Bilsby and Repatriation Commission
[2011] AATA 133
•28 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 133
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1464
VETERANS' APPEALS DIVISION ) Re RALPH BILSBY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date28 February 2011
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant is eligible for the special rate of pension under s 24(1) of the Veterans’ Entitlements Act 1986 (Cth), with effect from 21 August 2009.
..............sgd S D Hotop............
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – rate of pension – applicant receives pension at 100% of general rate – applicant applied for increase in rate of pension in August 2009 – special rate – applicant worked for Australia Post and voluntarily retired in 2002 – applicant undertook work in period 2003-2004 – applicant unsuccessfully attempted to undertake work in period 2005-2006 – applicant totally and permanently incapacitated from war-caused disease – in assessment period commencing in August 2009 applicant prevented by war-caused incapacity alone from continuing to undertake remunerative work that he was undertaking – applicant thereby suffering loss of wages that he would not be suffering if free of that incapacity – applicant eligible for special rate of pension – decision under review set aside
Veterans’ Entitlements Act 1986 (Cth), s 24(1) and s 24(2)(a)
Banovich v Repatriation Commission (1986) 69 ALR 395
Birtles v Repatriation Commission (1991) 33 FCR 290
Forbes v Repatriation Commission (2000) 101 FCR 50
Hall v Repatriation Commission (1994) 33 ALD 454
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
28 February 2011 Deputy President S D Hotop Introduction
1. Ralph Bilsby (“the applicant”), who was born in March 1946, was called up for service under the National Service Act 1951 (Cth) and served in the Australian Army from September 1966 to September 1968. He rendered “operational service”, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), in Vietnam from July 1967 to July 1968.
2. The applicant receives a disability pension under Part II of the VE Act by reason of incapacity from various war-caused diseases including Post Traumatic Stress Disorder (“PTSD”) and Irritable Bowel Syndrome. The rate of his disability pension is presently 100% of the “general rate” under s 22(3) of the VE Act.
3. On 21 August 2009 the applicant applied for an increase in the rate of his disability pension, claiming that he was eligible for the “special rate” under s 24 of the VE Act.
4. On 3 November 2009 a delegate of the Repatriation Commission (“the respondent”) decided that the rate of the applicant’s disability pension was to remain at 100% of the general rate.
5. On 16 March 2010 the Veterans’ Review Board (“VRB”) affirmed the respondent’s decision of 3 November 2009.
6. On 14 April 2010 the applicant applied to the Tribunal for review of the respondent’s decision as affirmed by the VRB on 16 March 2010.
The Issue and the Tribunal’s Determination
7. The issue for the Tribunal’s determination is whether the applicant is eligible for the special rate of pension under s 24 of the VE Act.
8. For the reasons which follow, the Tribunal has determined that the applicant is eligible for the special rate of pension under s 24 of the VE Act.
The Relevant Legislation
9. Section 24 of the VE Act relevantly provides:
“ 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)…; 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;
…”
The Evidence
10. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T13, pp I–XV, 1–97) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1–A4 tendered by the applicant; and
· the oral evidence of the applicant and of Rosemary Bilsby and Dr Oleh Kay.
The applicant’s evidence
11. The applicant confirmed that he had prepared a written statement, dated 19 August 2009, in support of his application for an increase in the rate of his pension, and that its contents are true and correct.
12. The applicant’s written statement refers to his service in Vietnam and the symptoms he has since experienced, and continues:
“ …
6.After completing my Junior Certificate at end of 3rd year high school in 1961, I joined the PMG’s Department in January 1962. The following is a brief history of my 40 years work and the tasks/responsibilities involved:
· 1962 – Telegram boy – delivering telegrams.
· 1963 – Postman – delivering mail.
· 1964 – Postal Officer – sorting mail; serving customers; night telephone exchange (3 week shift roster).
· 1965 – Postal Clerk-in-training – training course to gain qualifications to serve post office customers.
· 1966–68 – National Service in the Army.
· 1968 – National Service Vocational Training following the Army.
Undertook my Leaving Certificate at Leederville Technical College.
· 1970–71 – Staff Clerk – duties associated with staffing work in a Postal District.
· 1972 – Clerk, HQ Melbourne – clerical work relating to National Staff Suggestions Scheme.
· 1973 – Inspector-in-training – 12 month course training as Inspector to assist in administering a Postal District.
· 1974–75 – Clerk, HQ Melbourne – developing policy at the National level.
· 1976–1978 – Staff Clerk – returned to WA from Vic (reduction by consent) and undertook staffing work in a Postal District.
· 1979–1992 – Various clerical and managerial jobs in Head Office WA involving administering policy and staffing issues in a number of Branches.
· 1993–95 – Manager, Human Resources Dept – managing the Dept responsible for all staffing issues/policy for the State.
· 1996–99 – State Delivery Manager – managing the mail delivery arrangements for WA.
· 2000–2002 – Project Manager HQ Melbourne – managing the development and implementation of various projects relating to mail delivery arrangements in each State.
7.I had taken periods of sick leave from work ranging from single days to weeks due to stress, anxiety and depression during times from the late 1960s to 2002. I was treated by Dr H Eaton of Cannington, the late Dr A Tresise of Riverton and by Dr J Arnold of St Kilda.
8.I had a number of occasions where I broke down at work due to my anxiety and depression. These situations occurred in group meetings and in one on one cases. Specifics I can recall are:
· In 1993 after a large group meeting my anxiety reached a point where I broke down and it was witnessed by a former employee Mr Peter Anderton.
· After a group interview in 1994 when I was the interviewer, I broke down in front of one of the panel Mr Bob Patrick, due to my anxiety and stress.
· When discussing work issues in 1995 with an external contractor Ms Barbie Kitto, I broke down and was extremely embarrassed.
