Bell and Repatriation Commission
[2010] AATA 616
•19 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 616
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1901
VETERANS' APPEALS DIVISION ) Re Robert Bell Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member Jill Toohey
Dr M Thorpe, MemberDate19 August 2010
PlaceSydney
Decision The decision under review is affirmed.
.............[sgd].................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – special rate pension – applicant not able to work 8 hours or more as a cook – evidence that applicant had qualifications in accountancy – applicant ceased remunerative employment for reasons other than accepted disabilities – decision under review affirmed
Veterans Entitlements Act 1986 ss 19, 24, 28, 120
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers v Repatriation Commission (1995) 129 ALR 219
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Sheehy v Repatriation Commission (1996)137 ALR 223; (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
19 August 2010 Senior Member Jill Toohey
Dr M Thorpe, MemberIntroduction
1. Robert Bell joined the Australian Army in 1969, when he was 18, and worked as a chef until his discharge in 1978. From 1978 to 1989, he was employed as a chef by the New South Wales Department of Corrective Services. From 1991 to 1995, he worked as a chef for a nursing home. He has not been in paid employment since.
2. Mr Bell receives a disability pension at 100 per cent of the general rate for hypertrophic osteoarthritis of his left knee, osteoarthritis of his right knee, lumbar and thoracic spondylosis, recurrent dislocation of his right shoulder and tinea, all of which the Repatriation Commission (the Commission) accepts are related to his service.
3. Mr Bell seeks a special rate of pension under section 24 of the Veterans Entitlements Act 1986 (the Act). He contends that, as a result of his war-caused incapacity, he is no longer able to undertake remunerative work. He seeks review of a decision made by the Commission and affirmed by the Veterans Review Board that he is not entitled to a special rate of pension.
Qualification for special rate of pension
4. To qualify for a special rate of pension, Mr Bell must satisfy subsection 24(1) of the Act. Firstly, he must have made a claim for an increase in his pension, have not yet turned 65 years and have a degree of war-caused incapacity of at least 70 per cent. There is no argument that Mr Bell satisfies each of these criteria.
5. Mr Bell must also satisfy subsection 24(1)(b) which requires a veteran to be totally and permanently incapacitated, meaning that his war-caused incapacity, of itself alone, renders him or her incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
6. In determining whether a veteran meets s 24(1)(b), only the factors in s 28 may be taken into account: They are:
(i)the veteran’s vocational, trade and professional skills, qualifications and experience;
(ii)the kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake; and
(iii)the degree to which the impairment the veteran suffers as a result of his or her injury or disease has reduced his or her capacity to undertake that kind of remunerative work.
7. Mr Bell must also satisfy subsection 24(1)(c) which provides that a veteran must be, by reason of that incapacity alone, prevented from continuing to undertake remunerative work that he or she was undertaking and be suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if free of that incapacity.
8. Subsection 24(2)(a)(i) provides that a veteran will not meet subsection 24(1)(c) if he or she has ceased to engage in remunerative work for reasons other than the war-caused incapacity, or is incapacitated, or prevented, from engaging in remunerative work for some other reason.
9. Section 24(2)(b) provides that, for the purposes of s 24(1)(c), a veteran will be taken to be prevented from continuing to undertake the remunerative work that he or she was undertaking if:
(i)he or she has been genuinely seeking to engage in remunerative work;
(ii)he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work; and
(iii)that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage.
The issues
10. We have to decide:
(i)whether Mr Bell’s accepted disabilities alone render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week;
(ii)whether he is prevented by those accepted disabilities alone from engaging in remunerative work.
11. For Mr Bell’s claim to succeed, we must be reasonably satisfied of each of these matters: subsection 120(4)
12. The relevant assessment period is from 23 June 2006, when Mr Bell first applied for special rate of pension, to the date of the Tribunal’s determination: subsection 19(9).
Mr Bell’s evidence
13. Immediately after leaving the Army in 1985, Mr Bell started work as a cook for the New South Wales Department of Corrective Services. He was assaulted several times while at work and, in August 1985, he was attacked from behind by a prisoner. He was off work for several months following this attack during which time he was referred to a psychiatrist, Dr Graham Vickery.
14. In January 1986, Dr Vickery certified Mr Bell fit for a graduated return to work on light duties. Apparently, no suitable retraining program was available, and Mr Bell remained off work for several more months during which he saw Dr Vickery every couple of months for a workers compensation certificate and for relaxation therapy. He continued to see Dr Vickery every couple of months for medical certificates (but not treatment) until 1989 when he was medically retired from the Department on the ground of a stress-related psychiatric condition. Dr Vickery’s reports about the period leading up to Mr Bell’s retirement are dealt with below.
