Pritchard v Repatriation Commission [2004] FCA 44

FEDERAL COURT OF AUSTRALIA

Pritchard v Repatriation Commission [2004] FCA 44 ADMINISTRATIVE LAW – judicial review – whether the Tribunal failed to take into account a relevant consideration – whether there was no evidence to support the findings of the Tribunal – whether the Tribunal applied the incorrect onus of proof Veterans Entitlements Act 1986 (Cth) ss 24(1)(c), 44 Repatriation Commission v Hendy [2002] FCAFC 424 Applied

ROBERT McNEILL PRITCHARD v REPATRIATION COMMISSION Q13 of 2003 KIEFEL J BRISBANE 3 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q13 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER BELL

BETWEEN: ROBERT McNEILL PRITCHARD

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 3 FEBRUARY 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The applicant is to pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q13 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER BELL

BETWEEN: ROBERT McNEILL PRITCHARD

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

JUDGE: KIEFEL J

DATE: 3 FEBRUARY 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 Prior to 11 September 1998 the applicant had been in receipt of a disability pension which was assessed at 100 per cent of the General Rate provided for under the Veterans Entitlements Act 1986 (Cth) ('the Act'). On 15 September 1998 the respondent refused his application for an increase in that pension. The Veterans Review Board affirmed that decision on 14 April 1999. The application to the Administrative Appeals Tribunal (the 'Tribunal') for review of that decision was unsuccessful. On 15 January 2003 the Tribunal affirmed that decision. That issue before the Tribunal was whether the applicant qualified for a pension at the Special Rate. 2 Section 24 of the Act provides in relevant part: '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 It was conceded before the Tribunal that the applicant satisfied the requirements in ss 24(1)(a) and (1)(b) and that the respondent had suffered a loss of salary or wages that he would not have suffered if he were free of his incapacity. The Tribunal did not consider, with respect to s 24(1)(c), that the applicant was prevented from continuing to undertake remunerative work by reason only of his war-caused injuries or diseases. 4 The Tribunal noted that the applicant's service-related disabilities included muscle contraction headaches, post traumatic stress disorder, bilateral sensori-neural hearing loss with tinnitus and psychoactive substance abuse or dependence. His disabilities which were not service-related included diabetes mellitus which had resulted in an amputation below his right knee in November 1996, problems with his eyesight and hypertension. 5 The applicant was discharged from the Army in September 1980 after twenty-one years service which included service in Vietnam. In January 1982 he obtained employment as a Janitor Groundsman at the Currajong State School. He ceased that work on 8 July 1996. His duties in that position included garden maintenance, which involved the use of a ride-on mower and tractor, moving furniture and refuse bins and repairs to equipment. The mowing formed a substantial part of his duties, taking up to four or five days of his week. In the last 15 to 18 months of his work he said that he had been experiencing severe headaches twice a week and they had increased to one a day at the time of his retirement. The effect of the headaches was to reduce his productivity. He was also affected in his mood and behaviour. He was continuing to experience nightmares and sleep disturbance. 6 The applicant said that he ceased work because of his headaches. He had persevered with his work longer than he should have because he had been advised that he would not receive a pension until he was sixty. He had intended to work until age sixty-five. The evidence of the applicant and the school principal showed that the principal was aware of the applicant's loss of productivity but that he had supported his continued employment and had attempted to accommodate the applicant when he suffered morning headaches. 7 The applicant suffered an injury to his toes a few days after he ceased employment with the school. The complications which developed, as a result of his diabetes, led to the amputation. He has worn a prosthesis since February 1997. His application for an increase in pension was made on 11 September 1998. 8 The period for assessment of the rate of pension commences from the date of application and continues to the time of the decision: s 19(9) and s 19(5C). By this time it is apparent that other factors in addition to the applicant's service-related disorders, which might be seen to affect his ability to continue to undertake the remunerative employment he had previously undertaken. 