Alexander and Repatriation Commission
[2004] AATA 476
•14 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 476
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/428
VETERANS' APPEALS DIVISION ) Re HUBERT JOACHIM ALEXANDER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr B J McCabe, Senior Member Date14 May 2004
PlaceBrisbane
Decision (a) The Tribunal affirms the decision of the Veterans’ Review Board of 1 February 2000.
(b) The Tribunal sets aside the decisions of the Veterans’ Review Board of 21 June 2000 and 4 February 2001 and in substitution decides the applicant, Hubert Joachim Alexander, is entitled to pension payable at the special rate with effect from 10 October 2000.
.................(Sgd).........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – special rate of pension – date of effect of decision to pay applicant at the special rate of pension
Veterans’ Entitlements Act 1986
Re Alexander and Repatriation Commission [2002] AATA 575
Repatriation Commission v Alexander [2003] FCA 399REASONS FOR DECISION
14 May 2004 Mr B J McCabe, Senior Member 1. This is an application for review of decisions of the Veterans’ Review Board that the applicant is entitled to pension payable at 100% of the general rate with effect from 11 December 1998. Prior to the hearing of this matter, the parties agreed between themselves that the applicant was entitled to pension at the special rate. The only issue remaining in dispute is the date the decision to pay pension at the special rate should take effect. This issue is to be resolved on the basis of the written submissions prepared by the parties, the section 37 documents and other documentary material on the Tribunal’s file.
2. Briefly, the background of the case is as follows:
(a)On 11 March 1999, the applicant lodged a claim for disability pension in respect of a range of disabilities. On 25 May 1999, the Repatriation Commission determined the following conditions were war-caused:
(i)bilateral sensorineural hearing loss with tinnitus;
(ii)chronic bronchitis and emphysema;
(iii)gastro-oesophageal reflux disease;
(iv)depressive disorder; and
(v)claustrophobia;
and rejected the applicant’s claims for the following conditions:
(i)localised osteoarthrosis of the knees, right ankle and foot;
(ii)migraine;
(iii)lumbar spondylosis; and
(iv)atherosclerotic peripheral vascular disease.
Further, the respondent determined that a pension was payable to the applicant at 100% of the general rate with effect from 11 December 1998.
(b)The applicant sought a review of this decision and, on 1 February 2000, the Veterans’ Review Board (“the Board”) decided the claims for atherosclerotic peripheral vascular disease in both legs should be accepted as war caused. The Board rejected the applicant’s claim in relation to the other non-accepted conditions, and adjourned the issue of the assessment of rate of pension payable to the applicant. The applicant applied to the Tribunal for a review of this decision (AAT file number Q2000/458).
(c)On 21 June 2000, the Board decided to amend the diagnosis of the applicant’s psychiatric disorder from depressive disorder to post traumatic stress disorder and confirmed the applicant’s entitlement to pension at 100% of the general rate. The applicant applied to the Tribunal for a review of this decision (AAT file number Q2000/678).
(d)Meanwhile, on 3 April 2000, the applicant lodged an application for an increase in pension, which was refused by the respondent. The applicant sought a review of that decision by the Board which, on 14 February 2001, affirmed the respondent’s decision. The applicant applied to the Tribunal for a review of this decision (AAT file number Q2001/231).
(e)These applications for review came before the Tribunal for hearing on 28 June 2002. On 12 July 2002, the Tribunal made the following decisions (see Re Alexander and Repatriation Commission [2002] AATA 575):
(i)In relation to Q2000/485: the Tribunal affirmed the decision under review; and
(ii)In relation to Q2000/678 and Q2001/231: the Tribunal set aside the decisions under review and concluded the applicant was entitled to a pension payable at the special rate with effect from 11 October 2000.
(f)On 9 August 2002, the respondent appealed the Tribunal’s decision to the Federal Court. The appeal was heard by Spender J on 29 April 2003, and a decision was delivered in the matter on 2 May 2003 (see Repatriation Commission v Alexander [2003] FCA 399). Spender J ordered that:
(i)the appeal be allowed;
(ii)the decision of the Tribunal be set aside; and
(iii)the matter be remitted to the Tribunal for reconsideration.
