ALAN CHARLES SAGGUS Applicant v REPATRIATION COMMISSION Respondent
[2005] AATA 1056
•24 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA1056
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/559
VETERANS’ APPEALS DIVISION )
Re ALAN CHARLES SAGGUS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date24 October 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd]........................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS - veterans’ entitlements - special rate of pension - remunerative work - whether prevented from continuing remunerative work
Veterans’ Entitlements Act 1986 s 19, 24
Leane v Repatriation Commission [2004] FCAFC 83
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjarv Repatriation Commission (1997) 48 ALD 1REASONS FOR DECISION
24 October 2005 Ms M J Carstairs, Member 1. Alan Charles Saggus has applied for an increase in the rate of his disability pension. The respondent has assessed Mr Saggus as eligible for payment at the 100% general rate of pension and he now seeks the higher, loss-of-earnings related payment, called special rate.
2. The respondent has accepted Mr Saggus’ conditions of post traumatic stress disorder (PTSD) and carcinoma of the lung (with pneumonectomy) as conditions arising from his war service. The respondent has not accepted that a number of other medical conditions which Mr Saggus has claimed from time to time including lumbar spondylosis, bronchial asthma, tinnitus, depressive disorder, personality disorder and osteoarthritis of the right wrist, are due to his service.
3. Entitlement to the special rate of pension requires, amongst other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than 8 hours per week, by reason of war-caused disability. The respondent says that Mr Saggus is not entitled to special rate for a number of reasons, chief amongst these being that Mr Saggus’ inability to earn is related to physical and/or psychiatric disabilities that are not war-caused. In addition the respondent considers that Mr Saggus’ age and the fact that he would be unattractive to employers because of the length of time since he has been in the workforce, would also play a role.
ISSUES
4. The requirements for special rate of pension are set out in a series of provisions in s24 of Veterans’ Entitlements Act 1986. The parties agreed that Mr Saggus passes some of the tests for entitlement. His general rate entitlement is more than 70%, thus satisfying s24(1)(a) of the Act. The parties agree that he satisfies s24(1)(b) of the Act because he is unable to work more than 8 hours per week by reason of his war-caused disabilities alone. I was satisfied that the concession in regard to s24(1)(b) was properly made in view of the medical evidence in the case. Dr Mulholland, psychiatrist, said that Mr Saggus is not well enough to be in any form of commercial employment and considered that his psychiatric impairment accounted for this on its own (exhibit A1). He said:
The total psychiatric situation with this man is that whilst he could do the odd 2 hours here and there I do not think that there is any way he could work on a regular basis.
5. Dr T Myers, consultant physician agreed, stating that Mr Saggus was unable to work in any capacity.
6. Where the parties disagree is whether Mr Saggus satisfies s24(1)(c) of the Act – which deals with the question of whether Mr Saggus’ loss of remunerative work is attributable to service-related incapacities and not to something else as well.
7. The Federal Court in Flentjarv Repatriation Commission (1997) 48 ALD 1 has said that s24(1)(c) of the Act poses the following questions :
1. What was the relevant "remunerative work that the veteran was undertaking" ..?
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?
8. The operation of s24(1)(c) is ameliorated for those aged under 65 by the provisions of s24(2)(b) of the Act. Section 24(2)(b) permits under 65 year old veterans, who might not have met the special rate tests at the time they ceased working, to retain their eligibility if they are genuinely seeking work and their service-related incapacity remains the substantial cause of the inability to undertake remunerative work.
BACKGROUND
9. Mr Saggus is aged 65 now, but at the time that he applied for this increase in his rate of pension in 1997 he was fifty-seven. Mr Saggus’ age at the time of claiming has significance for two reasons:
§ the Act differentiates between those under and those over 65; and
§ the Act requires that the questions in s24 must be considered during the assessment period which commences from the date the claim was lodged and ends at the time that the matter is determined by the Tribunal: s19(5C)(a) of the Act.
10. Mr Saggus completed schooling to Grade 10 level and left at the age of fifteen. He undertook an apprenticeship as a fitter and turner for two years. He joined the Australian Army at the age of eighteen, and served for six years. After leaving the army Mr Saggus worked as a taxi driver for twelve years (1964 to 1976); as a furniture removalist; as a nightwatchman at Rosehill Racecourse for five years (1976-1981); then in various positions as a bar attendant in hotels and clubs for some four years. Mr Saggus appears to have had two periods of imprisonment for offences of violence, the most recent being in the early 1980’s.
11. In 1985 Mr Saggus worked as an ‘assistant manager’ at St Vincent de Paul Hostel for Homeless Men in Granville, Sydney, where he said he was earning about $250 per week. He left that work due to his ill health. He was then aged about 45 years.
