Beasley and Repatriation Commission

[2005] AATA 252

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 252

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/308

VETERANS’ APPEALS DIVISION		)
Re		SEAN- LEE BEASLEY

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member McCabe

Date 24 March 2004

Place Brisbane

Decision  The decision under review is affirmed.

..................[Sgd].......................

Senior Member B J McCabe

CATCHWORDS

VETERANS’ AFFAIRS – Veteran’s Entitlements – application for special rate pension – applicant unable to satisfy the “alone” test – decision under review affirmed

Veterans’ Entitlements Act 1986 ss24, 119

Flentjar v Repatriation Commission (1997) 48 ALD 1; (1997) 26 AAR 93; BC9705934

REASONS FOR DECISION

Senior Member B J McCabe

24 March 2005

Introduction

1.      Mr Sean-Lee Beasley applied for a disability pension under the Veterans’ Entitlements Act 1986 (the Act) on 16 August 2002. He was awarded a pension paid at 100% of the general rate. He says he should be paid at the special rate. The respondent disagreed and the Veterans’ Review Board affirmed that decision on 19 January 2004. Mr Beasley has now asked the Tribunal to consider his claim.

2.      Applicants for a pension paid at the special rate must satisfy the criteria set out in s 24 of the Act. In this case, the respondent conceded Mr Beasley satisfies ss 24(1)(a) and (b). The applicant conceded that the ameliorating provision in s 24(2) was not available to him because he did not seek work as required in that provision. The only issue is whether Mr Beasley satisfies the “alone” test in s 24(1)(c).

3.      Mr Beasley does not satisfy the requirements of s 24(1)(c). I have explained the reasons for my conclusion below.

The material before the Tribunal

4. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:

·        Statement of Mr Beasley dated January 2005;

·        Veterans’ Review Board Transcript dated 19 January 2004; and

·        Report of Dr McEvoy dated 22 July 2004.

5.      Mr Beasley gave evidence. So did Mr Thomas, the manager of Mansell Mining and Shortcrete Services. Mansell was the applicant’s last employer.

6.      Mr Beasley was represented by Mr Honchin of counsel. Mr Stoner represented the respondent.

The background facts

7.      The applicant worked for Mount Isa Mines Ltd for about 25 years. He was an underground miner. Mr Thomas said Mr Beasley was highly regarded. In the latter part of his time with MIM, the applicant worked as an instructor. He trained and certified miners in various aspects of the mines’ operations.

8.      The applicant was made redundant in mid-2002, apparently as a result of a reorganisation at MIM. He obtained a position with Mansell shortly thereafter. Mansell was a contractor that dealt with MIM and performed work in MIM’s underground mines.

9.      The applicant was required to pass a medical examination and attend induction training when he joined Mansell. He satisfied both requirements and commenced employment underground on the MIM lease. Approximately two years later, he was required to undertake a refresher induction course. Mr Thomas explained that a miner’s credentials (recorded on a security pass required to access the mine site) were effectively cancelled after two years since their last training session. Mr Beasley agreed that induction training was required every two years, but he was also under the impression he was required to undergo a fresh medical examination in order to work underground. He says he understood his credentials would not be renewed until he was cleared following that medical examination. Mr Thomas said he was unaware of a requirement that miners working underground undertake periodic medical examinations.

10.     The applicant’s credentials were cancelled two years after he commenced employment with Mansell. He was redeployed to work in Mansell’s yard. He said he was under the impression he had to attend another medical examination. He attended the exam several weeks later. The applicant says the exam was administered by a locum doctor whom he did not know. Mr Beasley says the doctor did not perform any sort of psychiatric testing that would have uncovered evidence of his PTSD. The applicant agreed he had several beers before the examination which might have provided evidence of his alcohol abuse disorder. He said he was given a physical examination. Nothing was said at the conclusion of the exam indicating there was a problem.

11.     The applicant says he was called into Mr Barry Sturgeon’s office a week later. Mr Sturgeon was the manager of the Mansell operations in Mt Isa. Mr Beasley says Mr Sturgeon said he (the applicant) had failed his medical exam. Mr Sturgeon did not explain the problem uncovered by the doctor, and the applicant said he did not ask, nor seek a second opinion. The applicant says he is still unsure of why he failed the medical. Mr Sturgeon dismissed him from the company’s service on the basis of that failure.

12.     Mansell provided the applicant with a letter dated 6 November 2002 explaining the applicant was dismissed because of his inability to pass the “underground medical” and because there was no “surface work” available. Curiously, the letter is signed by Mr Sturgeon who identified himself as “general manager”. Mr Thomas says Mr Sturgeon was not the general manager, although Mr Thomas said Mr Sturgeon was acting within the scope of his authority. Even more curiously, the applicant’s personal file has disappeared from Mansell’s offices. There is no record of any medical exam. Mr Sturgeon is not available either: he left the company shortly after the letter was written. 

13.     The applicant says he did not bother seeking work elsewhere after his dismissal. He said he could not do any mining work in Mt Isa without his credentials, which depended on certification he was fit to work underground.

14.     Mr Thomas took over from Mr Sturgeon. He said the files were a mess. When the respondent approached him for information, Mr Thomas attempted to reconstruct the applicant’s work history from the few records available to him. He suggested the applicant was not dismissed because of the results of the medical. He thought it was more likely the applicant accepted a voluntary redundancy. Mr Thomas conceded it was possible the applicant was dismissed for the reasons identified in Mr Sturgeon’s letter.