(g)The re-hearing of the application was listed before the Tribunal on 6 February 2004 (AAT file no Q2003/428), but was vacated at the parties’ request when the respondent conceded the applicant was entitled to pension at the special rate and the only issue in dispute was the date of effect of that decision. The parties requested the Tribunal to determine this issue on the papers.
3. The applicant contends that the date of effect of the decision to pay the applicant pension at the special rate should be 10 October 2000, the date the applicant sold his video production business. The respondent contends the earliest date of effect for the decision is 9 August 2003, the date of Dr Goode’s final report. In this report, Dr Goode says, at that time, the applicant’s non-accepted conditions no longer contributed to the applicant being prevented from undertaking remunerative work.
4. The respondent concedes the applicant meets the requirements of section 24 of the Veterans’ Entitlements Act 1986 (“the Act”) and is therefore entitled to pension payable at the special rate on the strength of Dr Goode’s report. In that report of 9 August 2003, Dr Goode opines:
“…The service-related conditions are now relatively more severe than in July 2001, in that the chronic stable exertional angina/ischaemic heart disease is now included as a service-related condition.
With respect to the service-related conditions, the psychiatric condition still remains the most important. There are persisting symptoms of post-traumatic stress disorder, with nightmares, sleep disturbance, hypervigilance, and avoidance. Mr Alexander remains irritable, and I would suspect that he would potentially have difficulty dealing with workmates, supervisors and members of the public were he to return to work in the open competitive job marketplace.
…
Mr Alexander is still using alcohol at a hazardous level. He said that he uses this to ameliorate his psychiatric symptoms. His level of alcohol use will globally impair his ability to work – I suspect that, even on it’s own, it could potentially adversely impact on his attendance record. I am not convinced of frank alcoholism.
In my view, the service-related psychiatric condition alone is sufficient to prevent all return to work (even for 8 hours per week) in the open, competitive, job marketplace.
However, the service-related conditions of chronic stable exertional angina/ischaemic heart disease, chronic bronchitis/emphysema and peripheral vascular disease further adversely impact on Mr Alexander’s ability to return to work, in that all of these conditions adversely impact on Mr Alexander’s ability to do physical exercise. These conditions generally will prevent heavy manual handling and exertion, and will specifically prevent some aspects of field work in the video production environment.
I would rate the bilateral sensori-neural hearing loss/tinnitus as next most important in it’s adverse impact on work capacity. This will impact on Mr Alexander’s ability to hear in the presence of background noise – this could even be evidence in some office environments. The tinnitus will aggravate Mr Alexander’s irritability and sleeplessness.
I do not feel that the irritable bowel syndrome, gastro-oesophageal reflux disease or impotence would have any significant adverse impact on Mr Alexander’s overall work capacity.
In my view, the non-service related conditions are very much less significant in their adverse impact on work capacity. In fact, I feel that the lumbar spondylosis is the only non-service related condition with the potential for any adverse impact on work capacity at all.
The lumbar spondylosis was symptomatic 6 months ago with the domestic bending maintenance task. This settled with treatment. Similarly, the lumbar spondylosis could become significant with any work-related task involving heavy lifting, repetitive bending or long distance driving. However, in this regard, it must be noted that heavy manual handling is precluded anyway by the much more important service-related conditions of chronic stable exertional angina/ischaemic heart disease, chronic bronchitis/emphysema and peripheral vascular disease.
There is only minor osteoarthritis in the right knee, and no clinical evidence of any active condition in the left shoulder at all now. These particular non-service related conditions are therefore irrelevant to work capacity in my view.
Therefore, taken overall, I feel that the service-related conditions alone prevent Mr Alexander from engaging in remunerative work in the area of video production, or indeed any other job for that matter – he cannot work for even 8 hours per week. The service-related conditions prevent him from seeking to engage in remunerative employment. Mr Alexander’s service-related conditions are the substantial cause of his inability to obtain further remunerative work, either in the field of video production, or in any other field of employment in which he has experience.
