BARTHOLOMAI and REPATRIATION COMMISSION
[2010] AATA 705
•16 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 705
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5604
VETERANS' APPEALS DIVISION ) Re JOHN CAMERON BARTHOLOMAI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean Date16 September 2010
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Application for increase in pension to special rate – application of “alone test” – in addition to accepted conditions veteran suffering from severe headaches which contributed to his inability to work during assessment period – alone test not satisfied – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 24, 120(4)
Repatriation Commission v Hendy (2002) 76 ALD 47
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 0564/1996REASONS FOR DECISION
16 September 2010 Senior Member K Bean 1. The applicant, Mr Bartholomai, is currently aged 63. He served in the Australian Army from 3 August 1964 to 11 September 1970 and from 13 November 1974 to 28 April 1990 and his service included “operational service” in Vietnam. The respondent (the Commission) has accepted that Mr Bartholomai’s conditions of post-traumatic stress disorder (PTSD), osteoarthrosis of both knees and lumbar spondylosis are related to his service and has accepted liability for those conditions.
2. Following his discharge from the Army in 1990, Mr Bartholomai had a number of different jobs, most of which involved driving. He left his last job, as a bus driver with Brisbane Bus Line, in December 2004 and has not worked since that time.
3. On 8 February 2008, following an application by Mr Bartholomai for an increase in his Disability Pension, the Commission decided that his pension should continue at 100 percent of the general rate. Mr Bartholomai then sought review of that decision by the Veterans’ Review Board (VRB) and the VRB affirmed that decision, concluding that the conditions for payment of pension at the special rate were not satisfied.
4. On 25 November 2009, Mr Bartholomai lodged an application with this Tribunal seeking review of that aspect of the decision of the VRB[1] and giving rise to these proceedings.
[1] The VRB, and the Repatriation Commission, also dealt with some “entitlement” issues, but those were not pursued before this Tribunal.
issue
5. The issue which arises for determination by the Tribunal in this matter is whether Mr Bartholomai satisfies the terms of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) such that he should be paid Disability Pension at the special rate.
6. The VRB decided that Mr Bartholomai met the threshold requirements imposed by s 24, in that his degree of service related incapacity was at least 70 percent[2], and his service related incapacity was sufficient to render him incapable of undertaking remunerative work for more than 8 hours per week[3]. The respondent did not question the correctness of the VRB’s conclusions in this respect in the context of this matter, but contended that the VRB was also correct to conclude that Mr Bartholomai did not satisfy the “alone” test in s 24(1)(c) of the VE Act. Accordingly, the only contested issue before me is whether Mr Bartholomai does satisfy the “alone” test.
[2] s 24(1)(a)(i)
[3] s 24(1)(b)
statutory framework
7. Section 24 of the VE Act relevantly provides as follows:
“24(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;
…
(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; …”
8. Also relevant to this application is s 120(4) of the VE Act which provides that, in a matter such as this which relates to the assessment or re-assessment of the rate of a pension, I am required to decide the matter to my reasonable satisfaction.
the evidence
Mr Bartholomai
9. Mr Bartholomai provided a written statement to the Tribunal and also gave oral evidence.
10. He said that following his discharge from the Army in 1990, he had taken up work as a bus driver and had largely continued in that type of work until December 2004. In relation to the circumstances of his ceasing work with Brisbane Bus Line in December 2004, he explained that his wife had come with him on the last run he did, which was a school bus run. After this was completed, she mentioned to him that he had sworn at some of the children during the run. He subsequently consulted his general practitioner, Dr Tankey, and ultimately ceased work on the advice of Dr Tankey and his treating psychiatrist, Dr Daniel. He said these doctors advised him that he had PTSD and it would be advisable for him to stop work straight away.
11. In the course of his evidence Mr Bartholomai acknowledged that in addition to his accepted conditions he also suffered from headaches and had done for some time. He explained that he had been involved in a motor vehicle accident in 1965 as a result of which he had been unconscious for three weeks. He said that he had experienced headaches consistently since then, although these did not affect his ability to drive a school bus. During his evidence he said that his headaches had become worse since his discharge from the Army and in particular since 2008. He also acknowledged that:
· he had had to stop work on doctor’s advice in September 1993 because of severe headaches[4];
· on a claim form signed by him on 8 February 1994, in listing disabilities he was now claiming as war or defence caused, he listed “severe headaches” and these were described by the medical practitioner who also completed that form as “post-traumatic headaches”[5] ;
· in a medical examination form completed by Dr Tankey in 1994, he was listed as suffering from “severe headaches”[6], for which he was taking medication;
· on a form dated 16 August 2002 a doctor had accurately recorded a history of “chronic headaches” with headaches three to four times per week of a duration of one to two hours[7];
· in a Centrelink form completed and signed by him on 17 January 2005, he had stated that the conditions of “headaches” and “blurred vision” affected his ability to work or study[8]; and
· one of his treating doctors, Dr Parletta, had completed a form dated 15 June 2007 in which the doctor stated that his headaches were “so frequent that they interfere with his ability to think, concentrate and relate”[9].
