Baker and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 857
•31 October 2016
Baker and Repatriation Commission (Veterans’ entitlements) [2016] AATA 857 (31 October 2016)
Division
VETERANS' APPEALS DIVISION
File Numbers
2014/5872
2014/5873
Re
David Baker
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 31 October 2016 Place Sydney Application 2014/5872
1. The reviewable decision, being the decision of the Repatriation Commission made 16 May 2014 refusing Mr Baker’s claim in respect of ischaemic heart disease, is set aside.
2. In substitution it is decided that ischaemic heart disease suffered by Mr Baker on 27 December 2013, was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).
3. The date of effect is 21 November 2013.
Application 2014/5873
1. The reviewable decision, being the decision of the Veterans’ Review Board made 16 September 2014 assessing the rate of pension payable to Mr Baker at 80% of the General rate with effect from 25 July 2012 and 90% of the general rate with effect from 9 July 2013, is set aside.
2. The matter is remitted to the Repatriation Commission for reconsideration in accordance with these reasons for decision.
..................[sgd]......................................................
J W Constance
Deputy PresidentCATCHWORDS
VETERANS AFFAIRS - entitlements - ischaemic heart disease - whether disease is defence-caused - clinical onset of disease - whether disease connected to the service rendered - decision set aside and substituted.
VETERANS AFFAIRS - entitlements - disability pension - claim for payment at the special rate - whether war-caused disease alone rendered the veteran incapable of undertaking remunerative work for more than 8 hours per week – claim for payment at the intermediate rate - whether war-caused disease alone rendered the veteran incapable of undertaking remunerative work other than part-time or intermittently - decision set aside and remitted.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 22, 23, 24, 28, 70, 120(4), 120B, 196B(14)
CASES
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Richmond [2014] FCAFC 124
Re Robertson and Repatriation Commission (1998) 50 ALD 668Smith and Repatriation Commission [2014] FCAFC 53
SECONDARY MATERIALS
Statement of Principles concerning Ischaemic Heart Disease, No. 90 of 2007
REASONS FOR DECISION
Deputy President J W Constance
31 October 2016
PART 1: INTRODUCTION
On 21 February 2014 Mr Baker applied for his ischaemic heart disease to be accepted as a service-related condition in accordance with the Veterans’ Entitlements Act 1986 (Cth). He claims he has suffered, and continues to suffer, the condition arising out of his service as a member of the Royal Australian Navy.
On 16 September 2014 the Veterans’ Review Board affirmed the decision of the Repatriation Commission (made on 16 May 2014) refusing to accept the claim. The Board also decided that Mr Baker’s correct rate of pension (based on other accepted conditions) was 80% of the General rate with effect from 25 July 2012 and 90% of the General rate with effect from 9 July 2013. Mr Baker sought an increase in his pension to the Special rate.
Mr Baker has applied to the Tribunal to review the Board’s decisions. The claim in relation to ischaemic heart disease is the subject of application 2014/5872; the claim dealing with the rate of pension is the subject of application 2014/5873.
For the reasons which follow the decision under review relating to the claim for acceptance of ischaemic heart disease will be set aside. In substitution it will be decided that the condition suffered by Mr Baker arose out of his defence-service with the royal Australian Navy.
The decision in relation to the rate of pension payable to Mr Baker will be set aside and remitted to the Repatriation Commission for reconsideration in accordance with these reasons for decision.
PART 2. BACKGROUND
Mr Baker was born on 22 March 1950. He served as a member of the Royal Australian Navy from 14 July 1965 until 13 July 1985.
Mr Baker suffers from several medical conditions which have been accepted by the Commission as having arisen from his service. Included in these conditions are post-traumatic stress disorder and depressive disorder which arose from an incident which occurred in 1984.
After Mr Baker retired from the Navy in 1985 he was employed in a number of roles, the details of which are set out later in these reasons. He resigned from the last of these positions on 22 March 2010, being his 60th birthday. Mr Baker says that he resigned “due to constant frustration arguing with both the workers and Management.”[1]
[1] Exhibit A1 p.2.
Mr Baker says that from about 1985 onwards he suffered feelings of anger and frustration which interfered with his home life and his work. However, it was not until August 2012 that he sought professional help in regard to these problems. At that time he consulted Dr Altman, Consultant Psychiatrist.
Dr Altman diagnosed Mr Baker as suffering chronic post-traumatic stress disorder and major depression. He prescribed medication for Mr Baker which has resulted in a lessening of his symptoms. Mr Baker has continued to consult Dr Altman on a regular basis.