9 The Tribunal considered that s 24(1)(c) required it: 'to identify the remunerative work undertaken by the applicant and to examine the effect of the applicant's accepted conditions on his ability to do that work. That examination must take place with reference to the applicant's non-accepted conditions and to any other factor that may have an effect on his ability to undertake that work.' 10 The applicant's psychiatric evidence before the Tribunal confirmed that the applicant's stress disorder was both chronic and severe and that it was the cause of the persistent headaches, angry outbursts and the significant interference with his functioning when he was working at the school. The respondent's medical evidence did not differ in substance, although one doctor considered that some symptoms suffered by the applicant, such as memory and cognitive problems, problems with his eyesight and shortness of breath might well be typical of diabetes. That doctor also inferred that the applicant had suffered widespread arterial disease. In the applicant's doctor's view his service-related symptoms alone would prevent him from being able to undertake any future remunerative employment. At the time of his ceasing work, in July 1996, they were sufficient to render him incapable of working more than eight hours a week in his capacity as janitor and groundsman. 11 An occupational therapist gave evidence that because of his amputation the applicant would be slower to carry out the duties he had formerly undertaken and would tire more easily. She considered that he would have difficulty with ladders, uneven surfaces, kneeling and moving furniture up and down stairs. He would need a considerate employer. Modifications could however be made to ride-on mowers such as the provision of hand controls. 12 The Tribunal considered that the remunerative work undertaken by the applicant was that of groundsman/janitor and that his principal duty was to mow fields and grounds. It observed (at pars 54 and 55): '54. In relation to the issue of whether the Applicant is prevented from undertaking the work of a groundsman/janitor by his war-caused conditions alone, the Tribunal is mindful of the effect on the Applicant of his amputation and of the condition that gave rise to the amputation. The report of Dr Richards suggests that it is the Applicant's diabetes or the possible widespread arterial disease caused by the Applicant's diabetes that cause the Applicant's inability to work.' 55. Ms Purse's evidence, in relation to the effect of the Applicant's amputation, was that the Applicant would have "some significant restrictions and he would require the consideration of his employer in the way of providing help with some tasks. His work pace would be slower". She addressed some further specific limitations, but said that he would be able to use a push mower and ride on mower for periods of up to 30 minutes continuously and would be able to operate a tractor with care in relation to the right foot controls. However, it was the Applicant's evidence that using a ride on mower would be a problem because he would not be able to feel the brake pedal. In re-examination, both the Applicant and Ms Purse said that a ride on mower or a tractor could be modified with hand controls.' And at par 56: 'The Tribunal is satisfied, on the basis of the evidence of the Applicant, Dr Richards and Ms Purse, that the Applicant is restricted in his ability to undertake the remunerative work he was undertaking by his diabetes and his consequent right leg amputation. In particular, the Tribunal finds that the Applicant is unable to use a ride on mower or tractor without modifications and would require an employer who is prepared to provide the Applicant with help with some tasks and would tolerate the Applicant working at a slower pace.' 13 The applicant's principal submission before the Tribunal was that the applicant should not be disentitled from a pension at the special rate because of a disability that could be corrected by modifications to equipment in the workplace. The respondent however submitted that there was no evidence to suggest that an employer would undertake these modifications and be tolerant of the applicant's other limitations. The Tribunal found (at par 66-67): 'The Tribunal, having found that the Applicant's amputation has the employment consequences described in paragraph 55 above, considers that the Respondent's submission identifies the correct approach to the question. While it is appropriate for the Tribunal to have regard to accommodations or modifications that can be made to the workplace or to employer expectations or to the equipment to be used that would enable the Applicant to perform the relevant remunerative work, the Tribunal must also be reasonably satisfied that those accommodations or modifications are available. In the absence of any evidence that a relevant employer would be reasonably likely to provide such accommodations, the Applicant's need for them must stand as a factor preventing him from undertaking the remunerative work that he was undertaking. While Ms Purse gave evidence that modifications can be made to ride on mowers and to tractors to equip them with hand controls, and that some machinery is manufactured with hand controls, there was no evidence