Willis and Repatriation Commission [2011] AATA 67 (8 February 2011)

Last Updated: 29 March 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 67

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2009/2907

VETERANS' APPEALS DIVISION		)
	Re		PETER ROBERT WILLIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms Regina Perton and Dr Roslyn Blakley, Members

Date 8 February 2011

Place Melbourne

Decision

The Tribunal affirms the decision under review.

..................[sgd]............................
Member

VETERANS’ AFFAIRS - pension at special rate – whether war-caused conditions alone cause of inability to work – reason why applicant stopped working – decision affirmed

Veterans’ Entitlements Act 1986 ss 24(1)(a)(b)(c), 24(2)(a)

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

Forbes v Repatriation Commission [2000] FCA 328; (2000) 101 FCR 50

REASONS FOR DECISION

8 February 2011

Ms Regina Perton and Dr Roslyn Blakley, Members

1. Peter Willis, who is 60 years old, served in the Australian army for four years and nine months which included operational service in Vietnam. Mr Willis currently receives a service disability pension at 100 per cent of the general rate. He suffers from multiple medical conditions, of which post-traumatic stress disorder (PTSD), bilateral sensorineural hearing loss, bilateral tinnitus, tinea and alcohol dependence have been accepted by the Repatriation Commission (the Commission) as having been war-caused.
2. Mr Willis is seeking a special rate pension, which is a higher rate of pension paid to a working-age recipient who is unable to work due to his accepted disabilities alone.
3. Mr Willis lodged a claim for special rate pension on 30 August 2007. On
   12 September 2007, the Commission decided that Mr Willis’s rate of pension should remain at 100 per cent of the general rate and that he was not eligible for a special rate of pension because he did not cease work due to his accepted war-caused disabilities alone. On 15 April 2009, the Veterans’ Review Board (VRB) agreed with the Commission. Mr Willis then lodged an application for review of the VRB decision with this Tribunal on 25 June 2009.
4. In deciding whether Mr Willis is eligible for pension at the special rate, the Tribunal needs to consider:
   • Is Mr Willis unable to work for more than 8 hours per week?
   • When and why did Mr Willis stop working?
   • Do Mr Willis’s accepted war-caused conditions alone prevent him from working?

IS MR WILLIS UNABLE TO WORK FOR MORE THAN 8 HOURS PER WEEK?

5. There are differing views among the witnesses as to whether Mr Willis is unable to undertake remunerative work for more than 8 hours per week. There is expert evidence suggesting that he is incapable of doing so while other expert evidence points to him being capable of working for 8 to 12 hours per week. If the Tribunal finds that he meets the “alone” test, the Tribunal would then examine whether special or intermediate rate payments are appropriate.

WHEN AND WHY DID MR WILLIS STOP WORKING?