[4] T2/9
[5] T2/8
[6] T2/14
[7] T9/37
[8] T24/113
[9] T30/149
12. Mr Bartholomai also said that his headaches were worse now than they had been previously and that he finds it difficult to get a good night’s sleep because of the headaches. He said he currently gets headaches three to four times per week and is taking medication “all the time” for the pain. Whilst the medication controls them, he still gets headaches every day, although the medication seems to reduce their severity.
13. Mr Bartholomai was also asked about a form he completed in August 2005 in which he stated that he believed it was his knee problems and “PTSD situation” preventing him from getting a job[10]. As to why he had not also referred to his headaches, he stated that he was able to manage these, although he also acknowledged that he had stated earlier on the form that his headaches would present a difficulty for him in working full-time.
[10] T23/109
14. Asked as to whether the headaches caused him any problems when he was working, he replied that this depended on the job. He stated that he believed his headaches would have been a problem “in the end” and they “would have been a safety problem”. He stated this would have applied towards the end of his employment as a driver, and would also have applied to any form of employment. He said his headaches were a problem for him “in the end” because they affected his concentration.
Dr Ewer
15. Dr Ewer, Mr Bartholomai’s treating psychiatrist, has provided a written report[11] and also gave brief oral evidence at the hearing. He said that he had begun treating Mr Bartholomai in February 2008.
[11] Exhibit 3
16. Asked about the history he had obtained from Mr Bartholomai in relation to his headaches, Dr Ewer said that Mr Bartholomai had reported to him that he had been involved in a motor vehicle accident in 1965, as a result of which he was thrown out of the vehicle. He had fractured his skull in the left temporal region and since that time had been troubled with headaches.
17. Dr Ewer said Mr Bartholomai reported that the character of the headaches had not changed over the years. At the time of his cessation of work in 2004, Mr Bartholomai reported that he was getting headaches three to four days per week for 30 minutes, bilateral and frontal, not associated with nausea and that he had managed these with medication.
Dr Tankey
18. As mentioned above, Dr Tankey is Mr Bartholomai’s current treating general practitioner and he confirmed in his oral evidence that he had been Mr Bartholomai’s general practitioner from January 2005 onwards. He also indicated that from his notes, Mr Bartholomai had left work in 2004 due to his PTSD.
19. Dr Tankey said he was also aware that Mr Bartholomai had had a history of headaches “on and off” for a long period of time. However, he said Mr Bartholomai’s cessation of work was not because of his headaches as he was able to work with these and that they were of “nuisance value” only. He said that he did not understand the headaches to incapacitate Mr Bartholomai and he thought the frequency of the headaches was once to twice per month, lasting for a few hours.
Documentary evidence
20. There was also some relevant material contained in the T documents which was not specifically alluded to at the hearing. For example, contained within the T documents is a report of Dr Tankey dated 16 May 2007 in which he states:
“This 59 year old gentleman has been seeing me for many years and I have [been] treating him for severe PTSD; severe OA of his knees that significantly restrict his mobility; headaches that incapacitate him and lately he has developed OSA.”[12]
[12] T28/131
21. Dr Parletta, who completed a report on Mr Bartholomai’s ability to work in June 2007, also stated in relation to his headaches:
“Headaches a few times a day, at times needs medication Panadol or Nurofen. Migraines about once a month. Sometimes wakes up with headache.”[13]
[13] T30/148
22. Also contained in the T documents are a series of reports from Dr Daniel, Mr Bartholomai’s treating psychiatrist. In his first report dated 2 November 2004, he noted that Mr Bartholomai was currently a bus driver and referred to the fact that he “may well be entitled to some benefits from Veterans’ Affairs”[14]. In a further report dated 1 February 2005, he stated that Mr Bartholomai clearly had PTSD[15] and in a further note dated 2 April 2007, Dr Daniel stated:
“This is to certify that Mr Bartholomai suffers from Post Traumatic Stress Disorder. He has not been able to work since February 2005 as a result of this condition.”[16]
[14] T27/128
[15] T27/129
[16] T27/130
contentions
23. Mr Swan for the applicant submitted that the decision for the Tribunal was essentially a factual one. He agreed with Mr Crowe for the respondent that the main issue for the Tribunal was whether Mr Bartholomai’s headaches made any contribution to him ceasing work or not resuming work.
