Bainbridge and Repatriation Commission
[2008] AATA 167
•28 February 2008
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2007/25
VETERANS’ APPEALS DIVISION ) Re NOEL BAINBRIDGE Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM [2008] AATA 167
Tribunal Dr P McDermott, RFD, Senior Member Date3 March 2008
PlaceBrisbane
I DIRECT THAT the Decision paragraph on the front page of the Tribunal’s Reasons for Decision should read:
The Tribunal sets aside the decision under review and substitutes a decision that Mr Bainbridge is entitled to be paid disability pension at 90% of the General Rate with effect from 12 January 2005 until 24 March 2005, and disability pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 with effect from 25 March 2005.
I DIRECT THAT paragraph 43 of the Tribunal’s Reasons for Decision should read:
I set aside the decision under review and substitute a decision that Mr Bainbridge is entitled to be paid disability pension at 90% of the General Rate with effect from 12 January 2005 until 24 March 2005, and disability pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 with effect from 25 March 2005.SENIOR MEMBER
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION 2008 AATA 167
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2007/25
VETERANS' APPEALS DIVISION ) Re NOEL BAINBRIDGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date28 February 2008
PlaceBrisbane
Decision
The Tribunal sets aside the decision under review and substitutes a decision that Mr Bainbridge is entitled to be paid disability pension at 90% of the general rate with effect from 12 January 2005 until 24 March 2005, and disability pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 with effect from 25 March 2005.
..........................................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – application for special rate of pension – applicant’s war caused injuries or diseases the cause alone, of his being unable to work – decision under review set aside.
Veterans’ Entitlements Act 1986 ss 19, 24
REASONS FOR DECISION
28 February 2008 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Mr Noel Bainbridge, a veteran, has sought the review of a decision made by the Veterans’ Review Board which affirmed a decision of the Repatriation Commission (the Commission) that he was not eligible to be paid a pension at the special rate.
2. I have to decide whether this veteran is being paid pension at the correct rate and whether he meets the eligibility criteria for the payment of an “earnings-related” rate of pension at the special rate under the Veterans’ Entitlements Act 1986 (the Act).
BACKGROUND
3. Mr Bainbridge, as a national serviceman, served with the Australian Army in Vietnam as a rifleman. He has operational service from 13 November 1967 to 13 June 1968. He has a number of accepted disabilities: post traumatic stress disorder (PTSD); psychoactive substance abuse or dependence; bilateral sensorineural hearing loss with tinnitus; gastro-oesophageal reflux disease; hepatocellular insufficiency; and hypertension. The veteran has been assessed as eligible for payment of pension at 60% of the general rate.
ISSUES AND LEGISLATION
4. Section 19(5C)(a) of the Act requires the rate of pension is to be determined during the “assessment period”. In relation to a claim or application relating to a pension, the “assessment period” means the period starting on the application day and ending when the claim or application is determined[1].
[1] S 19(9) of the Act.
5. The application day in this case was 12 January 2005 and the assessment period runs from that day.
6. An “earnings-related” rate of pension may be given to a veteran provided that the applicant meets the requirements of s 24 of the Act. I refer to some relevant provisions from that section.
7. The veteran must be under sixty-five years of age at the date of the claim: s 24(1)(a). The veteran satisfies this requirement.
8. The degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, must be determined under s 21A to be at least 70% or has been so determined by a determination that is in force: see s 24(1)(a)(i). This requirement is in contention.
9. There is also a requirement that the veteran must be 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: see s 24(1)(b). This requirement is also in issue.
10. In addition to satisfying the requirement of s 24(1) (a) and s 24 (1) (b) of the Act, the veteran must also, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, be 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: see s 24(1)(c).
MEDICAL CONDITIONS OF VETERAN
11. Two medical witnesses gave evidence on the medical conditions of the veteran: Dr Perce Tucker, consultant psychiatrist, was called by the veteran. Dr William Kingswell, psychiatrist, was called by the Commission.
