Brown and Repatriation Commission
[2000] AATA 674
•8 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 674
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A1999/145
VETERANS' APPEALS DIVISION )
Re PETER LESLIE BROWN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member
Date8 August 2000
PlaceCanberra
Decision The tribunal affirms the decision under review
..........................(Sgd.)....................
Pamela Burton Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements - disability pension – veteran in receipt of pension at 100% general rate - whether eligible for pension at Special Rate – reasons for ceasing employment - capacity to engage in remunerative work – whether loss as a consequence of war-caused injury.
Legislation
Veterans' Entitlements Act 1986, s24
Authorities
Repatriation Commission v Smith (1987) 74 ALR 537
REASONS FOR DECISION
8 August 2000 Pamela Burton, Senior Member Dr Michael Miller, AO, Member
This is an application for review of a decision of the Repatriation Commission of 17 April 1998 which accepted the veteran's conditions of sleep apnoea and sigmoid colon polyp as war-caused and determined that the veteran was to continue to receive disability pension at 100% of the General Rate, declining his claim to receive pension at Special Rate. The Veterans' Review Board affirmed this decision on 2 March 1999. The veteran has other accepted war-caused disabilities, including ischaemic heart disease and anxiety depression state, and he claims entitlement to pension at Special Rate.
Mr Crabb appeared on behalf of the veteran, and Ms Pacey appeared on behalf of the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). In addition, medical reports of Dr Robert Scott, occupational physician, dated 22 October 1999 (Exhibit A), Dr Leonard Lee, consultant psychiatrist, dated 10 November 1999 (Exhibit 1), Dr Mark Burns, occupational physician, dated 15 September 1999 (Exhibit 2), and three taxation assessments for the 1995/1996, 1996/1997 and 1997/1998 financial years (Exhibit B) were tendered at the hearing.
The veteran gave evidence at the hearing, and Mr Richard Biele, a work colleague, gave telephone evidence on his behalf. Dr Scott also gave telephone evidence for the veteran. Drs Lee and Burns gave telephone evidence for the respondent.
The veteran was born on 20 May 1938. He served in the Australian Army in Vietnam from 20 March 1969 to 28 January 1970, constituting "operational service" for the purpose of the Veterans' Entitlements Act 1986 ("the Act"). He also served from 7 December 1972 to 22 November 1985, constituting eligible "defence service" under the Act.
The respondent claims that the veteran's pension is correctly assessed at 100% of the General Rate, and that he does not meet the criteria for Special Rate or Intermediate Rate. It contends that the veteran's current unemployment is due to a cessation of a work contract, rather than the veteran's accepted conditions alone.
The LegislationSection 24 of the Act makes provision for a veteran who has an assessed degree of incapacity of 70% or more, to receive a pension at above General Rate in certain defined circumstances. The relevant provisions provide:
24(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.
24(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.
Standard of Proof
Pursuant to subsection 120(4) of the Act the tribunal is to decide the matter to its reasonable satisfaction and, therefore, a standard of proof on the balance of probabilities is applicable (Repatriation Commission v Smith (1987) 74 ALR 537).
Assessment Period and date of effectPursuant to section 20 of the Act, the earliest date of effect is 18 August 1997, the veteran applied for an increase in pension on 18 November 1997. The relevant period is the assessment period commencing on the date of effect, namely 18 August 1997 to the date of this hearing.
ContentionsThe veteran contends that, although after his retirement from the Department of Defence in 1994 he worked for about 12 months in 1996-1997, since 18 November 1997 he has been unable to work because of his accepted war-caused disabilities alone. It is not in dispute that the veteran satisfies section 24(1)(a) of the Act, in that he has been assessed for pension at 100% of the General Rate.
The respondent contends that the veteran's reason for ceasing work was not because of his war-caused disabilities alone. It contends that the veteran is not incapacitated from undertaking employment, and therefore he has not suffered a loss of earnings from his war-caused disabilities alone pursuant to section 24 of the Act.