In December 2013 Mr Baker was hospitalised and diagnosed as suffering ischaemic heart disease.
Apart from limited part-time work at his local RSL Club, Mr Baker has not been engaged in paid employment since 22 March 2010.
PART 3
APPLICATION 2014/5872: THE CLAIM TO HAVE ISCHAEMIC HEART DISEASE ACCEPTED AS “DEFENCE-CAUSED”
A. LEGISLATION
A.1 Defence-caused disease
Section 70 of the Act sets out the circumstances in which a disease is taken to be "defence-caused". The relevant parts of that section are:
(5)For the purposes of this Act …… a disease contracted by [a member of the Forces] …… shall be taken to be a defence-caused disease if:
…….
(a)the …… disease …… arose out of, or was attributable to, any defence service… as the case may be, of the member;
……..
A.2 Standard of proof when claimed disease said to have arisen out of, or was attributable to, “defence service”
Subsection 120(4) provides:
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.
Neither subsection (1) nor subsection (2) applies in this matter.
Subsection 120B(1) provides:
This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.
Subsection 120B(3) provides:
In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
Subsection 196B(14) provides:
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
a) it resulted from an occurrence that happened while the person was rendering that service; or
b) it arose out of, or was attributable to, that service; or
c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
d) it was contributed to in a material degree by, or was aggravated by, that service; or
e) in the case of a factor causing, or contributing to, an injury--it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or
f) in the case of a factor causing, or contributing to, a disease--it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or
g) in the case of a factor causing, or contributing to, the death of a person--it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service.
B. ISSUES FOR DETERMINATION
The following issues arise for determination.
(1)Did Mr Baker render “defence service” and if so, when?
(2)Does Mr Baker suffer from ischaemic heart disease or other relevant condition?
(3)If he does, when was the clinical onset of the condition or conditions?
(4)If Mr Baker does suffer from ischaemic heart disease, does the material before me raise a connection between the disease and the service rendered by him?
(5)If such a connection is raised, is there a relevant Statement of Principles in force?
(6)If so, does the Statement of Principles uphold the contention that the disease suffered by Mr Baker is, on the balance of probabilities, connected with the service?
C. DETERMINATION OF THE ISSUES
Issue 1: Did Mr Baker render defence service and if so, when?
Mr Baker joined the Navy in 1965. It is not in dispute that he rendered defence service from 7 December 1972 to 13 July 1985.
Issue 2: Does Mr Baker suffer from ischaemic heart disease or other relevant condition?
On the basis of the reports of Dr Schrale, Consultant Cardiologist,[2] and Dr Tiller, General Practitioner,[3] I am satisfied that Mr Baker suffers ischaemic heart disease. The Commission agrees that this is the case.
[2] Exhibit R1 p.109.
[3] Exhibit R1 p.120.
Issue 3: When was the clinical onset of the ischaemic heart disease?
Clinical onset of a disease occurs “either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present.”[4]
[4] Re Robertson and Repatriation Commission (1998) 50 ALD 668, [23].
Mr Baker was hospitalised and treated for a heart condition in December 2013. On the basis of the reports of Dr Schrale and Dr Tiller referred to above, I am satisfied on the balance of probabilities that the clinical onset of Mr Baker’s ischaemic heart disease was 27 December 2013.
Issue 4: Does the material before the Tribunal raise a connection between the ischaemic heart disease and the service rendered by Mr Baker?
In determining eligibility for a pension, section 19 of the Act provides that a veteran’s entitlement is to be assessed with respect to any circumstance that occurs within the “assessment period”. The assessment period runs from the date of the application for an increase in the pension (in this case 25 October 2012) up to the decision of this Tribunal.[5] As stated by Buchanan J in Smith and Repatriation Commission:[6]
The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.
[5] Subsection 19(9).
[6] [2014] FCAFC 53, [40].
In the case of the application in respect of the ischaemic heart disease the assessment period began on 22 February 2014.
Mr Baker suffers from two conditions which were defence-caused. These are post-traumatic stress disorder and depressive disorder. Both conditions were found to have been caused by an incident which occurred in 1984 when Mr Baker was a Chief Petty Officer on board HMAS Brisbane on patrol in the Indian Ocean.[7]
[7] Veterans’ Review Board decision N13/0083 made 9 July 2013.
The Veterans’ Review Board found that as at 9 July 2013 (being the date of its decision) Mr Baker suffered both of the conditions referred to. It based its decision on the diagnoses made by Dr Altman which was set out in a report dated 17 December 2012.[8]
[8] Exhibit R1 p.26.
