Anderson and Repatriation Commission
[2006] AATA 389
•4 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 389
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/253
Veterans' Appeals Division ) Re WILLIAM EDWARD ANDERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier R D F Lloyd, Member
Dr D Weerasooriya, MemberDate4 May 2006
PlacePerth
Decision The Tribunal affirms the decision under review in so far as it assessed disability pension at ninety percent of the General Rate with effect from 26 March 2003.
...........(sgd Brig R Lloyd)......................
Member
CATCHWORDS
VETERANS AFFAIRS – Veterans’ Entitlements – ex Army (National Serviceman) - civilian employment before and after Service as builder – claims pension at Special Rate – whether applicant ceased work and prevented from continuing to undertake remunerative work by reason of incapacity from accepted war caused disabilities alone – Section 24(1)(c) – whether PTSD the substantial cause and if so when, and whether genuinely seeking work during the assessment period – Section 24(2)(b) of the Act
Veterans’ Entitlements Act 1986 (Cth) s24
Re Forbes v Repatriation Commission [2000] FCA 328
Leane v Repatriation Commission [2004] FCAFC 83
REASONS FOR DECISION
4 May 2006 Brigadier R D F Lloyd, Member
Dr D Weerasooriya, MemberIntroduction
1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by William Edward Anderson (“the applicant”) for a review of that part of the decision of the Veterans’ Review Board (“the VRB”) dated 14 June 2005 assessing disability pension at ninety percent of the General Rate with effect 26 March 2003.
2. Despite the fact that other matters concerning the applicant were dealt with by the VRB in the decision under review and that some of these are also raised in pre-hearing documentation provided to the Tribunal by the applicant’s advocate, it is only the assessment of pension type, based on already accepted war caused incapacity, that is the subject of this review. This was confirmed by the applicant and his advocate at the commencement of the hearing and acknowledged also by the respondent’s representative.
3. Further, it was confirmed that the existing disability pension rate of ninety percent was not in issue by either party. The applicant however contends that he is eligible for the Special Rate, which was specifically rejected by the VRB in its decision, and it is that assessment determination only which is the subject of this review by the Tribunal.
4. The applicant attended the hearing with his advocate Mr P Lofdahl and the respondent was represented by Mr C Ponnuthurai.
Documentary Evidence and Witnesses
5. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition the following documents were taken into evidence:
(a) At the request of the applicant:
·Exhibit A1: Centrelink Document Re Mr William E Anderson (Reference:602 608 959 V) dated 21 August 2003.
·Exhibit A2: Centrelink Document – Medical Certificate Re Mr William E Anderson by Dr T J Middleton dated 21 October 2003.
(b) At the request of the respondent:
·Exhibit R1: Copy of the Transcript of Proceedings of the VRB Hearing Re W E Anderson held on 14 June 2005.
6. No respondent witnesses were called to give evidence at the hearing. The only applicant witness was Mr Anderson himself, who gave oral evidence, was questioned by the Tribunal and cross-examined by Mr Ponnuthurai. His evidence at the hearing was given in a forthright manner, albeit rather disjointed and at times confusing. In the circumstances this is understandable as was his inability to recall with accuracy some sequences of events and other matters that were relevant to the Tribunal’s considerations. This, together with the fact that no documented witness statement had been provided by the applicant, made it difficult to get a reliable record of some important parts of his post- Service working life. Nevertheless Mr Anderson’s oral evidence in response to questions asked of him, although conflicting at times with earlier documented evidence, on the whole was of considerable assistance to the Tribunal.
Legislation and Preliminary Matters
7. The entitlement requirements for an earnings related pension, in this instance the Special Rate, are contained in s 24 of the Act. To be eligible all criteria must be met and do so at a time within the ‘assessment period’, as defined in s 19(9). In this case the assessment period is from 26 June 2003, when Mr Anderson made his claim for acceptance of various disabilities (and any resultant increase in disability pension), to the present date. In particular to be noted is that this applies to all three main criteria in s 24(1) and also the elements of s 24 (2)(b), should this latter section apply. S 24 of the Act states as follows:
“Special Rate of Pension
24. (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 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”.
8. The Act requires that the Tribunal decide this matter to its reasonable satisfaction, ie. on the balance of probabilities.
