Atkinson and Repatriation Commission

[2004] AATA 1148

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1148

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2003/37

VETERANS' APPEALS  DIVISION		)
Re		JOHN EDWARD ATKINSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date29 April 2004  

PlaceDarwin

Decision The Tribunal sets aside the decision under review and in substitution determines that John Edward Atkinson is entitled to Disability Pension at the Special Rate on and from 30 July 2002, pursuant to section 24 of the Veterans’ Entitlements Act 1986.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS’ AFFAIRS – special rate pension – ceased remunerative work due to war-caused disabilities alone – decision set aside

Veterans’ Entitlements Act 1986: s 24

REASONS FOR DECISION

Deputy President Don Muller        

1. This is a review of a decision of a delegate of the Repatriation Commission dated 25 November 2002 refusing John Edward Atkinson’s claim for a Disability Pension at the Special Rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (the Act).  The Veterans’ Review Board affirmed the decision of the delegate on 4 November 2003.

2.      At the hearing the Applicant was represented by Mr. Piper, solicitor, and the Respondent was represented by Mr. Doube.

3. The Tribunal heard oral evidence from the Applicant and had before it the section 37 Administrative Appeals Tribunal Act 1975 documents, exhibit 1, and a statement of the Applicant dated 2 March 2004, exhibit 2.

4.      The Applicant has the following disabilities which have been accepted by the Respondent as war-caused:

(a)Solar keratoses;

(b)Granuloma of Penis;

(c)Injury to Right Knee;

(d)Bilateral Sensorineural hearing loss;

(e)Fracture Left Little Finger;

(f)Post Traumatic Stress Disorder (PTSD);

(g)Alcohol dependence or alcohol abuse;  and

(h)Depressive Disorder.

5.      The Applicant claims that his war-caused disabilities of PTSD, alcohol abuse/dependence and Depressive Disorder have prevented him from continuing to undertake remunerative work, that he was undertaking, and that he has suffered a loss of wages as a result thereof.

6. The relevant legislation is contained in section 24 of the Veterans’ Entitlements Act 1986, and provides:

“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)….

(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)….

(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 or 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 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.”

7.      Mr. Doube conceded that the Applicant satisfies the provisions of subsections 24 (1) (aa), (aab), (a) and (b) of the Act, but not subsection 24(1)(c).  The Respondent contended that the Applicant has other disabilities which are not war-caused which also play a part in his being prevented from undertaking remunerative work.  In particular, it was submitted that the Applicant has a degenerative back condition which plays a significant part in the Applicant’s inability to work.

8.      The Applicant has the following disabilities which are not war-caused:

(a)Lumbar spondylosis;

(b)Dupuytren’s disease;

(c)Fractured Nose;  and

(d)Fracture of the Left Tibia.

9.      The Applicant was born on 25 July 1946 and is currently 57 years of age.

10.     The Applicant enlisted in the Australian Army on 31 March 1964.  He served until 7 July 1985 when he resigned from the Army.  He worked in civilian employment for nearly four years until 19 March 1989.  He rejoined the Army and served until 2001 when he turned 55 years of age.  He then retired from the Army and received the service and DFRDB pensions.

11.     The Applicant first injured his back while serving in PNG in 1967.  This injury was not service related.

12.     Nevertheless the Applicant served in the Army for roughly 30 years after he injured his back.  His back injury and the pain associated with it varied in intensity over the years.  He always qualified every year in annual physical tests.  He later travelled overseas on deployments to Vietnam, Somalia, Cyprus, Malaysia and Indonesia.

13.     The Applicant’s employment in the Army was always of a managerial/clerical nature which involved tracking stores and supplies (logistics).

14.     He was always able to work in that type of employment despite his back injury.

15.     In 1996, after the death of his father, the Applicant began to feel that his psychological conditions were catching up with him.  It was then that he first sought treatment.

16.     Upon discharge in 2001 the Applicant began a six month contract with North Joint Logistics Unit located at the RAAF base in Darwin, Northern Territory.  His responsibility was to track shipping containers that had been used in the transport of materials for the Australian Army in East Timor.  The Army had been receiving bills for large sums of money from container owners for rental and for non-return of containers.  The Applicant had to track down containers and then decide whether the government should pay for the containers, write them off or, if possible return them to the owners.

17.     After the completion of six months work the Applicant’s contract was extended.  However, after the second six month period the Applicant’s contract was not renewed.  The official employer reason for the non-extension after the second six months was that the employer did not employ casual employees for more than 12 months.

18.     The Applicant gave evidence that his PTSD, alcohol abuse and depressive disorder were catching up with him.  He often had to leave work for a sleep in the middle of the day, or would not show up for work.  He was not working effectively.

19.     His self assessment was supported by Michael Loughlin, a colleague of the Applicant, who was the Business Manager of the North Joint Logistics Unit.  Mr. Loughlin stated in his letter dated 19 December 2002 that he had concerns with the Applicant’s performance due to his “….. frequent absences from the workplace his surly and withdrawn behaviour and a lack of attention to detail”.  Mr. Loughlin also said that North Joint Logistics Command were prepared at one stage to extend the Applicant’s period of employment beyond 12 months.

20.     The Tribunal accepts Mr. Loughlin’s statement that the North Joint Logistics Command were prepared to extend the Applicant’s contract beyond the 12 month period, but that the Applicant had begun to perform poorly.

21.     The Tribunal infers that the Applicant’s poor performance in his position was because of his accepted psychiatric conditions, and that his sub-standard performance was the reason for his failure to continue in employment.

22.     The Applicant gave evidence that although his back can worry him, he is able to ride a bicycle, he could always do clerical work and that his back condition played no part in his cessation of work.

23.     The Applicant also gave evidence that he has been attempting to find work.  He has been able to do a bit of very limited part time work.  However, he does not feel well enough to do anything substantial.  He sleeps a lot and cannot concentrate.

24.     The Tribunal accepts that the Applicant ceased work from the North Joint Logistics Unit solely because of his service related psychiatric conditions and that those psychiatric conditions prevent him from continuing in remunerative work.  His back condition played no part in his cessation of work, nor in his continuing inability to work.

25.     The Tribunal is satisfied that the Applicant qualifies for pension at the special rate.

26.     For completeness,  the Tribunal notes that if the Applicant did not cease work solely due to his accepted disabilities, it is satisfied that he has been genuinely seeking work and that his service related disabilities are the substantial cause of the factors which prevent him from obtaining suitable work.

27. If the Applicant’s psychiatric problems are not the sole reason he ceased work they are certainly the substantial reason why he cannot obtain work. Therefore the ameliorating provisions of section 24(2)(b) of the Act are satisfied.

28.     The Tribunal sets aside the decision under review and in substitution determines that John Edward Atkinson is entitled to Disability Pension at the Special Rate on and from 30 July 2002.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  22 April 2004      
Date of Decision  22 April 2004
Solicitor for the Applicant           Mr. B. Piper
Respondent   Mr. G. Doube