Counsel for Mr Baker argued that he suffered from the diagnosed psychiatric conditions for many years prior to his developing ischaemic heart disease and that those conditions contributed to the development of ischaemic heart disease.
The argument on behalf of Mr Baker is supported by the evidence of Dr Rosenthal, Specialist Occupational Physician, who assessed Mr Baker in November 2015 at the request of his Solicitors. In his report dated 14 December 2015[9] Dr Rosenthal expressed the opinion that the ischaemic heart disease was linked to Mr Baker’s naval service by reason of his having suffered a clinically significant depressive disorder prior to its onset.
[9] Exhibit A3.
A contrary view was expressed by Dr O’Rourke, a specialist in Cardiovascular Medicine, who examined Mr Baker in May 2015 at the request of the Solicitors for the Commission. Dr R O’Rourke provided a report dated 29 May 2015.[10]
[10] Exhibit R4.
Dr O’Rourke reported, in part:
I believe that there is no factor, related to service, operational or other, that can link or relate cardiac condition to war service. Mr Baker was fit and well on entry to and discharge from service. Elevation of the BP (hypertension) was first diagnosed in 1989, 14 years after discharge from the Navy. Post-traumatic stress disorder was diagnosed retrospectively in 1995 on the basis of a single incident in 1984 where scare charges were dropped into the sea from a vessel moored nearby in Colombo Harbour to deter a transfer of drugs and over a period of half an hour. This does not fulfil the requirements of a Type I or Type 2 stressor. It preceded onset of ischaemic heart disease by almost 30 years, and hypertension by five years. Smoking, on the basis of information in the file, confirmed by the history given me by Mr Baker, indicate cigarette use of 20 – 30 cigarettes per day for 10 years (1965 – 1975) – i.e. some 12 – 13 pack years. There was a 39 year gap between cessation of smoking and onset of coronary artery disease.
Although the opinion of Dr O’Rourke is diametrically opposed to that of Dr Rosenthal, I am satisfied that the material before me does raise a connection between the claimed disease and the defence service rendered by Mr Baker. Dr O’Rourke challenges the finding of the Veterans Review Board that Mr Baker’s psychiatric conditions are linked to his service. However, this finding was not challenged by the Commission and those psychiatric conditions remain as accepted conditions for the purposes of the Act. In my view the opinion of Dr O’Rourke does not outweigh the opinion of Dr Rosenthal to the extent that there should be a finding of no connection. On the basis of the evidence of Dr Rosenthal I am satisfied on the balance of probabilities that such a connection exists.
Issue 5: Is there a relevant Statement of Principles in force?
The parties agree that the relevant Statement of Principles is No. 90 of 2007 (as amended) concerning Ischaemic Heart Disease. I am satisfied that this is correct.
Clause 3(b) provides:
For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
Issue 6: Does the Statement of Principles uphold the contention that the disease suffered by Mr Baker is, on the balance of probabilities, connected with the service?
Clause 4 of the Statement provides:
On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Clause 5 provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Clause 6 lists the factors that must exist before it can be said that, on the balance of probabilities, ischaemic heart disease is connected with the circumstances of a person’s service. Only one of these factors must exist. Subclause 6(m) lists:
Having clinically significant depressive disorder for at least five years, before the clinical onset of ischaemic heart disease
“Clinically significant” is defined in clause 9 to mean:
sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, Cllr or general practitioner.
Mr Baker’s evidence
In his written statement[11] Mr Baker said that he was suffering the signs and symptoms of a psychiatric disorder by the 1980’s. He described his work history after leaving the Navy as follows:
[11] Exhibit A1.
·When I got out of the Navy in 1985 I worked for 3 ½ years at Buttercup Buns Liverpool as the Maintenance Engineer. I was forced to leave this position for being verbally abusive to workers and in particular due to my frustrations and short temper.
·I worked at Helios Electroheat from 1989 as Production planner and then NSW Manager. Again I was asked to leave in 1994 as result of my ongoing issues with anger and frustration.
·I was then employed by Skilled Engineering until 1998 when I resigned as I was asked not to return to the Amoco site for disagreeing and arguing with the Plant engineer about the way I was treating workers.
·I was then employed by Industrial Elements and Heating until 2010 where I resigned due to constant frustration and arguing with both the workers and Management.
