BARRY ROBERT BUCKLEY and REPATRIATION COMMISSION
[2009] AATA 561
•29 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 561
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3867
VETERAN'S APPEALS DIVISION ) Re BARRY ROBERT BUCKLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr I Alexander, MemberDate31 July 2009
PlaceSydney
Decision The decision under review is set aside and this matter remitted to the Respondent with the direction that the Applicant is entitled to pension at the Special Rate pursuant to section 24 of the Veterans Entitlements Act 1986 as and from the date of ceasing his last paid employment ...................[sgd].......................
M D Allen
Presiding Member
CATCHWORDS
VETERANS ENTITLEMENTS: Claim for special rate - inability to engage in remunerative work due to Post Traumatic Stress Disorder and Depression - Deference to be paid to opinions of treating medical practitioners - once entitled to special rate, supervening injury irrelevant
LEGISLATION
Veterans Entitlements Act (1986): S 19, 24, 24A, 28 & 120(4)
CASE LAW
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
Senior Member M D Allen
Dr I Alexander, Member1. By application made the 15th day of August 2007, the Applicant sought review of a decision by the Respondent to continue his disability pension at 100% of the General Rate.
2. The case for the Applicant in these proceedings was that he was entitled to pension at the Special Rate pursuant to section 24 of the Veterans Entitlements Act 1986 (“the VEA”). The criteria for the grant of pension at the Special Rate are set forth in section 24 of the VEA which reads inter alia:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(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.”
3. In considering the Applicant’s claim, the standard of proof mandated by subsection 120(4) of the VEA is that of to the Tribunals “reasonable satisfaction.” In Repatriation Commission v Smith (1987) 15 FCR 327, the Full Court of the Federal Court equated that to the civil standard of proof, namely, proof on the balance of probabilities.
4. Section 28 of the VEA states:
“28 Capacity to undertake remunerative work
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, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable 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).”
5. The Applicant has recognised as war-caused injuries or diseases the following, namely:
· Bilateral Sensory Neural Hearing Loss with Tinnitus
· Lumbar Spondylosis L5/S1
· Partial Tear of the Left Rotator Cuff
· Lichen Simplex Chronicus
· Post Traumatic Stress Disorder
· Depressive Disorder
6. On 27 March 2006, the Applicant made an application for an increase in the disability pension then being paid to him at 100% of the General Rate. Pursuant to section 19 of the VEA, any consideration of the Applicant’s degree of incapacity and inability to engage in remunerative work must be made as and from that date.
7. Section 24A of the VEA provides that if a veteran is granted a Special Rate pension the fact that some later event might also contribute to his inability to engage in remunerative work is irrelevant. Section 24A was introduced into the VEA to counter the obiter remarks of the Federal Court in Repatriation Commission v Smith supra to the effect that a Special Rate pension was only payable for continuing economic loss and not for the whole of a veterans life or indefinitely. See 15 FCR 327 at 336 commencing at line11.
8. In this matter the Applicant injured his right shoulder on 18 April 2007. Whilst the sequelea of this injury would limit his ability to work, it occurred after the application day, namely the 27th March 2006 and pursuant to section 24A above, such injury is irrelevant if at any time between 27 March 2006 and 18 April 2007 the Applicant qualified for a Special Rate pension.
9. The Applicant retired from the Australian Regular Army in 1998. Although his original core posting was to infantry, he later transferred to engineers and then became a photographer posted to Army Public Relations. At the time of his retirement he held the rank of Warrant Officer Class 1.
10. Following his retirement, he opened a handyman’s business. This was primarily to keep him occupied and in cross examination, he stated he kept the proceeds of the business below $20,000.00 as any earnings over and above that amount would effect his Defence Force Retirement and Death Benefits Authority pension.
11. In early 1999 an acquaintance, Mr Sudding who owned a business constructing stage sets, asked if the Applicant could assist him. He then concentrated his efforts sub-contracting to Mr Sudding and, as we understand his evidence, other clients of the handyman’s business were let go.
12. The Applicant was asked why upon leaving the Army, he had not continued with his photography. He replied that he did not want to continue as a news photographer as that sort of job is “pretty full on” and he could not cope with the stress anymore.
13. Whilst working for Mr Sudding, he found that he came into conflict with other employees. This was due in large measure to his attitude that things had to be done properly. He found other employees adopted the so-called “ 30 foot rule” ie if scenery looked good from 30 feet away, then it was good enough. However, as Mr Sudding said in evidence, the Applicant was a perfectionist and wanted to do a job he was happy with.
14. These confrontations with fellow employees began to become increasingly heated. After one confrontation with a fellow staff member, that person left Mr Sudding’s employee.
15. The Applicant also had a falling out with Mr Sudding’s grandson who was also employed in the business. He felt that the grandson was not showing enough respect to his grandfather.
16. Because of the clashes with other employees and a disenchantment with the way they were performing their tasks, the Applicant found he was unable to continue to work for Mr Sudding. He blames this inability to relate to co-workers upon his Post Traumatic Stress Disorder (“PTSD”).
17. That the Applicant was becoming a liability to Mr Sudding was confirmed by Mr Sudding in evidence. Mr Sudding referred to the Applicant saying to him “I don’t want to be doing this anymore” and said it was frustration that had been building up for some time. He added:
“I mean Buck really did enjoy what he was doing and we enjoyed – I very much enjoyed having him as part of the team. It was – but we were all getting older. I go along with that but his frustration – I mean he used to say to me, “You know, I just can’t work with these people any more, I just can’t handle this.”
