Brown and Repatriation Commission
[2008] AATA 669
•31 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 669
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601171
VETERANS' APPEALS DIVISION ) Re JEFFRY BROWN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton Date31 July 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Brown is entitled to receive a pension at the special rate. (sgd) Regina Perton
Member
VETERANS’ AFFAIRS ‑ pension at special rate – whether war‑caused conditions alone cause of inability to work – decision
Veterans’ Entitlements Act 1986 ss 24(1)(a)(b)(c), 24(2)(a)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Peacock v Repatriation Commission (2004) FCA 1449
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 137 ALR 223
REASONS FOR DECISION
31 July 2008 Regina Perton 1. Jeffry Brown, who is now 62 years old, served in the Royal Australian Army (the army) from July 1968 to July 1980. He served in Vietnam between 14 April 1971 and 9 March 1972, which constitutes operational service. Mr Brown is currently on a disability pension payable at 100 per cent of the general rate. Mr Brown suffers from multiple medical conditions, several of which have been accepted by the Repatriation Commission (the Commission) as war‑caused. He has not been employed for several years.
2. Mr Brown is seeking a special rate pension, which is a higher rate of pension paid to a working-age recipient who is unable to work due to his accepted disabilities alone.
3. Mr Brown lodged a claim for disability pension on 20 August 2003 in respect of depression and stress which was later diagnosed as bipolar disorder. A delegate of the Commission refused the claim on 26 August 2003. On 27 January 2006, the Veterans’ Review Board (VRB) amended the diagnosis of the claimed condition to post traumatic stress disorder (PTSD) and decided that the PTSD was war-caused. The matter was remitted to the Commission for assessment of the pension rate. The Commission subsequently increased the rate to 100 per cent of the general rate with effect from 20 May 2003. The Commission also decided that Mr Brown was not eligible for a special rate of pension on the basis that he did not cease work due to his accepted war-caused disabilities alone. Mr Brown lodged an application for review with the VRB on 13 July 2006. The VRB affirmed the Commission’s decision on 8 November 2006. Mr Brown then lodged an application for review with this Tribunal on 6 December 2006.
4. The issue before the Tribunal is whether Mr Brown’s inability to work is due to his accepted war‑caused disabilities alone and whether he is therefore eligible for pension at the special rate.
Employment and Personal History
5. In a statement signed in May 2007, Mr Brown stated that he left school before his 14th birthday to commence a boilermaker apprenticeship. He left that position after three and a half years without completing his apprenticeship. He worked as a station assistant for the railways, eventually becoming an assistant stationmaster in a regional area.
6. Mr Brown was married with three children when he joined the army in 1968. After completing his training, he was posted to a signal regiment at Watsonia before going to Vietnam. On his return from Vietnam in March 1972, he was again posted to Watsonia. He stated that he was unsettled on his return from Vietnam. He commented that despite undertaking the relevant study, he was not promoted to the rank of sergeant. He stated that he was negative about everything.
7. After his discharge in 1980, Mr Brown worked full-time as a security guard with the Reserve Bank at Fitzroy and then in its changed location in Craigieburn. Mr Brown stated that over the next seven or so years in that position, he had difficulties due to shift work and his use of alcohol. This led him to conflict in his home life. He decided that things might improve if he worked for himself. Mr Brown resigned from the Reserve Bank and bought a 4-tonne truck, intending to be a self‑employed owner-driver, emulating his brother. Mr Brown delivered express parcel freight for Discount Freight Express (now Star Track Express). He stated that despite the change of employment, he continued to have attitude problems which led to conflict with his manager due to Mr Brown’s lack of punctuality and the resultant client dissatisfaction. He stated that he was not coping with the demands of the work. Mr Brown stated that in the mid-1990s, the freight company decided to offer redundancies with the aim of reducing the number of contracted owner-drivers. He stated that given his working difficulties, he accepted a $17,000 payout.
8. Mr Brown stated that he bought a car repair business which failed after six months leading to bankruptcy and the subsequent sale of his home. He worked for a short time as a security guard at a Coles supermarket. He also undertook bulldozing for the Lands Department. He worked as a fencing contractor for several months. He undertook electronics and computer training sponsored by the Department of Veterans’ Affairs (the Department) in the late 1990s but was unable to obtain any work in that area.
