Ashton and Repatriation Commission
[2003] AATA 364
•23 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 364
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/768
VETERANS' APPEALS DIVISION ) Re PATRICIA ASHTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal P. J. Lindsay, Senior Member, Dr J. Campbell, Member Date23 April 2003
PlaceSydney
Decision The Tribunal varies the decision under review to the extent that:
(i) the veteran’s degree of incapacity from his war-caused conditions of generalised anxiety with social phobia and depression, and alcohol dependence or alcohol abuse is assessed at 80 per cent of the general rate from 29 July 1998 to 3 August 2000; and
(ii) the veteran was temporarily incapacitated by his war-caused conditions and s.25 of the Veterans’ Entitlements Act 1986 applies to the veteran during the period determined to be from 4 August 2000 to 22 September 2000.
(sgd) P. J. Lindsay
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – assessment – whether special rate of pension applicable – whether temporary special rate of pension applicable – decision varied
Veterans' Entitlements Act 1986, ss.24,25,28
Chambers v Repatriation Commission (1995) 36 ALD 207
Forbes v Repatriation Commission (2000) 171 ALR 131
Cavell v Repatriation Commission (1988) 9 AAR 534REASONS FOR DECISION
P. J. Lindsay, Senior Member,
Dr J. Campbell, Member
1. The applicant, Patricia Ashton, is the widow and legal personal representative of the late Eric Ashton (the veteran), who died on 22 September 2000.
2. On 2 May 2001 the Veterans Review Board (the Board) set aside a decision by the Repatriation Commission (the Commission) dated 6 November 1998 and found that the veteran’s generalised anxiety with social phobia and depression, and alcohol dependence or alcohol abuse were war-caused disabilities. The Board decided that the Commonwealth was liable under s.13 of the Veterans’ Entitlements Act 1986 (the Act) to pay pension from 29 July 1998 to 22 September 2000 for incapacity arising from the disabilities. Pension was to be assessed at sixty per cent of the general rate.
3. The applicant sought review of the Board’s decision, claiming that the veteran’s degree of incapacity from his war-caused conditions should be determined to be 80 per cent of the general rate. Further, the applicant claimed that the veteran was entitled to special rate pension under s.24 of the Act from 4 August 2000 to 22 September 2000. In the alternative, it was claimed that the veteran was entitled to temporary special rate pension under s.25 from 4 August 2000 to 22 September 2000.
4. At the hearing, Mr B. Winship, solicitor, appeared for the applicant. The Commission was represented by Mr J. Marsh from the Department of Veterans’ Affairs (the Department). The Tribunal heard evidence given by the applicant and Ms M. Young, daughter of the veteran and the applicant. A number of exhibits were tendered during the hearing and the Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (T documents).
5. The Tribunal will consider the following provisions of the Act in reaching its decision in this matter:
Section 24 - Special rate of pension
(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 be 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.
…
Section 25
Temporary payment at special rate(1) Where the Commission is satisfied that:
(a) a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and
(b) if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;
the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
(2) Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsections 24(4) and (5).
(3) The Commission may, under this section:
(a) determine a period that commenced before the date on which the determination is made; and
(b) determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.
Section 28
Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
background
6. The veteran, who was born on 30 August 1946, left school at age 15 and enlisted in the Royal Australian Navy at 17. He served from 20 October 1963 to 14 March 1969, which included two periods of operational service. During service, the veteran was treated for anxiety problems in February 1969 (T3 p21). At the time, he was admitted as an in-patient for acute anxiety. On 11 March 1969, the medical officer noted that, although the veteran had responded quite well to treatment, he was certain to relapse if he returned to his duties. As a result he recommended discharge on the basis of anxiety depression. Concerns about the veteran’s level of alcohol consumption were also raised during his service. At the time of discharge, the veteran complained about having bad nerves.