24. In relation to this, he submitted that Mr Bartholomai had worked for 16 years with his headaches, which had been ongoing since 1965. Up until 2004 he had lived a full life with these headaches and been able to work. He submitted it was clear on the evidence that Mr Bartholomai’s main problem was his PTSD condition and this was clearly the reason he had ceased work in December 2004. Accordingly, the Tribunal should conclude that it was his war-caused disabilities alone which led to him ceasing work and prevented him from working.
25. Mr Crowe for the respondent did not question Mr Bartholomai’s credit, submitting that he had made a sincere attempt to recall all he could. He submitted however that the question for the Tribunal was broader than why Mr Bartholomai had ceased work in 2004 and embraced why he did not resume work during the assessment period. He submitted that, even accepting that Mr Bartholomai left work in December 2004 due to his accepted conditions of PTSD and arthritis of his knees, the question remained of why he did not resume work at any time after that.
26. Mr Crowe directed the Tribunal’s attention to Dr Tankey’s report of 16 May 2007[17] in which he referred to Mr Bartholomai having “headaches that incapacitate him”. Mr Crowe also referred to the evidence of Mr Bartholomai himself, that his headaches had caused him problems with work and in particular problems with concentration.
[17] T28/131
27. Mr Crowe referred the Tribunal to the case of Repatriation Commission v Hendy (2002) 76 ALD 47 and submitted that the alone test was not satisfied where a condition which was not service related and not “diminimus” contributed to the veteran not working.
28. Mr Crowe submitted that the alone test must be considered throughout the whole of the assessment period. He conceded that if Mr Bartholomai’s headaches contributed to Mr Bartholomai ceasing work in December 2004, but at some point during the assessment period ceased to make any contribution to Mr Bartholomai not working, then the test would be satisfied. However, if they contributed to his inability to continue work throughout the assessment period, then the test would not be satisfied.
consideration
29. In order for Mr Bartholomai to succeed in this application, I must be satisfied that he met all of the relevant criteria laid down by s 24 of the VE Act at one time during the “assessment period”. The “assessment period” is defined in the VE Act as the period starting on the “application day” and ending “when the claim or application is determined”[18]. As Mr Bartholomai lodged his application for an increase in Disability Pension on 30 August 2007[19], the assessment period begins on that day and ends on the date of my decision.
[18] s 19(9)
[19] T34/173
30. As acknowledged by both Mr Crowe and Mr Swan, in light of the evidence, the main issue for my determination is whether Mr Bartholomai’s headaches contributed to his inability to undertake remunerative work during the assessment period such that he does not satisfy the test set out in s 24(1)(c).
31. However, in light of the provisions of s 24(2) of the VE Act, I must also consider whether Mr Bartholomai ceased to engage in remunerative work because of his headaches, and whether his headaches have prevented him from engaging in remunerative work.
Did Mr Bartholomai cease to work or was he prevented from working because of his headaches?
32. Addressing this latter set of issues first, it is clear that the terms of s 24 will not be satisfied if Mr Bartholomai ceased to engage in work for a reason other than his accepted disabilities[20], or reasons other than his accepted disabilities prevented him from engaging in remunerative work[21].
[20] s 24(2)(a)(i)
[21] s 24(2)(a)(ii)
33. There is no dispute that Mr Bartholomai last worked in December 2004, for Brisbane Bus Line, and the question therefore arises of whether he ceased that work for reasons other than incapacity from his war-caused disabilities. In light of the evidence in this matter, that question resolves itself into the question of whether Mr Bartholomai’s headaches led to him ceasing work in December 2004.
34. In relation to that question, whilst it is clear that Mr Bartholomai continued to suffer headaches at that time, as he had with fluctuating severity since 1965, there is little to suggest that his employment with Brisbane Bus Line ceased due to his headaches.
35. Having regard to Mr Bartholomai’s evidence and that of Dr Tankey, I am satisfied that the main reason Mr Bartholomai ceased work at that time was his war-caused condition of PTSD and related anxiety. The evidence before me establishes that at the time he ceased work in December 2004, Mr Bartholomai had worked continuously for many years notwithstanding his headaches. Further, apart from a relatively brief period in 1993 when he ceased work due to headaches, for the majority of that time he had been able to manage the headaches with medication.
36. I also note the history given by Mr Bartholomai to Dr Ewer that at the time he ceased work in 2004, he was getting headaches three to four days per week for 30 minutes, and he had managed these with medication. I am therefore not satisfied that Mr Bartholomai ceased employment with Brisbane Bus Line due to his headaches, and it follows that I do not consider the he ceased to engage in remunerative work for reasons other than his accepted disabilities.