9. In his oral evidence, Mr Brown expanded on the details of his employment and training. Mr Brown told the Tribunal that after he had finished the jobs described above, he had worked on his daughter’s dairy farm and his brother-in-law’s dairy farm for a time. He acknowledged that his recollection of actual dates when he started or commenced certain employment was poor.
Medical Conditions & Employment Assessments
10. The Commission has accepted that Mr Brown’s medical conditions of chronic strain of back, peptic ulcer disease, bilateral sensorineural hearing loss, PTSD, malignant neoplasm of the prostate and chronic obstructive pulmonary disease are war-caused. The Commission rejected Mr Brown’s claim that his osteoarthritis of the right knee, lumbar spondylosis and localised osteoarthrosis of the right knee were war-caused.
11. In a report dated 16 May 2005, Dr Arthur Velakoulis, consultant psychiatrist, diagnosed Mr Brown as meeting the diagnostic criteria for chronic PTSD. Dr Velakoulis stated that the symptoms have been evident for some years. He also indicated that Mr Brown had a long history of high-level alcohol intake from 1971‑1997 that is likely to be consistent with Alcohol Dependence in Sustained Full Remission. He went on to state that:
In his current state, I feel that he is not capable of undertaking his regular work duties form more than 8 hours per week as a transport driver or security guard. The factors affecting his work capability are his PTSD (90%) and Depressive Symptoms (10%). His ability to return to more regular work is very poor, given his symptom profile of significant anxiety, particularly when dealing with people, his poor attention and concentration, his irritability,… his psychiatric conditions alone would prevent him from returning to work. Overall, I feel that it is more probable than not that his limitation is permanent.
12. In a further report dated 31 August 2006, Dr Velakoulis responded to a request to comment on the relationship between Mr Brown's psychiatric disorders and his work capacity over the years. He commented that:
…
Mr Brown does not describe the history of escalating lumbar or knee difficulties in association with his decision to cease work in 1995/1996. In fact, he specifically describes taking over the motor mechanics business so as to reduce his level of stress, with the hope that being his own boss, rather than answering to others, would be more tolerable to him. In the brief period that he owned the workshop, he denies that it ever involved significant manual or physical work on his part. He describes his main role as supervising the works, the receptionist and the manager. As his cash flow deteriorated, and his manager resigned, he moved to generating accounts and invoices. My understanding of his business failure is that he was unable to cope with the management of the business and that ability to cope with stress was poor. …
…
I feel that his PTSD and high-level anxiety was integral to this work incapacity from 1995 and beyond. I feel that there had been clear evidence in his work history dating back to 1972 (and his return from Vietnam) that he has had difficulty dealing with stress, suffered chronic anxiety and irritability, had great difficulty taking orders from superiors, and had poor work relationships with work colleagues and customers, variable concentration and poor frustration tolerance. These work related difficulties have been evident in each of his work roles after returning from Vietnam, and include:
·1972 until 1980 when he remained in the army.
·1981 to 1988 - security officer with the Reserve Bank in Melbourne
·1988 to 1995 when he was a self employed truck driver
·1996 – Garage proprietor, failed business venture
·1998 - Security officer at supermarket
·1999 - Computer Technician course
·Subsequently, he has remained largely unemployed.
I feel that his PTSD symptoms have significantly affected his career trajectory over the years and resulted in premature all work incapacity…
…
In summary, I would suggest that his PTSD and its associated symptoms that have been the predominant factor in his work incapacity dating back to the mid-1990’s...
13. In a third report dated 26 May 2007, Dr Velakoulis stated:
…
Since my last report, the veteran has continued to suffer from intrusive and distressing day recollections and nightmares of his war experiences several times per week. During the day, he generally manages if he is occupied, but he still experiences intrusive thoughts and images of his service incidents....
…
In regards to alcohol intake, the veteran has remained abstinent since 1997 after suffering a bleeding gastric ulcer. …
…
I feel that he is still not capable of undertaking his regular work duties for more than 8 hours per week as a transport driver or security guard. … His ability to return to regular work remains very poor, given several factors:
ØHis symptom profile of significant PTSD, panic attacks and anxiety
ØIrritability when dealing with people interpersonally
ØHis limited stress tolerance and ability to take instruction
ØHis poor attention and concentration,
ØHis prominent physical symptoms of anxiety and particularly propensity to secondary headache/migraine,
ØThe fact that he has already received intense psychiatric and psychological treatment for some time, including high dose antidepressants for over 12 months, with limited gains.