12. It is fair to say that that the written reports of Dr Tucker and Dr Kingswell, which were filed prior to the hearing, revealed a difference of opinion as to the capacity of the veteran to undertake remunerative employment.
13. Dr Tucker in his report has concluded[2], “Because of his war-caused severe chronic PTSD and associated substance (alcohol) abuse, Noel has had to stop work”. Dr Tucker considers that “he will never be able to work at any kind of paid employment for more than eight hours per week (i.e. He is permanently incapacitated for work)”.
[2] ex. 2, report of 16 April 2007, p. 2
14. In contrast, Dr Kingswell in one report concluded: “I have formed the view that Mr Bainbridge remains fit for part-time work at around 20 hours per week. However he would require a light, lesser skilled profession preferably in an industry that could accommodate his need for isolation. Mr Bainbridge would also need supervision to ensure alcohol use in the workplace was not problematic”[3]. However, under cross-examination, Dr Bainbridge stated that he formed that opinion on the basis of the work that the veteran was performing for his son.
[3] ex. 7, report of 20 February 2007, p. 7
15. I think that it is important to emphasise that I do not regard the opinion of Dr Kingswell as being a firm assessment of the work capacity of the veteran because, Dr Kingswell in his report later commented: “Mr Bainbridge’s capacity for work could be better assessed in a supported, graded, return to work rehabilitation program”[4]. I, therefore, regard his assessment of work capacity as being of a provisional nature.
[4] ex. 7, report of 20 February 2007, p.7
16. Dr Kingswell made a report on 7 May 2007 in which he remarked: “I do not wish to modify any of the opinions expressed in my report of 20 February 2007”[5].
[5] ex. 8
17. When Dr Kingswell gave evidence, he remarked that he had written a report on the 14th June 2007. As this report had not been filed prior to the hearing I called for that report to be produced at the hearing. That report, which was admitted in evidence[6], contained the following sentence: “There are significant barriers to Mr Bainbridge returning to remunerative employment”. In my opinion, that report should have been filed by the respondent prior to the hearing. I accept that the report was not filed because of inadvertence. It is unfortunate that the report was not filed as this may have led to a settlement. I, however, wish to mention why it is important that the report should have been filed. Under a practice direction issued by the President of this Tribunal, the decision-maker is required to lodge with the Tribunal a copy of every document that is in the decision-maker’s possession and is relevant to the review of the decision[7]. The respondent also has responsibilities under the Direction made by the Attorney-General in 2005 under s 55ZF of the Judiciary Act 1903 to act “fairly”[8]; this responsibility extends to agencies involved in merits review procedures[9].
[6] as ex. 9
[7] Practice Direction relating to Section 37 of the Administrative Appeals Tribunal Act 1995, President (Hon. G. Downes), 26 March 2007 (See clause 2.1).
[8] Legal Services Directions made under s55ZF of the Judiciary Act 1903, 2005. See Appendix B, Clause 2
[9] Legal Services Directions made under s55ZF of the Judiciary Act 1903, 2005. See Appendix B, Clause 3
CONSIDERATION OF THE ISSUES
18. This is an instance where the Tribunal regards the administrative decision-making process as a “continuum” and the Tribunal’s function is a part of that “continuum” so that the Tribunal considers the entitlement of the applicant during the whole assessment period[10].
[10] See Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, cited by Downes J in Shi v Migration Agents Registration Authority [2007] FCAFC 59 at [37].
19. One matter that I must determine is the degree of incapacity of the veteran from war-caused injury or war-caused disease. I am prepared to accept Dr Kingswell’s assessment that Mr Bainbridge be given a score of 33 points for emotional and behavioural impairment. On this basis the respondent accepts that this equates to a pension rate of 90% of the general rate[11]. This has the consequence that the rate of pension is determined to be at least 70% for the purposes of s 24(1)(a)(i) of the Act.