7. On 24 September 1996 the veteran made a claim in respect of headaches, anxiety, depression and painful feet. The Department arranged for Dr Morse, consultant psychiatrist, to assess the veteran. Dr Morse reported as follows:
Mr Ashton appears to suffer long-term problems of anxiety and social phobia with depression. He has also a long-term quite serious alcohol problem. The combination of these factors have meant he is now in an unhappy, isolated life with quite marked difficulties in the relationship with his wife and on-going employment problems.
I see him as suffering from generalised anxiety disorder and a dysthymic disorder which is longstanding, and a quite serious and marked alcohol problem.
…
(T10)
8. The veteran made a further claim on 28 October 1998 (T14) in respect of post traumatic stress disorder and alcohol dependence. On 5 November 1998 Dr Koller, consultant psychiatrist, stated in his report to the veteran’s adviser:
After his Navy days worked in a pub, an RSL club, many jobs, never stuck to a job more than two years. His last job was in Customer Service for a forklift company. Left in August 1997. About the last job, he was not coping, couldn’t stand the pressure and he was more or less pushed out of work. …
This man indicates generalised anxiety disorder that has resulted from three years anxiety provoking service in the RAN as outlined.
Thus he complains of excessive anxiety and worry, tenseness, angry irritability, sleep disorder, concentration problems. There is associated depressed moods.
He has had significant relationship difficulties with his wife and another woman. Alcohol and suicide attempts have accompanied frequent separations. He also smokes excessively.
Alcohol and tobacco are effects at self-medication in response to the generalised anxiety disorder. (T16)
9. The veteran took the matter to the Board for a further review. On 30 November 1998, Dr Law, consultant psychiatrist, diagnosed generalised anxiety disorder with depression and alcohol dependence which he thought were probably service related (T18). The history taken by Dr Law noted that the veteran had worked in a range of occupations since leaving the Navy. He had been a barman, taxi driver, courier, service controller, and a customer service representative. Dr Law stated that the veteran “ … said none of the jobs lasted over 2 years; he usually resigned after he had found he could not cope with the pressure of work, in most jobs. He said he had not worked since 20-8-98.”
10. The veteran died from injuries he sustained in a motor vehicle accident on 22 September 2000. The driver of the other vehicle was charged with dangerous driving and negligent driving occasioning the deaths of the veteran and his wife’s parents who were passengers in his car. At the time of the accident, the veteran had been on leave without pay from his employment with the NRMA since 4 August 2000. The veteran, who started with the NRMA on 4 January 1999, was employed in NRMA’s customer response centre and his classification was as a despatch officer. A letter dated 14 December 2001 to the Department from NRMA’s Ms M. Hornery, Team Manager, Customer Response Centre, noted that the veteran’s performance at NRMA had been satisfactory (Exhibit R4). There had been no complaints about him and he had not received any counselling during his employment. In relation to the veteran’s request for leave Ms Hornery stated that “Eric appeared nervous and upset and informed us that he was undergoing treatment for his nerves and required time off. As Eric was a valued staff member, he was granted 3 months leave without pay.”
evidence
11. During their marriage of 32 years, the applicant and the veteran separated on four occasions, the longest separation being for about seven years. Her evidence was that their separations were caused by the veteran’s excessive drinking and unstable employment. She also referred to the veteran’s depression, nightmares, and inability to cope with life. The applicant thought the longest job the veteran held was with the NRMA.
12. The applicant was referred to the veteran’s application for pension dated 28 October 1998 (T14). Where the form asked for details about his employment history, the veteran had written that he had worked in too many jobs to list or remember (T14 p68). Asked for her comment, the applicant agreed that the veteran had had many jobs and that he did not keep them for long. In answer to a question asking how his disabilities affected his employment or ability to seek employment, the veteran had written, “I had to leave work due to emotional stress. I now find I can’t cope with everyday life and I feel I’m not employable.” The applicant thought that, around that time, the veteran had been working for a forklift company. It was about then that she left him, because she could not communicate with him. She had attempted suicide and later went to live with her parents. She would see the veteran on weekends and they would go out together. In cross-examination, the applicant said she was surprised to learn that the veteran did not take a lot of sick leave while at the NRMA and that the sick leave was taken for his asthmatic condition and other complaints but not depression. Although she thought her husband used to drink every day, she was not aware that the post-mortem did not detect any alcohol in his blood at the time of the motor vehicle accident in which he died. The applicant told the Tribunal that she did not perceive any improvement in her husband’s condition while he was working at the NRMA.
