Baker and Repatriation Commission
[2008] AATA 13
•5 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 13
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/878
VETERANS' APPEALS DIVISION ) Re RONALD JAMES BAKER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott RFD Date8 January 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Baker is entitled to be paid a pension at the Special Rate with effect from 9 June 2004.
................[Sgd].....................
Senior Member
CATCHWORDS
VETERANS’ APPEALS – veterans’ entitlements – disability pension – application for special rate of pension – applicant’s war-caused injury ‘alone’ did prevent the veteran from undertaking remunerative work – decision set aside
Veterans’ Entitlements Act 1986 (Cth) ss 19, 21A, 24
Jebb v Repatriation Commission (1988) 80 ALR 329Shi v Migration Agents Registration Authority [2007] FCAFC 59
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteran (2003) 75 ALD 703
Cavell v Repatriation Commission (1988) 9 AAR 534REASONS FOR DECISION
8 January 2008 Senior Member P McDermott RFD Introduction
1. Mr Ronald Baker, a veteran, has sought review of a decision made by the Repatriation Commission (the Commission), and varied by the Veterans’ Review Board (the Board), that he was not eligible to be paid a pension at the special rate. I am required to consider whether he meets the eligibility criteria for the payment of an earnings-related rate of pension. These eligibility criteria are provided for in the Veterans’ Entitlements Act 1986 (the Act).
Background
2. Mr Baker served with the Royal Australian Navy from 1962 until 1982. He has a number of conditions which have been accepted as war-caused disabilities related to his service. These conditions being post traumatic stress disorder; alcohol abuse in partial remission; osteoarthritis of the left knee; and bilateral sensorineural hearing loss. He has been assessed by the Board as eligible for payment of pension at 90% of the general rate with effect from 9 June 2004 and 80% of the general rate with effect from 1 June 2006. The change of rate being made because of successful surgery to his knee.
Issues And Legislation
3. Section 19(5C)(a) of the Act requires that the rate of pension is to be determined during the “assessment period”. The “assessment period” is defined in s 19(9) of the Act to mean, in relation to a claim or application relating to a pension, the period starting on the application day and ending when the claim or application is determined.
4. The application day in this case was 9 September 2004. The assessment period runs from then until when a decision is made.
5. An earnings-related rate of pension may be granted to a veteran provided that the applicant meets the requirements of s 24 of the Act. I will mention some relevant provisions from that section.
6. The veteran must be under sixty-five years of age at the date of the claim: s 24(1)(aab). This requirement is satisfied in this case.
7. The degree of incapacity of the veteran from a 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 is not in contention.
8. 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 is also not in contention.
9. In addition to satisfying the requirements of s 24(1)(a) and s 24(1)(b) of the Act, the veteran must also be, 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: see s 24(1)(c).
10. It is common ground that Mr Baker meets the requirements of s 24(1)(a) and (b) of the Act. The real issue in contention in this application is whether Mr Baker does satisfy s 24(1)(c) of the Act. This provision imposes a test which is often referred to as the “alone” test.
11. Mr Jarro, the counsel for Mr Baker, has conceded that s 24(2)(b) of the Act has no application to the present case. This concession was properly made by Mr Jarro as there is no evidence that Mr Baker sought work since taking the redundancy. Indeed, there are statements in medical reports that Mr Baker did not intend to work again. I therefore do not have to consider whether the operation of s 24(2)(b) of the Act ameliorates the operation of s 24(1)(c) of the Act.
Evidence of applicant
12. Mr Baker gave evidence before me. Mr Baker also verified two statements that he had previously given which were admitted into evidence [exs. A1 and A2].
13. Mr Baker had left school at the age of 14 years. In 1962 he joined the Royal Australian Navy. He was discharged in 1982 after he had attained the rank of chief petty officer. After his discharge he was a member of the Reserves which service included a full-time posting to Canberra.
14. In 1991 Mr Baker began to work for the Royal Australian Air Force in civilian employment. He commenced employment as a base-grade clerk (APS1) at No 3 Aircraft Depot, RAAF Amberley which was later combined to become 501 Wing. This was the largest unit in the RAAF. His position was upgraded (APS3). In that position he was responsible for the registry, the archives as well as the communications system. Mr Baker stated that his naval experience enabled him to operate the communications system. He remarked that he was happy in his position in the registry.
15. In 1999 the human resources manager of the Wing went on sick leave. That officer was suffering from stress and did not return. Mr Baker was requested to act in that position until the position was filled permanently. Mr Baker realised after he took the position that it was too stressful. He stated that he dealt with stress by drinking at lunchtime. He did not then seek treatment for stress. Mr Baker remarked that he no longer came to work early and he left each day at the first available opportunity. He remarked that on two separate occasions he had threatened civilian workers with violence.
16. Mr Baker remarked that when positions were being identified for redundancy he nominated his position. In 2001 he accepted a redundancy which was offered to him. He was not made an offer in the first round of redundancy offers. He was, however, successful in the second round of redundancy offers. He stated that at this time he was very stressed in his employment which was in human resource management.
17. Mr Baker stated that he took a redundancy as a way of getting out of a stressful position. He has not worked since.
Medical Evidence
18. On 15 March 2007 Dr Peter Mulholland, psychiatrist, made a report which was admitted into evidence [ex. R1]. In that report Dr Mulholland concluded that the clinical picture is consistent with Mr Baker having a post traumatic stress disorder as a consequence of 2 service related incidents. Dr Mulholland concluded that from a psychiatric point of view he would be inclined to regard Mr Baker as having met Criterion A issues. Dr Mulholland also thought that Mr Baker had alcohol abuse in partial remission.