·During this time I did not realise I was suffering from a diagnosable psychiatric condition. In 2012 after a sleep test at Royal North Shore Hospital my Sleep Specialist Dr D Joffe referred me to Dr Graham Altman for assessment, as he saw symptoms of stress that he had seen in other veterans who had PTSD.
……
My frustration and anger got to a point in late 2009 that my wife threatened to leave me if my anger/frustration and drinking did not change. I could see no way to change unless I got away from the cause resulting in my resigning from work.
When he gave evidence, Mr Baker said that he had been suffering from anger and frustration at work “for a few years” before he resigned from his position at Industrial Elements and Heating in 2010. He also suffered from anger and frustration dealing with his family. He said that these problems had worsened over time.[12] When asked if he had sought any medical treatment before seeing Dr Altman he said that he had not as he just thought it was his personality.
[12] Transcript 09/05/16 at p-6.
Mrs Baker’s evidence
Mrs Baker provided a statement dated 19 January 2016.[13]
[13] Exhibit A2.
Mr and Mrs Baker met in 1970 and married in 1975. They have two sons who are now adults.
Mrs Baker said that Mr Baker was initially “a happy-go-lucky person, a great husband and father, and life was good for many years.” She described the change in his behaviour after he left the Navy as follows:
As the years went by, he became very withdrawn and moody, there were many times the boys and I were walking on eggshells, afraid of saying or doing the wrong thing and setting off an unreasonable reaction. There were quite a few times I contemplated leaving because life was so stressful. He was extremely intolerant and often flew off the handle for seemingly no good reason at all.
……
Life has improved markedly since then, [being the time Mr Baker was prescribed antidepressants in 2012] as Dave is much calmer now and doesn’t get agitated or upset anywhere near as much as he did previously.
Evidence of Dr Altman, Consultant Psychiatrist
Dr Altman has been Mr Baker’s treating psychiatrist since August 2012. He provided reports dated 17 December 2012,[14] 9 April 2014[15] and 12 August 2014.[16]
[14] Exhibit R1 p.26.
[15] Exhibit R3 p.171.
[16] Exhibit R3 p.182.
In his report of 17 December 2012 Dr Altman noted a number of symptoms from which Mr Baker had suffered from around 1989 and which, in his opinion, were indicative of chronic post-traumatic stress disorder. He also reported that Mr Baker presented with features indicative of an intermittent major depression which he had experienced for periods over approximately 20 years. On average Mr Baker experiences depression twice a year for approximately 2 months on each occasion.
Dr Altman further reported:
In summary, in my opinion as result of the above mentioned traumatic event which occurred in India in approximately 1983, Mr Baker suffers from a chronic Post-traumatic Stress Disorder with an intermittent Major Depression and Alcohol Abuse.[17]
[17] Exhibit R1 p.28.
On 9 April 2014, Dr Altman reported that Mr Baker’s symptoms of post-traumatic stress disorder were severe.
In his report of 12 August 2014 Dr Altman stated:
I have discussed the matter of his intermittent Major Depression in more depth with him.
Since the traumatic incident in 1983 regarding the scare charges, Mr Baker has been suffering from a Major Depression. Since then he has had “trouble sleeping”, he has felt “angry” and he has been “feeling low”. In addition since then for example he has suffered from low energy and low confidence and motivation. However approximately twice a year this Major Depression becomes more severe for approximately two months on each of these occasions.
Therefore in summary Mr Baker suffers from a Major Depression since the traumatic event in 1983. This Major Depression becomes more severe approximately twice a year for approximately two months.
Since 1983 he has not had periods where he feels normal and happy as he used to.
Discussion
I accept the evidence of Dr Altman who has been treating and observing Mr Baker on a regular basis since 2012. On this basis I am satisfied that Mr Baker has suffered from both post-traumatic stress disorder and major depression since 1984. Although the major depression was initially described by Dr Altman as “intermittent”, in his last report he indicated that the depression was ongoing, but worsened on a regular basis for periods of approximately two months.
Further, on the basis of this evidence, I am satisfied that both conditions are “clinically significant” within the meaning of the Statement of Principles. Although Mr Baker did not seek treatment for these conditions until August 2012, I am satisfied that the symptoms of the diseases were sufficient to have warranted ongoing management from about 1985. I have reached this conclusion on the basis of the evidence of Mr Baker, Mrs Baker and Dr Altman. The definition of “clinically significant” does not require that the relevant depressive condition be treated in fact.