12. Mr Saggus said that he had undertaken no other remunerative work since then, though in his oral evidence he said that in the early 1990’s he decided to learn welding as a way of improving his employment prospects. He said that he had learned aspects of MIG-welding while in prison and had an aptitude for it. He said that, if successful in obtaining work as a welder, he would have relinquished his service pension. He purchased the necessary materials for the course. However Mr Saggus said that his general practitioner, Dr T Salim, told him that he should not undertake welding because of his lung condition. Dr Salim was called to give evidence but he did not have a confident recall about the welding course or of advising Mr Saggus not to undertake it.
13. Mr Saggus now lives at Maroochydore with his third wife and their eleven year old son. He continues to receive service pension and the general rate pension. His life is very restricted because of the extent of his disability, particularly his restricted lung function.
WHAT REMUNERATIVE WORK WAS MR SAGGUS UNDERTAKING?
14. In a vocational assessment dated 1 June 1990 (R4 pp29-30) Ms M Edwards, rehabilitation counsellor, noted that Mr Saggus had lost his taxi driver’s licence as a result of a criminal conviction for assault and was refused a renewal of his licence because of his criminal record. She noted that Mr Saggus had obtained employment as truck driver and as a barman after 1985 but had been put off without explanation after short periods of employment. Her view was:
Disregarding any disability and by virtue of his skills, experience and training, Mr Saggus is capable of taxi driving, manual, unskilled labour. He also had limited experience in security work and experience as a barman both of which would be of moderate physical demand.
15. The evidence was quite unclear about Mr Saggus’ last employment. He said that he worked for St Vincent de Paul Hostel for a wage of some $250 per week, but St Vincent’s said their records did not go back that far to confirm this one way or the other. From the information that Mr Saggus gave in a history to Dr G Robbie, psychiatrist, in 1987 (exhibit R2), it seems that he told Dr Robbie that he does some kitchen hand work and office work although far from full-time. He told Mr M Edwards, rehabilitation counsellor, (exhibit R2 pp29-30) that he worked there as assistant manager from 1980 - 1985.
16. From the evidence the last remunerative work that Mr Saggus was undertaking is best described as hostel work and bar work. He had a background of some nine years in taxi-driving however this was a long time ago and he subsequently lost his licence due to a criminal conviction, so this remunerative activity was precluded to him for other reasons. The best description of Mr Saggus’ remunerative work as referred to in s24(1)(c), given the range of occupations that he has undertaken (apart from taxi driving), is light to moderate unskilled work, in the racing, hotel and hospitality industries.
DID WAR-CAUSED DISABILITY PREVENT MR SAGGUS CONTINUING TO UNDERTAKE REMUNERATIVE WORK?
17. Mr Saggus said that his work in the mid-1980’s at St Vincent’s hostel for homeless men entailed cooking, keeping general order, and manning the office. Mr Saggus lived-in and most work was undertaken at night. He said that this work ceased when he was asked to leave by the Catholic brothers running the hostel, because he could not keep the books accurately and was abusive with the inmates (exhibit A5). Mr Saggus said that his PTSD was the cause of his aggression to the inmates.
18. Mr Saggus said that he lived in the Philippines from about 1986 to 1989 and he told Dr Mulholland that he owned a bar over there but did not work there himself as Australians were not allowed work permits. Mr Saggus was quite vague in his evidence about this period in the Philippines, though he did say that he was leasing the premises and the bar venture ultimately failed. This period was not relied upon in submissions as part of Mr Saggus’ history of remunerative work.
19. The evidence of Dr Myers and Dr Mulholland, which I accept, supports an affirmative answer to the first of the questions as posed in Flentjar.
IS WAR-CAUSED DISABILITY THE ONLY FACTOR PREVENTING MR SAGGUS UNDERTAKING REMUNERATIVE WORK?
20. Mr Saggus has not worked in Australia since about 1985, perhaps 1987, the date of his ceasing work being unclear and not consistently reported by Mr Saggus. Mr Saggus appeared to struggle with his memory when he was giving his evidence, though I accept that he was doing his best to recall events that occurred some time ago. The documentary materials did not clear up the discrepancies, as, throughout, Mr Saggus has reported different dates and times for his periods of employment. However, mostly the dates that he attributed to his last employment fell between 1985 and 1987. What was not in question in this regard was that Mr Saggus had not worked for at least ten years before making his claim for special rate of pension.
21. There were numerous medical reports on file, most pre-dating the current claim, dealing with Mr Saggus’ psychiatric history. In a report dated 19 February 1987 (exhibit R2 pp6-10) Dr Robbie considered that Mr Saggus suffered from a personality disorder, anxiety state, an alcohol problem and an attitude problem, and Dr Robbie identified personality disorder as Mr Saggus’ major problem for his reduced social functioning. Dr Robbie thought that Mr Saggus may have organic cerebral frailty due to alcohol though he said that the head injury in 1977 was presumably associated with this as well. Dr Robbie thought that Mr Saggus was incapable of sustained direction in normal open society and thought him psychiatrically suitable only for limited (less than twenty hours per week) sheltered part-time work. He said that:
He is deteriorating with age, but it is the personality side of things together with a measure of a drinking problem from that side and a contribution from presumed head injury, that is the major reason why he does not function well….
