Bilsby and Repatriation Commission
[2007] AATA 1124
•9 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1124
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2006/260
VETERANS' APPEALS DIVISION ) Re RALPH BILSBY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P A Staer, Member
Brigadier A G Warner, MemberDate9 March 2007
PlacePerth
Decision The Tribunal affirms the decision of the Veteran’s Review Board of 30 June 2006. .......(Sgd. Dr P A Staer)...................
Member
CATCHWORDS
VETERANS’ AFFAIRS – special rate – retirement planning – access to superannuation – post traumatic stress disorder and irritable bowel syndrome –contemporaneous evidence – full time work at date of claim
Veterans Entitlement Act 1986 (Cth) s 24
REASONS FOR DECISION
9 March 2007 Dr P A Staer, Member
Brigadier A G Warner, Member1. The applicant, Ralph Graham Bilsby, was born on 1 March 1946.
2. He enlisted in the Australian Regular Army as a National Serviceman on 28 September 1966 and was discharged on 27 September 1968. Mr Bilsby rendered operational service in Vietnam from 19 July 1967 to 16 July 1968.
3. The applicant is appealing against the decision of the Veterans’ Review Board made on 30 June 2006 which set aside a decision of the Repatriation Commission and substituted the decision that the applicant's disability pension be assessed at 90% of the general rate to operate from and including 14 January 2005.
4. The Veterans’ Review Board considered but did not grant the applicant special rate.
5. The applicant's initial application was made on 14 January 2005 when he applied for an increase in his disability pension which at the time of application was assessed at 70% of the general rate.
6. On 20 May 2005 a delegate of the Repatriation Commission increased the applicant's disability support pension to 80% of the general rate.
7. On 27 May 2005 the applicant lodged an application for a review by the Veterans’ Review Board of that Repatriation Commission decision.
8. The applicant has the following accepted disabilities:
(a)Post traumatic stress disorder (PTSD);
(b)Irritable bowel syndrome (IBS);
(c)Sensorineural hearing loss;
(d)Folliculitis;
(e)Tinea;
(f)Chronic solar skin damage;
(g)Non-melanotic malignant neoplasm of the skin.
He has rejected disabilities of:
(a)Dyspepsia;
(b)Anxiety state;
(c)Tinnitus (N.I.F.).
9. The applicable legislation in this case is Section 24 of the Veterans’ Entitlement Act 1986 (“the Act”). This section states:
“(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) 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
(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; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…”
10.The following exhibits were taken into evidence:
· statement by Mr Bilsby dated 24 January 2007 (Exhibit A1);
· bundle of documents provided by the advocate for the applicant including a letter from Tenix Defence Pty Ltd and a report from Dr O Kay dated 9 February 2007 (Exhibit A2);
· bundle of documents provided by the advocate for the applicant including documents related to a drink-driving charge, documents related to jury summons, a letter from Dr O Kay dated 21 June 2005 and a four-page handwritten document by the applicant's wife (Exhibit A3);
· report of Dr T Gidley dated 9 August 2001 (Exhibit R1); and
· report of Dr J Gelb dated 4 March 2002 (Exhibit R2).
The Evidence
Ralph Bilsby, the applicant
11. The applicant related how he suffered severe stress while serving in Vietnam with the Australian Army and that he had regular nerve, stomach and diarrhoea problems.
12. He suffered from disturbed sleep, nightmares and extreme sweating.
13. Due to stress, anxiety and depression from the late 1960s to 2002 he took periods of sick leave from work ranging from single days to weeks.
14. He related how on many occasions he broke down at work due to anxiety and depression. These situations occurred in group meetings and in one-on-one cases.
15. Over many years in his job he operated as a workaholic and his stress and anxiety levels were extreme. He found it impossible to relax and always took work home. This became his life. He felt a sense of responsibility to show a good example of "work ethic" to his children.
16. Many times on arriving home from work he would break down and his wife became his comforter and carer and witnessed many cases of his extreme stress and anxiety. She knew something was badly wrong with his health and saw the impact on the applicant himself, his work and family.
17. At Australia Post he had human resources management jobs where he felt required to take a high moral ground and set an example for others by not taking sick leave even though he had serious health problems in the area of extreme anxiety. This mistake and his moralistic approach resulted in him having 2 years’ full pay unused sick leave credits when he finally ceased work.
18. In late 1999 his job was abolished in re-organisation in Australia Post. In view of the increasing health problems he was having and the difficulties that then flowed to his effectiveness in the job he was prepared to leave work. He was not offered a redundancy package but with help from his boss, Mr Rogan, a job was found for him in Melbourne which involved less contact with people. He accepted the offer to move to Melbourne and spend two years working towards retirement age of 55 when he could access his superannuation. During the two years in Melbourne he continued to suffer anxiety and depression and was treated by a Dr J Arnold.
