Aitken and Repatriation Commission - [2000] AATA 124

DECISION AND REASONS FOR DECISION [2000] AATA 124

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N97/1494 & N97/1495

VETERANS' APPEALS DIVISION )

Re HUGH AITKEN
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date22 February 2000
PlaceSydney

Decision      The decision under review is set aside the matter is referred back to the respondent for reconsideration and re-calculation of the applicant's pension having regard to these reasons.
  (Sgd) BJ McMahon
  ..............................................
  Deputy President
CATCHWORDS

VETERANS' ENTITLEMENTS – disability pension claim – post traumatic stress disorder – whether the special rate applies – whether incapable of undertaking more than eight hours work per week – whether or not genuinely seeking to engage in remunerative work – the application of impairment points – reassessment

Veterans' Entitlements Act 1986 ss 24(1)(aa); 24(1)(ab); 24(1)(b); 24(1)(c); 24(2)(b)

Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

In November 1995, the applicant applied for a pension under the Veterans' Entitlements Act 1986 in respect of conditions subsequently diagnosed as lumbar spondylosis, irritable bowel syndrome, bilateral sensorineural hearing loss and post traumatic stress disorder with anxiety state. On 13 June 1996 a delegate of the respondent allowed the claim in respect of all these conditions except for lumbar spondylosis. This decision was affirmed by the Veterans' Review Board on 20 August 1997. The Board also affirmed the delegate's determination that the applicant was entitled to a Disability Pension at 60% of the general rate. The Board did not address the question of special rate, as the applicant did not attain the 70% degree of incapacity as required by subsection 24(1)(a).
The applicant does not seek a review of the determination relating to his lumbar spondylosis. It is now conceded that this condition is not relevantly caused by or connected with his periods of operational or eligible defence service. The applicant seeks review of the assessment in relation to all the other accepted disabilities.
At the hearing, a concession was made that, in view of the report of Dr Burns obtained by the respondent and dated 10 December 1999, the degree of incapacity should be accepted at 70%. That being so, the applicant now satisfies the pre-conditions of subsection 24(1)(a).
Although questions were raised by Dr Lewin, a psychiatrist who gave evidence on behalf of the respondent, questioning the diagnosis of a post traumatic stress disorder, the respondent does not seek to review the determination of its delegate and accepts that the condition is relevantly connected with the applicant's service.
The applicant joined the Royal Australian Navy at the age of 17 in May 1961. It was his first job. He was to remain in the Navy for the next 20 years as a result of successive periods of enlistment.
During his service, he made three trips to Vietnam. He recalled one incident when his ship was ambushed in shallow water and received fire for over four hours. Some personnel on the ship were injured. One of his colleagues had his chin blown off. The applicant wrapped his face in a towel until the victim could be properly treated. The incident had a lasting effect on the applicant. He said he frequently remembers it or dreams about it. Sometimes it comes back monthly, sometimes every night. At the time, it instilled a fear of returning to Vietnam.
He did, however, two more tours of duty on H.M.A.S. Perth and H.M.A.S. Sydney and remembers distressing scenes at the wharf.
In the meantime, he was proceeding up the ladder of promotion. After the third tour he was a Chief Petty Officer and had an easier job. He decided to renew his enlistment as he went through the ranks to the position of Warrant Officer, assisting the Chief Engineer. He had hoped to achieve Commissioned rank and had planned to stay in the Navy until age 55. After the last re-enlistment in 1981, however, he found that he was unable to work in the small office that was provided for him and was unable to obtain an alternative posting. Consequently, he resigned.
During his service over 20 years he acquired a range of skills and experience in the engineering area. He received instruction and training in the use of machinery, undertook TAFE and university equivalent courses and learned basic welding and carpentry skills. In addition, while in Australia between tours of duty in the 1960s and after his return, he was involved in the instruction of others in the use of machinery and undertook management courses. His duties required him to supervise and liaise with others. This all occurred in the disciplined environment of the Navy. At the time he was discharged he was based at Naval Headquarters at Potts Point where he satisfactorily performed the duties of a warrant officer and had a comfortable working relationship with his supervisor.
On leaving the Navy, nevertheless, he wished to get away from people and decided to acquire a dairy farm at a remote area in the Nambucca Valley. He went there, he said, because "I could not control my temper". He was to stay there until the farm was sold in March 1998.
He married his first wife in 1966. This lasted for some 12 years. In Mr Aitken's opinion, the marriage broke down because his wife was "terrified of my temper". He remarried early in 1981 when he bought the farm. That marriage also did not last because (in Mr Aitken's view) of the applicant's violent temper. He then continued to work the farm on his own. A woman who had an adjoining farm came to live with him in 1982. They are still together although, according to Mr Aitken, she too has suffered from his temper and has said that she also will be leaving soon. Mr Aitken added that he regularly fights with his children.