The anxiety affects his well being, some of his attitudes, his security and sense of ease, and his self esteem, and these things do effect his capacity to work. However I think that the main impairment from work comes from his personality disturbance and his attitude to those around him, coupled with an increasing lability of his mind, and decreasing control of his attitudes, frustrations and belligerences.
22. In a report dated June 1990 (exhibit A8) Dr A Breslin noted that Mr Saggus then was recently discharged from Concord Hospital after being admitted with psychiatric problems including adjustment disorder, organic brain disease, benzodiazepine intoxication, and anti-social personality traits. In a report dated 18 February 1994 (exhibit R4), Dr B Hutchinson, psychiatrist, concluded that the applicant had a severe alcohol problem and symptoms of personality disorder, mainly anti-social personality disorder. He excluded PTSD as a possible diagnosis.
23. In a report dated 15 August 1995, Dr C Fraser stated that Mr Saggus had a long history of depression, alcohol and benzodiazepine abuse, as well as the significant head injury in 1975, PTSD and an anti-social personality disorder. These various diagnoses were confirmed in records from Repatriation General Hospital, Concord (exhibit A8 and A9). Dr Fraser considered Mr Saggus was completely unfit for work due to his physical condition and psychiatric problems.
24. Dr Mulholland (exhibit A1) noted that Mr Saggus had sustained a head injury when he was struck with a baseball bat and has a steel plate inserted on the right side of his head. He did note that Mr Saggus has a marked right-sided limp after the head injury which Dr Mulholland thought unusual as a left-sided limp would be expected. Dr Mulholland considered that Mr Saggus’ alcoholism (in remission) and his chronic depression were related to his PTSD. However Dr Mulholland commented that there was a lot of psychiatric information about Mr Saggus that was not available to him, and he was not confident of expressing a concluded view without the other medical reports.
25. Dr T Myers, consultant physician, noted in a report dated 5 October 2001 (exhibit A3) that Mr Saggus was struck on the head and suffered significant brain damage in 1975. He said that he has suffered bouts of epilepsy since then, though subsequently these were considered to be due to alcohol excess and he now requires no therapy for them since he reduced his alcohol consumption to six stubbies daily. Dr Myers noted that Mr Saggus has problems also with low back pain, tinnitus and degenerative arthritis in his wrist. Dr Myers said that the precise nature of Mr Saggus’ psychiatric problems was uncertain, but included evidence of organic brain damage and previous alcohol abuse. He said it would be impossible to dissect which of his psychiatric problems are due to PTSD and which are due to his pre-existing and acquired personality problems.
26. Mr Saggus stated in his claim (T4, p14) that he experiences nagging constant aching pain in every joint. In a claim form dated 23 January 2003 (R2, pp69-74) Mr Saggus referred to pain and limitations caused by his back condition, which he referred to as unbearable back pain (R2, p80) and he identified his back condition as a reason, along with PTSD and his lung condition, why he had to stop work. He also cited his back condition when claiming service pension in 1989. Dr Myers said that he only examined Mr Saggus’ back cursorily; but said that Mr Saggus demonstrated no significant clinical signs and did not complain to him about his back. Dr Myers thought that Mr Saggus’ back and arthritic conditions would not be significant in preventing him from working. Dr Spilsbury, general practitioner, agreed, stating that none of the medical conditions that have been rejected as not due to war service would have significant effect of Mr Saggus’ ability to work.
27. This was in marked contrast to Mr Saggus’ evidence about his back, for which he takes panadeine forte tablets. Mr Saggus described it as the worst back and described in detail the limitations that he experienced, including that it interrupts his sleep, prevents him playing with his son and troubles him when he is walking or trying to carry out household tasks (R4, p80). Mr Saggus did believe however that he would be able to work if his back condition were his only problem, as he would manage the pain by taking medication.
28. The medical evidence does not support the view that war-caused disease or injury alone prevents Mr Saggus undertaking remunerative work. Right through the psychiatric reports, personality disorder and the likely ongoing effects of organic brain damage from head injury and substance abuse were noted.