HistoryThe veteran joined the Army when he was 26 or 27 years old, intending to make a career in the services. His service in Vietnam was particularly distressing. He was a Corporal Storeman initially, and in 1969 he was promoted to Sergeant. Part of his responsibility was to recover undamaged radio equipment and weapons from the armoured vehicles that had been damaged by land mines. On several occasions the veteran came across bits of skin and body parts of the vehicle personnel killed in the mine attack, not all of the body having been completely removed. On giving this evidence the veteran was visibly very distressed. While at Nui Dat the base was regularly under rocket fire attack. The servicemen's sleep was disturbed and the noise and ground vibrations took its toll on the veteran's ears, hearing and ability to sleep.
The veteran gave evidence of the coping mechanisms he employed in relation to the distressing memories of his service in Vietnam. He said that at most times he could keep a cap on the emotional stress he suffers from his experiences in Vietnam. He said that he sits somewhere quietly and does a "reality check". He thinks through the cause of his stress and "tucks it away in a corner where it should be". In his opinion, his anxiety is related to his heart condition more than to his past experiences in Vietnam. The medical opinion available to the tribunal supports this view.
The veteran's accepted war-caused conditions are ischaemic heart disease (associated with his smoking and coffee intake), right inguinal hernia, anxiety depression state, tinnitus, seborrheic keratosis, sleep apnoea, sigmoid colonic polyp and non-melanotic malignant neoplasm of the left leg.
The veteran was discharged on 22 November 1985 after he had completed 20 years of service at age 47. He obtained a civilian position as an auditor in the Department of Defence ("the Department") in 1986. The veteran gave lengthy evidence about the nature of that work, the pressure under which he operated, and the circumstances of his retirement. There is no doubt that his war-caused conditions contributed to his decision to leave the public service in 1994. However, the central reason for his decision to leave was related to the problems he had relating to a colleague with whom he had to work closely and his discontent with the treatment he received in the public service. Mr Biele, a work colleague, observed that before the veteran resigned he was suffering stress at work and appeared agitated. Mr Biele confirmed that the primary cause of the stress was the veteran's relationship with another officer.
The veteran, did however, return to work for the Department on a short-term contract in early 1996. The work he was required to do was under conditions satisfactory to him. The contract was extended and the veteran worked for about 12 months, ceasing in January 1997 when all aspects of the audit he was required to do were completed. At that time he decided not to seek further work. His contract with the Department had expired and his wife had been offered a position as a school-teacher in Queanbeyan, near Canberra. The veteran and his family then moved from Sydney to Queanbeyan in April 1997. In June 1997 the veteran obtained 5 days work at the Duntroon Royal Military College in Canberra under contract. He had the capacity to do that work.
The veteran said that he negotiated suitable working conditions with the Department for the purpose of the contract work he did in Sydney. The conditions of the work he did in Canberra were also suitable to his physical and mental condition. He said that there is insufficient suitable work available of this kind to keep him employed. The veteran agreed, in giving evidence, that had he stayed in Sydney, he was likely to have had the opportunity of taking on more work of the kind he had been doing there for the Department.
The veteran said that if more work were offered to him he would not be able to accept it without negotiating satisfactory conditions. He said that he is unable to undertake more than 8 hours work a week as a public servant because he suffers stress in relation to his heart condition. He explained that he had trouble relating to people. He found it difficult to accept the apparent lack of discipline displayed by civilian public servants. He said that he becomes short-tempered and suffers stress.
The veteran's evidence is that as a consequence of his incapacity to work he has suffered a loss of income. His only income is derived from his Defence Forces superannuation and his pension from the Department of Veterans' Affairs.
MedicalThe veteran was referred to Dr Subhas, psychiatrist, by his general practitioner, for treatment for his anxiety and irritability. Dr Subhas, in a report dated 13 March 1997 (T7), noted some residual evidence of post traumatic stress disorder ("PTSD"), and suggested that the veteran could return to him for further assistance. He also noted that the veteran worries about having another heart attack.
Dr O'Neill, cardiologist, reported on 30 October 1997 (T9), about a consultation in which she reviewed the veteran's cardiac state prior to a colonoscopy. The review confirmed the presence of an old myocardial infarct. She subsequently reported on 2 April 1998 (T22), which consultation was for review following an episode of chest pain. She concluded that the pain was due to oesophageal spasm following ingestion of spoiled food. She noted that the ECG was unchanged since the one in October 1997.
Dr Coates, general practitioner, indicates in a report dated 16 November 1998 (T21), that she considered the veteran to be totally and permanently incapacitated. She appears to have based this view on the report of Dr O'Neill of 2 April 1998, which, however, did not assess the veteran's employment capacity (T22).