of the cost of those modifications or of the cost of machinery with those modifications. Similarly, there was no evidence of the preparedness of a relevant employer to provide help to the Applicant or to tolerate his working at a slower pace. 67. The distinction between those modifications that can be made by an applicant, such as corrective lenses, prosthesis and hearing aids, and those modifications that are beyond the control of the Applicant to make, such as modifications to machinery and expectations of productivity, is important to the question of whether the need for the modification has the effect of preventing an applicant from undertaking relevant remunerative work. In this application, the Tribunal considers that the modifications required by the Applicant are significant and beyond his control to make. Without evidence that they are reasonably likely to be made by a relevant employer, the Applicant's need for those modifications in order to undertake the work of a groundsman/janitor serves to prevent him from undertaking that work. Given that the Applicant's need for those modifications arises from his amputation, a non war-caused condition, it cannot be said that it is the Applicant's war-caused conditions alone that prevent him from undertaking the remunerative work that he was undertaking.' 14 The applicant appeals from the Tribunal's decision. The errors of law identified in the Notice of Appeal, and which are pursued, may be summarised: 1. The Tribunal placed an onus of proof upon the applicant to show that an employer would bear the cost of modifications and would tolerate his working at a slower pace. 2. The Tribunal failed to take into account, as a relevant consideration, that there was evidence of a tolerant employer who would assist the applicant in his employment. 3. There was no evidence supporting a conclusion that there were no employers who would be tolerant and make the necessary modifications. 15 The applicant's appeal is limited to questions of law: s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The grounds of appeal are largely concerned with questions of fact, in my view. 16 The second and third grounds clearly relate to the Tribunal's view of the evidence. The applicant's contention is that there was evidence of a benevolent employer in the school principal. The contention is in any event incorrect. All that the evidence showed was that the principal was prepared to accept some limitations on the applicant, a long-term employee, carrying out his duties caused by the symptoms caused by the stress disorder, particularly the headaches. It does not furnish evidence that there are likely to be employers who would make the necessary modifications, arrange for further assistance to be provided to the applicant in the carrying out of some tasks and who would tolerate the limitations on his ability to carry out work as a groundsman janitor caused by his amputation. 17 The Tribunal did not impermissibly place an onus of proof on the appellant to disprove a fact. This ground is in reality a challenge to the Tribunal's finding of fact on the issue whether the applicant's non-service-related disabilities should be seen as affecting his ability to undertake work in his former capacity. The Tribunal was satisfied that these disabilities restricted his ability to undertake that work. It was not satisfied that it was likely that an employer would make the modifications and the concessions necessary to negative this effect. The Tribunal was clearly entitled to come to that conclusion on the evidence. The applicant's argument must be that the Tribunal should not have acted upon the basis that there was no evidence. The starting point for that consideration is not however that some such evidence existed. Faced with the 66 year old veteran with multiple health problems and a disability requiring much more of an employer than might reasonably be expected, the Tribunal was right to require some persuasion as to the scenario the applicant was advancing. 18 The Tribunal was required by s 24(1)(c) to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work: Repatriation Commission v Hendy [2002] FCAFC 424 at [37]. At the point where the applicant ceased work it might have been said that his service-related disorder prevented him from continuing, although there was also evidence noted by the Tribunal that his diabetes was even then playing a part in the difficulties he was labouring under. In any event, as the Full Court observed in Hendy, when a period of time has elapsed after a veteran ceases remunerative work and before the commencement of the assessment period, factors which have then arisen must be taken into account. That is the approach which was taken by the Tribunal. Once it made the findings that the applicant's amputation would prevent him from undertaking some tasks and restrict his ability to carry out his former work, factors sufficient to displace his case for a pension at a special rate were present. 19 The appeal will be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.