9.Over many years in the job, I coped with my high anxiety levels in relation to my work by becoming a workaholic. I found it impossible to relax and I always took work home and this became for me the most important part of my life. I felt a sense of responsibility to show a good example of ‘work ethic’ to my children.
10.Many times on arriving home from work, I would break down and my wife became my comforter and carer and witnessed many cases of my extreme stress and anxiety. She knew something was badly wrong with my health and saw the impact on me, my work and family.
11.I was in management jobs that I personally felt required me to take the high moral ground and set an example for others by not taking sick leave, even though I had serious health problems in the areas of extreme anxiety. This mistaken moralistic approach resulted in me having 2 years full pay unused sick leave credits when I finally ceased work.
12.At the end of 1999 my job as State Delivery Manger responsible for mail delivery arrangements in WA was abolished in a re-organisation in Australia Post.
13.In view of the increasing health problems that I was having and because I recognised within myself that I was not coping with my work, I considered ceasing work with Australia Post and commencing work with my wife Rosemary as a partner in her business involved in Visual Art management. However, whilst I recognised that I was not coping with my work at Australia Post, I didn’t recognise that my inability to cope was a long term and worsening health problem resulting from my PTSD and therefore didn’t think I should take sick leave.
14.The options Australia Post put to me were take a ‘special project’ job (a manufactured job in the ‘corner’) in Perth or go to Melbourne and take a position there in the Human Resources area, which was an area of my earlier expertise. I didn’t really want to retire at the time because I still believed that I should be able to fill a position of responsibility. I therefore believed that I should be able to overcome my problems and continue my work for at least 2 years until I reached age 55 when I knew I then had the option to retire from Australia Post and access my superannuation entitlements. I therefore decided to accept the offer to move to Melbourne and spend 2 years in Australia Post Headquarters working on National Projects relating to the development and implementation of new mail delivery arrangements in each State and then retire from Australia Post, return to Perth and find other less stressful employment.
15.My work in Melbourne involved significant responsibility and interaction with other Postal employees and included negotiating with union representatives. However it was not at the same level of seniority and responsibility as my position in Perth as State Delivery Manager.
16.During the 2 years in Melbourne, I continued to suffer anxiety and depression and Dr J Arnold of St Kilda treated me. I also attended Specialists for severe headaches. My sense of responsibility to my employer outweighed any rational concern for my own health. By the end of my employment by Australia Post in Melbourne, I was seeing Dr Arnold on average about once a fortnight for problems with anxiety, tension, headaches, neck ache and depression. I was feeling despondent, depressed, and anxious and knew that I couldn’t keep working with the way I was feeling. My health therefore continued to deteriorate and my anxiety levels increased, notwithstanding the fact that the work in which I was involved was at a lower level and should have been less stressful than my previous position in Perth.
17.Because of my increasing health problems and because I was not coping with my work, I resigned from Australia Post upon completion of the project to which I had been assigned. I was 56 at the time. My wife and I returned to Perth. My initial feeling was one of relief and for a few months my stress and anxiety level improved slightly. For about 12 months I rested, but I had always intended to obtain continuing less stressful work.
18.Between 2003 and 2006, I made a number of attempts to return to work including registering with Centrelink Job Network scheme. During this period, I had no difficulty in obtaining work when seeking it, because I had a number of useful contacts; however I have had to cease each attempted employment because of my illness.
19.The work that I have attempted since retiring from Australia Post has been as follows:
a)I obtained work on a casual basis as Fencing Labourer or Farm Hand in 2003 and 2004. I took this work because it was offered through a close friend and I could work at my own pace and without being responsible to anyone else. It was very different and much less stressful than the managerial or human resources work at Australia Post. The work was only occasional and I worked for a day at a time or for 2 or 3 days at time (sic) at most. I often found that I could not finish a day’s work, or I could not start work on time because of increased anxiety in relation to the work which resulted in severe headaches or in diarrhoea attacks. I only took occasional work as I needed to recover between these attempts to return to work.
b)Truck driving lessons in late 2004 which would have qualified me to drive a truck when employed on my friend’s farm. This was important to make me a more useful employee to my friend and to make up for my unreliability caused by my continuing health problems outlined in the preceding subparagraph. Further, I hoped that I would cope better with less anxiety with the less physical nature of driving a truck as opposed to Fencing labourer and Farm hand work. I had four lessons – 29 October 2004; 1, 2, 3 November 2004. During each of the lessons I suffered from anxiety, concentration difficulties and Irritable Bowel Syndrome symptoms. Because of the health issues I suffered during the lessons I ceased after the fourth day and I decided I was not capable of continuing my farm work. Again I took a period off work to see if I could recover my health and ability to work and to consider my alternatives.
c)A job as Expeditor with Tenix in August 2005. This job which was offered as casual employment from 15 August 2005 to 18 November 2005 involved checking the documentation on completed projects, compiling the records on computer and preparing the paperwork for final signoff. This type of clerical work was very basic compared with my work at Australia Post and, whilst obviously I needed to become familiar with the specific job requirements, there were no new skills to learn.
· I suffered severe diarrhoea on the day prior to commencing the job.
· On the 15th August I commenced in the job and was given an introduction to the job requirements. I experienced severe diarrhoea and headaches and medication was required.
· On the second day I gained further insight to the job requirements. I was most anxious about the job and suffered headaches.
· On the third day the job really started to worry and concern me. I discussed this with my supervisor. I suffered dizziness during the day.
