Ayling and Repatriation Commission

[2003] AATA 1245

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1245

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/413

VETERANS' APPEALS DIVISION		)
Re		FRANK JOHN AYLING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date11 December 2003 

PlaceBrisbane

Decision The Tribunal decides to affirm the decision under review.

(Sgd) KL Beddoe
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – disability pension – assessment of rate of pension – special rate – war caused conditions alone prevent the applicant from working – applicant ceased work as he had reached retirement age – applicant not suffering loss that he would not otherwise be suffering – ameliorating provisions – no genuine attempts to seek work - decision affirmed

Veterans’ Entitlements Act 1986, s 24(1)(c)

REASONS FOR DECISION

11 December 2003  Senior Member KL Beddoe          

1.      By a decision notified on 24 October 2000 the respondent Commission accepted the applicant’s claim for disability pension in respect of chronic bronchitis and emphysema but rejected his claim for cervical spondylosis.  Assessment of disability pension was continued at 100% of the General Rate.  The applicant sought review in the Veterans’ Review Board on 24 November 2000.  By a decision notified by letter dated 12 February 2002 that Board noted that the claim for cervical spondylosis was withdrawn and affirmed the decision as to assessment of pension. On 10 May 2002, the applicant applied for review in this Tribunal.

2. Before this Tribunal the respondent conceded that all paragraphs of section 24 of the Veterans’ Entitlements Act 1986 (“the Act”) were satisfied except paragraph 24(1)(c).

3.      Paragraph 24(1)(c) reads as follows:

“24      Special rate of pension

(1)       This section applies to a veteran if:

…

(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 …”

4. Sub-section 24(2) of the Act reads as follows:

“(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.”

5. At the hearing Mr Griffiths appeared for the applicant and Mr McAninly represented the respondent. 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 tendered were marked as exhibits.  Oral evidence was given by the applicant and his wife.

6.      The applicant’s service-related disabilities are:

(a)      Bilateral sensori-neural hearing loss;

(b)      Osteoarthrosis of the left ankle;

(c)       Post traumatic stress disorder;

(d)      Psychoactive substance abuse or dependence;

(e)      Chronic bronchitis and emphysema;

(f)       Allergic Rhinitis;

(g)      Bilateral Tinnitus;

(h)      Chondromalacia patellae of the left and right knee;

(i)        Gastro-oesophageal reflux disease; and

(j)        Depressive disorder.

7.      His non-accepted disabilities are:

(a)      Osteoarthrosis of the right ankle;

(b)      Rotator cuff syndrome of both shoulders;

(c)       Pterygium left eye;

(d)      Sebaceous cyst;

(e)      Cervical spondylosis; and

(f)       Tinea.

8.      The applicant is also in receipt of a service pension for permanent incapacity.

9.      The applicant was born on 3 June 1942 and enlisted in the RAAF on 11 March 1985.  He served as a general hand and was discharged on 2 June 1997.  The Department of Defence has certified that the discharge was “On Reaching Compulsory Retiring Age” (T4/1).  Prior to discharge the applicant took eight month’s leave to avoid redundancy and reach retiring age.

10.     Prior to his RAAF service the applicant served in the Australian Army from 22 August 1960 to 31 July 1968.  That service included service in the SAS and also included overseas service in South Vietnam (1967) and other places.

11.     Between 1968 and 1985, the applicant had various occupations including driving trucks and working in hotels.

12.     Following his discharge from the RAAF the applicant sought labouring jobs.  That search for labouring work seems to have centred on hotels as likely sources of casual work but was generally unsuccessful.

13.     The applicant said, and I accept, that he did get work as a builder’s labourer but, because of his knees and ankles, he was unable to cope with barrowing bricklayers’ mud and lasted less than ½ a day in that job.  The search for work from hotel patrons seems to have been singularly unsuccessful.  The applicant explained that his search for work was for work paid on a cash basis but he said he has not sought work since being put on the service pension in 1998.

14.     The evidence of the applicant, and his wife, satisfies me that following the applicant’s discharge from the RAAF and anticipating his wife’s discharge from the RAAF they decided to purchase a property in the Hervey Bay area.

