if he felt well enough to work he would “hurry back to the CRS” and on the other that he had been actively looking for work without any assistance from the CRS between 2005 and 2009.
30. Another difficulty is that in addition to Mr Furnell’s own statement, that he was looking for work as recently as February 2009, Dr Long’s report of May 2009 also suggests that Mr Furnell still felt able to work at that time. Further, not only has Mr Furnell not said clearly that he has ceased looking for work, there is nothing in the material before us to suggest that there has been a deterioration of his health since early 2009 such as would cause him to stop looking for work.
31. We note that whilst there is no onus of proof on the applicant, we are required by the VE Act to determine all issues relevant to his eligibility for disability pension at the special rate to our “reasonable satisfaction”[12].
32. Whilst there is some material before us which would support a conclusion that Mr Furnell has ceased looking for work, on balance having regard to all of the material, we are not reasonably satisfied that he has in fact stopped looking for work.
33. In case we should be wrong in reaching that conclusion however, it is appropriate that we proceed to consider whether, assuming he has ceased looking for work, Mr Furnell’s war-caused disabilities are the substantial cause of his inability to obtain remunerative work.

ARE MR FURNELL’S ACCEPTED DISABILITIES THE SUBSTANTIAL CAUSE OF HIS INABILITY TO OBTAIN REMUNERATIVE WORK?

34. Whilst the “substantial cause” test is not as strict as the “alone test”, it has been held that:

“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.”[13]

35. In relation to factors other than his accepted disabilities which appear to have played some part in Mr Furnell’s inability to obtain employment, it is relevant in our

view that in a report completed in October 2004, a rehabilitation consultant from the VVRS stated as follows:

“Employment prospects for Mr Furnell appear limited, given his age, physical and psychological barriers and the fact that he has not worked for more than three years and his work capacity is unclear.”[14]

36. Assuming Mr Furnell ultimately stopped looking for work in approximately mid 2009, it is relevant in our view that he was five years older by this time and had been out of the workforce for five years longer than he had at the time this report was completed. We accordingly consider it reasonable to infer that both his age and time out of the workplace played some role in his inability to secure employment while he was still seeking it. In addition, we note that whilst Mr Furnell cited his accepted disabilities as the reason that he was not able to pursue a number of employment opportunities, when he was first asked in examination-in-chief why he had not been successful in obtaining the jobs he had sought over recent years, the following exchange ensued between he and Mr Hemsley:

“And do you know why any of those jobs were unsuccessful for you?---Most of them were taken up by young school kids, you know, with stable hands and that.

And it was at that time that you spoke to the Tomneys about the work as a driver?---Yes. Yes. But that would have been pretty easy really, but – excepting I didn’t have a licence and all that.

And have you - other than the list that you supplied, have you applied for any other jobs?---Only when I see them, you know, by walking in. But most of the time, when you walk in, they’re very – someone has - you know, has taken them or – you know, at least for what I got around ..... anyway. They get taken pretty quickly. I don’t mention too much of my hand but.”[15]

37. We note that this evidence is consistent with what Mr Furnell appears to have told Dr Long in May 2009, that is that he still felt that he could do some work but had been unsuccessful in his attempts to secure work of the type he felt he could do.
38. In addition, whilst we accept that Mr Furnell made genuine attempts to seek employment in the period 2004-2009, it appears to us on the evidence that his attempts to secure employment during this period were somewhat half-hearted. For example, he has not recorded any positions that he applied for in 2005 and he has only recorded applying for one position in 2006 and two in 2007. It appears to us that the fact Mr Furnell did not pursue very many employment opportunities over that five year period has also contributed to him being unsuccessful in securing employment.
39. In summary, we consider that a variety of factors have combined to prevent Mr Furnell from obtaining remunerative work. Those factors have included the fact that many of the jobs he applied for had already been taken, his age, his length of time out of the workforce and the fact that he only looked for or applied for work somewhat sporadically. Whilst Mr Furnell’s accepted disabilities clearly made it more difficult for him to secure remunerative employment and significantly restricted the positions he could apply for, we consider that the other matters we have referred to also played a sufficiently significant part that it could not be said that Mr Furnell’s accepted disabilities were “the substantial cause” of his inability to secure remunerative work during the applicable assessment periods.
40. We do not consider this to be an example of a case in which a veteran’s accepted disabilities have “supervened” so as to prevent him from continuing to seek employment. Rather a variety of factors including his accepted disabilities have combined to prevent Mr Furnell from being successful in obtaining employment, despite his efforts to do so (and assuming for present purposes that those efforts have now ceased). We do not consider however Mr Furnell’s accepted disabilities to have been “the substantial cause” of his failure to obtain employment.

CONCLUSION

41. We have concluded that although Mr Furnell was genuinely seeking remunerative work in the period 2004-2009, he does not meet the requirements of s 24(2)(b) of the VE Act as he has not in fact ceased to seek remunerative work. Even if we are wrong in that conclusion and he has ceased looking for remunerative work, we have also concluded that his accepted disabilities are not the substantial cause of his failure to obtain employment, and he fails to satisfy s 24(2)(b) of the VE Act for that reason.

DECISION

42. The decisions under review are affirmed.
    

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

and Mr SJ Ellis AM (Member)

Signed: ............J Coulthard............................................

Associate

Date of Hearing 26 August 2010

Date of Decision 7 March 2011

Counsel for the Applicant Mr G Hemsley

Solicitor for the Applicant Graeme D Hemsley

Advocate for the Respondent Mr A Crowe

DVA

---

[1] T42/166
[2] Transcript 26.8.10 at p 22, T26
[3] Transcript 26.8.10 at p 23
[4] Exhibit 6
[5] Exhibit 6
[6] Transcript 26.8.10 at p 47
[7] Transcript 26.8.10 at p 24
[8] Transcript 26.8.10 at p 51
[9] T3/304
[10] Respondent’s submissions 13 January 2011
[11] Applicant’s submissions 28 January 2011
[12] s 120(4)
[13] Fox v Repatriation Commission (1997) 45 ALD 317 at 319
[14] T26/113
[15] Transcript 26.8.10 at page 24