Bestwick and Repatriation Commission
[2000] AATA 587
•17 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 587
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/164
VETERANS' APPEALS DIVISION )
Re DARRELL GORDON BESTWICK
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date17 July 2000
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely THAT: the Applicant, Darrell Gordon Bestwick, is entitled to pension at the Special Rate as prescribed by section 24 of the Veterans' Entitlements Act 1986 (as amended) as and from 7 November 1995.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Application for Special Rate Pension. Question of whether condition permanent.
Veterans' Entitlements Act 1986 - s24
REASONS FOR DECISION
17 July 2000 Senior Member M D Allen
By application made 5 February 1999 the Applicant sought review of a decision by a Veterans' Review Board that on 18 January 1999 set aside a decision of the Repatriation Commission of 3 August 1998 and substituted for that decision its decision that the Applicant be paid pension at 60% of the General Rate as and from 1 November 1994, at 70% of the General Rate from and including 7 November 1995 and at 100% of the General Rate to operate from and including 27 February 1996.
The said application for review came on for hearing before me at Sydney on 7 February 2000. On that day the following documents were taken in as exhibits and marked as follows, namely:
T1 – T19: The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1: The Applicant's Statement dated 4 February 2000
Exhibit A2: The Statement of Dean Bestwick dated 3 February 2000
Exhibit A3: Copy letter Applicant's solicitors to Applicant re sale of business and dated 1 March 1994
Exhibit A4: Report of Dr M Dent, Psychiatrist, dated 1 September 1999
Exhibit A5: Report of Dr M Baz, Occupational Physician, dated 23 September 1999
Exhibit A6: Report of Dr L Lambeth, Psychiatrist, dated 12 April 2000
Exhibit R1: Report of Dr L Lee, Psychiatrist, dated 24 September 1999
Exhibit R2: Report of Dr M Burns, Occupational Physician, dated 6 October 1999.
In addition oral evidence was received from the Applicant, Dr Baz, Dr Lee and Dr Burns.
The matter was adjourned on 7 February 2000 to 31 March 2000 when it was proposed to take evidence the evidence of Dr Dent but, in the event, Dr Dent was not called.
On 31 March 2000, at the conclusion of that day's proceedings I made a direction that the Applicant's representative and the Respondent jointly seek a report from one of two named psychiatrists, directed to the question: "If treated could the Applicant's post traumatic stress disorder improve to the extent that he is able to re-enter the workforce?"
That direction was made after the representative of the Respondent had conceded, after all the evidence was in, that the Applicant was currently totally incapacitated. The evidence had also disclosed that the Applicant was not currently receiving treatment for his post traumatic stress disorder.
The exact terms of the Respondent's concession were:
"Senior Member, I believe it is appropriate that I put up to you the Respondent's position, at the end of which you might make a decision on which way you would like to proceed in this matter. Our position in this matter is simply that the Applicant has not demonstrated, for the purposes of section 24 of the Veterans' Entitlements Act, that he is permanently incapacitated for the purposes of remunerative work on the basis of accepted disabilities alone. When we make the submission we have concentrated on the question of whether the veteran is totally and permanently incapacitated. We have to accept, because the medical evidence is in, that a (sic) veteran is totally incapacitated. Dr Burns has even come to that agreement that he is totally incapacitated."
After discussion, the Respondent's representative conceded that the provisions of paragraph 24(1)(c) were not opposed but then added:
"There has been no indication from the doctors that the condition is not amenable to treatment."
As the Applicant, at the time of application for pension, was under the age of 65 years, the criteria for the grant of pension at the Special Rate are set forth in subs24(1) of the Veterans' Entitlements Act 1975, namely:
"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:
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
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
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
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
section 25 does not apply to the veteran."
The Applicant has numerous disabilities, some of which are accepted as war-caused and others are not. However, the non war-caused disabilities do not prevent him from undertaking remunerative work. As the Respondent's specialist occupational physician, Dr Burns, stated in evidence:
"… without PTSD he would have been able to continue to do light work."