15.     In his application for pension increase the applicant answered the question “Reason for ceasing work (eg age, illness, redundancy)?” with the following:

“Compulsory Retiring Age from RAAF and Health Condition” (T4/75)

16.     In answering a lifestyle questionnaire the applicant answered the question “Why did you stop working?” by crossing the “Age” and “Other” boxes, leaving the ill-health box blank and providing the explanation “Discharged from Service” (T4/82).  He also answered in response to the question “Did your disabilities stop you working in any way?” with a “Yes” and explained “Reached Service Retirement Age Health Condition” (T4/82).

17.     Those answers are not consistent with his wife’s evidence about the move to Hervey Bay, her understanding of the applicant’s activities at Hervey Bay and his inability to obtain work through a friendly contact.

18.     I am satisfied that there was a positive decision by the applicant and his wife to move to Hervey Bay upon their respective discharges from the RAAF and they did so because the applicant needed the space of a five acres property because the applicant was no longer able to work due to his accepted disabilities (PTSD and alcohol abuse in particular) and because they had decided to retire following discharge.

The Medical Evidence

19.     Document T4/33-35 is a report by Dr Clarke, Consultant Psychiatrist, dated 17 September 1998 and addressed to the Department of Veterans’ Affairs.  Dr  Clarke reported the applicant “finds it quite easy to hide himself away on his property”.   She said that the applicant had problems dealing with crowds of people and had not been to the movies for years because of the numbers of people there and the closed-in feeling he has at the time.  She reported consistent alcohol and tobacco abuse.

20.     Dr Clarke assessed the applicant under Chapter 4 of GARP.  In relation to Table 4.4 (Occupation) she assessed an impairment rating of eight which is – “The veteran cannot work”.

21.     In a handwritten report dated 9 November 1998, Dr Clarke said – “He had to leave work because of the symptoms associated with his PTSD”.

22.     In an updating report dated 10 July 2001, Dr Clarke said she had been seeing the applicant since 30 June 1998 and affirmed that the applicant’s psychiatric problems (PTSD and alcohol abuse) alone prevented the applicant from working (T4/108).

23.     That view is essentially replicated in reports by Dr McGrouther, the applicant’s general practitioner, who reported he sees the applicant on a regular basis     (T4/36-38).

24.     Exhibit B is a medico-legal report by Dr Adam, Specialist in occupational medicine, dated 23 December 2002 and addressed to the Department of Veterans’ Affairs.  Dr Adam considered that the applicant’s osteoarthritis right ankle and bilateral rotator cuff syndrome would have the effect of limiting the range of employment the applicant could undertake. However, he went on to say the applicant would have great difficulty sustaining any employment that he might obtain because of either ongoing alcohol abuse at work or because of intolerance and rage which are part of the PTSD symptom spectrum.

Consideration

25.     I am satisfied that whatever attempts the applicant made to obtain employment after discharge from the RAAF they were confined to casual conversations in hotels and ceased altogether after the applicant found that he could not handle a builder’s labourer job.  I am also satisfied that the search for work was confined to cash in hand work so as not to cause a problem in relation to the payment of service pension.

26. In essence I am satisfied that the applicant’s seeking to engage in remunerative work was so desultory that it cannot be accepted as genuinely seeking to obtain work. It follows that I am not satisfied that sub-section 24(2) has any operation on the facts of this case.

27.     I am satisfied that at the date of application the applicant was prevented from continuing to undertake remunerative work because of his accepted disabilities alone, and not by any other disabilities.

28.     However, I am also satisfied that the applicant is suffering a loss of earnings that he would have suffered if he were free of his accepted disabilities.

29.     The loss of earnings was caused by the applicant’s discharge from the RAAF on age grounds.  He took steps to ensure that was the case by avoiding earlier discharge when he took an extended period of leave to take him up to age 55 retirement.  The loss of earnings was caused by the discharge on reaching compulsory retiring age.

30.     I cannot be satisfied that the loss of earnings was caused by the accepted disabilities alone.  The applicant had completed the usual span of a working life for a member of the RAAF and was discharged accordingly.

31.     The decision under review will be affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe

Signed:         .......................................................................................
  Associate

Date of Hearing  12 May 2003 at Hervey Bay
Date of Decision  11 December 2003
Counsel for the Applicant         Mr Griffiths
Solicitor for the Applicant          Sciacca's, Lawyers
For the Respondent                  Mr D McAninly, Departmental Advocate