I am satisfied that Mr Baker has had clinically significant depressive disorders for more than five years before 27 December 2013 (being the time of onset of his ischaemic heart disease). I am satisfied that Statement of Principles No.90 of 2007 upholds the contention that his ischaemic heart disease is connected with his defence-service and therefore that the condition is “defence-caused” within the meaning of section 70 of the Act.
Mr Baker lodged his claim for acceptance of ischaemic heart disease with the Department on 21 February 2014.[18] In accordance with subsection 20(2) I determine that the date of effect of this decision is 21 November 2013.
PART 4
APPLICATION 2014/5873: THE CLAIM FOR PAYMENT OF THE PENSION AT THE SPECIAL RATE
[18] R1 p.99.
A. BACKGROUND
Mr Baker lodged a claim for a disability pension on 25 October 2012.[19] The assessment period commenced on that day. I have referred to the basis on which the assessment period is determined earlier in these reasons.
[19] Exhibit R1 p.14.
The disability claimed was a psychiatric condition, the signs and symptoms of which were “low mood, stressed, irritable ect [sic]”.[20]
[20] Exhibit R1 p.16.
Post-traumatic stress disorder and depressive disorder were accepted as war-caused conditions on 25 July 2012.[21] However Mr Baker’s eligibility for the pension was affirmed at the General rate.
[21] Exhibit R1.
B. LEGISLATION
Part II of the Veterans’ Entitlements Act 1986, which includes sections 12 to 34 inclusive, provides for “Pensions, other than service pensions, for veterans and their dependants”. The pension which is being paid to Mr Baker is payable in accordance with this Part.
Section 15 permits a veteran who is in receipt of a pension under Part II to apply for an increase in the rate of the pension on the ground that his/her incapacity has increased since the pension was assessed or last assessed.
Section 19 sets out the manner in which applications are to be dealt with. In particular, subsection 19(5B) requires applications to be assessed in accordance with the relevant sections, which include:
·Section 22 General rate of pension and extreme disablement adjustment;
·Section 23 Intermediate rate of pension
·Section 24 Special rate of pension.
As Mr Baker is seeking an increase in his pension from the general rate to the special rate, it is necessary to determine whether he meets the requirements of section 24. If he does not, it will be necessary to decide whether he is entitled to an increase to the intermediate rate in accordance with section 23.
I will set out the relevant provisions of sections 23 and 24 when I come to consider the application of each section.
C: CERTAIN PROVISIONS OF SUBSECTION 24(1) NOT IN ISSUE
The Commission concedes that Mr Baker meets the requirements of subparagraphs (aa), (aab) and (a) of subsection 24(1) of the Act. In brief these requirements are that:
·he is a veteran who has made an application under section 15 for an increase in the rate of a pension he is receiving;
·he had not turned 65 when the application for an increase was made; and
·the degree of his incapacity from war-caused injury or war caused disease, or both, has been determined to be at least 70%.
I am satisfied on the facts before me that these are proper concessions.
Further requirements for eligibility for payment at the special rate are set out in subsection 24(1)(b) and subsection 24(1)(c). The Commission argues that Mr Baker does not satisfy the requirements of either of these paragraphs.
D: DOES MR BAKER MEET THE REQUIREMENTS OF SUBSECTION 24(1)(b)?
Subsection 24(1)(b) provides:
(1) This section applies to a veteran if:
……
(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.
Section 28 sets out the matters to be taken into account in applying the provisions of subsection 24(1)(b). The section provides:
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 …… 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).
The effect of section 28 is to exclude all other factors from consideration in determining whether the Applicant satisfies subsection 24(1)(b).[22]
[22] Chambers v Repatriation Commission (1995) 55 FCR 9 at [39].
At present the following conditions suffered by Mr Baker have been accepted as war-caused (including ischaemic heart disease decided upon earlier in these reasons for decision):
·solar skin damage;
·bilateral sensorineural hearing loss;
·bilateral tinnitus;
·deviated nasal septum;
·sleep apnoea;
·post-traumatic stress disorder;
·depressive disorder;
·ischaemic heart disease.
Mr Baker argues that these accepted conditions render him incapable of undertaking remunerative work for more than eight hours per week and that therefore he is “totally and permanently incapacitated” within the meaning of subsection 24(1)(b).
Evidence of Mr Baker
I have set out Mr Baker’s evidence as to his work history after leaving the Navy earlier in these reasons.
Further, in his statement of 20 February 2015,[23] he said:
I stopped working as a result of my accepted conditions alone. The psychiatric condition albeit recently controlled by medication to an extent continues to impact on my lifestyle and in particular my ability to function and communicate with others. I often have angry outbursts and seldom leave the house. I get upset and frustrated when there are lots of people around and I do not like people to walk and/or stand behind me as I get very anxious. My circle of friends is almost non existent due to my reluctance to go out.