6. Mr Willis provided a statement dated 24 March 2010 and gave oral evidence. He stated that he left school at the age of 15 years. After leaving school, Mr Willis worked in a small supermarket. He then worked for a butcher before joining the army at the age of 17 years and 9 months.
7. Mr Willis served four years and nine months of his original six year enlistment. He completed basic training at Kapooka, then infantry training at Holsworthy.
   Mr Willis served in Vietnam as an infantry soldier where he saw active service including coming under enemy fire. His duties included stretcher-bearer. After his operational service, he was posted back to Holsworthy as an instructor. He stated that he found it difficult to settle back into a peacetime army and was playing up, drinking too much, including with the recruits. After two years at Holsworthy, he took early discharge as it was not in the interest of the services for him to continue.
8. After leaving the army, Mr Willis initially worked stacking bricks and in a die casting factory. He said that he could not handle living in the city. So he decided to travel to Mildura where he was able to obtain work grape picking, pruning and replanting vines and harvesting oranges. He lived in a humpy for some time and in a caravan in the nearby bush. He described himself as a loner. He estimated that he stayed in the Mildura area for about a decade.
9. Mr Willis then moved back to Melbourne in around 1984. He worked for a time in the concrete pipe industry. However he developed dermatitis in his hands and also found it hard to deal with his fellow workers. Mr Willis then obtained work at Toyota as a machine operator. He became a shop steward in the multi-ethnic workforce. He found this stressful as he was involved in an award restructure then taking place. He also had difficulty with the lack of work ethic of some of the workers. After two and a half years at Toyota, he took a voluntary departure package.
10. He then lived and worked in the Yarra Valley for the next decade.
    He obtained work as a foreman at a vineyard for about four and a half years. However, he found himself increasingly unable to handle the stress and demands of the work. He argued with the manager over a number of issues and eventually the owner of the vineyard terminated Mr Willis’s employment.
11. Mr Willis then worked for a small goods manufacturer as a seasonal labourer for about four years, working for about six to eight months of the year. Mr Willis injured his neck and shoulder after a fall at home and was unable to work for three months or so. In the meantime the small goods manufacturer closed down. He then cut lawns and did some handyman work for the next 18 months or so obtaining contacts through the local bowls club. He was paid in cash and worked for about
    15 to 18 hours per week.
12. Mr Willis stated that just before he started receiving the disability pension at the 90 per cent rate, the house which he had rented cheaply was sold and he moved to a two-man tent by the Yarra River for about 15 months. His health worsened at that time.
13. After a suggestion from his former platoon commander around Anzac Day 2000, Mr Willis moved to Swan Reach near Bairnsdale in search of cheaper rent and better available support for veterans. In his statement, Mr Willis stated that he had not been able to regain sufficient health to cope with work. He indicated that he still tried to do the odd job from time to time but the effects of that work were draining to the point where he needed a minimum of a days [sic] rest after only a couple of hours of work.
14. Mr Willis stated that he now lives on an organic farm managed by Wayne Cunningham. Mr Cunningham’s parents own the farm. Mr Willis pays $110 per week for the house. He said that he maintains his house and garden and helps
    Mr Cunningham at times of need. One of the tasks he did was to drive a truck next to the tractor in the paddock when Mr Cunningham was harvesting lucerne. He said that he was quite nervous when doing that task. He also helped with assisting in the maintenance of wheatgrass that Mr Cunningham was growing although that product is no longer produced. For a time he helped feed the free range pigs on the farm but stopped doing so as he became too attached to the pigs destined for slaughter.
    Mr Willis said that he still helps out when Mr Cunningham is stuck but there is now a female employee who does most of the tasks that Mr Willis did.
15. Mr Willis said that his stress levels can rise quickly and then he needs to withdraw and try and quieten down. He said that his level of drinking varies, tending to rise with his stress levels. Mr Willis said that he does not sleep well or deeply. He usually wakes after about two hours unless he takes sleeping pills or drinks.
16. Mr Willis told the Tribunal that he does not help out Mr Cunningham each day but is happy to help out when he needs it. He said that he has done a lot of work in his garden and keeps chooks. He said that when he helps out Mr Cunningham he is given poultry food, tyres for his car, milk and the like. Mr Willis grows his own vegetables and gives some of his produce and eggs to others.
17. Mr Willis said that he had always wanted to be a farmer. He said that he thinks he would be capable of physically working at somewhere like Toyota if it were not for his nerves. Mr Willis said that there is not a great deal of work in the area as many of the farms are now being subdivided into hobby farms and mechanization was cutting down on labour requirements. Mr Willis said that he did a week’s trial as a supermarket night stacker before starting at Toyota but he could not handle the quota system or the night shift work.
18. Under cross-examination, Mr Willis stated that he was renting his house for less than market rental. Mr Willis said that he had been unemployed since 1996 but later qualified that with saying it may have been 1998. He said that he had not directly applied for any jobs as a farm labourer since moving to Swan Reach but that Mr Cunningham and Mr Cunningham’s friends knew about him. He said that there are few jobs around. He said that he is not in the correct demographic nor does he have the appropriate qualifications now sought for organic farming. He said that he could not manage computer operated tractors nor could he use a computer.
    Mr Willis said that he has attended some seminars on organic farming and applied it to his own backyard but he was no expert in that area.
19. Mr Cunningham provided statements dated 15 March 2010 and 20 August 2010 and gave oral evidence. He stated Mr Willis has been living in a cottage on the land he farms for about 7 years. The rent is paid to Mr Cunningham’s father.
    Mr Willis had previously lived in a house on a farm owned by Mr Cunningham’s cousin. Mr Cunningham indicated that there had been periods where Mr Willis had done some work for him for an hour or two a day. There is no formal agreement for Mr Willis to work for Mr Cunningham. The activities included tending sprouts in a hothouse, driving a truck on the farm, spreading hay and feeding pigs.
    Mr Cunningham said he rewarded Mr Willis with provisions from the farm such as a pig every few months for eating. Mr Willis also receives milk, butter, and cream.
    Mr Willis gives Mr Cunningham vegetables, chickens, and eggs. Mr Cunningham said that they are neighbours helping each other out.
20. Mr Cunningham said that Mr Willis no longer feeds the pigs or drives the truck. He indicated that when Mr Willis’s mental state is good, he can do light duties well. However, Mr Willis is not reliable. Mr Willis might be fine one day but then not come out of the house for days. Mr Cunningham said that he would not allow
    Mr Willis to use machinery apart from the truck. Mr Cunningham has now employed a female farm worker who undertakes most of the tasks previously done by Mr Willis.

