ANDREW McDONALD and REPATRIATION COMMISSION
[2012] AATA 164
•15 March 2011
[2012] AATA 164
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2062
Re
ANDREW McDONALD
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal The Hon Robert Nicholson and Dr A Frazer, Member
Date 15 March 2011
Place Perth Decision:
1.The decision of the Veteran’s Review Board made on 11 May 2011 be set aside.
2.There be substituted for that decision a decision that the applicant is entitled to the special rate of pension.
...(sgd) Hon Robert Nicholson...........
Deputy President
Catchwords
Veteran’s Affairs - Disability Pension – Special rate – whether applicant was alone prevented by reason of incapacity from war-caused injury or disease from continuing to undertake remunerative work that he was undertaking-effect of evidence.Legislation
Veteran’s Entitlements Act 1986 (Cth) s 24(1)(c).REASONS FOR DECISION
15 March 2012
On 23 April 2010 the applicant applied for increase in his rate of disability pension. On 29 June 2010 a delegate of the respondent determined that the applicant’s disability pension should continue at 100% of the General Rate. On 6 July 2010 the applicant applied for review of the delegate’s decision by the Veterans’ Review Board. On 11 May 2011 the Board affirmed the delegate’s decision. On 30 May 2011 the applicant applied for review of the Board’s decision by the Administrative Appeals Tribunal.
RELEVANT STATUTORY PROVISIONS
The relevant statutory provision for a special rate of pension is s 24 of the Veterans’ Entitlement Act 1986 (Cth) (‘the Act’). It is common ground that the applicant has satisfied s 24(1)(a) and (b). That is that the applicant has a degree of incapacity of at least 70% and is totally and permanently incapacitated, that is his 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.
The issue remaining on this application is whether the applicant can satisfy s24(1)(c) which provides:
‘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 be suffering if the veteran were free of that incapacity.’
PRIOR DECISIONS
In Flentjar v Repatriation Commission (1997) 48 ALD 1 a Full Court ( Beaumont, Branson and Merkel JJ) said that the issues before a tribunal in the matter before it were fourfold, namely:
‘1. What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
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 question 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?’
In the present application the central question is the third of those referred to in Flentjar. However, the resolution of that question requires reference to the evidence relevant to the nature of the remunerative work that the veteran was undertaking.
In Repatriation Commission v Smith (1987) 15 FCR 327 a Full Court (Northrop, Beaumont and Spender JJ) held that the requirement in s 120(4) of the Act that ‘the Commission shall…decide the matter to its reasonable satisfaction’ was intended to introduce the civil standard of proof. That provision appears as s 120A(4) of the Act as it relevantly applies in this application. As Beaumont J stated at 335 in reasons concurred in my the other members of the Full Court, ‘there is…a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other.’
In Repatriation Commission v Hendy (2002) 76 ALD 47 at 54 a Full Court (Whitlam, Emmett and Stone JJ) said in relation to the requirements of s 24(1)(c):
‘The tribunal’s task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.’
APPLICANT’S HISTORY
The applicant was born on 9 January 1947.
The applicant attended school in England and travelled to Australia in 1961.
He worked briefly as a farm hand before working as a factory hand for approximately a year.
He worked in a car wrecking yard for 8 months before being employed by Western Australian Government Railways as a trainee engineer for one year.
In 1965 the applicant enlisted in the Australian Army and served from 23 March 1965 until 22 March 1977.
He completed operational service in South Vietnam from 13 July 1966 to 11 June 1967.
After his discharge from the Army he operated a general and hardware store in the town of Kalgarin for 6 years.
He returned to Perth and was employed selling agricultural equipment and supplies for the next 10 years.
He was then employed as sales manager of industrial supplies for PAMS until 2002 when he was employed as the Western Australia Sales Manager for STM.
The applicant ceased work on 23 April 2012 due to post traumatic stress disorder.
He has not returned to work due to his PTSD.
The applicant suffers from the following accepted disabilities:
(i)Bilateral tinnutis;
(ii)Acute pancreatitis;
(iii)Post traumatic stress disorder (‘PTSD’);
(iv)Erectile dysfunction;
(v)Lumbar spondylosis;
(vi)Osteoarthritis affecting both knees.
The applicant suffers from the following non-accepted disabilities:
(i)Ostearthritis affecting both shoulders;
(ii)Cervical spondylosis;
(iii)Muscular & tissue injuries to the right arm.
He currently receives a pension at 100% of the general rate.
The onset of the applicant’s muscular and tissue injuries to his right arm was as a result of a car accident in 1977. Those injuries have no affected the applicant’s capcacity to work as a sales manager.
APPLICANT’S EVIDENCE
The applicant filed a written statement. It generally supports his history as recounted.
He said that his role as Sales Manager involved both internal and external work. The latter included travelling throughout Western Australia to various industries marketing lubrication equipment.
His non-war caused conditions of cervical spondylosis and osteoarthritis of the shoulders did not affect his capacity to do his work. He was able to control those conditions with anti-inflammatory and pain medication and light manipulation/movement after periods of sitting or driving for more than about 30-60 minutes.
His diagnosis of PTSD was made in November 2006 and he was prescribed medication. He also received counselling and attended a support group.