19. On 18 February 2005 Dr Anthony Cook, psychiatrist, made a report for the Department of Veterans’ Affairs which was admitted into evidence [T12]. In that report Dr Cook gave his opinion that “it is more likely than not that the stressors which Mr Baker has outlined have led to the development of this post traumatic stress disorder”.
20. On 2 April 2006 Dr Rosalie Troup, psychiatrist, made a report which was admitted into evidence [ex. A4]. In that report Dr Troup diagnosed Mr Baker as suffering from post traumatic stress disorder. The conclusion of Dr Troup, as expressed in the report, was: “This veteran is unable to work because of his Post Traumatic Stress Disorder alone. The condition is permanent but may be modified by psychiatric treatment to enable him to lead a more enjoyable life but he would have to live with continuing Post Traumatic Stress. In my opinion, he will not be able to return to the work force solely due to his Post Traumatic Stress Disorder alone. The condition is permanent” (p. 16).
21. In oral evidence Dr Troup stated in her opinion that Mr Baker had post traumatic stress disorder for 20 years well before he took up his public service position. She stated that his outbursts of anger and irritability were caused by the condition. She stated that Mr Baker was unable to cope in that position and had anxiety. He was drinking at lunchtime.
22. There is also evidence before me relating to the orthopaedic condition of Mr Baker. On 20 March 2007 Dr Roger Parkington made a report on the orthopaedic conditions of Mr Baker. That report was admitted into evidence [ex. A3]. Dr Parkington has concluded that the orthopaedic disabilities of Mr Baker are not sufficient to prevent him from working normally.
Consideration Of The Issues
23. 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: 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].
24. I make the initial observation that there is evidence from Dr Mulholland, which I will later mention, who considers that this veteran has a worsening condition of post traumatic stress disorder. This condition of the veteran has certainly deteriorated since he made his application in 2004 and most probably since this application was considered by the Board.
25. Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 5 identified the questions which must be determined in order to consider whether s 24(1)(c) of the Act applied in a particular instance.
26. The first Flentjar question that I must consider is what was the relevant “remunerative work that the veteran was undertaking” 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 substantial remunerative work that the veteran has undertaken in the past”: see Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. 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”.
27. I consider that the “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act is clerical or administrative work at a middle management level. I also consider that this remunerative work should be confined to government work.
28. 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. I appreciate that Mr Baker did not acknowledge his condition in his employment report [T8, fol 50]. However, I have evidence before me of the psychiatric condition of Mr Baker. Both psychiatrists have diagnosed Mr Baker as suffering from post traumatic stress disorder which is an accepted war-caused condition. There is evidence from Dr Cook [T12, fol 85], Dr Troup [ex A4, p 14] and Dr Mulholland [ex R1, p6] that this disorder prevents Mr Baker from working. Having regard to this preponderance of evidence, which I accept, I find that his post traumatic stress disorder condition prevents the veteran from continuing to undertake that remunerative work. My answer to the second Flentjar question is “yes”.
29. I must next consider the third Flentjar question which 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 Flentjar question is a judicial formulation of the first limb of s 24(1)(c) of the Act. This is a question which I should answer “with an eye to reality”: see Cavell v Repatriation Commission (1988) 9 AAR 534 at 539.
30. I would answer the third Flentjar question “yes”. I rely upon the report of Dr Troup which was made on 2 April 2006 In that report Dr Troup concluded: “This veteran is unable to work because of his Post Traumatic Stress Disorder alone”. I consider that the accepted condition of post traumatic stress disorder prevents the veteran from continuing to undertake the work. This opinion has not been contradicted by other evidence. Indeed, Dr Mulholland who reported to the Department on 15 March 2007 has stated the following opinion of this veteran: “The major problem is his ability to relate to other people. Mainly because of his PTSD his ability to do so is severely impaired and given that most jobs involve relating to other people then it is considered that he is not capable of work”. In examining this question “with an eye to reality” I consider that the war-caused condition of post traumatic stress disorder of itself (or alone) prevents the veteran from undertaking remunerative work.
31. I also place reliance on the opinion which was expressed by Dr Parkington in his report of 20 March 2007: Dr Parkington considers that the orthopaedic disabilities of Mr Baker do not prevent him from working normally.
32. As I have given an affirmative answers to the second and third Flentjar questions; I must now consider the fourth Flentjar question. This 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. I rely upon the report of Dr Troup which was made on 2 April 2006 In that report Dr Troup concluded: “He was 57 at the time and had planned to continue working. He has been unable to work since then because of his physiological symptomatology”.
33. Dr Mulholland in his report of 15 March 2007 has also stated that this veteran is not capable of working “mainly because of PTSD”. Dr Mulholland also considers that the post traumatic stress disorder “is now probably worse than what it was a year ago”.
34. I consider that the fourth Flentjar question should be answered in the affirmative. I rely upon the recent psychiatric evidence of Dr Troup and Dr Mulholland that the condition of post traumatic stress disorder prevents the veteran from earning a living. I also mention that Dr Cook, psychiatrist, in his report of 18 February 2005 to the Department remarked that it was then “impractical” for Mr Baker to return to the workforce [T12, fol 85].
35. I consider that this veteran, who has responsibilities to his children, would have continued worked to work if he was free of his war-caused condition of post traumatic stress disorder.
36. I set aside the decision under review and substitute a decision that Mr Baker is entitled to be paid a pension at the special rate with effect from 9 June 2004.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P McDermott RFD, Senior Member
Signed: .....................[Sgd]...................................................... Joan Torbey, Associate
Date of Hearing 7 December 2007
Date of Decision 8 January 2008
Counsel for the Applicant Mr N Jarro
Solicitor for the Applicant Haney Lawyers
Respondent Mr J Kelly, departmental advocate
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