19. The applicant applied to the Repatriation Commission for acceptance of his disabilities and was referred to a Dr Gidley, a psychiatrist who saw the applicant and produced a report on 9 August 2001. His claim was rejected.
20. The applicant then applied to the Veterans’ Review Board and he was sent by an advocate to see a Dr J Gelb. Dr Gelb produced a report, dated 4 March 2002, which stated that the applicant met the Diagnostic and Statistical Manual of Mental Disorders (4th ed) (“DSM-IV”) criteria for Chronic PTSD. The PTSD and IBS were accepted as service-related.
21. The applicant took early retirement on 3 July 2002. He was quite positive that it was his service-related disabilities, particularly the PTSD and IBS, which caused him to take early retirement. The Tribunal accepts that this is the way the applicant now sees it.
22. Following retirement the applicant returned to WA and lived mostly in Perth but also part of the time in his house at Bremer Bay. He undertook a number of jobs during the next 3½ years. He found it no problem to get jobs such as fencing, farm labourer and gardener but found after a few days or weeks in a job that his war-caused disabilities would cause so many problems with his bowel and anxiety that he had to give up on the these jobs. His last work was as a gardener/handyman at a school where he was working two to three days per week but by 20 October 2006 he was unable to continue with this employment.
23. He has not sought employment since that time.
Rosemary Bilsby
24. The applicant’s wife confirmed the changes that took place in her husband's life on his return from Vietnam. He was subject to anger and nightmares and did not want to be part of family life.
25. She had known the applicant since primary school and related how her husband was well liked at school and that his schoolwork was impeccable. They were engaged before he went to Vietnam but the changes in the personality of her fiancé were such that she had thoughts of calling off the marriage after his return. She was occupied with three children but also developed her own interests in graphic design, as a lecturer and art curator.
26. Mrs Bilsby told Dr. Gelb:
“…he became a stickler for perfection and exhibited a constant need to check things to make sure they were right.” (Exhibit R2)
27.In her hand written statement, Mrs Bilsby wrote:
"…he was always anxious that he had to have his tasks completed to perfection. This applied to whatever job he was doing." (Exhibit A3)
Dr T Gidley
28. Dr T Gidley, Consultant Psychiatrist, saw the applicant and produced a report on 9 August 2001 (Exhibit R1). He noted the applicant intended to retire from Australia Post in about one year and that after his retirement he intended to return to WA to live in Perth, spending time between that location and his beach house.
29. In his report, Dr Gidley stated:
“He acknowledges perfectionism – for example at work he likes his correspondence to be just right.”
30. While noting the marked obsessional characteristics and anxiety which he felt was personality related, Dr Gidley did not feel that was sufficient evidence to make a diagnosis of PTSD.
31. There is no mention in Dr Gidley’s report that the applicant’s retirement was due to medical problems.
Dr J Gelb
32. Dr J Gelb, Consultant Psychiatrist, saw the applicant on the request of an RSL advocate and produced an extensive report on 4 March 2002 (Exhibit R2). He felt the applicant did meet the criteria for a diagnosis of PTSD under DSM-IV:
"…Overall, Mr Bilsby stated that he has suffered these symptoms since 1968 and that they have caused severe distress and have had a moderate impact on his work capacity and relationships with other people.
…
He is a person who expects his staff to be absolutely accurate with everything that they do and this is causing difficulties with staff that are less conscientious. His standards are higher than those of his staff and this causes him frustration.
….he has decided to depart from Australia Post in July this year and return with his wife to Perth to pursue new challenges.
…
Mr Bilsby presented as an anxious veteran who clearly met the RMA-SOP and DSM-IV criteria of 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.”
There is no specific mention in this long report of the applicant’s retirement being on medical grounds.
Dr. Oleh Kay
33. Dr Kay is the applicant's current treating psychiatrist. Dr Kay first saw the applicant in August 2004, more than 2 years after his retirement. He gave 5 short reports: T9/35 (dated 6 January 2005); T22/83 (dated 15 December 2005); T22/84 (dated 6 April 2006); Exhibit A2 (dated 9 February 2007); and Exhibit A3 (dated 21 June 2005). The reports give little of the applicant's history. Dr Kay accepts the applicant's disabilities and is treating him for PTSD and IBS.
34.In his first report, Dr Kay stated:
"…
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." (T9/35)
35. In his second report he commented briefly on Mr Bilsby’s attempts to obtain a driving licence for a grain truck and also his attempt to obtain employment with Tenix. He concluded:
"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 he will ever be able to meaningfully return to work”. (T22/83)
36.In his third report, Dr Kay stated:
“…I confirm that it was solely Mr Bilsby’s accepted psychiatric condition of Post Traumatic Disorder which prevents him from working full time” (T22/84)
File note of contact with Mr Rogan
37.A Department of Veterans’ Affairs Review Officer who contacted Mr Rogan on 22 November 2002 made the following file note:
“In order to clarify the note from Australia Post, see folio 240, I contacted Mr Rogan at his Melbourne office.