[11] See respondent’s submissions, 29 May 2007, para. 6.2
20. Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, (1997) 80 ALR 329 at 333 has identified the questions which must determined in order to consider whether s 24(1)(c) of the Act applies in a particular instance.
21. The first Flentjar question that I must consider is what was the relevant “remunerative work that the veteran was undertaking” that is within the meaning of s 24(1)(c) of the Act. The Federal Court of Australia has held that I am required to have regard to what has been referred to as “the substantive remunerative work that the veteran has undertaken in the past”: see Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
22. In Repatriation Commission v Van Heteran (2003) 75 ALD 703 at 708, Finn J explained that I must have regard to the “type of work which the veteran previously undertook but which because of war-caused incapacity alone he or she can no longer undertake” His Honour emphasised: “It is that remunerative work and not remunerative work at large with which s 24(1)(c) is concerned”. This approach highlights the statutory requirement in 24(1)(c) that there must be an identification of the “remunerative work that the veteran was undertaking”.
23. Mr Bainbridge has had a variety of work in the past. Prior to being conscripted for national service he did clerical work with Myers in the field of shipping and customs. Myers held over a clerical position for him while he was undertaking his national service. When he completed his national service he returned to a clerical position with Myers: he, however, then worked in accounts and not shipping and customs. The veteran preferred to work in the shipping and customs area.
24. In 1969, Mr Bainbridge left Myers and obtained a position with W D & H O Wills in shipping and customs work: he held this position for over fifteen years until he was retrenched when the company moved operations to Sydney. After his retrenchment from W D & H O Wills in 1984, Mr Bainbridge has had a few short term positions in stores which included some clerical work.
25. From 1988 until June 1995, Mr Bainbridge operated a franchise store in Margate. This was not successful in view of his alcohol consumption. He supervised up to 20 staff. After that business was sold, the veteran and his wife lost their house and car.
26. From March 1996 until September 1996 Mr Bainbridge was an aged care attendant at the Buffalo Memorial Home for the Aged. His duties included personal care duties as well as accompanying residents on excursions and shopping.
27. From September 1996 until May 2002, Mr Bainbridge was an attendant at a drive-in hotel bottleshop. He lost that position after new owners acquired the hotel.
28. From May 2002 until March 2005 he was a console operator at a service station that was operated by his son. In his evidence, Mr Bainbridge remarked that he took that position at the “continual insistence from my wife”. He also remarked: “I know that my wife’s insistence on me taking on this job was to get me out of the house and stop me drinking day and night”. The service station job ceased when the petrol company terminated arrangements with his son.
29. Having regard to the remarks of Finn J. in Repatriation Commission v Van Heteran (2003) 75 ALD 703 at 708, I consider the “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act can be properly categorised as retail work.
30. The second Flentjar question that I must consider is whether the veteran is by reason of his war-caused injury or war-caused disease prevented from continuing to undertake that remunerative work. This second Flentjar question is a judicial formulation of the second limb of s 24(1)(b) of the Act which refers to the veteran being “incapable (of) undertaking remunerative work for periods aggregating more than 8 hours per week”.
31. I have examined the evidence of the psychiatric condition of the veteran. Dr Tucker in his report commented: “Because of his war-caused severe chronic PTSD and associated substance (alcohol) abuse, Noel has had to stop work”. Dr Tucker is also of the opinion that the veteran is incapable of working 8 hours per week. Dr Kingswell in his report of 14th June 2007 concluded: “There are significant barriers to Mr Bainbridge returning to remunerative employment”. There is therefore agreement among the specialists that this veteran is prevented from continuing to undertake the remunerative work that is envisaged by s 24(1)(b) of the Act. I also accept the evidence of Dr Tucker that his war-caused psychiatric conditions are the reasons why the veteran is unable to work. My answer to the second Flentjar question is accordingly: “Yes”.
32. I will next consider the third Flentjar question, that is whether the war-caused injury or war-caused disease is the only factor which prevents the veteran from continuing to undertake that work. This third question is a judicial formulation of the first limb of s 24(1)(c) of the Act. I appreciate that this is a question which must be answered “with an eye to reality”[12].