15.     Mr Beasley had already applied to the respondent for a pension before he was dismissed from his job at Mansell. He said he thought he should seek help after talking with his brother about some personal problems. Mr Beasley was a heavy drinker. He had been consuming around 12 stubbies of beer a day for most of his time at MIM and Mansell. He said he routinely turned up to work in an intoxicated state although he was only sent home on one occasion. He said his workmates would have known of his alcohol problem as he often smelled of alcohol. Mr Beasley said he had a short fuse and often became involved in angry verbal exchanges with others.

16.     Mr Thomas said he was unaware of the applicant’s drinking or PTSD, but he did not have close contact with Mr Beasley during the time they worked together at Mansell. Mr Thomas did suggest the applicant would have been welcome to stay at Mansell if he had not left, as Mr Beasley’s work was always of a very high standard.

17.     There was also some evidence given about the practice of alcohol and drug testing in the mines. Mr Beasley said he was unaware of random testing while he worked at MIM or Mansell. Mr Thomas suggested random testing was introduced at MIM about five years ago, which coincided with the end of Mr Beasley’s employment in the mines. Mansell does not conduct any drug testing. Mr Beasley did not regard the drug testing as an obstacle when he finished at Mansell, although Mr Honchin suggested it might have become an issue subsequently. I am not satisfied from the applicant’s evidence that he was unduly troubled by the prospect of drug testing.

The medical evidence

18.     I have already explained the Tribunal does not have access to the results of the medical examination that was supposedly used to justify Mr Beasley’s termination. The main source of medical advice is provided by Dr Rogers, the applicant’s treating psychiatrist.

19.     The respondent raises some concerns about Dr Rogers’s objectivity. The Commission’s statement of facts, issues and contentions argues Dr Rogers became an advocate for his patient and drew unwarranted inferences from the evidence. I note Dr Rogers was not called to give evidence. Even so, I think there is some force in the respondent’s contentions. The Tribunal should always approach the evidence of a treating psychiatrist with caution. In this case, Dr Rogers’s reports have the air of advocacy, and they ought to be read in that light.

20.     Dr Rogers diagnosed PTSD and alcohol abuse disorder in his report dated 10 September 2002 (T documents at p 32). Dr Rogers opined the applicant’s work performance was declining because of these (accepted) conditions and expressed his concern about whether the applicant would be employable if he lost his job. Dr Rogers confirmed in his report of 3 November 2003 (T documents at p 72) that the applicant was totally and permanently incapacitated for remunerative employment.

21.     While I accept the applicant would have been unable to continue working because of PTSD and alcoholism as Dr Rogers suggests, it is necessary for me to determine whether there were any other conditions that could have debilitated the applicant. Dr Rogers’s reports do not answer that question.

Consideration of the evidence

22.     I am prepared to accept the applicant’s account of his service at MIM and Mansell. There is no reason to doubt he was irritable and had a drinking problem which manifested itself at work, although neither PTSD nor alcohol abuse appeared to interfere with his work at MIM or – in the opinion of Mr Thomas – at Mansell. I am also prepared to accept he was dismissed from Mansell following an adverse medical report that prevented him from working underground. I am troubled by the absence of the personal files and aspects of Mr Sturgeon’s conduct, but I am satisfied there is nothing sinister that would justify me reaching a different conclusion.

The legislation

23.     The “alone” test is set out in s 24(1)(c) of the Act. It 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…

24.     The Full federal Court explained the correct approach to the test in the course of its decision in Flentjar v Repatriation Commission (1997) 48 ALD 1. The Court explained (at 4-5) that the issues before the Tribunal were:

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?

25.     The applicant worked as an underground miner. He had worked in that capacity since leaving the Army. I accept the evidence of Dr Rogers that the applicant is unable to continue undertaking that work by reason of his war-caused injuries. But that is not the end of the matter. There is no evidence entitling me to conclude the applicant’s war-caused conditions were the only factors preventing him from continuing to work. On the applicant’s own account, he was prevented from continuing to work as a miner because he failed a medical exam. We do not know why he failed the exam, although we know the doctor did not undertake any psychiatric testing – which means it was unlikely he learned the applicant suffered from PTSD. The doctor might have detected the symptoms of alcohol abuse. Perhaps it was something else.

26.     I cannot be satisfied in all the circumstances that the applicant’s war-caused conditions were the only factor preventing him from undertaking remunerative work during the period following the application. He is unable to satisfy s 24(1)(c).

27.     There is one final matter. Mr Honchin suggested his client could rely on s 119 of the Act to make up for the absence of the medical report. I disagree. The section requires that I take into account difficulties occurring because of the passage of time and other matters. These events did not occur a long time ago. We do not know what the medical report says because Mr Beasley did not ask for an explanation of its contents or seek a second opinion. The report should have been included in the records of his previous employer, it is true, but I do not think s 119 enables me to assume in its absence that something occurred for a particular reason when the rest of the evidence does not necessarily point to that conclusion. I also have some doubt over whether a medical record prepared in these circumstances constitutes an official record. The expression is probably confined to records maintained by the government, or one of its agencies.

Conclusion

28.     The decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         Associate: Sam J Appleton

Date of Hearing   10 March 2005, Townsville
Date of Decision   24 March 2005, Brisbane

The applicant was represented by Mr Honchin of counsel.

The respondent was represented by Mr Stoner.