[23] Exhibit A1.
When he gave evidence, Mr Baker said that he gave up working for Industrial Elements and Heating as his anger and frustration became so bad that his wife was upset, he was upset and could not sleep, and he felt he could not go any further.[24] He also said that had it not been for his problems with anger, aggression and frustration he would have continued working until age 65.[25] He agreed that he stopped work on the day he became eligible to receive the service pension.[26]
[24] Transcript 09/05/16 p-6.
[25] Transcript 09/05/16 p-10.
[26] Transcript 09/05/16 p-18
During examination-in-chief of Mr Baker, the following exchange took place:
Counsel: Now, since you ceased work at Industrial Elements and Heating, have you been looking for a new alternative?
Mr Baker: No
Counsel: And why is that?
Mr Baker: I thought it would be exactly the same if I went back to work. I would be in the same position again, until I saw- (indistinct) with Dr Altman. But then by that time, it was … 2015... it wasn’t really worth it to go back to work
Deputy President: When you say it was not really worth it, because you were intending to retire at 65?
Mr Baker: 65, yes
Counsel: And since seeing Dr Altman in 2012, have you seen him since then?
Mr Baker: I see him every month
Counsel: Does that help?
Mr Baker: Yes indeed. The medication helps.[27]
[27] Transcript 09/05/16 p-13.
Evidence of Dr Altman
At the time Dr Altman provided his report of 9 April 2014,[28] he had formed the opinion “that as a result of the psychiatric disorders alone he is totally and permanently unfit to work and that these disorders resulted in him officially stopping work in 2010.” When he gave evidence, Dr Altman confirmed that he continued to hold this opinion. Mr Baker was continuing to consult Dr Altman on a monthly basis.
[28] Exhibit R3 p.171.
Mr Baker first consulted Dr Altman 9 August 2012. Dr Altman at first took a work history from Mr Baker on 15 October 2012. Initially, Dr Altman formed the opinion that “it was a simple case of retiring from work. …… It was only subsequently that it became clearer to [him] what was behind this so-called retirement.” [29]
[29] Transcript 09/05/16 p-26.
Evidence of Dr Chase, Occupational Physician
Dr Chase assessed Mr Baker on 8 May 2015 at the request of the Commission. He provided a report dated 19 May 2015 [30] and gave evidence.
[30] Exhibit R2.
In the opinion of Dr Chase, Mr Baker has capacity to work between eight and twenty hours per week. Physically there is no restriction on Mr Baker’s ability to work but his psychological condition would make it difficult for him to work full time. He would not be able to work in a high stress environment. Whilst it is possible that he could work more than 20 hours per week, Dr Chase was of the opinion that this was unlikely.
In reaching his conclusions, Dr Chase took into account that Mr Baker is able to do some paid work at his local RSL Club and to socialise and play sport outside his home environment.
Consideration
On the basis of the evidence of Mr Baker, I am satisfied that he has the vocational, trade and professional skills, qualifications and experience of an electrical engineer/maintenance officer and as a salesman.
Further, I am satisfied that a person with the skills, qualifications and experience referred to above might reasonably undertake the kind of remunerative work which Mr Baker has previously undertaken.
In considering the degree to which Mr Baker’s accepted conditions have reduced his capacity to undertake the remunerative work referred to above, I have taken into account his evidence together with that of the medical practitioners to whose evidence I have referred.
Having considered all of the evidence, I am satisfied that Mr Baker’s psychological conditions are of such a nature as, of themselves alone, to render Mr Baker incapable of undertaking remunerative work for periods aggregating more than twenty hours per week. I am satisfied that Mr Baker is able to work more than eight hours per week.
In reaching this conclusion I have preferred the evidence of Dr Chase to that of Dr Altman. Although Dr Altman is one of Mr Baker’s treating practitioners, his specialty is in psychiatry. On the other hand, Dr Chase’s specialty is in occupational medicine. I have also taken into account, as did Dr Chase, that Mr Baker is able to engage in some paid employment, he is able to play sport and to socialise outside his home and is an active member of his local RSL Club.
Dr Altman gave evidence that Mr Baker’s psychiatric condition had improved following treatment. This was confirmed by the evidence of Mrs Baker. It was confirmed also by the evidence of Mr Baker who said that he worked until he was eligible for the service pension.[31] At the time he ceased work for his last employer, Mr Baker had been continuously employed in that position for 11 years. I infer from this that any difficulties he experienced in controlling his anger and frustrations were not serious enough for his employer to end their relationship.