29. Dr Myers (exhibit A3,) suggests that it would be dangerous and probably unfair to attribute Mr Saggus’ psychiatric problems to anything other than PTSD since this is an accepted condition. Dr Robbie (exhibit R4 pp 9-10) said that it was the fashion of the Department of Veterans Affairs to more or less assess the total psychiatric functioning rather than specific separate mental illnesses and parts. However these do not reflect the correct approach to the tests in s24 of the Act. That section requires that I address the contribution of non-war-caused disease or injury where this is relevant, however hard the differentiation of components of psychiatric disorder might be. Mr Saggus’ case is one where a number of psychiatrists (Dr Robbie, Dr Hutchinson, and Dr Mulholland, as well as Dr Myers) have given clear diagnoses of personality disorder, which are not war-caused. Furthermore Mr Saggus in the mid-1970’s sustained a right parietal skull fracture requiring a metal plate to be inserted in his brain. After this injury, doctors report that he commenced having epileptic seizures and suffered a right-sided hemiparesis. I was satisfied that these other psychiatric disorders are of such significance that they cannot be ignored in the impact that they have had on Mr Saggus’ ability to engage in remunerative work.
30. Additionally Mr Saggus has an alcohol disorder, now said to be in remission. However at the time that he last worked it seems that he was consuming excessive amounts of alcohol. In regard to his alcohol consumption during the 1980’s, Mr Saggus said that while he worked at St Vincent’s he was consuming about 6 standard alcoholic drinks per day. When he was questioned further about his drinking he said that he did not drink much in the army, but his alcohol consumption had increased when he worked at Rosehill Racecourse. He said that he now wished to retract statements made to Dr Mulholland, psychiatrist, that he consumed alcohol heavily until 2000, and before that had an intake of between 15 and 30 standard drinks per day for twenty years. That is, his evidence at the hearing concerning his alcohol intake while working at St Vincent’s hostel varied from what he had told Dr Mulholland. Dr Salim, who was Mr Saggus’ general practitioner from 1980 to 1990 confirmed that Mr Saggus was referred to the Drug and Alcohol Clinic at Concord Hospital in 1989 (exhibit A6). I note also that Mr Saggus told Dr Mulholland that he was hospitalised several times in the mid to late 1990’s for alcoholism. I concluded from the medical evidence that Mr Saggus had a significant alcohol related disorder that required medical intervention and would have been a factor in his inability to engage in remunerative work during the assessment period.
31. Further, I was satisfied that Mr Saggus’ back condition contributes to his inability to continue in remunerative work. Mr Saggus made this plain when claiming a service pension in 1989. Dr R Scanlan, general practitioner, referred to conditions of lumbar pain and right knee arthritis in 1996 (R4 p44).
32. Other factors that impact on Mr Saggus continuing in remunerative work include the length of time he has been absent from the workforce. At the commencement of the assessment period Mr Saggus was out of the workforce for about 10 years or more. He could not demonstrate any recent workforce experience, which would make him unattractive to an employer.
33. In a vocational assessment dated 1 June 1990 Ms M Edwards, rehabilitation counsellor, noted that Mr Saggus had lost his taxi driver’s licence as a result of a criminal conviction for assault and was refused a renewal of his licence because of his criminal record. Her view was:
… He is precluded from work in keeping with his experience as a taxi driver because of his criminal convictions. His poor health criminal convictions and being in receipt of compensation payments would present barriers to employment in any occupation as would time since last employed.
34. Though these views were expressed in 1990, I consider that they remained true when Mr Saggus claimed for special rate of pension in 1997.
35. As the Federal Court pointed out in Cavell v Repatriation Commission (1988) 9 AAR 534 a commonsense decision must be made when deciding the issues in s24 of the Act and this is called for in this case. Mr Saggus has a history of more than one psychiatric condition being diagnosed by medical practitioners, and he has a history of a severe brain injury sustained in 1975. He suffers from lumbar spondylosis and other orthopaedic problems which he describes as troubling in his day-to-day life and would be an impediment in employment situations. From medical reports he has possible ongoing organic brain damage from substance abuse. He has no recent workforce experience and his criminal convictions and loss of his driver’s licence add additional limitations on his ability to undertake remunerative work. For these reasons the second and third of the Flentjar questions must be answered No.
36. Submissions were made that the ameliorative provision in s24(2)(b) of the Act applies. It provides that where a person who has not been engaged in remunerative work and is genuinely seeking such work, but the real cause of their failing to succeed in obtaining work is war-caused disease, they may yet satisfy part of the test in s24(1)(c). However I do not accept that Mr Saggus was genuinely seeking to engage in remunerative work in the assessment period. He may have considered undertaking retraining in welding but this remained an aspiration and an unrealistic one at best. As the Full Court of the Federal Court pointed out in Leane v Repatriation Commission [2004] FCAFC 83, a person is not seeking remunerative work if they merely have a wish or desire; they have to make a genuine attempt. I was satisfied that Mr Saggus had made no attempt to re-engage in remunerative work and so cannot satisfy s24(2)(b).
DECISION
37. The Tribunal affirms the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 19.2.05 and 16.8.05 [at Maroochydore]
Date of Decision 24.10.05 [at Brisbane]
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr J Stoner, Departmental Advocate
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