In her report of 23 September 1999, Dr Baz addressed the same question. She opined:
"… Mr Bestwick's usual work is that of driver, small business operator with experience in the freight industry, and his service related experience. Medical documents also describe work as a cab driver.
In my opinion Mr Bestwick is unfit for his usual work because of the post-traumatic stress disorder. His ability to relate appropriately to customers and clients, as well as co-workers, would be significantly limited by his irritability, anxiety and social withdrawal.
…
However in the absence of the post-traumatic stress disorder he would be able to undertake clerical and administrative tasks in a small business environment.
Thus although the right knee disability limited his physical work capacity, it would not preclude him from alternative work within his skills and experience.
In my opinion the glomerulonephritis does not impact on his work capacity."
Dr Baz then concluded her report by stating:
"In my opinion Mr Bestwick is unfit for work of 8 or more hours duration weekly. This is the result of his accepted disabilities on their own.
His other disabilities would impact on the type of work he can undertake and would not, in the absence of accepted disabilities, preclude him from full-time work reasonably within his skills and experience."
The force of that evidence was acknowledged by the Respondent, and on the material before me I find as a fact that the sole cause of the Applicant being unable to undertake remunerative work in excess of eight hours per week is his war-caused post traumatic stress disorder. Other disabilities may have impinged upon his lifestyle and restricted some of the occupations he may have been able to undertake but would not have caused him to cease work or to be unable to obtain work.
Following my direction of 31 March 2000, a report was obtained from Dr Lambeth, Psychiatrist. In that report Dr Lambeth states:
"There certainly seems to be little doubt about the diagnosis of Post Traumatic Stress Disorder, and there is general agreement that he has this problem.
As to why he has not had any treatment, I note that he says he is not game enough to go. This is in fact particular avoidance behaviour, which is often seen in Post Traumatic Stress Disorder in anyone, but particularly so in veterans."
And at page 3 of his report Dr Lambeth opines:
"I do not believe that he would regain sufficient work capacity to be able to earn remuneration by working for more than eight hours per week. I believe the only type of work that Mr Bestwick could do, is work of a voluntary nature, where he can come and go as he pleases, where he feels he can be of assistance to others, and where there is no stress upon him. This would need to be for a period of less than eight hours a week, in my opinion less than six hours per week.
I believe that Mr Bestwick needs treatment; I do not believe he is going to get back into the workforce.
I therefore believe he is totally and permanently incapacitated."
Given the opinion of Dr Lambeth (which was a report to the Respondent as much as to the Applicant's representative), I find that the Applicant's incapacity to undertake remunerative work for more than eight hours per week is permanent. The Respondent has conceded that the other criteria for the grant of pension at the Special Rate have been met and, on the evidence before me, that concession is properly made.
The Applicant's post traumatic stress disorder was accepted as a war-caused disease as and from 1 November 1994 but in its review the Veterans' Review Board assessed pension at 60% of the General Rate from 1 November 1994 to 6 November 1995 and at 70% of the General Rate from 7 November 1995. The reports before me do not really deal with the Applicant's condition at that time so I am not reasonably satisfied that pension should be increased from 60% of the General Rate from 1 November 1994, although paradoxically I am satisfied that the Applicant was unable to undertake remunerative work at that time because of incapacity from his war-caused injuries and diseases alone. As pension at 70% of the General Rate dates from 7 November 1995, pension at the Special Rate cannot be paid from any prior date. See paragraph 24(1)(a)(i) of the Veterans' Entitlements Act 1986.
The decision under review is therefore set aside and the Tribunal substitutes in lieu thereof its decision, namely that the Applicant, Darrell Gordon Bestwick, is entitled to pension at the Special Rate as prescribed by s24 of the Veterans' Entitlements Act 1986 as and from 7 November 1995.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic
....................................................................................
Associate
Dates of Hearing 7 February 2000, 31 March 2000, 12 July 2000
Date of Decision 17 July 2000
Solicitor for the Applicant Ms E Sadlier, Legal Aid Commission
Advocate for the Respondent Mr R Wallis, Department of Veterans' Affairs
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