15. After leaving the Department, Mr Bell found casual work as a console operator at a service station, working 20 to 25 hours a week in four- to five-hour shifts. He describes the work as “very sedate”: it involved taking money, reading pumps and the like.
16. In 1991, Mr Bell obtained employment as an assistant cook at Westcott, a nursing home for some 190 elderly residents. The position involved a lot of heavy lifting and he says he did virtually all the physical work. He had increasing difficulty lifting large, heavy pots and sacks of food, cleaning heavy pieces of cast iron, and performing his duties generally. He had several accidents while cleaning and lifting equipment and, on one occasion, he fell off a ladder. He became increasingly worried that he would injure himself or someone else and that he could burn someone while lifting something from a stove. Mr Bell gave evidence that these problems were caused by his worsening legs and back, and his shoulder was playing up as well.
17. The situation was aggravated by the senior cook who was supposed to help Mr Bell but would not, and who would make abusive and degrading comments about Mr Bell and veterans generally.
18. In early 1994, Mr Bell was attacked by ten youths while on a train with his wife. He suffered injuries to his face and chest. The assault affected him for some time and he became anxious about using public transport and travelling at night. However, according to a report from his general practitioner, Dr Margot Woods, “although [he was] initially psychologically distressed by the incident, his subsequent presentations made no reference to ongoing problems.”
19. Mr Bell resigned from Westcott in January 1995. In an employment questionnaire in August 2006 he stated his reasons for leaving were his “disabilities due to being attacked and other reasons. Couldn’t do lifting any more due to back and leg pain in 1990s. Other reasons were simply ‘the last straw’”. In a written statement to the Veterans Review Board, Mr Bell described the senior cook’s continuing abuse, including about his disabilities and that he subjected Mr Bell to a barrage of insults and was “just impossible to work with”. He added that when he told the senior cook in December 1994 that he had dropped things on several occasions, “his remarks were further abuse, which actually convinced me to leave before I flattened him, or I burnt someone”.
20. It was put to Mr Bell in cross-examination that he left Westcott for a combination of two reasons: his physical difficulties and his conflict with the senior cook. Although Mr Bell took exception to the word “conflict”, he did not dispute this, and said he has since visited Westcott and staff have told him they understand his decision and wonder how he did not “flatten” the senior cook.
21. After resigning from Westcott, Mr Bell did a TAFE course over two years in office administration at the suggestion of the Commonwealth Rehabilitation Service. By all accounts he enjoyed the course and did well at it. He particularly liked the book-keeping part of the course and so enrolled in a part-time accountancy course which he completed in 1999.
22. After finishing the TAFE course, Mr Bell applied for accountancy positions but there was not a lot of work around and, once employers learned of his disabilities they were not interested in him and preferred someone younger. In late 1999, Centrelink assessed him as eligible for disability support pension.
23. In 2002, Mr Bell was assaulted again, this time by a guard on a train. He was with his wife at the time. The police were called and he was charged with assault but he appealed and his conviction was overturned on appeal, he says without the matter even proceeding to a hearing. Mr Bell saw Dr Woods for treatment for an injury to his thigh and for his distress and anger resulting from this incident, but she did not refer him for any psychiatric treatment.
24. Since ceasing employment in 1995, Mr Bell has done voluntary work for a Filipino association of which he and his wife, who is a nurse, are active members. They have been married 40 years and have three sons and are active in the Filipino community. He drives his wife to meetings and helps with tasks such as helping with minutes of some meetings, opening the meeting hall and helping with matters related to the association’s constitution. There is no physical work involved and no standing for long periods. Mr Bell estimates he spends no more than ten hours a week on activities to do with the association and describes it as “more social interaction”.
25. In October 2006, Mr Bell was granted a pension at 90 per cent of the general rate for accepted conditions of lumbar and thoracic spondylosis, and osteoarthritis of the right knee. Conditions of hypertrophic osteoarthritis of the left knee, tinea and recurrent dislocation of the right shoulder were subsequently also accepted and Mr Bell’s general rate of pension was increased to 100 per cent.
Dr Vickery’s evidence
26. In June 1986, following the 1985 assault, Dr Vickery reported to Mr Bell’s then general practitioner, Dr Pettit:
[T]here was a feeling of harassment that Mr. Bell had endured for a number of years, particularly as he was an active member of the union and union delegate for several years. He was involved in a number of conflicts with the management of Maitland Prison, often with a confrontation resulting from Mr. Bell’s insistence on following regulations and “doing the right thing…” There were stressors related to the fact that his compensation wages were not being paid on time and the lack of notification that he was fit for restrictive duties. There were a number of other work related stressors related to his ongoing disciplinary hearings…
27. Dr Vickery continued:
There had been increasing depression, insomnia, tension and hostility. I would see this present deterioration as reflecting the current stressors resulting from the sequelae of his nervous disorder and his inability to continue working.