[12] Cavell v Repatriation Commission (1988) 9 AAR 534 at 539
33. In his report of 16 April 2007 Dr Tucker gave his opinion that the veteran “has had to stop work” because of his war-caused post traumatic stress disorder condition and the associated substance (alcohol) abuse. In an earlier report dated 6 September 2005, Dr Tucker had similarly remarked: “Because of his war-caused severe chronic PTSD and Alcohol Abuse, Noel has had to cease work”[13]. I accept these reports.
[13] T4, fol 55
34. I find that the last remunerative work that was undertaken by the veteran was his work at the bottleshop. His uncontested evidence was that he was drinking every day at the hotel. It is understandable that his services were no longer required when the new owners of the hotel terminated his employment.
35. The respondent has submitted that the veteran ceased work at the service station because that work itself ceased, not because his war-caused diseases made it impossible for him to continue work. However, I accept the submission of Mr Taylor, of counsel, that the position at the service station was not a “normal job”. The veteran was working in a protective situation whereby the son was looking after the interests of his father. Dr Kingswell, under cross-examination, agreed that his opinion that the veteran could work for 20 hours per week, could not stand in such circumstances.
36. I answer the third Flentjar question: “Yes”.
37. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 5, Branson J (with whom Beaumont and Merkel JJ agreed) stated that the fourth question should be answered “[i]f the answers to questions 2 and 3 are in each case, yes”.
38. I must now consider the fourth Flentjar question which is whether the veteran by reason of being prevented from continuing to undertake that work is 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. This fourth Flentjar question is a judicial formulation of the second limb of s 24(1)(c) of the Act.
39. I am reasonably satisfied that this veteran had a desire to continue to work but that he was prevented from undertaking that work by his accepted psychiatric conditions. By reason of this he suffered a loss of wages. Even though the veteran was advised by Dr Tucker that he was not able to work, he did genuinely seek work by applying to Centrelink for newstart and kept a record of his attempts. Admitted in evidence is a comprehensive list of the workplaces where he sought employment[14]. In his evidence Mr Joel Bainbridge, the son of the veteran, has remarked that his father “tried very hard to get work by attending Centrelink looking for jobs and looking in the papers and applying for jobs but did not get answers let alone interviews”.[15] The respondent accepts that the veteran continued searching for work until January 2006 but without success[16].
[14] Ex. 3
[15] ex. 5
[16] see, respondent’s submissions, 29 May 2007, para. 4.5.
40. I do not accept the submission of the respondent that this was a case where the veteran had reached the end of his working life. The applicant was 58 years of age and, in my view, still wished to be in the workforce. The veteran was being employed, albeit by his son, when he lodged his application.
41. I answer this fourth Flentjar question: “Yes”.
42. I accept the submission of the veteran and respondent that a pension at the special rate cannot be paid until after the applicant ceased work[17]. I accept the submission of the respondent that if I decide that the veteran is entitled to receive pension at the special rate, my decision should take effect on 25 March 2005; until then pension at the general rate is payable from 12 January 2005[18].
[17] see, applicant’s statement of facts and contentions, 28 May 2007; para 13; respondent’s submissions, 2 January 2008, para. 1.
[18] see, respondent’s submissions, 2 January 2008, para. 1.
DECISION
43. I set aside the decision under review and substitute a decision that Mr Bainbridge is entitled to be paid disability pension at 90% of the General rate with effect from 12 January 2005 until 24 March 2005, and disability pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 with effect from 25 March 2005.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: .....................................................................................
E. Young, Research AssociateDate/s of Hearing 20 July, 11 December 2007
Close of submissions 2 January 2008
Date of Decision 28 February 2008
Counsel for the Applicant Mr M Taylor
Solicitor for the Applicant Wallace Davies Solicitor
Respondent Mr M Smith, departmental advocate