The non-service related lumbar spondylosis would only potentially have a minimal impact on video production work, in that it would prevent heavy manual handling and repetitive lifting. However, the significance of the non-service related lumbar spondylosis in this regard is very much out-weighed by the service-related conditions of chronic exertional angina/ischaemic heart disease, chronic bronchitis/emphysema and peripheral vascular disease, as these service-related conditions much more significantly adversely affect heavy manual handling. However, I cannot say that the lumbar spondylosis will have no adverse impact on video production work – I could envisage some difficulty with heavy manual handling of video equipment in the field s a result of the lumbar spondylosis. However, in my view, the non-service related conditions (ie effectively lumbar spondylosis alone) do not make any substantial contribution to Mr Alexander’s inability to obtain further remunerative work, either in the field of video production, or in any other field of employment in which he has experience.”
5. On the basis of Dr Goode’s report and the material before the Tribunal, I am satisfied the respondent’s concession has been properly made. It follows the applicant satisfies the requirements of section 24 of the Act. He is entitled to pension at the special rate.
6. The Act provides the date of effect of a decision concerning the payment of a pension to an applicant cannot be specified as a date which is earlier than the date on which the applicant first became eligible for the pension or an increased rate of pension (see sections 20(3) and 21(3)). So when did the applicant become eligible for the higher rate of pension?
7. In this case, the only issue that was in dispute between the parties was the application of sub-section 24(1)(c) of the Act. That sub-section provides a veteran is entitled to the special rate of pension if, by reason of incapacity from war-caused injury or disease alone, the veteran is prevented from continuing to undertake remunerative work that he/she was undertaking, and is thereby suffering a loss of salary, wages or earnings which he/she would not otherwise be suffering. Although the parties now concede (and the Tribunal has found) the applicant is prevented from continuing to undertake remunerative work by reason of his incapacity from war-caused conditions alone, the question remains: when did his war-caused conditions alone prevent him from working?
8. When the applicant sold his business on 10 October 2000, he was suffering from the following conditions which had been accepted as war caused:
Condition Date of Effect
§ Bilateral sensori-neural hearing loss with tinnitus 11 December 1998
§ Chronic bronchitis and emphysema 11 December 1998
§ Gastro-oesophageal reflux disease 11 December 1998
§ Athersclerotic peripheral vascular disease (both legs) 11 December 1998
§ Impotence 11 December 1998
§ Claustrophobia 11 December 1998
§ Post traumatic stress disorder 11 December 1998
§ Irritable bowel syndrome 14 April 2000
And the following non-service related conditions:
§ Migrane
§ Lumbar spondylosis
§ Localised osteoarthrosis of both knees, right ankle and foot.
9. Chronic stable exertional angina/ischaemic heart disease were accepted as war caused conditions on 26 March 2001.
10. The applicant gave evidence before the Tribunal at the hearing on 28 June 2002 and I have had regard to that evidence when considering this matter pursuant to section 23B of the Administrative Appeals Tribunal Act 1975. The applicant told the Tribunal he commenced his business in 1988, but placed the business on the market in 1998 (for $135,000) as he was experiencing difficulties coping. He eventually sold the business for $60,000 in October 2000. He said he accepted such a low sale price as he wanted to be free of the business and because of loss of goodwill in the business due to the problems he had dealing with customers, his memory loss and concentration problems. But, most importantly to Mr Alexander, he wanted to sell the business so he could avoid dealing with people.
11. The applicant said he had learned to live and work with his other accepted and non-accepted conditions, but could not remain working in the business due to his post traumatic stress disorder.
12. I have also had regard to the evidence given by Mr Stephen Stockell at the previous Tribunal hearing in relation to his involvement in the applicant’s business. Mr Stockell had commenced in the business in 1993-1994 as a casual cameraman. He became increasingly involved in the business over time as the applicant was struggling with the business and had difficulties dealing with customers. He also told the Tribunal that Mr Alexander became aggressive if things went wrong in the business, and had problems with concentration and memory. Eventually Mr Stockell had to take over the customer service part of the business due to Mr Alexander’s inability to deal with clients.