28. Mr Bell conceded in evidence that he was very anxious around this time but says that, from January 1986, he was prepared to return to work.
29. In June 1987, Dr Vickery reported to Mr Bell’s then solicitors that Mr Bell “was quite anxious about losing control and was fearful he would “explode” in the work situation. He did not feel he would be able to work in any position of the Corrective Services Department in the foreseeable future due to the fear of harassment and the stress imposed by his current situation”.
30. In December 1987, Dr Vickery reported to Dr Ince:
[Mr Bell] did not feel able to return to his employment in the Corrective Services department in any position whatsoever. He experienced significantly distressing symptoms of anxiety, depression and hostile outbursts. He was unable to sleep and continued to experience overwhelming tension and frustration. The marital relationship was deteriorating due to his ill health directly related to his work situation, his major depressive disorder and obsessional personality disorder. He was fearful of losing control and of harming someone in the Department which he felt was completely responsible for his continuing deterioration.
31. At the hearing, Mr Bell took issue with some of Dr Vickery’s language but he spoke frankly about the difficulties he was having at work at the time and conceded that he was under a lot of stress. He told the Tribunal about various injustices and harassment he experienced when he was a union delegate including when he was dismissed while on workers compensation (and later reinstated by the NSW Industrial Commission). He denies, however, that the problems he was having at work were due mainly to stress rather than to his physical problems.
32. The Commission says there is nothing in Dr Vickery’s reports to suggest Mr Bell’s physical problems prevented him from working but, rather, that it was his psychological problems and stressors at work.
33. In November 1989, Dr Vickery reported to Dr Pettit that Mr Bell was working at a local service station; there was “no impairment of his psychological functioning” and he “was functioning quite well”. Dr Vickery reported that he had suggested to Mr Bell that he return to full time employment as soon as possible “in view of his asymptomatic state”. However, Mr Bell maintains he could not do the physical work because of his back and leg problems.
Dr Woods’ evidence
34. Dr Margot Woods has been Mr Bell’s general practitioner since 1993. She gave evidence that she has seen him only twice for “specific mental health issues”: after the 1999 and 2002 assaults. On each occasion she thought his feelings “perfectly appropriate”, given the circumstances, and says his mental state settled very quickly and appropriately. She has not seen him for any other specific psychological or psychiatric problems since, although he had had episodes of anxiety and feelings of depression over the years, particularly about certain family matters, and in 2005, she reported that he was “phobic about public transport”.
35. In Dr Woods’ opinion, Mr Bell does not suffer any chronic psychiatric condition and he has not required treatment for a condition of that sort. She does not think any stress or feelings of depression that he might still suffer would have any long-term effect on his ability to work although she agreed that it is feasible.
36. Dr Woods believes that, with breaks, Mr Bell may be able to do four or five hours of work a day in an office environment but she says he would have to get up and move around, and she would want to be guided by a full functional assessment.
Dr Chase’s evidence
37. Dr Robin Chase is an occupational physician. He reviewed Mr Bell and prepared a report for these proceedings.
38. Dr Chase gave evidence that, taking into account his accepted disabilities, Mr Bell could do anything that did not involve a lot of walking, bending, kneeling or squatting, or lifting his arms above shoulder height. He could do any sedentary work such as light sales work and could probably drive or do light process work. He could not do anything requiring a lot of manual handling or hard manual work but he should have no difficulties working as an accountant.
39. Dr Chase told the Tribunal that, from what Mr Bell told him and from the fact that he had seen Dr Vickery, he presumed Mr Bell had a psychiatric condition but he did to make any diagnosis of his own and Mr Bell did not provide him with one. He agreed that, if Mr Bell did not have any psychiatric problems, there was no reason he could not return to work in some capacity for more than eight but less than twenty hours per week.
Other medical evidence
40. Dr Evan Dryson, specialist occupational physician, saw Mr Bell in September 2007 at the request of the respondent. He reported that Mr Bell was not capable of work “of greater than sedentary to light physical demand” but he would be able to undertake such work “for at least eight hours per week”; he would be “significantly limited” as a cook.