· On the fourth day I became particularly stressed and anxious about my ability to cope with the job. I considered phoning the Hollywood Clinic to gain admittance for treatment. I found it very difficult to concentrate on the job and approached my supervisor to advise her of my concerns and my feelings that it was very difficult to go on. I broke down sobbing in the supervisor’s office and indicated I was going to attend my doctor and that I felt it was emotionally too difficult to go on in the job. I apologised to my supervisor for having let down Tenix and advised her that I felt a complete failure to myself. I indicated that I would inform her of the outcome after visiting my doctor. I drove home in tears, again feeling a failure in not having been able to cope with the job.
· The next day (Friday) I was involved in counselling by the Vietnam Vets Counselling Service.
· On the next Monday I saw my Psychiatrist Dr Oleh Kay who confirmed that I was suffering severe symptoms of PTSD and that it was unlikely that I would ever be able to meaningfully return to work.
· Following this failed attempt and the advice from Dr Kay, there was a further significant period whilst I considered whether there was anything even easier and less stressful and during which I attempted to recover my health.
d)A job as casual gardener with the Education Dept in Sept/October 2006. I obtained this work when the previous gardener resigned and the school manager said I could do the work at my own pace and choose my days. My wife encouraged me to take the job as I was having self esteem issues about failure and this seemed to be a job I would be capable of doing. I was therefore employed on a casual and part-time basis. There was a clear understanding that if I was suitable and if the work was suitable for me, I could be employed on a permanent basis. The work was extremely basic and very simple. It involved checking the grounds, raking leaves, weeding and edging and watering the lawns and general cleanup for the primary school and kindergarten. After my experience at Tenix, I kept a record of the hours that I managed to work. I worked a total of 44 hours over 5 weeks. The first week, I worked 2 x 8 hour days; the 2nd week, one 8 hour day; the 3rd week, 2 x 4 hour days; the 4th week, a 4 hour day and 2 x 2 hour days; the 5th week, I attempted 4 hours. During the second week and for the remainder of my time in the job, my wife came to reassure me and did most of the work. By the fifth week I was a complete wreck with severe headaches and severe irritable bowel syndrome symptoms. I realised I could not continue and then resigned, rather than applying for a full time position. When I could not cope with that work, I realised that there was no work which I could do which would not increase my anxiety symptoms to an incapacitating level even to get through the day and I have not attempted further work.
20.Although my PTSD was accepted as war caused by DVA in May 2002, I did not really understand the illness or accept it until I was treated for the disability on the PTSD programme at Hollywood Clinic in 2004. As part of the PTSD programme I undertook 4 weeks as a live in patient at the Hollywood Clinic followed by 8 weeks on a part-time basis. I also attended the Vietnam Vets Counselling service for 6 months for counselling for my anxiety and depression.
21.Dr Kay has treated me on an ongoing basis since 2004, along with my GP Dr G DeLeuil and I have regular anti-depressant medication to assist in controlling my PTSD as well as medication for my Irritable Bowel Syndrome. It was only after 2004 and all the treatment and medication commencement that I realised it was the PTSD and associated disabilities that were causing and had caused my health problems for many years. My health problems have existed since my Army service and have progressively got worse.
22.In conclusion, and now that I understand my condition better, I believe that I did cease work for Australia Post due to my PTSD that was causing all my health difficulties, which made it impossible to go on at Australia Post after July 2002.
23.However, even if it is not accepted that I ceased work for Australia Post solely because of my PTSD, my condition continued to worsen and at least by October 2006 I was unable even to undertake what I believe to be the simplest and least stressful of any possible employment, such as being a school gardener. As I could not cope with this work, I have not sought paid employment since this attempt because I know that I am unable to cope and it is unfair to me and to an employer to put me and the employer through the process.” (T10, pp 86–91)
13. In his oral evidence the applicant said that, when he returned to Perth from Melbourne in July 2002 following his retirement from Australia Post, he felt “exhausted” and “stressed”, and he needed to “take time out” and he did so for the rest of 2002.
14. He said that in 2003 he and his wife were having a new house built and he needed to work to earn some extra money and, because of his financial situation, he realised that he had “retired too early”.
15. He said that he thought that he would be able to do different, less stressful work than he had been doing at Australia Post, and he started looking for work in 2003. He said that, through friends and contacts at his golf club, he obtained fencing work and farm work in 2003–2004 (as referred to in para 19(a) of his abovementioned statement). He elaborated on the nature and extent of that work as follows.
16. The fencing work, for which he was employed by “Affordable Fencing” on a casual, part-time basis when required, involved helping to erect “colourbond” fences at houses in suburbs of Perth and fences on a farm near Perth. He undertook that work, for which he was paid $100 per day, on the following days:
· 11 and 12 February 2003
· 20, 27, 28 and 31 May 2004
· 1, 2, 3 and 4 June 2004
· 28 July 2004
· 20, 24 and 31 August 2004
· 3 September 2004
· 5, 6 and 7 October 2004.
He described his role in doing that work as “the lackey” helping another person to do the job and he said that his work involved mixing cement, holding posts and the like. He described the work as “unskilled labour” and said that he “learned on the job”. He said that he was able to do the work but he had anger problems, anxiety and Irritable Bowel Syndrome problems because the other person’s attitude to the jobs “bothered” him and he disagreed with the way the jobs were being done by the other person, and, on the advice of his general practitioner, Dr Deleuil, he ceased doing that work in October 2004.
17. The applicant said that, in the period 2003–2004, he was not available for work in the Perth area on the following dates:
· 14–17 February 2003
· 3–-22 March 2003
· 25 May 2003 to 5 June 2003
· 2–9 July 2003
· 12–22 September 2003
· 23–27 October 2003
· 13–15 February 2004
· 1–6 March 2004
· 14 June 2004 to 9 July 2004
· 12 July 2004 to 30 August 2004 (each Monday)
· 6–21 September 2004
· 25 September 2004 to 1 October 2004
· 10–27 November 2004.