DO MR WILLIS’S ACCEPTED WAR-CAUSED CONDITIONS ALONE PREVENT HIM FROM WORKING?

21. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:

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

22. Both parties agree that Mr Willis meets s 24(1)(a) of the Act. The Tribunal concurs. Mr Willis receives a pension at 100 per cent of the general rate.
23. In relation to s 24(1)(b), Dr Holwill and Dr Horsley (see paragraphs 34 to 36) are of the opinion that Mr Willis meets this requirement. Dr Strauss (paragraph 37) believes that he could work for up to 12 hours per week in limited circumstances.
24. Dr P J White of Yarra Junction reported in April 1999 that Mr Willis was not fit for any work for which he is reasonably trained. Dr Anthony P Sheehan, psychiatrist, reported in April 1999 that Mr Willis had last worked two years earlier and was now unable to work and was totally and permanently incapacitated.
    Dr Scott Dellar of Bairnsdale reported on 24 December 2001 that Mr Willis would be unable to work at all due to his accepted war-caused conditions.
25. Remunerative work is defined in s 5Q of the Act:

remunerative work includes any remunerative activity.

26. Remuneration is defined in the Oxford English Dictionary (on-line) as:

Reward, recompense; (now usually) money paid for work or a service; payment, pay.

27. In deciding whether Mr Willis is incapable of undertaking remunerative work for more than 8 hours per week, his activities on Mr Cunningham’s farm need to be considered. Activities such as feeding pigs or driving a truck next to the tractor harvesting lucerne could attract remuneration. The Tribunal is satisfied that Mr Willis was doing so to help out a neighbour rather than for income purposes. He did not receive moneys in return for his assistance to Mr Cunningham. They used a barter type system. Even though Mr Willis no longer helps out very much, he and
    Mr Cunningham still exchange produce, with Mr Cunningham providing milk to
    Mr Willis and Mr Willis providing vegetables and chickens to his neighbour.
28. Counsel representing both parties put the view that Mr Willis’s activities in helping out Mr Cunningham did not constitute remunerative work. The Tribunal accepts that Mr Willis is unable to work more than eight hours per week on the basis of his war-caused conditions. He therefore meets s 24(1)(b) of the Act.
29. The parties disagree as to whether Mr Willis meets s 24(1)(c) of the Act. Section 24(1)(c) and its qualifying provision, s 24(2)(a) state:

...
(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...
(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.

30. In Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1, Branson J set out the issues posed by s 24(1)(c) in a series of 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 own account that he would not be suffering if he were free of that incapacity?

31. In respect of question 1, Mr Willis’s work history is set out earlier in these Reasons for Decision. The Tribunal finds that the remunerative work undertaken by Mr Willis included labourer, process worker, foreman and handyman.
32. In respect of question 2, as stated above, the Tribunal accepts the evidence that Mr Willis is now prevented from working more than 8 hours per week due to his accepted war-caused disabilities, including PTSD. So the answer to question 2 is yes.
33. There are also other factors to be taken into account in relation to Mr Willis’s employability apart from his accepted war-caused conditions. The Tribunal notes the comments of Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50:

[39] ...The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition.
[40] ...it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.