He said that he worked on the farm for 18 years without ever taking a day off. He had no social life. During that time he found that he continued to suffer from bad temper. On one occasion, he took this temper out on a cow by striking it and breaking its leg. On another occasion, he attacked a hen which had left its eggs and wrung its neck. He agreed that both actions were quite stupid but blamed his uncontrollable temper.
His psychiatric condition causes clammy hands and causes him to feel "uptight very often". He feels that it is somehow associated with his irritable bowel syndrome. He has not been to a movie since he left the Navy because he does not like going into crowds or confined spaces.
In addition to these accepted disabilities, however, his back condition contributes substantially to his level of discomfort. He said that it stopped him lifting heavy objects. He sees a chiropractor every fortnight. Although his back affected his work on the farm, he managed to cope, he said, by relying on good neighbours, his sons, and sometimes a contractor.
He said that he had looked for other work but the evidence does not support a purposeful pursuit of employment. Mr Aitken had not actually applied for any job. He said "I can't take orders since the end of my Naval career".
He had six children aged 13, 14, 15, 17, 20 and 23. Four of them are still at school. He bought a run down house on a new property, which he continues to renovate. He also carries out the household chores. He spends at least one and half-hours each day feeding and watering the chickens and cleaning their living area. He finds that looking after poultry has a therapeutic effect.
He now asserts that it was only his temper which forced him to sell the farm. He said that by the time he finished in the Navy his temper was "quite bad". His marriage had already broken up by then. Since leaving the Navy he said that he had sought help for his temper. He used a variety of phrases indicating that he had good and bad days. The evidence does not show, however, a major move for the better or worse in the level of his temper.
The dairy farm started with 30 cows. By the time he sold it, he had 100. Machinery included mechanical milkers, which he could handle. He had no technical problems in operating the farm. He considered that his hours as a dairy farmer were long and arduous but were satisfying. The farm has always run at an accounting loss. The applicant has lived off the cashflow, putting surplus cash into equipment.
The farm was on the market for four years. There were many lookers – at least one a month. There were not many cash offers however. Mr Aitken considered that the farm was worth $700,000. He was only able to receive the highest offer of $500,00 for a long time. Finally he received a price which he was satisfied to take.
The first task is to determine whether the applicant is entitled to the special rate provided by section 24. It is now agreed that he has met the preconditions of subsection (1)(aa) and (aab). The question, therefore, is whether his incapacity from accepted disabilities alone is of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. In considering this question, regard must be had to the factors set out in section 28, namely the vocational trade and professional skills, qualifications and experience of the applicant and the kind of remunerative work which a person with those skills might reasonably undertake.
His training in the Navy resulted in a wide range of acquired skills and experience. Even now the applicant has a significant level of functioning. In my view, he has a residual capacity for remunerative work for more than eight hours per week.
If he is unable to do this work then it is not solely because of his accepted disabilities. The principal incapacitating condition is his psychiatric condition. This manifests itself in an increase in his level of anger and a corresponding need to seek isolation.
The evidence relating to the level of his anger varied during the course of his cross-examination. However, it is clear that it had not stopped him from working arduously for 17 years and from functioning since March 1998 at a reasonably high level. He certainly has the capacity to function at a higher level if one has regard only to his accepted disabilities.
Even on the applicant's medical evidence, however, any functional disability is significantly caused in part by his non-accepted disability, namely the lumbar spondylosis. Dr Baz conceded that the applicant's back injury (he was involved in a motor cycle collision which contributed to his back injury outside his service career) was such that it significantly interfered with his ability to milk the cows, operate a tractor, clear land, erect fencing and bring in the hay. These are significant tasks in running a dairy farm. That evidence alone would be sufficient, in my view, to preclude the applicant from entitlement under subsection (1)(b) because it could not be said that any incapacity was due to his accepted disabilities alone.
That being so, it is not strictly necessary to consider the remaining paragraphs of subsection (1).
Paragraph (c) is, however, related in that any loss of earnings which the applicant could demonstrate must be attributed to accepted disabilities alone. For the above reasons, I do not accept that this is the case.
It was also apparently accepted by the applicant that his lumbar spondylosis played an important part in his incapacity. Evidence which he submitted to the respondent in support of his original claim relating to lumbar spondylosis alleged that this was an incapacitating condition. On two occasions he alleged to the Department that it was his back condition which prevented him from continuing to do more than 20 hours work per week and which would result in him selling his farm. This is consistent with contemporary histories which he gave to his orthopaedic surgeon, Dr Hefner. Statements made in support of his claim for pension in respect of his back condition do not cease to be true because the claim is unsuccessful.