37. In relation to s 24(2)(a)(ii), I am also not satisfied that Mr Bartholomai’s headaches prevented him from working at any time during the assessment period. Whilst Mr Bartholomai’s headaches appear to have become more severe in the period after he left work, I am not satisfied on the evidence that they were so severe at any time during the assessment period that they could be said to have prevented him from engaging in remunerative work.
Did Mr Bartholomai’s headaches contribute to his inability to work during the assessment period?
38. As Mr Crowe pointed out however, that still leaves for consideration the question of whether Mr Bartholomai’s headaches contributed to his not resuming remunerative work after December 2004. As Mr Crowe submitted, on application of the correct test, if the headaches contributed to Mr Bartholomai not resuming remunerative employment throughout the assessment period, then it cannot be said that the “alone” test is satisfied.
39. Turning to that question, as alluded to above, there is no doubt that Mr Bartholomai has suffered from headaches of varying severity since 1965. It is also clear on the evidence that even prior to December 2004, the headaches were at times severe. They were so severe in September 1993 that Mr Bartholomai was forced to cease work and undergo various investigations before resuming work in November 1993.
40. More significantly however, Mr Bartholomai acknowledged in his evidence that towards the end of his employment with Brisbane Bus Line, his headaches were becoming a problem. Specifically, he said that they were affecting his concentration, that they “would have been a safety problem” and that this would have applied to any form of employment.
41. Mr Bartholomai also agreed that he had indicated in a Centrelink form completed in January 2005 that his headaches affected his ability to work or study. He further acknowledged that when Dr Parletta stated in a form on 15 June 2007 that his headaches “were so frequent that they interfere with his ability to think, concentrate and relate” that this was accurate, at least with regard to the period from 2008 onwards. As Mr Crowe pointed out, Dr Tankey also stated in a report dated 16 May 2007 that Mr Bartholomai was suffering from “headaches that incapacitate him”.
42. In light of this evidence, I am satisfied on balance that during the assessment period, from August 2007 to the present, Mr Bartholomai’s headaches made some contribution to his inability to undertake remunerative work and that that contribution was not insignificant. In other words, whilst I accept that the headaches could not be said to be the reason for Mr Bartholomai ceasing work with Brisbane Bus Line in December 2004, I consider they made some contribution to his inability to re-enter the workforce after that time and, in particular, contributed to his not resuming remunerative employment of the kind he had previously undertaken during the period from 30 August 2007 to date.
43. On the evidence, I consider that Mr Bartholomai’s headaches were more severe at the time he ceased work with Brisbane Bus Line than they had been previously, and continued to become more severe thereafter. His worsening headaches therefore made it more difficult for him to work during the assessment period than it had been for him to work prior to December 2004, thus contributing to his inability to work throughout that period.
44. For these reasons, I have concluded that Mr Bartholomai did not satisfy the “alone test” set out in s 24(1)(c) of the VE Act at any time during the assessment period.
45. I should add that in reaching this conclusion, I have had regard to the fact that it is not sufficient to meet the alone test that a veteran’s war-caused disabilities prevent him/her from working. Even where that is the case “the decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work”[22]. I consider this case to be one of those alluded to in Hendy, whereby although the veteran’s war-caused disability is sufficient to prevent him from working, another condition, in this case Mr Bartholomai’s headaches, also played a part in his inability to work during the assessment period.
[22] Repatriation Commission v Hendy (2002) 76 ALD 47 at [54]
46. I have also had regard to the fact that there is no “presumption of continuance” and the fact that a veteran ceased particular employment due to his accepted disabilities does not mean the veteran must be taken at the application day to be prevented from undertaking the work he was undertaking by reason of those disabilities alone[23].
[23] Jackman v Repatriation Commission, Federal Court, 30 June 1997, 0564/1996.
conclusion
47. I have therefore concluded that the provisions of s 24 are not satisfied in this matter and in those circumstances I am obliged to affirm the decision under review.
48. For completeness, I should note as I did at the hearing that, on the material before me it appears that Mr Bartholomai’s headaches are attributable to a motor vehicle accident suffered during his service. It may be that he therefore has some entitlement to compensation under the terms of the Safety, Rehabilitation and Compensation Act 1988. However that issue is of course beyond the scope of the application before me.
decision
49. The Tribunal affirms the decision under review.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: .....................................................................................
AssociateDate of Hearing 20 July 2010
Date of Decision 16 September 2010
Advocate for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr A Crowe
DVA
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