He added, however, that if he had been in Perth on those days and work was available, he would have done it. He also said that, in 2004, he had a medical appointment regarding his PTSD on each of the following days: 25 February, 12 March, 19 March, 28 May, 8 June, 15 July, 29 July, 11 October, 6 December, and 10 December.
18. The farm work, which he undertook on a farm near Bremer Bay, involved fencing work, lamb work and feeding sheep. The work was casual, part-time work and involved paid and unpaid work. He did paid work, for which he received $100 per day, on the following days:
· 5, 6, 18 and 21 March 2003
· 4 and 8 July 2003
· 11, 12 and 17 November 2004.
He said that he had to cease doing that work in November 2004 because he was suffering “anxiety, concentration problems, headaches and Irritable Bowel Syndrome”.
The evidence of Dr Oleh Kay
19. Dr Kay, Psychiatrist, has prepared a number of reports regarding the applicant as follows.
20. In a report dated 6 January 2005 to the applicant’s (then) advocate, Dr Kay stated:
“ …
I have been responsible for Mr Bilsby’s psychiatric care since August 2004. He suffers from a number of war caused conditions which include a chronic Post-Traumatic Stress Disorder and Irritable Bowel Syndrome. His PTSD has had a significant effect on his concentration and mental capacity and it is by reason of these disabilities that he is unable to work for 8 hours or more per week. Furthermore, it is my opinion that Mr Bilsby’s incapacity to work is chronic and the reason he ceased work was largely because of his concentration problems and cognitive dysfunction.
…” (T5)
21. In a report addressed “To whom it may concern”, dated 15 December 2005, Dr Kay stated:
“ This is to certify that I have been responsible for Mr Bilsby’s psychiatric care since August 2004. He has been consulting me on either a fortnightly or monthly basis. During that time he has made 2 concerted efforts to return to work. The first was in late 2004 and the second in 2005. In 2004 Mr Bilsby became enthusiastic about driving a grain truck in rural areas and therefore embarked on a course to obtain his truck drivers licence. He successfully obtained a learners permit but when he commenced lessons he had problems with catastrophically increasing anxiety and exacerbation of his Irritable Bowel Syndrome which resulted in him ceasing his lessons.
In 2005 he attempted to commence work with Tenix. He was offered employment through them and attended an induction. He felt optimistic about working for Tenix but when he commenced working for them he again suffered problems with anxiety, dizziness and abdominal distress. This has resulted ultimately in him feeling despairing about his future when he had to say to Tenix that he could not continue working for them.
In my opinion, both of his attempts to return to work came to naught because of his chronic war caused psychiatric condition and I remain of the opinion that it is unlikely that he will ever be able to meaningfully return to work.” (T6, p 30)
22. In a letter dated 6 April 2006 to the applicant’s (then) advocate, Dr Kay stated:
“ In reply to letter (sic) 23rd February 2006 I confirm that it was solely Mr Bilsby’s accepted psychiatric condition of Post Traumatic Stress Disorder which prevents him from working full time.” (T6, p 29)
23. In a report, dated 12 October 2010, to the applicant’s solicitors, Dr Kay stated:
“ In reply to your letter dated 5 October 2010 I confirm that I am continuing to treat Mr Bilsby. He first consulted me on 5 August 2004. He presented then as a 58 year old married retired for 2 years senior manager for Australia Post. He was a Vietnam veteran and served with 104 Signals Squadron in Nui Dat. He was a national serviceman between the years 1967–68 and was in receipt of a 70% disability pension for Post Traumatic Stress Disorder, Irritable Bowel Syndrome and other service related conditions. Mr Bilsby told me that his retirement from Australia Post was because of psychiatric symptomatology and that he left with a 2 years sick leave entitlement.
·On the occasion of his first consultation he told me that he had been considering returning to work part time truck driving.
·On 26 August 2004 he told me that he considered other part time jobs but said that he suffered from eye pain when he was stressed and that he had decided to seek the assistance of the Commonwealth Employment Service.
·On 23 September 2004 Mr Bilsby told me that he was going to try for a truck driver’s licence hoping to obtain work during the harvest.
·On 21 October 2004 he told me that he had obtained his Truck Learner’s Permit and was about to start lessons.
·On 4 November 2004 he told me that he was finding the lessons ‘hair raising’.
·On 6 January 2005 he described himself as ‘struggling a bit’ and said that he had been ‘going backwards trying to get a job’. He complained of difficulty concentrating, a reduced mental capacity which he said was the reason he stopped working at Australia Post in the first place. By that time he had had 4 truck driving lessons and was beginning to think that returning to work was more difficult than he thought it was going to be.
·On 17 May 2005 he complained of a ‘funny turn’ whilst driving.
·On 18 August 2005 he told me that he had obtained a job and was looking forward to starting the following week with Tenex (sic).
·On 22 August 2005 he told me he had been through the induction and had subsequently developed symptoms consistent with anxiety, diarrhoea, dizziness, headaches, shakes and emotional lability. He said he fell apart after 4 days and on examination was clearly distressed and teary.
·On 1 December 2005 he had returned from 3 weeks staying in Bremer Bay but described symptoms of ongoing distress particularly of nightmares and in early 2006 he finally started taking antidepressant medication on which he remained.
·In March 2006 he was again thinking of approaching Centrelink with a view toward a work placement.
Since that time Mr Bilsby’s presentation has been varied, at times being relatively symptom free and other times being distressed suffering from flashbacks. But generally Mr Bilsby has difficulty sleeping most nights.
As you are aware I have prepared a number of reports for Mr Bilsby in the past and have opinioned (sic) that Mr Bilsby is, due to the reason of his psychiatric disorder, unfit for work.