13. The earlier Tribunal also heard oral evidence from Dr Goode. I note that, in response to a question from the Tribunal, Dr Goode ranked Mr Alexander’s post traumatic stress disorder above all his other conditions as the main limitation on his ability to work (see Re Alexander and Repatriation Commission [2002] AATA 575 at par 30).
14. In an earlier report of 17 July 2001, Dr Goode opined:
“I believe the psychiatric condition, which is a service related condition, means that Mr Alexander would be unable to return to any of the jobs previously performed by him. I believe his concentration and attention would be adversely affected, and he would be irritable in the workplace, such that he would not relate well to work mates or Supervisors in any usual open competitive job situation.
Mr Alexander would be further limited by his service-related physical problems such as his chronic obstructive airways disease and peripheral vascular disease. The noise induced hearing loss and tinnitus would further impair his ability in the office environment. The claustrophobia would specifically limit some electronics work.
Taken overall, the service-related conditions on their own would be sufficient to prevent Mr Alexander returning to work in any of his previous work environments, and it is the psychiatric condition which is most important in this regard.”
15. When asked to comment on the affect of his non-service conditions on the applicant’s ability to work, Dr Goode said (in the report of 17 July 2001):
“Please note that the chronic stable exertional angina has only recently been diagnosed, and I have detailed this above. I feel this has simply served to further reduce Mr Alexander’s ability to do aerobic exercise and manual handling as part of his job.
The lumbar spondylosis will further impair (beyond the service-related conditions) Mr Alexander’s ability to do bending, lifting and long distance driving.
The left shoulder rotator cuff tendonitis will further reduce Mr Alexander’s ability to do manual handling, especially activities above shoulder height.
I would see the non-service related conditions as being of secondary importance to the service-related conditions in their adverse effects on work capacity.”
16. It is apparent from both reports of Dr Goode that he is of the opinion the applicant’s war caused conditions are of such severity they alone would prevent him from working.
17. Whilst the applicant’s non-accepted conditions did have some impact on his ability to work, I am satisfied these did not prevent the applicant from continuing to undertake the remunerative work he had been undertaking. They may have required him to adapt his work methods to some extent, but did not prevent him from continuing to undertake that work. However, as the applicant explained to the earlier Tribunal, his psychiatric condition had caused him to cease work in his video production business. He could not deal with his clients, would become aggressive and had memory and concentration problems. In both of his reports, Dr Goode confirms Mr Alexander’s psychiatric condition adversely affects his concentration and attention, and would cause him to be irritable in the workplace thereby affecting his relationships and interactions with his work mates, supervisors and members of the public.
18. On that basis, it is hard to accept the respondent’s contention that the applicant did not become eligible for special rate pension until Dr Goode’s report was prepared on 9 August 2003. There is sufficient evidence before the Tribunal to allow me to be reasonably satisfied that Mr Alexander ceased work as a result of his accepted psychiatric condition on 10 October 2000. It is at that time that he met the requirements of section 24(1)(c) of the Act. The decision to pay him pension at the special rate should therefore have effect from 10 October 2000.
Decision
19. The Tribunal affirms the decision of the Veterans’ Review Board of 1 February 2000 in which the Board accepted atherosclerotic peripheral vascular disease in both legs as war-caused conditions, and rejected the applicant’s claims in relation to localised osteoarthrosis of the knees, right ankle and foot, lumbar spondylosis and migraine.
20. The Tribunal sets aside the decisions of the Veterans’ Review Board of 21 June 2000 and 4 February 2001 and in substitution decides the applicant, Hubert Joachim Alexander, is entitled to pension payable at the special rate with effect from 10 October 2001.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Senior Member
Signed: Sarah Oliver
AssociateThis matter was dealt with on the papers
Date of Decision 14 May 2004
Counsel for the Applicant Mr Griffiths
Solicitor for the Applicant Sciaccas, Lawyers and Consultants
Counsel for the Respondent Mr Henderson
Solicitor for the Respondent Australian Government Solicitor
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