As such, I still feel that his psychiatric conditions alone would prevent him from returning to work, and that his psychiatric conditions of PTSD, panic attacks, associated headache symptoms and alcohol dependence during the period of the 1980’ and 1990’s were instrumental in his work capacity at that time. …
14. In oral evidence, Dr Velakoulis stated that he had been working with veterans suffering from PTSD since 1996. He first met Mr Brown in 2005 when he prepared his first report. He is now Mr Brown’s treating psychiatrist. He stated that his opinions about Mr Brown’s medical condition remain the same as expressed in his three reports. Dr Velakoulis stated that in his view, Mr Brown’s headaches and migraines while working as an owner-driver were suffered in the context of high anxiety. Dr Velakoulis said that headaches such as those suffered by Mr Brown were commonly seen in PTSD sufferers. He said that he would classify Mr Brown’s PTSD in the moderate range of severity. Asked about the degree of insight that Mr Brown had into his condition, Dr Velakoulis replied:
…I’m not sure that his insight, his understanding of his illness has been great. I think it’s evolved over time and probably with treatment and reflection I get the impression, and this occurs with many veterans, that maybe through the ‘70s, ‘80s and ‘90s, he – I think he was symptomatic but I’m not sure that he understood where it was coming from basically.
15. During cross-examination, Dr Velakoulis was shown a number of medical reports and other documents relating to Mr Brown’s back problems. He was also shown a medical report prepared in 1981 which indicated that Mr Brown did not suffer from headaches. Dr Velakoulis said that he was aware of back problems but these did not constitute any part of his current treatment or assessment of Mr Brown. He acknowledged that the history he had been given did not reveal the extent to which Mr Brown raised issues with the Department concerning his back. Dr Velakoulis was aware of Mr Brown’s computer studies and had noted in his clinical notes that his patient had tried to work in computer maintenance for about six months but had a poor relationship with customers. He was okay when working alone. Dr Velakoulis did not believe that there was any inconsistency between his notes and Mr Brown’s evidence to the Tribunal when Mr Brown stated that after finishing his course, he moved to Melbourne and undertook non-remunerated work experience with a friend. Dr Velakoulis said that he encouraged his PTSD patients to undertake exercise such as golf, which Mr Brown played.
16. The Tribunal was provided with reports of a number of scans and x-rays. Amongst those was a report dated 11 October 1995, in which Dr S Rajapakse stated that Mr Brown had normal knees. In another report, dated 23 August 2004, Dr Ian Wallis reported on a CT Lumbar Scan taken that day:
Scans were performed between L1 and the sacrum. No significant disc bulge or prolapse is evident. The alignment is normal. The spinal canal is of normal dimensions. The neural foramina are not stenosed. The facet joints appear generally normal.
CONCLUSION: No evidence of a canal stenosis or nerve root compression.
17. Mr Peter R Scott, senior consultant surgeon, prepared a report dated 13 March 2006 in which he stated:
…
2. With regard to the claimant's back problem there is nothing to suggest that this was related to military service.
He did complain of a backache in 1972 from which a good recovery occurred and following which he had no troubles with his back whatsoever until approximately 10 or 12 years after his discharge from the military and I would consider that his activities as an owner driver for Discount Express was more likely to be a factor causing more persistent minor back problems which are not limiting his ability to be full time gainfully employed in any way, and which is requiring minimal treatment and which is not associated with any evidence of any significant underlying organic disability.
…
Major disability relates to his traumatic stress disorder which is the major factor causing him to cease work has a security guard for the Reserve Bank and as an owner driver for discount express and as a self employed car repairer.
I suspect that his knee problem represents no more than 5% of his ongoing disability which is mainly psychosomatic in origin.
There is minimal disability resulting from his back problem which I believe is not primarily related to military service.
…
18. Dr Robyn Horsley, occupational physician, provided a report dated 21 May 2007. She stated that:
…
Therefore, on the basis of his accepted conditions alone, his physical disabilities do not prevent him from working more than eight hours or twenty hours per week.