I now respond to your questions seriatim:
1.When Mr Bilsby became totally incapacitated for work (and in particular whether it is likely that incapacity occurred at some time between 3 July 2002 and January 2005)
It is difficult to be precise as to when Mr Bilsby became totally incapacitated for work. In 2004, when he first consulted me, he had not worked for some 2 years after leaving work at Australia Post because of psychiatric symptoms. Nevertheless, he made several attempts to return to work but it was evident by the second half of 2005 that Mr Bilsby could not return to work due to the exacerbation of his psychiatric symptomatology precipitated by him attempting to work at Tenex (sic). This was after the time he attempted unsuccessfully to obtain his truck driver’s licence.
2.Whether in your opinion Mr Bilsby was already totally incapacitated when he made his various attempts at employment between July 2002 and January 2005
In my opinion, although Mr Bilsby was unsuccessful at returning to work prior to January 2005 he made a number of concerted attempts to do so, it would be reasonable to take the view that his attempts to return to work, taking on truck driving lessons and the like is evidence that he was not totally and permanently incapacitated for 2005.
…”(original emphasis) (Exhibit A4)
24. In his oral examination-in-chief, Dr Kay was asked whether the applicant had told him in consultations that he had worked as a farm labourer and fencing labourer in 2003–2004. Dr Kay said that he was “not clear” as to whether he remembered the applicant talking about doing such work when he saw him from August 2004. He confirmed, however, that there is no reference in his clinical notes to the applicant’s having done such work and he acknowledged that, in his abovementioned report of 12 October 2010, he had stated as follows:
“ … In 2004, when he first consulted me, he had not worked for some 2 years after leaving work at Australia Post because of psychiatric symptoms …”
He said that, had he known that the applicant had been doing such work in 2003–2004, he would have opined that the applicant “had a capacity to work at that time” but that his symptoms subsequently became worse such that he was unable to work. He added that, in his opinion, the applicant’s incapacity for work “crystallised” at the end of 2004 by reason of his PTSD alone.
The evidence of Rosemary Bilsby
25. Rosemary Bilsby, the applicant’s wife of 42 years, gave brief oral evidence. It is, however, unnecessary to set it out in these reasons.
Additional material
26. The following additional relevant material is included in the T Documents.
27. A report of Dr T H Gidley, Consultant Psychiatrist, dated 9 August 2001, includes the following reference to the applicant’s civilian employment history:
“ After leaving school, the veteran started work for the PMG and he is still with Australia Post – 40 years later. He is currently working as an executive with the Human Relations Department, moving to Melbourne as part of an organisational restructuring – the section he formerly headed in WA was combined with another section. He says he had the choice of redundancy or moving to Melbourne. He intends to retire from Australia Post in about 1 year. He describes his current position in Melbourne as relatively non-demanding.”
As regards the applicant’s mental status, Dr Gidley concluded that he was not suffering from PTSD or any other diagnosable psychiatric disorder. (T3)
28. A report of Dr Jerome Gelb, Consultant Psychiatrist, dated 4 March 2002, includes the following reference to the applicant’s civilian employment history and performance:
“ In terms of his work, he began work with the Postmaster General’s Department in Perth in January 1962, and worked his way up the ranks to his current level of Executive Project Manager in the Corporate Office of Australia Post in Melbourne. He is a person who expects his staff to be absolutely accurate with everything that they do and this has caused him difficulties at times with staff that are less conscientious. His standards are higher than those of his staff and this causes him frustration. He moved from Perth to Melbourne two years ago following a reorganisation in his region. Over the past few years, he has found that his memory for fine detail on which he prided himself, has started to decline. This also causes him much frustration. He finds it difficult to concentrate on one task for long periods of time and tends to jump around on issues and not stick to the one task at hand. He gets frustrated with his inability to maintain concentration on work tasks. He said that he has had to work hard recently at maintaining self-confidence. He prefers to take a back seat and let others be the front person, which has held him back on occasions in his job. He said that he has now reached a stage in his career where he feels that he has had enough, and as he is now at the age where he can retire, he has decided to depart from Australia Post in July this year and return with his wife to Perth to pursue new challenges.”
Dr Gelb’s report concludes as follows:
“ Mr Bilsby presented as an anxious Veteran who clearly met the RMA-SOP and DSM-IV criteria for chronic post-traumatic stress disorder. He has had no treatment for this condition, and it has had a significant impact on both Mr Bilsby individually, and his wife and children. I think that he would benefit from referral to a specific post-traumatic stress disorder management program, where he could be assessed for medication and cognitive therapy.
As for his fitness for work, Mr Bilsby will take retirement in July 2002, and does not wish to take on further employment. Frankly, with his current level of symptoms, I would doubt his capacity to adapt to a new working environment very easily.” (T4)
29. A letter of Dolores Marshall, Director, Wrightway Road Training Pty Ltd, addressed “To whom it may concern”, dated 16 December 2005, states as follows:
“ This is to state that Ralph Graham Bilsby commenced driver training with our organisation on 29th October 2004. He did 3 further lessons on the following dates 1st November 2004, 2nd November 2004 and 3rd November 2004.
He was unable to continue his training due to stress and concentrating for long periods.
…” (T6, p 34)
30. A letter of Donna Camilleri, Quality Coordinator, Systems Operations, Marine Division, Tenix Defence Pty Ltd, addressed to Dr Oleh Kay, dated 22 September 2005, states as follows:
“ I write to you on behalf of Mr Ralph Bilsby. Tenix Defence Systems Operations had a requirement to employ someone to research, collate and provide Project Completion Reports.
Mr Ralph Bilsby was employed on a casual, part time basis to fulfil this role. Ralph commenced employment with us on the 15th of August.
Unfortunately on the 18th of August, Ralph reported to me that he was unable to continue in this role. He expressed that he found the role to (sic) stressful and he was quite distressed.
It was felt by both parties that this was not the role for him and his employment ceased on the 18th of August.
