Allie and Repatriation Commission

[2001] AATA 446

DECISION AND REASONS FOR DECISION [2001] AATA 446

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q99/666

VETERANS' APPEALS  DIVISION       )       
           Re      RONALD NORMAN ALLIE         
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Senior Member KL Beddoe Captain ET Keane OAM, Member Dr KP Kennedy OBE, Member        

Date24 May 2001

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

(Sgd)    KL BEDDOE
  SENIOR MEMBER
CATCHWORDS

VETERANS' AFFAIRS – disability pension – harassment in workplace – post traumatic stress disorder – whether accepted disabilities substantial cause to obtain work.

Veterans' Entitlements Act 1986 ss 24
Repatriation Commission v Flentjar (1997) 47 ALD 67

REASONS FOR DECISION

24 May 2001 Senior Member KL Beddoe Captain ET Keane OAM, Member  Dr KP Kennedy OBE, Member                    

1. The applicant seeks review of a decision of the respondent notified on 21 April 1998 which decided to continue payment of disability pension at 100% of the General Rate.  By a decision notified on 5 May 1999, the Veterans' Review Board affirmed that decision on 16 June 1999.  The applicant lodged a request for review of that decision in this Tribunal.

2. Section 24 of the Veterans' Entitlements Act 1986 ("the Act") provides for payment of Special Rate pension.  The primary tests to be satisfied for payment of the Special Rate pension are in subsection (1).  In this case the Commission does not dispute, and we accept, that the paragraphs are satisfied in this case, except for paragraph (c).  In that regard the respondent also disputes that paragraph 24(2)(b) is satisfied in this case.

3. Section 24(1)(c) relevantly provides that Section 24 applies to a veteran if the veteran is, by reason of accepted incapacity alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of income that the veteran would not be suffering but for that incapacity.

4. Section 24(2)(b) is an ameliorating provision in relation to paragraph (1)(c). It relevantly provides that where the Commission is satisfied that the veteran has been genuinely seeking to engage in remunerative work, or but for the incapacity would be continuing to so seek to engage in remunerative work, and that the incapacity is the substantial cause of the veteran's inability to obtain such work, then the veteran is to be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.

5. At the hearing, Mr D O'Gorman of Counsel, instructed by Messrs Gilshenan and Luton, appeared for the applicant and Mr J Stoner, Departmental Advocate, represented the respondent Commission. The documents lodged in the Tribunal pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T" Documents and further documents were tendered and marked as exhibits.  Oral evidence was given by the applicant.

6. The Tribunal makes the following findings of fact.  The applicant was born on 10 February 1948 and was 49 years of age at the date of application.  He was called up pursuant to the National Service Act and served in the Army Medical Corps from July 1968 to July 1970, including service in South Vietnam from June 1969 to July 1970.  He re-enlisted in the Regular Army in September 1972 as a trooper in the Armoured Corps and was discharged medically unfit in May 1973.  Prior to joining the Army the applicant was employed as a machinist.

7. Following his National Service he worked as a nurse in a London Hospital and after discharge from the Armoured Corps he worked as a medical orderly at Greenslopes and Kenmore Repatriation Hospitals.  This employment ceased in January 1983.  The applicant left that employment because of adverse employment circumstances involving harassment by other employees which resulted in an anxiety condition exacerbated by recurrent bronchitis.  His treating doctor, Dr Chard, told the applicant he should cease working at Kenmore Hospital and he resigned.  We are satisfied that the applicant left his employment with the respondent because he perceived that he was being harassed in the workplace.

8. He registered for employment with Commonwealth Employment Service but this seems to have been half-hearted because he and his wife decided it was more economical for him to stay home to mind their children and thereby avoid the need to employ a baby-sitter.  From that point, the applicant remained at home and took responsibility for the household domestic duties.  He received unemployment benefits under the Social Security Act when his wife was not working.

9. We accept the applicant's evidence that he maintained contact with the Commonwealth Employment Service and we also accept that he looked out for suitable employment opportunities.  We do not accept that the applicant was actively seeking employment because we are satisfied that he and his wife made a conscious decision that the applicant should be the housekeeper and not actively seek employment.