It is not necessary to show that an inability to work for the required period is primarily or principally due to a non-accepted disability, nor is it necessary to show that any loss of earnings is primarily or principally due to that cause. If either of these situations arise because of a contribution of a non-accepted disability, then the applicant is disqualified from payment at the special rate. Measurements of contributions should not be "made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide" (Cavell v Repatriation Commission 9 AAR 534 at 539). Common sense, as well as the history of the applicant's claim and the evidence of doctors called in support of his claim, all point to the importance of his back condition in his recent work history. I do not accept his evidence that his earlier attempts to blame the back for his incapacity were caused by shame and his reluctance to admit that it was his temper which caused him to sell the farm. That might be a reason for rationalising actions in general conversation. It is not a convincing reason to explain statements in official documents, which now run contrary to the applicant's account of causes.
The applicant is unable to rely on the ameliorative provisions of subsection 24(2)(b) as there is no evidence that he was "genuinely seeking to engage in remunerative work". Accordingly, the requirements of section 24 have not been made out. The only matter left for determination is the appropriate percentage of the general rate to be applied to his pension.
There is some agreement between the parties in the levels of determinants but a good deal of disagreement as well. In relation to the applicant's bilateral sensorineural hearing loss, it does not appear to be an issue that the relevant impairment rating is 4. The respondent is prepared to accept that an impairment rating of 5 is appropriate for his irritable bowel syndrome in view of evidence that emerged during the course of the hearing. The principal dispute concerns the way in which impairment rating for his post traumatic stress disorder should be assessed.
In applying the Guide to the Assessment of Rates of Veterans' Pensions, there was agreement as to the impairment rating in four of the tables, namely, ratings of 10 for Table 4.2, 5 for Table 4.6, 3 for Table 4.7 and 3 for Table 4.8. The applicant alleged a rating of 2 for Table 4.3, which was not dealt with or controverted by the respondent. I am prepared to accept it as appropriate.
In relation to Table 4.1, dealing with subjective distress, Dr Baz gives a rating of 15 whereas Dr Burns gives a rating of 10. Examples of subjective distress are given at the foot of the Table. On the evidence, there is a level of anxiety, fear, depression, flashbacks, intrusive thoughts, loss of concentration and nightmares but not hallucinations. In my view, the evidence is more consistent with Dr Baz's ratings than Dr Burns' and I would agree to an impairment rating of 15 for Table 4.1.
In relation to Table 4.4, dealing with functional loss, Dr Burns gave a rating of 5, whereas Dr Baz gave a rating of 8. Dr Baz's assessment involves an assertion that the applicant is unable to work. For the reasons I have given I do not accept this to be the case. The view of the Dr Burns, therefore, is to be preferred in relation to this Table.
In relation to Table 4.5, dealing with the applicant's domestic situation, Dr Baz gave a rating of 6, whereas Dr Burns gave a rating of 5 considering that there was only a substantial reduction in social interaction. In view of the evidence given concerning the impending breakup of the relationship between the applicant and his present partner, it seems to me that a rating of 6, dealing as it does with a likely estrangement, is to be preferred.
Lifestyle effects are dealt with in Table 22. The overall impairment rating arrived at by Dr Baz for the applicant was 4 and by Dr Burns for the respondent was 3. This was arrived at by giving ratings of 5, 3, 4, 3 and 5 in the case of Dr Baz for Tables 22.1, 22.2, 22.3, 22.4 and 22.5. The respective ratings given by Dr Burns were 4, 2, 3, 3 and 3. They are therefore at variance in relation to every constituent of the Table except 22.4.
In relation to Table 22.1 I would prefer the assessment of Dr Baz on the evidence concerning the impending breakup of his personal partnership and his relations with his children. In relation to Table 22.2, I would prefer the rating of Dr Burns of 2 rather than 3, in view of the evidence that the applicant is able to, and regularly does, drive a motor vehicle. In relation to 22.3, the evidence favours a rating of 4 rather than 3 in my view, particularly the evidence that the applicant is unable to see movies or enter a closed space. In relation 22.4, I will accept the rating of 3 agreed by both parties. In relation to Table 22.5, I do not accept that the applicant is unable to work for reasons which I have given and accordingly, Dr Burns' assessment of 3 rather than of Dr Baz of 5 is to be preferred.
It will be necessary to calculate the rate of pension payable having regard to these findings of impairment. In view of the concession by the respondent that at least 70% is appropriate, the decision under review will need to be re-visited. I therefore propose to set it aside and to refer the matter back to the respondent for reconsideration and re-calculation of the applicant's pension having regard to these reasons.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:      J. Healy            .....................................................................................
  Jacqueline Healy, Associate
Date/s of Hearing  13 December 1999
Date of Decision  22 February 2000
Solicitor for Applicant               R.L Whyburn & Associates
Counsel for the Respondent    Mr R Beech-Jones
Solicitor for the Respondent    Ms C Spiers