…” (T6, p 32)
Analysis
31. It is common ground that paras (aa), (aab), (a), (b) and (d) of s 24(1) of the VE Act are satisfied in this case. The only matter in dispute is whether the applicant satisfies para (c) of s 24(1) which comprises the “alone test” and the “loss test”.
32. It seems to the Tribunal that a critical matter for its determination in this case is the “remunerative work that the [applicant] was undertaking”, within the meaning of para (c) of s 24(1) of the VE Act.
33. The expression “remunerative work”, as defined in s 5Q(1) of the VE Act, “includes any remunerative activity”.
34. The following propositions regarding the meaning of the phrase “remunerative work that the veteran was undertaking” in para (c) of s 24(1) of the VE Act emerge from the authorities:
· the phrase refers to the “type of work” which the veteran previously undertook or the “field of remunerative activity” in which the veteran previously worked, not to “a particular job with a particular employer” or “any particular job” which the veteran previously performed: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402–403;
· the “remunerative work”, for the purposes of s 24(1)(c), is not limited to the last substantive work which the veteran actually undertook: Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225, 227;
· the “remunerative work”, for the purposes of s 24(1)(c), must be “substantial” work which the veteran has “successfully undertaken” or “effectively undertaken”: Starcevich at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569 at 573–574.
35. The applicant submitted that the work he undertook as a fencing labourer and as a farm labourer in the period from February 2003 to November 2004 (see para 19(a) of his statement set out in paragraph 12 above and his oral evidence referred to in paragraphs 15–18 above) constitute “remunerative work” for the purposes of para (c) of s 24(1) of the VE Act and that he is prevented from continuing to undertake that work by reason of incapacity from his war-caused PTSD and Irritable Bowel Syndrome and is thereby suffering a loss of wages or earnings on his own account that he would not be suffering if he were free of that incapacity. Accordingly, he submitted that para (c) of s 24(1) of the VE Act is satisfied in his case.
36. The respondent submitted that the applicant’s work with Australia Post was the last substantial work which he undertook and should be regarded as the only relevant “remunerative work” for the purposes of para (c) of s 24(1) of the VE Act. The respondent further submitted that, because the applicant voluntarily retired from that work in July 2002, it could not be said that he was prevented from continuing that work by reason of incapacity from his war-caused injuries or war-caused diseases, or both, "alone”, within the meaning of para (c) of s 24(1). As regards the fencing work and farm work undertaken by the applicant in 2003 and 2004, the respondent submitted, relying on Sheehy v Repatriation Commission, that that work had not been “successfully” or “effectively” undertaken by him and, accordingly, does not constitute “remunerative work” for the purposes of para (c) of s 24(1). Likewise, the respondent submitted that the work subsequently attempted by the applicant in 2005 and 2006 (see para 19(c) and (d) of his abovementioned statement) does not constitute “remunerative work” for the purposes of para (c) of s 24(1). Accordingly, the respondent submitted that para (c) of s 24(1) is not satisfied in the applicant’s case.
37. The Tribunal has no difficulty accepting the respondent’s submission that the work which the applicant undertook with Tenix Defence Pty Ltd in August 2005 does not constitute “remunerative work” for the purposes of para (c) of s 24(1) of the VE Act. The Tribunal notes, furthermore, that the applicant – rightly, in the Tribunal’s opinion – did not contend that the casual gardening work which he undertook with the Education Department in September/October 2006 constitutes “remunerative work” for the purposes of para (c) of s 24(1) of the VE Act.
38. The question whether the fencing work and/or the farm work, which the applicant undertook in the period from February 2003 to November 2004, constitute “remunerative work” for the purposes of para (c) of s 24(1) of the VE Act is more problematic.
39. Although that work – the nature of which is, in the Tribunal’s opinion, appropriately described as light/moderate unskilled manual work – was undertaken by the applicant over a substantial period of 21 months, the amount of paid work actually undertaken by the applicant during that period – namely, 27 days according to his own evidence – was, in the Tribunal’s opinion, relatively insubstantial. More specifically, according to the applicant’s evidence, he did paid work on:
· 2 days in February 2003 (fencing work)
· 4 days in March 2003 (farm work)
· 0 days in April, May and June 2003
· 2 days in July 2003 (farm work)
· 0 days in the period from August 2003 to April 2004
· 4 days in May 2004 (fencing work)
· 4 days in June 2004 (fencing work)
· 1 day in July 2004 (fencing work)
· 3 days in August 2004 (fencing work)
· 1 day in September 2004 (fencing work)
· 3 days in October 2004 (fencing work)
· 3 days in November 2004 (farm work).
The Tribunal notes, furthermore, that, within the abovementioned period of 21 months, there were two significant periods in which the applicant did no paid work, namely, April–June 2003 and August 2003–April 2004, and he only did paid work on 2 days in between those two periods in July 2003.
40. In those circumstances, the Tribunal is not satisfied that the paid work which the applicant undertook in February and March 2003 and July 2003 was sufficiently substantial to constitute “remunerative work” for the purposes of para (c) of s 24(1) of the VE Act.
41. As regards the paid work which the applicant undertook in the period May–November 2004, the Tribunal notes that, according to his evidence, that work was undertaken on a total of 19 days spread over that period, comprising 1 day in each of July and September, 3 days in each of August, October and November, and 4 days in each of May and June. The Tribunal also notes the applicant’s own evidence regarding the extent of his capacity to perform that work, as set out in para 19(a) of his abovementioned written statement, as follows:
“ … I often found that I could not finish a day’s work, or I could not start work on time because of increased anxiety in relation to the work which resulted in severe headaches or in diarrhoea attacks. I only took occasional work as I needed to recover between these attempts to return to work.”