9. The applicant has properly made a claim under the relevant provisions of the Act. He was under 65 years of age at the commencement of the assessment period and remains so, his date of birth having been confirmed in evidence as being 13 May 1947. Also from that commencement date, Mr Anderson’s war caused incapacity has been assessed as being at least seventy percent. Expressed as a percentage of the General Rate of disability pension, it in fact has been assessed at ninety percent throughout the assessment period. Based on the material in the T documents and the updated oral evidence the Tribunal finds no grounds to disagree with the VRB’s assessment in this regard. Hence the Tribunal is reasonably satisfied, and it is common ground for both parties, that the applicant meets the requirements of s 24 (1)(aa), s 24 (1) (aab) and s 24 (1)(a) of the Act.
10. Both parties also agree that the applicant’s incapacity from his Service related disabilities results in him being totally and permanently incapacitated and that this incapacity renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The Tribunal is relevantly satisfied that there is sufficient opinion evidence in the T documents, in particular from Dr O Kay and Dr A Mander as well as Dr T Middleton, to justify this conclusion. The requirements of s 24(1)(b) of the Act are therefore also met.
11. It is whether the applicant’s circumstances meet the requirements of s 24(1) (c) of the Act that is the primary issue. The respondent, as did the VRB in the decision under review, does not accept the contention that within the assessment period Mr Anderson was, in terms of the Act, “prevented from continuing to undertake remunerative work that (he) was undertaking” because of his incapacity from accepted war caused conditions alone.
12. Further to that, the applicant in this case being under the age of 65 years and if not having engaged in remunerative work during the relevant period, s 24(2)(b) of the Act potentially becomes of significance in the Tribunal’s review of this matter. This section is taken to be an ‘ameliorating provision’ in that, if its requirements are met within the relevant period, it can help an applicant satisfy the ‘alone test’ of s 24 (1)(c).
13. Mr Anderson served in the Army from May 1968 to April 1970 as a National Serviceman. After the normal process of training in Australia as an infantryman, he then saw operational service in Vietnam from November 1969 to February 1970 with the 8th Battalion, Royal Australian Regiment (8 RAR). Mr Anderson’s eligible service under the Act is limited to the latter period of three months and his disabilities accepted as being war caused are recorded as:
· Bilateral Sensori-Neural Hearing Loss with Tinnitus
· Hypertension
· Post Traumatic Stress Disorder (PTSD)
Disabilities rejected as being war caused are:
· Bilateral Otitis Externa
· Attention Deficit Disorder
· Osteoarthrosis of Both Knees
· Painful Testicular
Further Evidence and Tribunal Findings
14. Evidence given by the applicant at the hearing to the Tribunal concerning his post discharge life / work history detail, as already noted, does differ in part from that contained in the T documents and that provided earlier by Mr Anderson to the VRB (Exhibit R1). However, the main aspects of relevance to the Tribunal in its consideration in summary are as follows:
(a) Post discharge from the Army in 1970 he returned to his previous employment as a bricklayer. He experienced problems in settling back into civilian life – which the Tribunal notes from its own experience is not uncommon in such circumstances. He found it difficult in that respect working with/for his father. Again, also not uncommon. He consequently took a break from this arrangement for some 6 months in 1971 in South Australia.
(b) On his return to Western Australia he initially worked as a bricklayer subcontractor and then formed his own company as a builder. This proved very successful until about 1990 when, as a result of the economic recession at about that time, his firm collapsed. Subsequently Mr Anderson worked as a roof trusser and had his son working with him. Because of his tendency to be short tempered with others this did not work well.
(c) The applicant’s evidence, albeit somewhat conflicting, is that he ceased work in March 2003. The documented reasons provided are that he could no longer physically cope with the requirements involved with being a builder/bricklayer/roof trusser. He had the diagnosed condition of osteoarthrosis of the left knee and at that time he had also fractured his right leg just below the knee during recreational activity. The leg was in a brace for some months and subsequently he was diagnosed as having osteoarthrosis of the right knee. However, Mr Anderson’s more recent evidence is that it was more his ‘mental state’ that was the cause of his inability to continue working in early 2003. He maintains that when he was unable to do things physically, his mental problems – PTSD(?) at that stage not yet diagnosed – tended to take over.