13. It was Ms Young’s evidence that her father was unable to cope with a lot of everyday matters. When she was growing up, he seemed to change jobs frequently. She could recall two or three occasions when there were long periods of time between jobs. He seemed to have difficulty finding new jobs, and they often turned out to be of short duration. More recently, she has had to make financial contributions to help him. Although he did not like to discuss things including his work, she said that her father found the NRMA job to be stressful. His stress was probably compounded because she had moved out of home by the time he began working there. From about March 2000 she thought her father became worse. He would telephone her and say he was suicidal. Ms Young said that her father had told her that he wanted to quit his job at NRMA because he was not coping and the shift work was difficult as he had problems sleeping. By 4 August 2000 when her father went on leave without pay, Ms Young thought that he was simply unable to cope and she used to have him over for dinner at times since he seemed to exist only on alcohol. In her opinion her father would not have returned to work at NRMA. He had also told her that he had been called in for counselling. She was surprised, therefore, when Mr Marsh referred her to Ms Hornery’s letter which stated (Exhibit R4) that the veteran had not been counselled and that his work was viewed as satisfactory. She was also surprised that her father’s sick leave records did not refer to nervous related problems or drinking related problems. Instead the sick leave records noted that her father had difficulties with asthma, neuritis of the feet and cellulitis. She supposed that her father did not wish to reveal the real reason for his requiring sick leave.
14. Dr Law’s clinical notes were admitted in evidence (Exhibit R8). The veteran had four consultations with Dr Law in the three months prior to his death. Dr Law recorded that, on 14 June 2000, the veteran was suffering from bad headaches, tremulous hands and was dejected and anxious. Dr Law saw the veteran for the final time on 15 September 2000 when he noted that the veteran was having ups and downs, was agitated at home and was isolating himself. He prescribed the same medication as on a prior consultation two months earlier. The clinical notes refer to the veteran’s resigning from NRMA on 7 July 2000. This information conflicts with Ms Hornery’s letter as well as a letter dated 3 September 2001 written by Ms Pulbrook, a senior payroll specialist at NRMA, to the Department (Exhibit R3) which stated that the veteran was on leave without pay at the time of his death. Also in evidence was an Emotional and Behavioural Medical Impairment Worksheet that Dr Law completed on 5 November 2001, based on available clinical information up to 14 June 2000 (Exhibit A1). There was no explanation, however, for Dr Law’s restricting himself to his consultation up to 14 June 2000 since he saw the veteran on three later occasions. As to the effect of the veteran’s generalised anxiety disorder with depression and alcohol dependence on his ability to work, in Dr Law’s opinion the veteran was unable to work. Dr Law commented that the veteran was “totally unable to work owing to the adverse effects of his various mental conditions.”
consideration and findings
15. Mr Winship submitted that the veteran was entitled under s.24 of the Act to the special rate of pension from 4 August 2000, when he went on leave without pay from his job at the NRMA, until 22 September 2000 when he was tragically killed. Mr Winship made the submission that at the time the veteran went on leave from NRMA, he had for all intents and purposes ceased work. In support of this submission, Mr Winship referred to the definition of ‘work’ in the Shorter Oxford English Dictionary: “Action involving effort or exertion.” He submitted that the veteran would not have returned to NRMA at the end of his period of leave because the veteran was no longer capable of work. In addition, as the veteran had not been working since 4 August 2000 because he was nervous and upset, symptoms due to his accepted conditions, Mr Winship submitted that it was simply a matter of time before NRMA would have dismissed him, for this was not a temporary illness. In Mr Winship’s submission, the Tribunal should accept the opinion of the treating specialist Dr Law, that the veteran was unable to work due to his war-caused psychiatric condition alone and he was suffering loss of wages. In the alternative, it was submitted that the veteran was entitled to the temporary special rate of pension under s.25 of the Act for the period from 4 August 2000 to 22 September 2000.