That evidence suggests to the Tribunal that the applicant himself did not regard his undertaking of that work over that period as successful or effective but instead regarded it merely as a series of intermittent “attempts to return to work”. The Tribunal also regards that evidence as indicating that the applicant did not in fact successfully or effectively undertake that work in that period.
42. There are, furthermore, other aspects of the evidence before the Tribunal which cause it to doubt that the fencing work and the farm work, which the applicant said that he undertook in 2003–2004, was regarded by him as substantial, and was in fact substantial, namely:
· a written submission by the applicant’s (then) advocate to the VRB, dated 5 June 2006, in support of his earlier application for review of the decision of the respondent on 20 May 2005 which assessed the rate of his disability pension as 80% of the general rate, refers, in respect of the applicant’s employment activities since leaving Australia Post in 2002, to his having had truck driving lessons with Wrightway Road Training in October 2004 and his having had casual, part-time employment with Tenix in August 2005, but makes no reference to his having undertaken fencing work or farm work in 2003–2004 (T6, pp 26–28);
· the VRB’s Reasons for Decision, in respect of its earlier decision on 30 June 2006 assessing the rate of the applicant’s disability pension as 90% of the general rate, likewise refer only to his truck driving course with Wrightway Road Training in October 2004 and his employment with Tenix in August 2005, and make no reference to any fencing work or farm work in 2003–2004, in respect of his employment activities since leaving Australia Post in 2002 (T7, pp 39–48);
· Dr Kay’s evidence that there is no reference in his clinical notes, in respect of the applicant’s ongoing psychiatric consultations with him from August 2004, to the applicant’s having undertaken fencing work or farm work in 2003–2004 (see paragraph 24 above);
· Dr Kay’s report of 15 December 2005 which states that, in the period from August 2004, the applicant “made 2 concerted efforts to return to work”, namely, his embarking on a course to obtain his truck driver’s licence in late 2004 and his attempt to commence work with Tenix in 2005, but makes no reference to his undertaking fencing work or farm work in that period (see paragraph 21 above);
· Dr Kay’s report of 12 October 2010 which states (among other things) that:
-when the applicant first consulted him in August 2004 “he had not worked for some 2 years after leaving work at Australia Post …”;
-at his first consultation on 5 August 2004 the applicant told him that he had been “considering returning to work part time truck driving”;
-at subsequent consultations the applicant told him about his truck driving lessons and his job with Tenix;
but contains no reference to the applicant’s having undertaken fencing work or farm work in 2003–2004 (see paragraph 23 above).
43. Having regard to the whole of the evidence before it, the Tribunal is not satisfied that such fencing work and farm work as was in fact undertaken by the applicant in 2003 and 2004 was substantial work that was successfully or effectively undertaken by him. Accordingly, the Tribunal is not satisfied that that work constitutes “remunerative work” for the purposes of para (c) of s 24(1) of the VE Act: Starcevich (above) at 225: Sheehy (above) at 573–574.
44. Although the applicant did not seek to rely on his work for Australia Post for the purposes of para (c) of s 24(1) of the VE Act, it seems to the Tribunal that that work should be considered for the purpose of determining whether he is “prevented from continuing to undertake remunerative work that [he] was undertaking”, within the meaning of that paragraph. Although the applicant voluntarily retired from Australia Post in July 2002 and, accordingly, it cannot be said that he was, at that time, prevented from continuing that particular employment by reason of incapacity from war-caused injuries or war-caused diseases, or both, “alone”, within the meaning of para (c) of s 24(1) of the VE Act, the matter of his eligibility for the special rate of pension under s 24 is to be determined, not as at the date of his retirement, but rather (in accordance with s 19 of the VE Act) as at the date of his application for an increase in the rate of his disability pension, namely, 21 August 2009, or during the current “assessment period” which commenced on that date: Hall v Repatriation Commission (1994) 33 ALD 454.
45. As previously noted, it was held in Banovich that the phrase “remunerative work”, within the meaning of s 24(1)(c), refers not to “a particular job with a particular employer” but instead to the “type of work” previously undertaken by the veteran. The Court continued (69 ALR at 402-403):
“ It follows that a member’s loss of particular employment for a reason unrelated to a war disability would never destroy a member’s subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity – and by that incapacity alone – from continuing in that field of remunerative activity.”
Banovich is also authority for the proposition that the phrase “prevented from continuing to undertake remunerative work”, within the meaning of s 24(1)(c), refers not only to a “loss of existing employment” but also to an “inability to obtain new employment” (at 402). Similarly, in Birtles v Repatriation Commission (1991) 33 FCR 290 Hill J said (at 299):
“ … What is involved in each case is ultimately a question of fact, namely, has the veteran by reason of his war incapacity been prevented from ‘continuing’ a type of remunerative work which he previously undertook (not being work undertaken only for a short period)? The word ‘continuing’ in this context is used to encompass the case where a veteran may be unable to find a similar kind of work by reason of that incapacity and as a result suffers the loss to which the paragraph refers. …” (original emphasis)
46. The abovementioned authorities establish that a veteran who ceases work for a reason other than war-caused or defence-caused incapacity is not necessarily precluded thereby from subsequently becoming eligible for the special rate of pension under s 24(1) of the VE Act. Accordingly, if the applicant, as at the commencement of, or during, the “assessment period”, was prevented, solely by reason of incapacity from war-caused diseases (most notably, PTSD), from undertaking remunerative work of the kind which he performed when employed by Australia Post – which is appropriately described as sedentary managerial or administrative work – that would suffice for the purposes of para (c) of s 24(1) of the VE Act: Hall v Repatriation Commission (above).