However, on the basis of his psychiatric condition, I rely upon my Psychiatrist colleagues opinions. He has no capacity for work.
…
Mr Brown is now 61 years of age and has been out of the workforce for eight to nine years. These factors alone, act as barriers to return to work.
He also has the non-accepted conditions of lumbar spondylosis and osteoarthritis of the right knee.
….
I noted that his lumbar spondylosis and knee condition prevented him from returning to his previous role as Deliverer of freight through Discount Freight, but do not in theory, prevent him from returning to truck driving with a reduced manual component.
…
On the basis of Dr Velakoulis’ report, he remains out of the workforce for reasons related to his post-traumatic stress disorder and psychiatric conditions. He has no capacity for work on the basis of his psychiatric condition. …
19. In oral evidence, Dr Horsley outlined the history she had taken from Mr Brown, which included the stress he experienced when working as an owner-driver and the resultant headaches and migraines. She indicated that Mr Brown had told her that after the failure of the repair business and his subsequent bankruptcy, he undertook intermittent bulldozer work until he sold his bulldozer in 1998. She then noted his training through the Department and that he had said that he was keen to take up a position in the electronics area and had applied unsuccessfully for a number of positions but was told that he was too old; at that stage he was 55 years of age and, of course, he had no experience. Dr Horsley said that neither Mr Brown’s back nor his knee condition would prevent him from working in a position such as driving; although he would have to avoid heavy manual work. She expressed the view that Mr Brown’s psychiatric condition together with his age and time out of the workforce were probably the barriers to his obtaining employment. Asked by the Tribunal whether the changing employment market with older people now working longer and being sought after because of shortages in some areas would change that position, Dr Horsley said that her comments on Mr Brown’s age being a barrier to such work were based on:
…I think the problem is that he did his electronics course late in life and I think its lack of experience. I think if he had done it 10 years ago and had some experience, I don’t know that age would be a barrier…
20. Dr Nigel Strauss, consultant and occupational psychiatrist, provided a report dated 26 July 2007. He commented:
…
I accept that this man is suffering from a post traumatic stress disorder and this is the major diagnosis in this case.
…
He is a man with a range of physical symptoms apart from his post traumatic stress disorder and he is subject to some depression. He was a man who used alcohol for some years to help with his psychological state but fortunately he no longer does this.
I have looked at this man's work history and the difficulties he had before he stopped work a number of years ago. I do accept that he had post traumatic stress symptoms when he stopped work and I believe that in fact these have worsened over the last ten years, particularly as he has not been working, he has tended to isolate himself and he has had ongoing physical problems.
…
I believe that as a consequence of his psychiatric problems alone which are service‑related he is unable to work more than eight hours a week.
Other factors are also involved to a lesser extent including his physical problems and his age and the time that has elapsed since he last worked.
Predominantly however his post traumatic stress disorder is the factor stopping him from working. …
21. In oral evidence, Dr Strauss said that he had the impression from the history he took that Mr Brown had stopped working in the mid-1990s predominantly because of his psychiatric problems. Asked about the basis for the other factors that he had mentioned in his report such as age and time out of the workforce, Dr Strauss said that his comments were based on the population he sees i.e. patients with a psychiatric condition rather than in the general population.
22. Dr Warren A Kemp, consultant rheumatologist, provided a report dated 16 November 2007. Dr Kemp ended his report with the following comment:
…
In my opinion he has little physical disability at the present time and his incapacity is mainly due to his nervous symptoms, causing him to stop work in 1995 as a result of his accepted conditions alone.
In my opinion he may be fit for twenty hours physical work each week, but in view of the reported severity of his nervous symptoms, it is unlikely that he would be fit for eight hours aggregate per week due to his nervous symptoms.
23. In oral evidence, Dr Kemp stated that he did not find any significant instability in Mr Brown’s right knee. There were scars from his surgery but that did not affect the knee greatly. Dr Kemp said that Mr Brown suffered from chronic back strain but that he did not find any clinical or radiological features to suggest that his back problems were due to lumbar spondylosis. Dr Kemp maintained the opinion given in his report, that Mr Brown stopped working in 1995 as a result of his accepted conditions alone.