41. Dr Michael Tarrant, orthopaedic surgeon, has treated Mr Bell for several years and prepared reports for these proceedings. In a report dated 30 December 2008, he stated that he had no doubt that Mr Bell would have a lot of problems working as a cook because of his accepted disabilities. However, he thought Mr Bell could work for more than eight, but probably less than twenty, hours a week using his accountancy qualifications, although he would have difficulty seeking and obtaining work because of his disabilities which would be apparent to employers.
42. Dr Tarrant was subsequently asked by Mr Bell’s solicitors to clarify several matters in his report. His written responses are difficult to follow. He indicated that Mr Bell could not work for up to eight hours as a cook and that he would not be prevented from working more than twenty hours by his accepted disabilities. Dr Tarrant did not give oral evidence. With respect, we agree with Mr Bell’s solicitor that the reports as they stand make little sense, and we prefer not to rely on them.
43. Dr G S Robinson, consultant psychiatrist, saw Mr Bell in September 2007 at the request of the Veterans Review Board. He reported that Mr Bell had declined him permission to contact past or present doctors and he was unable to offer a psychiatric diagnosis but “it is apparent that a non-service related psychiatric condition played a role in Mr Bell’s medical retirement from Corrective Services”. He stated that Mr Bell “spoke briefly of interpersonal difficulty being partly responsible for him leaving his last job in 1995” and told him he left “partly because he could not get on with a particular worker and because of back and orthopaedic problems”.
44. That Mr Bell declined to allow Dr Robinson access to his medical records naturally raised some questions at the hearing. However, Mr Bell gave evidence, which we accept, about the context in which he declined to give consent and we do not think anything turns on this. We have no reason to doubt Mr Bell’s credibility as a witness.
45. Dr Patrick Morris, consultant psychiatrist, saw Mr Bell in September 2008 at the request of the respondent. He reported that Mr Bell had no significant depressive or anxiety problems and no psychiatric diagnosis according to DSM-IV criteria, and his psychiatric symptoms would not cause him to be unable to work in any capacity.
Do Mr Bell’s accepted disabilities alone render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week
46. In determining whether Mr Bell satisfies this criterion, only the following may be taken into account:
(i)his vocational, trade and professional skills, qualifications and experience;
(ii)the kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake; and
(iii)the degree to which his impairment as a result of his injury or disease has reduced his capacity to undertake that kind of remunerative work.
47. A person’s qualifications are not necessarily restricted to those acquired in employment or formal training or by virtue of experience in particular employment: Chambers v Repatriation Commission (1995) 129 ALR 219.
48. The respondent contends that Mr Bell has qualifications in accountancy and book-keeping, and experience in office administration, and that his accepted conditions do not prevent him from undertaking work of that kind for eight or more hours a week.
49. Dr Chase considers Mr Bell could do any sedentary work, such as light sales work or light process work, and that he should have no difficulties working as an accountant; if he did not have his psychiatric problems, there is no reason he could not work for more than eight, but less than 20, hours each week. Dr Dryson, whose opinion is untested, also thinks he could do work of that kind for at least eight hours per week.
50. Mr Bell submits that Dr Woods is the most appropriate doctor to make an assessment in terms of s 24(1)(b) and that the Tribunal should accept her opinion that his accepted disabilities alone render him incapable of working more than eight hours per week of remunerative work. However, Dr Woods, who has treated Mr Bell since 1993 and knows his conditions well, believes he may be able to work four or five hours a day in an office environment – if he gets up and moves around. Although she states she would want to be guided by a full functional assessment, Dr Woods nevertheless believes Mr Bell has capacity to undertake remunerative work for well over eight hours a week.
51. We are satisfied, on the basis of the medical evidence, that Mr Bell is prevented by his accepted disabilities from working for an aggregate of more than eight hours a week as a cook.
52. However, Mr Bell has accountancy and book-keeping qualifications and experience that mean he might reasonably undertake remunerative work of the kind referred to by Dr Chase and Dr Woods for an aggregate of eight hours or more a week. However, we still need to consider whether Mr Bell’s war-caused incapacity was the only factor preventing him from continuing to undertake the remunerative work that he was undertaking. Unless he satisfied that criterion as well, his claim will fail.
53. In Flentjar v Repatriation Commission (1997) 48 ALD 1, Branson J set out what she said are the questions to be considered in relation to s 24(1)(c). They are:
(i)what was the relevant remunerative work that the veteran was undertaking within the meaning of s 24(1)(c);
(ii)was he, by reason of war-caused injury or disease, or both, prevented from continuing to undertake that work;
(iii)if so, was the war-caused injury or disease, or both, the only factor or factors preventing him from continuing to undertake that work;
(iv)if so, was he, by reason of being so prevented, 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.