47. The Tribunal is satisfied, having regard to the whole of Dr Kay’s evidence, that from 2005 the applicant has been, and continues to be, totally incapacitated for work by reason of war-caused PTSD. The Tribunal, furthermore, is not satisfied that, since the commencement of the “assessment period”, any non-war-caused factor has played or is playing a part in, or has contributed or is contributing to, the applicant’s being prevented from continuing to undertake any “remunerative work” of the type that he “was undertaking”, within the meaning of para (c) of s 24(1) of the VE Act. The Tribunal is, therefore, reasonably satisfied that, from the commencement of the “assessment period” on 21 August 2009, the applicant has, solely by reason of incapacity from war-caused PTSD, been prevented from continuing to undertake that work, for the purposes of para (c) of s 24(1) of the VE Act. The “alone test” is, accordingly, satisfied in this case.
48. The question then arises as to whether the applicant, by reason of so being prevented from continuing to undertake the relevant remunerative work, is “suffering a loss of salary or wages, or of earnings on his … own account, that [he] would not be suffering if [he] were free of that incapacity”, within the meaning of para (c) of s 24(1) of the VE Act. This limb of s 24(1)(c) must be read with s 24(2)(a): Forbes v Repatriation Commission (2000) 101 FCR 50 at 53.
49. In Repatriation Commission v Smith (1987) 15 FCR 327 Beaumont J (with whom Northrop and Spender JJ agreed) said (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.”
This hypothetical assessment must be made in relation to the “assessment period” (as defined in s 19(9) of the VE Act): Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
50. The Tribunal accepts the applicant’s evidence that, following his retirement from Australia Post in July 2002 at the age of 56 years, he soon realised that, from a financial perspective, he had retired too early and that he wanted to return to work to gain extra income. The Tribunal also accepts that the applicant acted upon that realisation by undertaking some casual, part-time fencing and farm work for reward in the period from February 2003 to November 2004 and, after he voluntarily discontinued that work by reason of symptoms from his war-caused PTSD and Irritable Bowel Syndrome, by:
·taking truck driving lessons in October/November 2004 with a view to driving a truck in the course of his farm work;
·undertaking sedentary clerical work with Tenix Defence Pty Ltd in August 2005; and
·undertaking casual, part-time work as a gardener with the Education Department in September/October 2006.
The Tribunal accepts that the applicant also voluntarily discontinued each of those activities by reason of symptoms from his war-caused PTSD and Irritable Bowel Syndrome.
51. The Tribunal is reasonably satisfied that the applicant has, from 2003 onwards, including on and from 21 August 2009 (being the commencement of the “assessment period” in this case), wanted to “undertake remunerative work”, within the meaning of para (c) of s 24(1) of the VE Act. The Tribunal is also reasonably satisfied that the kind of remunerative work that the applicant would have sought to undertake in that period, if he were free of war-caused incapacity, is the kind of work he performed at Australia Post for most of his working life, namely, sedentary work of an administrative or clerical nature, although not necessarily of the high level which he performed in his latter years at Australia Post.
52. It is also necessary for the Tribunal to consider what the applicant’s prospects of obtaining such work in the “assessment period” would have been: Repatriation Commission v Smith (above) at 337. The applicant had a long and distinguished career with Australia Post (and its statutory predecessors) from 1962 to 2002 (with the exception of the 2-year period of his national service (1966-1968)), rising to the very senior position of State Delivery Manager in Western Australia in 1996. Since his retirement in 2002 the applicant has apparently had little or no difficulty obtaining paid casual, part-time work when he has sought it, notwithstanding his PTSD symptoms. The Tribunal is reasonably satisfied that, at and from the commencement of the “assessment period” on 21 August 2009 (when the applicant was aged 63 years and 5 months), the applicant would likewise have had little or no difficulty in obtaining paid administrative/clerical work had he been free of his incapacity from war-caused PTSD and in a position meaningfully to seek such work.
53. In the Tribunal’s opinion, s 24(2)(a) of the VE Act does not operate to prevent the second limb of s 24(1)(c) (comprising the “loss test”) from being satisfied in this case. As regards s 24(2)(a)(i), although the applicant ceased remunerative work with Australia Post in July 2002 for a reason other than war-caused incapacity, namely, his taking voluntary retirement, that reason had, and has, no relevance or application to his having ceased to engage in that type of work as at 21 August 2009 and during the “assessment period”. Rather, the Tribunal is reasonably satisfied that the applicant’s failure to engage in that type of work in the “assessment period” is due solely to his incapacity from war-caused disease (in particular, PTSD) and to no other cause. As regards s 24(2)(a)(ii), the Tribunal is likewise reasonably satisfied that the applicant has from 2005 been, and continues to be, incapacitated and prevented from engaging in any remunerative work solely by reason of war-caused disease (in particular, PTSD) and for no other reason.
54. Accordingly, the Tribunal is reasonably satisfied that the applicant is, by reason of being prevented by war-caused incapacity alone from continuing to undertake remunerative work, suffering a loss of wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity, within the meaning of para (c) of s 24(1) of the VE Act. The “loss test” is, therefore, satisfied in this case.
Conclusion
55. The Tribunal concludes that the applicant satisfies the requirements of s 24(1) of the VE Act and that he is therefore eligible for the special rate of pension under that subsection. It is common ground that, in the event that the Tribunal were to determine that the applicant is eligible for the special rate of pension, the date of effect would be the date on which he applied for an increase in the rate of his disability pension, namely, 21 August 2009.
Decision
56. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant is eligible for the special rate of pension under s 24(1) of the VE Act, with effect from 21 August 2009.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: E Jordan .....................................................................................
Associate
Date of Hearing 8 February 2011
Date of Decision 28 February 2011
Representative of the Applicant Mr R Grayden
Solicitor for the Applicant Robert Grayden LegalRepresentative of the Respondent Mr C Ponnuthurai
Compensation and Review Branch
Department of Veterans' Affairs
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