18. In his statement to the Tribunal, Mr Sudding said:
“ Buck had no physical problems with the work. He used to lift and carry, as we all did. His biggest problem was an inbuilt frustration.”
19. Following the cessation of working for Mr Sudding, the Applicant did not seek to resurrect his handyman business as he “could not handle people any longer”.
20. Questioned as to his other skills, the Applicant stated that he can not deal with people the way he once could, and he can not concentrate. He gave an example that it had taken him 6 weeks to edit twelve minutes of video film he had taken due to an inability to concentrate.
21. According to the Applicant, although he had what he now knows to be symptoms of PTSD while still in the Army, those symptoms became worse after discharge. He found he was short tempered, depressed, lacked confidence and can not stand pressure.
22. Mrs Buckley, the Applicant’s wife, gave evidence of the Applicant becoming anxious and not liking to be out of his comfort zone. She indicated that he does not like crowds and at restaurants has to sit with his back to the wall. Currently he still has fits of depression. Mrs Buckley pointed out that financially, after leaving the Army, there was no need for the Applicant to open up his handyman business, and significantly she said, after some forty three years of marriage that she believed that if the Applicant were not ill he would still be working.
23. The Applicant was examined by Dr Dinnen, psychiatrist, on referral from his solicitors and also by Dr Roberts, psychiatrist, on behalf of the Respondent. Both doctors gave evidence conjointly.
24. Whereas both Dr Dinnen and Dr Roberts agreed that the Applicant did suffer from PTSD they disagreed as to its effect.
25. In the opinion of Dr Roberts, the Applicant’s PTSD was “mild” and should not stop him from working. In contrast, Dr Dinnen held firmly to the opinion that the Applicant’s PTSD rendered him incapable of working more than 8 hours per week.
26. Generally we agree with Dr Roberts that the diagnosis of a PTSD does not, of itself, imply an incapacity to engage in remunerative activity. As is pointed out in the introduction to Volume IV of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) at page xxiii:
“ It is precisely because impairments, abilities and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment of disability.”
27. In this matter the Applicant’s treating psychiatrist, Dr Altman, is of the opinion that the Applicant is incapable of work. In his report of 21 February 2006, Dr Altman said, inter alia:
“…he is totally and permanently unfit to work…”
He then went on to say:
“For the past approximately seven months Mr Buckley has been working less than 8 hours per week doing handyman/carpentry type work. Even working these hours he has not been coping.”
28. Dr Dinnen is of a like opinion. In his report of 12 February 2008 he stated:
“The patient present with chronic PTSD with associated major depression. The condition is causing severe impairment…The condition alone would prevent him from working more than 8 hours per week.”
29. As stated above, Dr Roberts opinion was that the Applicant’s PTSD was “mild”. Dr Dinnen, however, had the advantage of interviewing the Applicant’s wife and we find that the description she was able to convey to Dr Dinnen regarding her husband and his activities enables that medical practitioner to form a more valid opinion as to the Applicant’s degree of incapacity and ability to engage in work.
30. We note that occupational physician, Dr Chase, who assessed the Applicant on behalf of the Respondent, whilst being of the opinion that the Applicant would genuinely like to work, considered that he was unable to work more than 8 hours a week due to accepted disabilities alone.
31. Dr Ng, also an occupational physician, also examined the Applicant at the request of his solicitors. We agree with the Respondent that Dr Ng’s qualifications do not permit him to make a diagnosis of psychiatric illness, but as Dr Ng said in cross examination:
“ I was given the premise that this person had been diagnosed with post traumatic stress disorder and I confirmed with him directly myself the symptoms that he had, that was consistent with the diagnosis. I didn’t make a diagnosis.”
That position is entirely within Dr Ng’s qualifications and experience.
32. That Dr Roberts had described the Applicant’s PTSD as “mild” was put to Dr Ng, to which he replied, quite sagaciously in our opinion:
“But I would still like to have a balance opinion based on the treating doctor who has always been treating the person.”
33. In his report of 17 December 2007, Dr Ng pointed out that it was the Applicant’s PTSD and depressive disorder that was preventing him from attaining gainful employment. He stated:
“His psychological condition, especially his inability to work with others and dealing with stress and general public as a result of his PTSD is the main barrier in his return to work in a job commensurable with his skills and qualifications.”
34. Given the opinions of Dr’s Dinnen, Chase, Ng and Altman together with the lay evidence in this matter, we are reasonably satisfied that the Applicant can not work more than 8 hours per week in any remunerative work and the reason for that is the incapacity from his accepted disabilities alone.
35. There is evidence that the Applicant’s last paid work was during May 2006. No firm date in May was given in evidence, therefore the decision of the Tribunal will reflect that need for further and better particulars of cessation of paid work.
36. The decision under review will be set aside and this matter remitted to the Respondent with the direction that the Applicant is entitled to pension at the Special Rate pursuant to section 24 of the VEA as and from the date of ceasing his last paid employment.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr I Alexander, Member
Signed: ..........................[sgd].....................................................
M. Corcoran, AssociateDate/s of Hearing 10, 11 June 2009 and 15 July 2009
Date of Decision 29 July 2009
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Legal Aid Commission
Solicitor for the Respondent Dr S. Thompson, Sparke Helmore Lawyers
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