(d) It was at about this point, according to Mr Anderson’s evidence, that he formed the view that he could not continue to work, at least in the building trade. His evidence to the VRB and confirmed at the Tribunal’s hearing is that he then felt he could be employable and probably cope with a job as a bus driver. The evidence indicates that he had obtained the required licence and had sought such employment prior to his right leg/knee injury. When he was sufficiently recovered and subsequently able, he had his interview for the bus job, but was unsuccessful.
(e) The applicant’s advocate’s primary contention in this regard is that this attempt by Mr Anderson to gain employment as a bus driver in early 2003 was a genuine attempt by him to seek a work position in advance of what he saw as being inevitable. That is, his inability to continue in the building trade because of his disabilities. This remains the contention. The respondent does not accept this as ‘genuinely seeking’, in terms of the Act, on the grounds of it not being within the assessment period. Late in the hearing proceedings Mr Lofdahl then produced two Centrelink documents which, despite their unexpected appearance, were accepted and taken into evidence as Exhibits A1 and A2 dated August and October 2003 respectively. It is contended by the advocate that Exhibit A1 in particular indicates that the applicant had been seeking employment (through Centrelink) at the time – which was within the assessment period.
(f) The respondent’s representative’s response to this latter contention is that this was not the correct conclusion to draw. Mr Ponnuthurai maintains that the documented evidence shows that the applicant had applied for Service Pension (on invalidity grounds), having ceased work in March 2003. The processing of these applications often took some months to complete, as it did in this case. As general practice, to avoid applicants having no income during this waiting period, they were “sent over to Centrelink” to gain “unemployment benefits” until the DVA administration was complete and Service Pension payments begun. In this instance, DVA approval was not given until 13 November 2003 (T20 page 80). Mr Lofdahl is not in agreement with this explanation and points to apparent discrepancies such as the fact that Exhibit A1 indicates that Mr Anderson was in receipt of ‘Newstart Allowance’ through Centrelink rather than sickness benefits – as one would have expected in the circumstances of the applicant in August/September 2003. He believes that this Centrelink situation shows that Mr Anderson was in fact genuinely seeking work in the relevant period.
(g) Exhibit A2 is an associated medical certificate completed by Mr Anderson’s Local Medical Officer – Dr T Middleton, who had been treating him for some 20 years. It shows that as at 21 October 2003 Dr Middleton’s diagnosis of the conditions preventing Mr Anderson from working were: Major Depression, Tourette’s Syndrome, Osteoarthrosis Left Knee, Hearing Loss and Attention Deficit Hyperactivity Disorder (ADHD). He further describes the long term limitations on ability to work as:
“Unable to lift, carry, climb, descend. Unable to do clerical administration.”
and concludes that it is his opinion that Mr Anderson was unfit for work from 21 October 2003 (the date of his examination).
15. The diagnosis of some of Mr Anderson’s ailments have changed over time and with others have resulted in a diagnosis of “no incapacity found”. However, based on the overwhelming weight of evidence before it, the Tribunal finds that at the time of ceasing work in March 2003, as at the commencement of the assessment period in June 2003 and throughout that assessment period, it was clearly not war caused disabilities alone which prevented him from undertaking work. It was his rejected condition of both knees that was a major culprit and it remains so. Dr Middleton’s evidence in this regard including that at Exhibit A2, and despite the psychiatric opinion evidence of Dr Kay and Dr Mander, is beyond question. The latter doctors’ opinions may support the applicant’s contention that his ‘mental state’ (as described by Mr Anderson), later diagnosed as PTSD and accepted as war caused, was having an increasing effect in early 2003 and since, however the Tribunal finds that at no time during the assessment period were there non accepted disabilities not relevantly involved. As a consequence, the Tribunal is satisfied on the balance of probabilities that the ‘alone tests’ of s 24(1)(c) are not met in this case, at least without the necessary assistance from s 24(2) should this section apply. In so finding the Tribunal followed the authority of Nicholson J in Forbes v Repatriation Commission [2000] FCA 328.
16. With this mixture of war caused and non war caused conditions at play, s 24(2)(b) of the Act becomes of significance. Mr Anderson is under the age of 65 years and as the Tribunal accepts from the evidence that he has not been engaged in remunerative work within the assessment period – the two initial requirements of s 24(2)(b) are met. The remaining two requirements are that Mr Anderson, during the assessment period:
· has been genuinely seeking to engage in remunerative work; and that
· his accepted war caused incapacity is the substantial cause of his inability to obtain remunerative work.