24. In his oral evidence, Mr Brown said that he continues to be treated by Dr Velakoulis. He said that he takes some medication for his physical ailments, namely Celebrex and Losec as well as for his PTSD. He said that he attends a gym twice a week and plays 18 holes of golf once a week. He said that he is fit now, apart from the mental side of things.
25. During cross-examination, Mr Brown was shown documents that indicated he had sought payment for time off work from the Department of Defence in December 1988 and October 1992 due to back problems and again in 1994 for knee problems. Mr Brown could not recall doing so. Nor could he recall advising the Department in 1995 that his back had deteriorated significantly. Mr Brown said that his back was never any trouble at all, I worked through it. He said that despite stating in 1995 in a claim for an increase in his disability pension that his back was a major problem, it was his migraines not his back that were the major issue. He said he is now aware that the migraines were most probably related to his then undiagnosed PTSD.
Evidence as to why and when Mr Brown stopped working
26. In a Departmental questionnaire which he completed on 13 October 1995, Mr Brown stated that he was unable to work due to problem with back. In response to a prompt question asking why he believed he was unable to get a job, he stated:
Age, no work available, unable to do fencing or operate bulldozer due to back problem.
27. In a departmental questionnaire completed on 28 February 2006, Mr Brown stated that there were no restrictions on his ability to sit in or drive a car. Responding to a prompt question “Did your disability stop you working in any way”, Mr Brown responded: unfriendly, unable to take directions, labelled as anti-social.
28. In oral evidence, Mr Brown said that he had been experiencing severe migraines while he was an owner driver for Discount Express. He also suffered from pain in the lower back which he had experienced since his army days. He said that he continued to work despite the back pain. He said that it now appeared that his migraines were stress-related rather than related to his back as had originally been suggested by his doctor. Mr Brown said that after his payout from Discount Express, he tried jobs where he could work on his own. He said that he stopped undertaking fencing work because the person for whom he undertook the contracts died and he could not pick up any work on his own because he was not good at negotiating with people. He said he coped physically with the fencing work. He then undertook land clearing with his bulldozer for about a year. His accountant suggested a business to him, namely a car repair business. He said that his accountant ripped me off. He was declared bankrupt. He then did security work for Coles but it transpired that he would have had to set up his own company and he could not do so because he had been declared bankrupt.
29. Mr Brown indicated that he had operated his bulldozer from time to time after his business failed. He said he did so until he sold the bulldozer, which he recalled being around 1998. In a submission to the VRB dated 12 August 2005, Mr Brown's advocate stated, based on his interview with Mr Brown, that the last paid work undertaken by Mr Brown was as a security guard at a Coles supermarket in Seymour early in 1998
30. Mr Brown said that that he would like to still be working. He said that he is a person who learns quickly and would like to be doing things that he could do from home, such as repairing furniture, motor bikes or the like. He said that he had never worked in a dairy until he had done so for his daughter and brother-in-law but learned the necessary skills within a couple of days. He said that he could still drive a truck provided he did not have to deal with heavy parcels.
31. During cross-examination, Mr Brown was shown a number of documents he had lodged between 1995 to 1998 with accompanying medical reports in which his back and knee problems were cited as causes of his inability to work. Mr Brown reiterated several times that it was his migraines that stopped him working. He said he mistakenly thought his migraines were related to his back problems rather than PTSD. He denied having significant problems with his back. Mr Brown was asked why he still stated in documentation provided to the Commission in 2004 that he stopped working in 1995 due to his severe back pain. He responded that it was due to his severe migraines which had been wrongly diagnosed as attributable to his back. He said that it was not until he started psychiatric treatment that he realised the migraines were due to his PTSD rather than his back.
32. Mr Brown’s memory in relation to dates he undertook certain roles and when he finished work could be described as poor and inconsistent. His counsel, Mr Moore, conceded that there were inconsistencies, particularly given the documents Mr Brown, his doctors and advocates had provided in the mid-1990s, in which they stated that he had stopped working around 1995 because of knee and back problems. He submitted that Mr Brown was at his lowest ebb at that point and had not yet been diagnosed with PTSD. His life was in crisis with relationship and financial difficulties. He suggested that Mr Brown had limited insight into his undiagnosed condition and in order to explain away why he could not continue to work, magnified something that was in reality,…of minor significance but was something which he is able to inflate to explain away things.