Is Mr Bell prevented by his accepted disabilities alone from continuing to engage in remunerative work that he was undertaking
54. As a starting point, we must consider what substantive remunerative work Mr Bell has undertaken in the past: Starcevich v Repatriation Commission (1987) 18 FCR 221; Sheehy v Repatriation Commission (1996)137 ALR 223; (1996) 66 FCR 569.
55. Mr Bell’s sole employment, from the age of 18 until he left paid employment at the age of 45, was as a cook. The brief period he spent as a console operator does not, in our view, constitute substantive remunerative work. We accept Mr Bell’s evidence that his involvement with the Filipino association largely revolves around supporting his wife and others. Although he undertakes tasks of an administrative nature such as taking minutes of meetings and maintaining membership lists, we accept that this could not be regarded as substantive remunerative work.
56. “Remunerative work” in s 24(1)(c) refers to a type of work which the veteran previously undertook and not to any particular job: Banovich v Repatriation Commission (1986) 69 ALR 395; Flentjar (above) at 4. We are satisfied that the remunerative work what Mr Bell was undertaking, for the purposes of s 24(1)(c), was that of a cook (or assistant cook).
57. The Tribunal must consider the likelihood that, his war-caused incapacity aside, Mr Bell would have worked as a cook (or assistant cook) after 1995. As Beaumont J observed in Repatriation Commission v Smith (1987) 15 FCR 327, at 337:
The question posed by s 24(1)(c) is one of hypothetical fact. The tribunal must attempt an assessment of what [the veteran] probably would have done if he had none of his service disabilities.
58. Mr Bell will not meet s 24(1)(c) if he has ceased to engage in remunerative work for reasons other than the war-caused incapacity, or is incapacitated, or prevented, from engaging in remunerative work for some other reason: s 24(2)(a)(i) and (ii).
59. We are not satisfied that Mr Bell’s accepted disabilities were the only factor preventing him from continuing to undertake the remunerative work he was undertaking or that he was, by reason of being so prevented, suffering a loss of income that he would not be suffering if he were free of that incapacity.
60. In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J observed (at 539) that the Tribunal’s true task is:
“… to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”
61. The respondent contends that Mr Bell did not cease work on account of his accepted disabilities alone; rather, that he had psychological difficulties over a number of years following several serious assaults, culminating in the interpersonal problems he had with his supervisor at Westcott and his decision to resign. Mr Bell contends that the problems with his supervisor were the context, but not the reason, he left the workforce.
62. The medical evidence shows that Mr Bell had been suffering from stress and psychological problems for some years, partly due to the assaults and partly due to what he considered to be harassment and unfair treatment by his superiors in the Department and at Westcott. It is not material for present purposes that no psychiatric diagnosis has been made.
63. Mr Bell told Dr Robinson, and this tribunal, that the harassment and abuse by his supervisor at Westcott were factors in his decision to resign from Westcott. We are satisfied that they were more than just context, or background; they were the culmination of circumstances over the years and, given his ongoing psychological state, a substantial reason for his decision to resign. We note that Dr Woods’ clinical notes record feelings of anxiety and depression about a range of matters over the years and, as recently as October 2008, she recorded that Mr Bell was still experiencing stress and flashbacks in relation to the 1994 assault.
64. We accept the respondent’s contention that Mr Bell had been out of the workforce for over ten years by the time the assessment period commenced and that this was very likely a factor in his ability to work during the assessment period. Further, Mr Bell gave evidence, which we accept, that prospective employers were not interested in employing him once they learned of his disabilities, and wanted someone younger. It is probable that these factors have played a part in preventing Mr Bell from engaging in remunerative work but it is not necessary finally to determine what role these factors may have played.
65. We would add that, although there is evidence that Mr Bell suffers from osteoarthritis in his left shoulder which has caused him problems from time to time, the evidence suggests a minor injury to the left shoulder which resolved itself and did not materially affect his capacity to work and did not play any significant part in his ceasing employment.
Conclusion
66. We are satisfied that Mr Bell ceased remunerative employment for reasons other than his accepted disabilities alone. A range of factors incapacitated him at that time and have continued to contribute to his loss of income. It follows that he does not satisfy s 24(1) of the Act and does not qualify for special rate pension.
67. We affirm the decision under review.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.
Signed: …[sgd]……….………………
Diana Weston, Associate
Dates of hearing: 23 February 2010; 15 April 2010
Last submissions received: 3 May 2010
Date of decision: 19 August 2010
Solicitors for the Applicant: Mr Adam Halstead and Mr Glenn Wright, Bradfield Mills Solicitors
Solicitor for the Respondent: Mr Ken Rudge, Department of Veterans’ Affairs
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