[31] Transcript 09/05/16 p-18.
As Mr Baker does not meet the requirements of subsection 24(1)(b) he is not entitled to be paid the pension at the special rate.
E: DOES MR BAKER MEET THE REQUIREMENTS OF SUBSECTION 24(1)(c)?
Although the conclusion I have reached in relation to subsection 24(1)(b) means that section 24 does not apply in this case, in view of the arguments put by the parties I will proceed to consider subsection 24(1)(c).
Subsection 24(1)(c) provides:
(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…
Subsection 24(2) provides:
For the purposes 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.
In Smith v Repatriation Commission,[32] the Full Court said in relation to section 24 that:
Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2)… (emphasis added).
[32] Supra note 6.
The Full Federal Court in Flentjar v Repatriation Commission[33] stated that subsection 24(1)(c) requires consideration of four issues:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, 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?
[33] (1997) 48 ALD 1, at 4-5.
In Repatriation Commission v Richmond,[34] the Full Court of the Federal Court warned that the application of subsection 24(1)(c) "is not to be ascertained by construing the words in the authorities as if they were the words of the statute". However, with this in mind, the questions set out in Flentjar v Repatriation Commission are appropriate to determine the issues in this matter.
[34] [2014] FCAFC 124, at para 50.
What was the relevant remunerative work that Mr Baker was undertaking?
On the basis of the evidence of Mr Baker, I am satisfied that the relevant work he was undertaking was that of a salesman of electrical heating.
Is Mr Baker, by reason of his war-caused injury and war-caused diseases prevented from undertaking that work?
For the reasons stated above I am satisfied that by reason of his war-caused injury and war-caused diseases, Mr Baker is prevented from undertaking the work specified on a full-time basis.
Are the war-caused injury and war-caused diseases the only factors preventing Mr Baker from continuing to undertake that work?
Mr Baker’s evidence
The difficulties which Mr Baker experienced in the workplace arose from his anger, frustration and problems in dealing with other workers. These difficulties arose from his psychiatric conditions rather than his physical conditions.
Consideration
In considering this issue, it is important to note that the assessment period in this matter is from 25 October 2012 until the date of the Tribunal’s decision. The question of whether Mr Baker is prevented from continuing to undertake remunerative work by reason of his war-caused conditions alone is to be assessed during this period.
With regard to the alone test, in an interpretation approved on appeal by the Full Court, the Federal Court stated in Richmond v Repatriation Commission[35]:
... if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.
[35] [2014] FCA 272, at para 108; see also Repatriation Commission v Richmond [2014] FCAFC 124, at para 65.
I am satisfied that Mr Baker’s absence from the workforce is not a consequence of incapacity arising from his accepted conditions, alone. Despite suffering from post-traumatic stress disorder and major depressive disorder without treatment, Mr Baker remained continuously employed by Industrial Elements and Heating for 11 years. His employment was not terminated by his employer but by his own decision. This decision was made on the day he became eligible for the service pension.
I am satisfied that Mr Baker’s accepted conditions alone did not prevent his carrying out his previous employment. His decision to stop work so as to be able to receive a service pension was also a factor. Based on his own evidence, I am satisfied that Mr Baker did not seek work after receiving treatment by Dr Altman because he was close to his planned retirement age of 65 years. I accept his evidence that he did not return to work after receiving treatment by Dr Altman because he formed the view that “it really wasn’t worth it”. [36] This decision was not by reason of any of his war-caused injuries or diseases.
[36] Transcript 09/05/2015 p-13.
As Mr Baker does not meet the requirements of subsection 24(1)(c) of the Act he is not entitled to payment of the pension at the special rate.
PART 5
APPLICATION 2014/5873: IS MR BAKER ENTITLED TO PAYMENT OF THE PENSION AT THE INTERMEDIATE RATE (S.23)?
Subsections 23(1)(aa), 23(1)(aab) and 23(1)(a) are identical to the corresponding provisions of section 24. As stated in relation to section 24 (see paragraph 58 of these reasons), there is no dispute that Mr Baker meets these requirements.
The issues for determination in relation to eligibility for the intermediate rate are:
(1) Does Mr Baker satisfy the requirements of subsection 23(1)(b)?
(2) If so, does he meet the requirements of subsection 23(1)(c)?