10. The applicant's accepted disabilities are:
    (a)      Post Traumatic Stress Disorder (PTSD);
    (b)      Allergic Sinusitis;
    (c)       Peri Anal Abscesses;
    (d)      Recurrent Bronchitis; and
    (e)      Anxious Personality

1. Exhibit 1 includes a copy of a letter (undated) by the applicant and sent to the Veterans' Review Board and marked as received by the Board on 17 October 1997.  In oral evidence before this Tribunal, the applicant said he has difficulties with neck pain which he related to stress.  He did not deny the following extract from the letter put to the Board:

   "I have now been diagnosed by Drs. A.J. Finnamore, Sunnybank Private Hospital and O'Sullivan, Greenslopes Private Hospital, as having Obstructive Sleep Apnoea which would be the main cause of the extreme fatigue I suffer from.
   I am in constant pain with my neck and I am now suffering constant debilitating headaches because of it, I am constantly exhausted and now even a walk of a few hundred metres exhausted me…"

1. There is no reason to doubt that this assertion of fact to the Veterans' Review Board is other than correct.  The applicant does not deny it.  There is nothing before us to connect the neck symptoms or the extreme fatigue said to be caused by Sleep Apnoea (but not the subject of medical evidence) with the accepted disabilities.

2. In a report dated 28 March 1998, Dr Tucker, treating Psychiatrist, describes "Initial Insomnia", flashbacks, and low energy amongst other conditions which he attributed to the PTSD and secondary anxiety.  He also found moderately severe major depression which he attributed to the war service traumatic experiences.

3. Exhibit B is a Discharge Summary of Greenslopes Repatriation Hospital dated 30 June 1994.  Dr Tucker is shown as the specialist.  Diagnosis is shown as "Adjustment Disorder" with a secondary diagnosis which we cannot decipher.  The applicant is described as having full level of function and no medication on discharge.
   Consideration

4. The material satisfies us that the applicant ceased remunerative employment with the respondent for reasons directly connected with his war-caused disabilities.  His PTSD in particular is the likely explanation for his perception that he was being harassed in his employment and we so find.

5. The applicant did not rejoin the workforce after that because of two reasons:
   (a)      difficulty in obtaining suitable employment; and

(b)the decision to take over the domestic responsibilities while his wife was at work.

1. At the time of application (29 October 1997), the applicant had been out of the workforce for more than 14 years.  That is, in our view, a substantial absence from the workforce which, when the applicant's age is taken into account, would be likely to be a material consideration in being unable to obtain remunerative employment.

2. We are not satisfied that the applicant was genuinely seeking to engage in remunerative work.  We are satisfied that if the applicant had been seeking to engage in remunerative work, a substantial cause for his inability to obtain work would be his accepted disabilities combined with his absence from the workforce.  The accepted disabilities and the absence from the workforce would, in the circumstances of this case, both be very material considerations.  We think they would be of equal or near equal weight so that it cannot be accepted that the accepted disabilities are the substantial cause of the applicant's inability to obtain work.

3. We accept that the applicant would most likely have continued employment as a hospital orderly, if he had none of his war-caused disabilities, because it is likely that his perception of workplace harassment would not have become an issue and not caused him to leave the workforce.

4. However, the decision to take himself out of the workforce to do family domestic duties was a substantial reason for the applicant's continuing absence from the workforce and the absence itself was a material consideration at the date of application (Repatriation Commission v Flentjar (1997) 47 ALD 67).

5. We are not satisfied that paragraph 24(1)(c) of the Act is satisfied in this case. Whether the neck condition, which is not an accepted disability, is also a material consideration was not argued before us. We have not taken that condition into account in making our decision because it is not necessary to do so on the above findings.

6. The decision under review will be affirmed.

   I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe, Captain ET Keane OAM, Member and Dr KP Kennedy OBE, Member

   Signed:         Teri Shea
     Associate

   Date/s of Hearing  11.10.00
   Date of Decision  24.5.01
   Counsel for the Applicant        Mr D O'Gorman
   Solicitor for the Applicant         Messrs Gilshenan and Luton
   Counsel for the Respondent    Mr J Stoner, Departmental Advocate