33. Documentary evidence indicated that Mr Brown undertook study during 1998, 1999 and 2000. All the parties agreed that he had probably undertaken his work experience in Melbourne in around 2001. Mr Moore submitted that the cessation of work could be considered to be the end of 2001, after the work experience failed. He conceded that regular employment may have ceased in 1995 to be followed by irregular employment, such as the work on the farm. He submitted that age and time out of the workforce would not be a barrier to Mr Brown working as a truck driver; nor would his physical condition. He submitted that Mr Brown’s accepted psychiatric condition was the only barrier.
34. Ms McCulloch challenged Mr Brown’s characterisation of his army service after his return from Vietnam, pointing to positive superior and psychological reports as well as his subsequent two years’ service in Papua New Guinea. She pointed to claims made in 1992 and 1993 to the Department of Defence for loss of earnings for a few days when he was an owner-driver, which he could not now recall. Ms McCulloch indicated that documents on the Department’s file indicated that in 1994, he was running the car repair business and was then unemployed during that year. She stated that it did not appear that Mr Brown had informed the Commonwealth that he was still doing bulldozing, fencing or farm work after he lodged his claim for a service pension in late 1995. Ms McCulloch conceded that one of the conditions cited as rendering Mr Brown incapable of working were his migraines but his back and knee conditions were also cited as causes of his inability to work. She also conceded that undertaking a three year course demonstrated that Mr Brown was someone who had a view that he could work in the future.
35. Ms McCulloch submitted that Mr Brown’s last taxable remunerative work was his truck driving, which he ceased in 1993. She put the view that the car repair work was not remunerative as the business went bankrupt so one could presume that there was no remunerative work as a consequence. She also submitted that Mr Brown had not declared any work he now stated he had undertaken to the Commission or Department. That work included the farm work and the later bulldozing work. She suggested that the Tribunal should not include any work that was paid with cash in hand as remunerative work. Ms McCulloch also queried Mr Brown’s credibility as a result of the differing accounts he had given about his work history and the lack of any evidence backing his work after 1995.
36. It is difficult to determine when Mr Brown actually stopped work given his poor recollection of dates and the lack of documentary evidence concerning his work after 1995. The Tribunal is satisfied that Mr Brown ceased work for a time in 1995 but that he subsequently undertook further work as a bulldozer driver and as a farm hand. He also trained in the computer maintenance / electronics field and undertook work experience in that field. It is not clear whether he received any actual payment for that work, although it is work that would usually attract remuneration. He certainly expressed an intention to work in that field after he completed the course. The Tribunal is satisfied that he would not have undertaken three years of study, which he often found difficult, just for the sake of learning. The Tribunal finds that Mr Brown did not cease work in 1995 but rather somewhere between 1998 and 2001.
Does Mr Brown meet the criteria for a special rate pension?
37. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
(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…
(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…
38. Both parties agreed that Mr Brown meets s 24(1)(a) and s 24(1)(b) of the Act. The Tribunal concurs. Mr Brown receives a pension at 100 per cent of the general rate. The medical reports also indicate that Mr Brown’s PTSD prevents him from working more than 8 hours per week. The Tribunal therefore finds that he meets s 24(1)(a) and s 24(1)(b) of the Act.
39. The parties disagree as to whether Mr Brown meets s 24(1)(c) of the Act. Section 24(1)(c) and its qualifying provision, s 24(2)(a) state:
(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…
(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;
…
40. In respect of s 24(1)(c) of the Act, the Tribunal notes that in Repatriation Commission v Hendy (2002) 76 ALD 47, the Full Federal Court, discussing s 24(1)(c) said (at para 37):
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24 (1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24 (1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war‑caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the Tribunal is determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.