Although he managed his PTSD with some degree of success for some time, his mental health again deteriorated with the anxiety, depression, irritability, anger and sleepless nights. In November 2009 his psychiatrist Dr James Fellows-Smith advised him to cease work due to the PTSD.
Conscious of his responsibility to his company, he continued to work in order find a suitable replacement and avoid severe adverse effects on sales. He retired on 23 April 2010.
The applicant stated that if he had not been suffering from PTSD he would still be working.
The applicant gave oral evidence and was cross-examined.
He said that he first saw Dr Fellows-Smith on 27 November 2006 and now sees him on a monthly basis. He believes that his mental health has improved due to the absence of work pressures.
In 2009 he was drinking around 4-6 stubbies each night to assist him sleeping. In the last 6 months he had not drunk alcohol.
He said that his non-accepted conditions did not cause him to cease work or not to work. It was the PTSD that affected his work capacity.
The applicant was not re-examined.
The applicant’s case did not call any witness other than the applicant.
EVIDENCE OF THE APPLICANT’S PSYCHIATRIST
The respondent firstly called Dr Fellows-Smith, the applicant’s psychiatrist.
He stated that the reason why he concluded the applicant could not work more than 8 hours per week was his PTSD condition.
He described the applicant’s non-accepted conditions.
He said that he had reduced the applicant’s medication from the level recommended by Dr Spear at the time of the death of the applicant’s mother.
He regarded the applicant as having reduced his intake of alcohol. A check by him of the applicant’s liver function in February 2012 showed it to be clear.
He did not regard the applicant’s condition as having improved. In his view the applicant remained precluded from work for more than 8 hours by his PTSD.
EVIDENCE OF CONSULTANT PSYCHIATRIST
The respondent also called Dr Jonathon Spear, Consulting Psychiatrist.
His written report was introduced into evidence.
He concluded in the report that it was probable the applicant could work part-time for periods of no more than eight hours per week. He regarded it as possible but not probable that the applicant could work more than eight hours after further treatment involving rationalising his medication to a single antidepressant, further cognitive behavioural therapy and some further psychotherapy including vivo desensitisation to overcome avoidance and anxiety management skills to assist with social anxiety. He would also need ongoing support to help maintain his reduced alcohol intake.
Dr Spear gave evidence and was cross-examined.
His evidence was that it was difficult to see that the applicant’s treatment was improving his condition.
He regarded any future return to work by the applicant as improbable.
He also recognized that the applicant’s alcoholic consumption had decreased markedly and he considered that a positive sign.
His opinion was that the applicant cannot work more than 8 hours per week and that this was the result of his PTSD condition.
EVIDENCE OF CONSULTANT OCCUPATIONAL PHYSICIAN
The respondent introduced into evidence a report of Adjunct Professor K C Wan, Consultant Occupational Physician. Dr Wan was not available to give evidence, being overseas, and the respondent did not seek any adjournment as a consequence.
Dr Wan’s opinion expressed in his report was that the applicant’s accepted disabilities do not prevent him from working in his kind of work for more than 8 hours per week. This was an opinion expressed in relation to the applicant’s prospects from the ‘physical perspective,’ given that the effect of the applicant’s mental health lay outside Dr Wan’s expertise. He considered that the applicant could work for between 8 and 20 hours per week from a physical perspective. His view was that the applicant’s rejected disabilities would reduce his work capacity to a moderate extent because of restricted movement associated with pain. He proposed the applicant work from a physical perspective so he has sufficient function and mobility to enable him to perform light duties in sedentary or office based administrative/clerical duties or retail sales.
REASONING
In closing submissions the respondent accepted that the evidence Drs Fellow-Smith and Spear was that the applicant is unable to work for more than 8 hours per week due to his psychiatric condition, that is his PTSD. The respondent accepted that the evidence of Dr Wan was unsupported by oral evidence and, in any event, was confined to the applicant’s physical perspective. The respondent therefore submitted that it was open to the Tribunal to find the applicant was entitled to the special rate of pension. It would be applicable from 23 April 2010.
In closing submissions for the applicant it was submitted that the evidence establishes that the applicant’s non-accepted disabilities do not prevent him materially from work. In the case of references to pain experienced by him on driving during his external work, this was a reference to his recognized condition of lumbar spondylosis rather than his non-accepted condition of cervical spondylosis. If was said that the evidence showed the job he was doing was not restricted by the non-accepted disabilities. This evidence was inconsistent with the Wan evidence. Construing the evidence with an eye to reality – Cavell v Repatriation Commission (1988) 9 AAR 539 - it was established that if it were not for the applicant’s PTSD he would still be working. Therefore the applicant qualifies for the special rate.
In our view, the overwhelming weight of evidence is in favour of the applicant qualifying for the special rate. Dr Wan’s evidence was not supported orally and cannot outweigh the evidence of Dr Fellows-Smith and Dr Spear. Furthermore, it does not consider the effect of the applicant’s PTSD.
CONCLUSION
For these reasons we consider that the decision of the Board should be set aside and a decision substituted that the applicant is entitled to the payment of his pension at the special rate.
I certify that the preceding 55 (fifty five) paragraphs are a true copy of the reasons for the decision herein of .
.....(sgd) T Freeman...............
Associate
Dated 15 March 2012
Date(s) of hearing 9 March 2012 Solicitors for the Applicant Mr R Grayden
Grayden LegalAdvocate for the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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