I asked him for the reasons behind the veteran’s decision to cease employment.
He advised me the veteran had moved to Melbourne to work for him (Rogan) a couple of years ago on the understanding that after the agreed period of time the veteran would be able to exercise this right to retire on the grounds of age.
I asked Mr Rogan if there were any medical reasons for the veteran ceasing work and he reiterated that the arrangement was always that the veteran would exercise his right to retire on the basis of age after working from Mr Rogan for a couple of years in Melbourne.” (T6/26)
Application of Law
38. The Tribunal finds the applicant meets the requirements set out in s 24(1)(aa), s 24(1)(aab) and s 24(1)(a) of the Act.
39. The applicant has made the appropriate application (s 24(1)(aa)), is under 65 years of age (s 24(1)(aab)) and has a 90% degree of incapacity from his war caused disabilities (s 24(1)(a)).
Discussion
40. The Tribunal accepts as fact that the applicant tried to deny his symptoms and the Tribunal is reasonably satisfied that his retirement in 2002 was partly the result of his war caused disabilities, particularly the PTSD and IBS.
41. Since he took his retirement in 2002 he has had a number of jobs. He does not find it a problem obtaining a job but very quickly in a job finds stress and anxiety aggravate his accepted disabilities, especially his PTSD and IBS and he has to leave the job.
42. The last time he worked in a job was as a gardener/handyman at a local school where he was working two to three days per week. That work ceased on 20 October 2006.
43. The Tribunal has difficulty in accepting that at the date of first retirement (3 July 2002), the applicant had been working a full week, maybe with difficulty, and then was totally and permanently incapacitated from the day after his retirement.
44. The Tribunal also has difficulty in accepting that the applicant was incapable of working 8 hours per week when at the time of his last job in October 2006 he had been successfully working 16 to 24 hours a week.
45. The Tribunal can look at this case from two perspectives. The first perspective is that the applicant planed his retirement for 3 July 2002. Much of the applicant's own evidence and actions point to the moving to Melbourne under the guide of Mr Rogan was a planned to move to fill in the time until the applicant could take age-based retirement. This is supported on the material before the Tribunal in the reports of Dr Gelb, Dr Gidley and the file note of a Department of Veterans’ Affairs Review Officer regarding his or her contact with Mr Rogan. All this evidence is contemporaneous and there is no mention of retirement on medical grounds.
46. The applicant's accepted war caused disabilities may have played some part in these moves and decisions but they certainly do not meet the “alone” test of s 24(1)(b).
47. The second perspective looks at the reasons why the applicant has been unable to find a continuing successful employment since his retirement.
48. The Tribunal finds a continuing theme through the evidence. There are repeated references to the applicant's high standards, to his anxiety and stress at work, to the fact that he is a workaholic, expecting the same perfectionist quality in others as he has himself, and to the fact that he has obsessional characteristics.
49. The applicant's wife stated that even at school his work was impeccable. She made repeated reference to the applicant's stress at work, his anger and mood swings, being a workaholic and bringing work home. For example, she states:
"He was always anxious that he had to have his tasks completed to perfection" (Exhibit A3)
50. The applicant himself, in both his written and oral evidence made repeated references to his anxiety and depression. He acknowledged he was a workaholic and his stress and anxiety levels were extreme and that even in the two years in Melbourne where he had little interpersonal contact he continued to suffer anxiety.
51. Dr Gidley spoke of the applicants “marked obsessional characteristics” and said that “much of his anxiety could be seen as personality related”. (Exhibit R1)
52. Dr Gelb found that the applicant presented as an anxious veteran and while finding he had PTSD also noted that he was a workaholic and a perfectionist.
53. The Tribunal therefore finds that the applicant has a lifelong history of perfectionism and obsessional behaviour. This behaviour is not part of factors required for a diagnosis of PTSD under DSM-IV.
54. When the applicant commences a job his perfectionism produces anxiety which then aggravates his war-caused disabilities, particularly his PTSD and IBS. For this reason the Tribunal finds that he does not satisfy the “alone” test of section 24(1)(b).
55. The Tribunal therefore finds that the applicant fails under the second perspective.
56. The Tribunal also notes that, since ceasing work on 26 October 2006, the applicant has not sought work, as required under section 24(2)(b).
57. The Tribunal for the above reasons affirms the decision under review.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P A Staer, Member and Brigadier A G Warner, Member
Signed: ..........(Sgd. Ms R Riberi)...............................
AssociateDate of Hearing 14 February 2007
Date of Decision 9 March 2007
Advocate for the Applicant Peter Lofdahl
Advocate for the Respondent Carl Ponnuthurai
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