16. For the Commission, Mr Marsh said it was accepted that the veteran was appropriately assessed at 80 per cent of the general rate and accordingly the condition in s.24(1)(a) of the Act was satisfied. The Commission, however, disputed that the veteran had been totally and permanently incapacitated. Mr Marsh observed that, although the veteran’s stated reason for requesting leave was that he was undergoing treatment for his nervous condition, he did not consult Dr Law until six weeks after commencing leave. He said that, at that consultation, Dr Law did not change the dosage of the medication he had prescribed on 15 September 2000, a consultation subsequent to the veteran’s taking leave without pay. In addition, the Commission contended that, as the veteran was still employed at the date of his death, he was not entitled to special rate of pension or to temporary special rate pension under s.25 of the Act.
17. In coming to its decision, the Tribunal notes that the relevant standard of proof is that provided for in s.120(4) of the Act:
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
18. In this matter, involving as it does the veteran’s death while on leave from work, the Tribunal is unable to be reasonably satisfied that, if he were incapacitated from his war-caused condition, that his incapacity would have been total and permanent. The Tribunal is mindful of Dr Law’s assessment of 5 November 2001 that the veteran was “totally unable to work”. However, by the end of his period of leave, the veteran may have recovered sufficiently to enable him to return and continue with his employment duties. In this regard the Tribunal notes the veteran’s employment history shows he was usually able to find work again, even if it took him a few months. The Tribunal, therefore, cannot be reasonably satisfied on the basis of the evidence, including the medical evidence, that the veteran’s incapacity was total and permanent. Accordingly, there is no entitlement to special rate of pension under s.24.
19. What then of entitlement under s.25 of the Act to temporary payment of special rate pension? In terms, s.25(1)(a) deals with a temporary incapacity due to a war-caused condition. Mr Marsh submitted that the evidence supported a finding that the veteran was not incapacitated. He emphasised that the veteran waited six weeks to see Dr Law after starting the period of leave without pay, leave which according to Ms Hornery’s letter, was to enable the veteran to be treated for his nervous condition. He submitted that this suggested no deterioration in the veteran’s condition since the veteran’s previous consultation with Dr Law on 21 June 2000, when he said he was working a 38 hour week. The Tribunal nevertheless is persuaded by the fact that the veteran consulted Dr Law on 25 July 2000, that is, in the week prior to going on leave. Dr Law’s clinical notes record that the veteran was “No good. Nightmares. More irritable. Dr Law spoke to LMO – pt’s very sick/depressed.” (Exhibit R8). The Tribunal accepts the opinion of Dr Law, the veteran’s treating psychiatrist, and finds that during his period of leave, the veteran was incapacitated by his war-caused condition.
20. In relation to s.25(1)(b), and on the assumption that the veteran was incapacitated permanently, the Tribunal is then to determine whether s.24 would have applied. At this point the Tribunal acknowledges the respondent’s concession regarding assessment at 80 per cent of the general rate, and finds that the veteran satisfied ss.24(1)(aa), (aab) and (a) of the Act.