If all s 24(2)(b) requirements are satisfied, the applicant shall be treated as having met the s 24(1)(c) test in respect of incapacity to undertake remunerative work. Should he fail one of these two latter requirements he then fails to obtain the ameliorating provision assistance of this section and does so even though he may succeed in the other requirement.
17. As far as the applicant genuinely seeking to engage in remunerative work is concerned, it is contended by his advocate, as already indicated, that Mr Anderson meets this requirement on two counts as follows:
(a) Firstly, that his qualifying for the appropriate licence and interview for a bus driver’s job in early 2003 should be taken as a genuine attempt, in terms of the Act, in seeking work.
(b) Secondly, that again he had been seeking work later in 2003 this time through Centrelink (and as a consequence been paid Newstart Allowance in August 2003), as evidenced by Exhibit A1. At that time it is therefore contended that he also met the requirements of the Act in this respect.
18. With reference to the first of these (paragraph 17(a) above) – ‘the bus driver attempt’ – the Tribunal finds the evidence in this regard untidy to say the least. Parts of it conflict with that provided by the applicant to the VRB (Exhibit R1), with the T documents, and with his oral evidence at the Tribunal hearing. In particular this is so in relation to the timing. The Tribunal, despite this, accepts that the attempt itself in fact amounted to the applicant taking responsible and appropriate steps in preparation for what he saw as the inevitability of his having to cease his current work in the building trade, and to ensure he had the necessary qualifications with a job to go to. All that is commendable on Mr Anderson’s part, however the Act requires that he be doing this, ie. genuinely seeking to engage in work, during the prescribed assessment period which commences on 26 June 2003, in order to qualify under s 24(2)(b). In this regard the evidence is that he had added to existing leg problems by fracturing his right leg in March 2003. He stated in evidence that he applied for the bus driving licence, and later the job, prior to that injury (Exhibit R1 page 13 and confirmed by him at the hearing – Tribunal Transcript page 63 refer). Subsequently, although still prior to the commencement of the assessment period in June 2003, he was interviewed for the bus driver’s job but was unsuccessful. Consequently, based on this evidence as outlined, the Tribunal finds that ‘the bus driver attempt’ to seek work although genuinely undertaken was not within the assessment period as is required by the Act. With considerable reluctance in this instance, for the reasons indicated, the Tribunal concludes that it is reasonably satisfied that the ‘genuinely seeking’ requirement of s 24(2)(b) is not met by this early job seeking attempt by the applicant.
19. As to ‘the Centrelink attempt’, vide paragraph 17(b) above, the Tribunal agrees with Mr Lofdahl that Exhibit A1 in particular raises a possibility on the face of it that the applicant, through this means, may have been attempting to obtain employment later in 2003. However no supporting or further documentary material was provided to the Tribunal to help explain the relevance of the Centrelink document. Exhibit A2 does not do so and the comments by both parties although noted were largely conjecture. On balance however, based on that presented, the Tribunal finds the explanation given by the respondent’s representative to be the more convincing (paragraph 14(f) of these Reasons refers). In the end result, on the balance of probabilities, the Tribunal does not accept that Exhibit A1 (or A2) shows that the applicant was genuinely seeking employment within the assessment period. Further, there is no contention, nor evidence put to the Tribunal that any other attempts to seek work were made during the assessment period. The Tribunal finds accordingly.
20. The Tribunal having determined that in terms of the Act the applicant did not seek to engage in remunerative work in the assessment period, this is sufficient to preclude him from the benefit of the ameliorating provision of s 24(2)(b). However, the Tribunal did go on to consider the ‘substantial cause’ element of that section, it having been contended by Mr Lofdahl as relevant. In summary, the Tribunal’s conclusions and findings in this regard are as follows, based on the evidence made available:
· Whilst the applicant now contends that his ‘mental state’ was really the main problem that caused him to cease work in the building trade, his previous evidence which is well documented, points to his knees being the real cause. There is no evidence of significance in the Tribunal’s view to show otherwise, as already discussed.
· Later, in October 2003, again as previously discussed, Dr Middleton’s diagnosis in Exhibit A2 and more specifically his description of Mr Anderson’s work limitations in that document, do not portray a mental/psychiatric condition as being the substantial factor, although they do indicate an inability for him to concentrate. Dr Middleton clearly emphasises the physical conditions and his report at T14 page 55 again indicates the same conclusion.