A. DOES MR BAKER MEET THE REQUIREMENTS OF SUBSECTION 23(1)(b)?
Subsection 23(1)(b) provides:
(1) This section applies to a veteran if:
……
(b) the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently…
Section 28, to which I have already referred, is relevant also to the application of subsection 23(1)(b).
In Smith v Repatriation Commission,[37] the Court stated that where the Tribunal had found that section 24(1)(b) was satisfied “it must follow that s 23(1)(b) was also satisfied as it is a lesser test directed at a lower entitlement”.
[37] [2014] FCAFC 53, at para 56.
For the reasons stated in relation to the application of subsection 24(1)(b), I am satisfied that Mr Baker satisfies the requirements of subsection 23(1)(b).
B. DOES MR BAKER MEET THE REQUIREMENT OF SUBSECTION 23(1)(c)?
Subsection 23(1)(c) provides:
(1) This section applies to a veteran if:
……
(c) the veteran is, by reason of incapacity from 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 from that incapacity…
Subsection 23(1)(c) is in identical terms to subsection 24(1)(c). In Smith v Repatriation Commission,[38] Buchanan J discussed whether the operation of the two sections were synonymous, such that an Applicant who failed to satisfy subsection 24(1)(c) would also inevitably fail under subsection 23(1)(c). He stated:
Whatever level of disability applies to a particular veteran, s 24(1)(c) and s 23(1)(c) apply further conditions to be satisfied which are, on the face of it, expressed in the same terms, although s 23(3)(a)(iii) adds a further ingredient to consider. Do s 24(1)(c) and s 23(1)(c) apply the same test at different levels of incapacity, so that a decision about the operation of s 24(1)(c) dictates the result for any possible application of s 23(1)(c)? On this approach, after an initial assessment about whether s 24(1)(b) or s 23(1)(b) applies, a decision-maker need consider only s 23 or s 24 but not both.
An alternative approach would accept that a veteran may fail to satisfy the requirements for a special rate of pension under s 24 (even though totally incapacitated for the purpose of s 24(1)(b)), but may nevertheless satisfy the requirement for an intermediate rate of pension under s 23. It seems to me to be possible that a particular fact situation which defeated recognition in accordance with s 24(1)(c) might nevertheless justify recognition under s 23(1)(c). One possibility which comes to mind is where an incapacitated veteran who has managed to work more than half-time despite his or her incapacity, is retrenched (so that s 24(2)(a)(i) applies) and then manages to obtain part-time work but only at, say, 30% or 40% of a full-time load. I can see no immediate reason why the intermediate rate of pension would not be payable in such a case (see, for example, Repatriation Commission v Connell (2011) 197 FCR 228 at [26]-[30]).
[38] [2014] FCAFC 53, at para 56-57.
This is not a case similar to that alluded to by the Federal Court. In this matter, the primary issue being satisfaction of the alone test in the context of a decision to cease working for reasons unrelated to the accepted conditions, the reasons given in relation to the application of section 24(1)(c) are equally applicable to section 23(1)(c).
For the reasons stated in relation to the application of subsection 24(1)(c), Mr Baker does not satisfy the requirements of subsection 23(1)(c). He is not entitled to payment of the pension at the intermediate rate.
PART 6
CONCLUSION
Application 2014/5872
The reviewable decision, being the decision of the Repatriation Commission made 16 May 2014 refusing Mr Baker’s claim in respect of ischaemic heart disease, will be set aside.
In substitution it will be decided that ischaemic heart disease suffered by Mr Baker on 27 December 2013, was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).
The date of effect is 21 November 2013.
Application 2014/5873
Although I have decided that Mr Baker is not entitled to payment of the pension at either the Special rate or the Intermediate rate, it may be that he is entitled to an increase in the General rate by reason of my conclusion in application 2014/5872. This is not a matter that was argued before me.
For this reason the reviewable decision, being the decision of the Veterans’ Review Board made 16 September 2014 assessing the rate of pension payable to Mr Baker at 80% of the General rate with effect from 25 July 2012 and 90% of the general rate with effect from 9 July 2013, will be set aside.
The matter will be remitted to the Repatriation Commission for reconsideration in accordance with these reasons for decision.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
.................[sgd].......................................................
Associate
Dated 31 October 2016
Dates of hearing 9 May 2016, 5 July 2016 Date final submissions received 5 July 2016 Counsel for the Applicant Mr G Barter Solicitors for the Applicant KCI Lawyers Advocate for the Respondent Mr N Bunn; Department of Veterans' Affairs
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