21. So far as s.24(1)(b) is concerned, the Tribunal notes that there was little by way of detailed evidence regarding either the type of work that the veteran carried out once he left the Navy in March 1969 or of his reasons for leaving those jobs. From the histories taken by Dr Koller and Dr Law, it is apparent that the range of occupations was quite broad, from driving taxis to roles in customer service. It seems to be the case that the veteran did not have a trade or other qualifications. In determining whether the veteran’s incapacity from his war-caused conditions alone rendered him totally and permanently incapacitated for undertaking remunerative work, the Tribunal is mindful of the need to take into account the matters in s.28 of the Act. In this regard the Tribunal also notes that the kinds of remunerative work that a person with the veteran’s skills, qualifications and experience could reasonably undertake, relates to categories of employment and not particular occupations (Chambers v Repatriation Commission (1995) 36 ALD 207). Applying these principles, the Tribunal finds that, for the purposes of s.24(1)(b) the reference to “undertaking remunerative work” as it applies to the veteran, is a reference to undertaking work as a driver, barman or customer service representative, being unskilled work not involving heavy labour that required the applicant to deal with the public. Was, therefore, the veteran’s incapacity from his war-caused conditions of generalised anxiety with social phobia and depression, and alcohol dependence or alcohol abuse, of such a nature that the conditions alone rendered him incapable of undertaking remunerative work for more than eight hours per week? The Tribunal is reasonably satisfied, on the basis of Dr Law’s evidence, that the veteran’s incapacity from those conditions rendered him incapable of undertaking such work for more than eight hours over a week.
22. Continuing with s.25(1)(b)’s assumption of permanent incapacity, it is necessary to consider next whether the test in s.24(1)(c) is met. Was the veteran, by reason of incapacity from his war-caused conditions alone, prevented from continuing to undertake remunerative work, that is working with the public in unskilled areas such as taxi driving, bar work or enquiries officer? The Tribunal is satisfied that was the case here, during the period that he was on leave from the NRMA, for the reasons given in relation to s.24(1)(b). Finally, the Tribunal must consider whether the veteran, by being prevented from continuing with his work, suffered a loss of wages that he would not have suffered if he were free of that incapacity. Mr Marsh submitted that, since the veteran was still an employee of NRMA throughout the period of leave, he had not ceased to engage in remunerative work as required by s.24(2)(a)(i). Consequently, in his submission the veteran could not satisfy s.24(1)(c) because the paragraph contemplated someone who has ceased employment. The Tribunal notes that s.24(2)(a) relates to the second limb of s.24(1)(c): Forbes v Repatriation Commission (2000) 171 ALR 131. On this point, the Tribunal observes the following dictum from Cavell v Repatriation Commission (1988) 9 AAR 534 (at 539) that the Tribunal is required “ … to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which commonsense is the proper guide.”. The Tribunal is satisfied that the veteran would have suffered a loss of wages during the period of leave without pay, by reason only of incapacity from his war-caused condition. In determining whether s.25 is satisfied, the Tribunal does not accept the Commission’s submission that a veteran who is still employed, as the Tribunal finds the veteran to have been at the date of his death, cannot for that reason alone meet the test in s.25(1)(b). Neither s.24(2)(a) nor s.24(2)(b), therefore, poses an obstacle to the veteran’s meeting the test in s.24(1)(c) in the circumstances assumed in s.25 .
23. Section 25 next directs the Tribunal to determine the period during which the veteran’s incapacity was likely to continue. In the circumstances of this matter, that period is determined to be from 4 August 2000 to 22 September 2000.
24. The decision under review therefore is varied to the extent of finding that (i) the veteran’s degree of incapacity from his war-caused conditions of generalised anxiety with social phobia and depression, and alcohol dependence or alcohol abuse is assessed at 80 per cent of the general rate from 29 July 1998 to 3 August 2000; and (ii) the veteran was temporarily incapacitated by his war-caused conditions and s.25 applies to the veteran during the period determined to be from 4 August 2000 to 22 September 2000.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, senior member, Dr J. Campbell, member:
Signed: .......................................................................................
AssociateDate of Hearing 28 June 2002
Date of Decision 23 April 2003
Solicitor for Applicant Mr B. WinshipRespondent’s Representative Mr J. Marsh, Dep’t of Veterans’ Affairs
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