· On the other hand Dr O Kay in his report of 3 September 2003 (T12 page 50) made at a similar time to Dr Middleton’s report, opines that Mr Anderson’s inability to work is as a result of his PTSD. However the Tribunal notes that Dr Kay, although reporting as a psychiatrist, makes no mention whatsoever of Mr Anderson’s major physical disabilities of his knees in his report and in reaching that workability conclusion. Dr Kay’s later report of 29 May 2004 (T26 page 93) does not assist in this regard either and no explanation in this respect was offered to the Tribunal at hearing.
· Dr A Mander, also a psychiatrist, provides a detailed report (T29 page 108-113) dated 11 March 2005. He does indicate in his report the importance of Mr Anderson’s physical disabilities and in particular refers to the impact of the right leg fracture. Dr Mander also discusses the relationship between these physical conditions (knees/legs in the main) and Mr Anderson’s PTSD – at least as portrayed by the applicant – with the latter condition (PTSD) apparently being accentuated by the former. Which of the two then would be the more substantial (or causative)? That is the question. The Tribunal notes that Dr Mander in his report concludes that Mr Anderson’s “… social withdrawal, irritability and concentration difficulties would in my opinion make it impossible for him to return to work.”
21. Based on the evidence available, with the emphasis on that summarised in paragraph 20 above, the Tribunal finds that Mr Anderson’s incapacity from war caused PTSD had apparently increased relatively slowly from 2003/04 to the point where he was seen by Dr Mander in March 2005. It was then, rather than when earlier seen by Dr Kay, in the Tribunal’s opinion, that the incapacity had become significant to the stage of overtaking his knees as the substantial cause of his inability to work, albeit the two conditions remained inter-related. Hence the Tribunal is satisfied on the balance of possibilities that the accepted incapacity of PTSD did become the ‘substantial cause’ in terms of s 24(2)(b) of the Act, that this change occurred within the assessment period and in the absence of specific evidence as to actual timing the Tribunal is relevantly satisfied it was in early 2005. Despite this, as explained in paragraph 16 of these Reasons, having been found to have failed the ‘genuinely seeking” requirement he still does not succeed overall in regard to s 24(2)(b).
Conclusion
22. From the various findings made and reasons as outlined, the Tribunal in conclusion finds that Mr Anderson does not satisfy ‘the alone test’ of s 24(1)(c) of the Act. As is clear, he could only do so if assisted by qualifying under s 24(2). Unfortunately, in terms of the Act, he fails to meet the requirement of s 24(2)(b) and hence is not eligible for the ameliorating provision that this section would otherwise provide in regard to s 24(1)(c).
23. Not having met the necessary requirements of s 24 of the Act the Tribunal is reasonably satisfied that Mr Anderson does not qualify for the Special Rate of pension.
Decision
24. Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to affirm that part of the decision under review assessing disability pension.
Post Script
25. An additional matter was raised during the hearing and, whilst it is not an issue which entered the Tribunal’s considerations nor did it affect the decision made, it now needs to be set aside and the previous comment rectified – at least so far as the Tribunal is concerned – and for the record.
26. The Tribunal brought to the attention of both parties at the conclusion of the hearing on 24 March 2006 that it appeared that the VRB had omitted to address, in their formal Decision and Reasons, the reasoning for part of their decision in relation to Mr Anderson’s initial claim. However, on further examination of the T documents subsequent to the hearing, the Tribunal found itself to have been incorrect in that assertion. The matter in part concerned a question as to whether the case of Kattenberg was distinguishable in the particular circumstances involved (T27 page 101). Contrary to the Tribunal’s assertion, the VRB had in fact addressed the issues involved in a separate Decision and Reasons. This document, although noted prior to hearing, was not recalled at the time of the Tribunal comment. The Tribunal regrets any misunderstanding or confusion caused.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member and Dr D Weerasooriya, Member
Signed: (sgd EM Jordan) .....................................................................................
Associate
Date/s of Hearing 24 March 2006
Date of Decision 4 May 2006
Representative for the Applicant Mr P Lofdahl
Representative for the Respondent Mr C Ponnuthurai
0
2
0