41. In Flentjar v Repatriation Commission (1997) 48 ALD 1, Branson J set out the issues posed by s 24(1)(c) in a series of questions:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
42. In respect of question 1, Mr Brown’s work history is set out earlier in these Reasons for Decision. Ms McCulloch submitted that the Tribunal should not take account of work undertaken after 1995 which had not been declared to the Department or Commission, citing the Full Federal Court decision of Sheehy vRepatriation Commission (1996) 137 ALR 223 as a relevant authority. In Sheehy it was held that undertaking work required the work to be actually performed but that it was inappropriate to attempt to define a minimum period for such work. However, the Tribunal notes that facts in Sheehy do not parallel the present case. Furthermore, the judgement does not indicate that the only work that should be taken into account is that for which the earnings are declared to government authorities.
43. The Tribunal finds that the remunerative work undertaken by Mr Brown included security guard, truck driver, bulldozer driver, fencer, computer maintenance and farm hand.
44. In respect of question 2, the Tribunal accepts the medical evidence that Mr Brown is now prevented from working more than 8 hours per week due to his accepted war-caused disabilities, including PTSD. So the answer to question 2 is yes.
45. In respect of question 3, Mr Brown asserts that the accepted conditions alone prevent him from working. When Mr Brown lodged a claim in 1995 stating that he had stopped working at that time, he cited his back, knees and migraines as the major causes. He now states that he worked after 1995 and that the reason for him ceasing work was his then unrecognised PTSD.
46. There are other factors to be taken into account in relation to Mr Brown’s employability, such as his age and the time out of the workforce. The Tribunal notes the comments of Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50:
39….The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition.
40…it is possible that the war-caused condition may well be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
47. Both Mr Scott and Dr Horsley indicated that Mr Brown would not now be prevented from working due to his physical disabilities if he worked as a truck driver. They both stated that his knee and back sensitivities would not prevent him from working. Dr Strauss considered time out of the workforce and age as possible additional factors (as well as the PTSD). However, he concluded that this applied to the computer maintenance field in which Mr Brown had little experience for someone his age rather than to a role as a truck driver.
48. Dr Velakoulis and Dr Strauss, psychiatrists who have both treated many veterans suffering from PTSD, have stated that, in their view, Mr Brown was suffering from PTSD from a time before 1995 and that the condition has worsened since then. They both expressed the view that Mr Brown’s psychiatric problems alone render him unable to work for more than 8 hours per week.
49. The Tribunal is satisfied that Mr Brown’s inconsistent reporting of his work history and his previous emphasis on his back and knee problems do not necessarily arise out of a deliberate attempt to deceive the Commission and other decision‑makers. He is certainly a poor historian, which may, in part or in whole, be related to his psychiatric condition. However, the Tribunal accepts that he genuinely believed in the mid-1990s that his migraines and headaches arose out of his back problems as he had not considered that he might be suffering from a psychiatric condition. The current diagnoses that his back and knee problems would not prevent him working adds substance to the hypothesis that he did not stop working because of those conditions.
50. The Tribunal is satisfied that Mr Brown’s accepted war-caused disabilities are the only factors preventing him from working for more than 8 hours per week during the assessment period. The answer to the third Flentjar question is therefore yes.
51. In relation to the fourth Flentjar question, the Tribunal is satisfied that Mr Brown is suffering a loss of salary, wages or earnings on his own account, that he would earn if he were free from his accepted disabilities. The Tribunal accepts that Mr Brown’s PTSD prevents him from associating with others in the workplace and/or with potential clients.
52. Ms McCulloch suggested that Mr Brown had already effectively retired due to receipt of his service and disability pension (see Peacock v Repatriation Commission (2004) FCA 1449); and therefore was not suffering from a loss of earnings on his own account. However, the Tribunal does not accept that he had done so, given his work after 1995, his three years of study to retrain himself in another field and his subsequent work experience. The answer to the fourth Flentjar question is therefore yes.
53. The Tribunal finds that Mr Brown meets the criteria in s 24(1)(c) of the Act, taking into account the specific requirements set out in s 24(2)(a).
DECISION
54. The Tribunal sets aside the decision under review and substitutes a decision that Mr Brown is entitled to receive a pension at the special rate.
I certify that the fifty-four (54) preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Dianne Eva
Clerk
Dates of hearing: 28 & 29 May 2008
Date of decision: 31 July 2008
Counsel for applicant: Mr G Moore
Solicitor for applicant: Peter J LiefmanAdvocate for respondent: Ms J McCulloch, Advocacy Section,
Department of Veterans’ Affairs
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