34. Dr Brendan J Holwill, consultant psychiatrist, examined Mr Willis in December 2009. In his December 2009 report to Mr Willis’s solicitor and his oral evidence to this Tribunal, Dr Holwill expressed the opinion that Mr Willis’s accepted war-caused psychiatric conditions prevent him from working for more than 8 hours per week in structured employment. The history he took was that Mr Willis ceased work in approximately 1998 because of an injury to the shoulder and neck but that these had resolved. Dr Holwill noted that Mr Willis was not having any formal psychiatric treatment. He said that it would have been preferable for him to have ongoing psychiatric and psychological treatment. He noted that many people with untreated PTSD liked to live in an isolated location such as that preferred by Mr Willis over the years. When told of the tasks he had undertaken for Mr Cunningham, Dr Holwill said that if one looked at the duties themselves, Mr Willis could do them intermittently but the picture presented was not one of someone employable in any sense.
35. Dr Robyn Horsley, occupational physician, provided a report to Mr Willis’s solicitor in December 2009 and gave oral evidence. She stated that Mr Willis stopped working with a neck injury that radiated into the right shoulder girdle. After three months of treatment, he was ready to return to work but the small goods manufacturer employer had closed down. Dr Horsley noted that conditions other than the accepted war-caused conditions included intermittent back pain which affects his walking tolerance. His sitting tolerance varies from 15 minutes when his back is irritable to all day. Mr Willis also suffers from a bilateral foot condition which could potentially impact on his work capacity depending on the nature of the work and the amount of standing and walking required in the role. He told Dr Horsley that he prefers to avoid stair and hill climbing.
36. In her report, Dr Horsley stated that she believed that Mr Willis’s PTSD and alcohol dependence has had a significant impact upon his capacity to work but she relied on her psychiatric colleagues for expert opinion on that matter. Dr Horsley also noted that Mr Willis’s educational background is limited to Year 9. He has no computer skills or formal qualifications. She stated that his foot condition reduces his walking tolerance and this could impact on the nature of the work he can do.
37. Dr Nigel Strauss, consultant and occupational psychiatrist, prepared a report in December 2009 for the Department of Veterans’ Affairs. He was not called to give evidence. Dr Strauss stated that he had no doubt that Mr Willis suffers from PTSD and alcohol dependence and that he had a partial incapacity for employment on psychiatric grounds. Dr Strauss expressed the opinion that Mr Willis could not work for more than about 10 to 12 hours a week. He could not work in a factory and could only do agricultural work in a relatively isolated environment.
38. In respect of question 3, Mr Willis has emphasized the impact of his accepted conditions on his inability to work. However, when Mr Willis stopped working for the smallgoods factory, it was because of his neck and shoulder injury and then the closure of the factory. He has admitted his inability to walk long distances and dislike of hills and stairs. He left school after year 9 and has no formal qualifications. He does not know how to use a computer. He lives in a relatively remote area and has told the Tribunal that there is little work available. He is now 60 years of age. He has not been in the workforce since ceasing work around 1998.
39. The Tribunal is not satisfied that Mr Willis’s accepted war-caused disabilities are the only factors preventing him from working for more than 8 hours per week during the assessment period. His time out of the workforce, his age, his lack of education and inability to use computers or computerised farm equipment as well as his physical limitations in walking long distances are all factors preventing him from undertaking remunerative work of the types he has previously done. His location in a remote area is also a factor. The answer to the third Flentjar question is therefore no.
40. The Tribunal finds that Mr Willis ceased work with the smallgoods manufacturer due to problems with his shoulders, neck and elbow, which are not war-caused conditions. His attempts at working as a gardener were hampered by his lack of qualifications leading to an inability to get insurance. After stopping work, Mr Willis received a disability pension and a service pension for more than a decade. The Tribunal finds that Mr Willis fails to satisfy s 24(2)(a) of the Act.
41. The Tribunal is not satisfied that Mr Willis genuinely sought work after his move to Swan Reach. Helping out his neighbour with tasks on the land abutting his does not meet the test for genuinely seeking work. He has not formally applied for any positions. Mr Willis stated that Mr Cunningham’s friends were aware that he could help them out if needed but that does not constitute seeking work. Furthermore, there is no evidence that anyone sought him out to work for them. The Tribunal finds that Mr Willis does not meet any of the criteria set out in s 24(2)(b) of the Act.
42. Mr Willis fails to meet the criteria in s 24(1)(c) of the Act. Mr Willis is therefore not eligible for payment of a pension at a special rate.

DECISION

43. The Tribunal affirms the decision under review.
    

I certify that the forty-three [43] preceding paragraphs are a true copy of the reasons for the decision of:

Ms Regina Perton and Dr Roslyn Blakley, Members

... ... ... ... ... ... ... [sgd]... ...... ... ... ... ... ... ... ... ...

Kate Conners Associate

Dates of hearing: 24 & 25 August 2010

Date of decision: 8 February 2011

Counsel for applicant: Mr C Thomson

Solicitor for applicant: Peter J Liefman

Counsel for respondent: Mr G Purcell