Ms Tayler, clinical psychologist, in a report dated 22 September 1998 (T19), noted that the veteran gave a history of some symptoms of PTSD but that these did not meet the criteria for the diagnosis of PTSD. She further noted that he had experienced anxiety problems in relation to his heart condition and depressive symptoms manifesting as pessimism about the future and lack of motivation to engage in certain activities. She thought that these conditions were aggravated by the loss of his work role. Ms Tayler cited the veteran as saying that he left work in 1994 because of workplace stress. She opined that his heart condition and residual PTSD symptoms rendered him unable to cope with the work stresses. She also observed that his 1996 contract with the Department was evidence of his ability to work full time after his 1994 retirement.
Dr Lee, psychiatrist, in his report dated 10 November 1999 (Exhibit 1), stated that he did not believe that the veteran's war service caused him any significant anxiety symptoms. He considered that the main cause for the veteran's anxiety depression state was his concern that he would have another heart attack. To this extent Dr Lee accepts that the anxiety depression state is service-related. Dr Lee agreed that being anxious and irritable might impact on the veteran's work capacity.
The veteran relies particularly upon Dr Scott, occupational physician. In his report dated 22 October 1999 (Exhibit A), Dr Scott attributes the veteran's unfitness for work to his cardiac state, his obesity and anxiety and depression, and panic attacks. He relates the obesity to the veteran's cardiac and anxiety state. He also notes that the veteran's back was a problem as it limited his ability to walk which had the effect of increasing his obesity. This in turn reacted adversely on his heart condition and his psychiatric condition. Dr Scott considered the veteran to be totally and permanently unfit for any work for which he had training or experience.
The respondent relies on the medical report of Dr Burns, occupational physician, dated 15 September 1999 (Exhibit 2). In particular, it relies on this report in contending that the veteran's lumbar sacral spine disease (not being a war-caused condition) is also a factor in his unemployment. In giving oral evidence Dr Burns stated that the veteran's obesity also had a significant effect on his back and heart condition. Dr Burns noted in the history obtained from the veteran that the veteran had worked on contract with the Department of Defence for just under 12 months until his contract expired. The veteran told him that he did not cease this work because of ill health. Dr Burns thought that had the contract not ended, the veteran would still be working. In fact, the veteran obtained 5 days work at Duntroon Military College in Canberra
Dr Burns concluded that the veteran's accepted disabilities alone had not made him unemployable or forced him from the workplace. In his opinion the veteran was capable of working in the right circumstances, and that he was certainly capable of continuing to do internal auditing work provided that that he was in an environment that is not stressful. This accords with the tribunal's finding on the facts.
ConclusionsThe Act requires that the veteran must have left full-time employment because of his accepted disabilities alone, and that he must be unable to work more than 8 hours a week to be entitled to pension at Special Rate. The veteran's main employment limitations arise from his anxiety depression state, largely a consequence of his fear of having another heart attack.
Because of the veteran's excellent coping mechanisms in relation to the emotional stress he suffers as a consequence of his experiences in Vietnam, for which he deserves credit, and in accordance with the preponderance of the relevant medical evidence, we do not find that he suffers from PTSD. He nevertheless suffers from an accepted war-caused anxiety depression state, primarily related to his fear of having another heart attack. The evidence supports the conclusion that this condition has improved since the veteran and his family moved to Queanbeyan.
The anxiety depression state is not the sole cause of the veteran having ceased his employment, and it has not prevented him from working. The veteran resigned his position with the Department in 1994 for reasons other than his war-caused disabilities alone. He undertook further work for about a year in 1996-1997 under contract. The evidence is that more work of this kind would probably have been available, had the veteran remained in Sydney, where according to his evidence, the conditions of work were suitable for him. He moved to the Canberra area on the expiration of his contract to accommodate his wife's employment opportunities.
The veteran has not actively sought work since leaving Sydney in 1997. His evidence is that he has an understanding with the Department that it will contact him if there is some work available. Accordingly, the veteran obtained a further 5 days work in Canberra in 1997. He says that if the work conditions are suitable, he has the capacity to perform the work he has previously undertaken.
With the exception of Dr Scott (Exhibit A), the medical evidence does not support the requirements of section 24 of the Act. Dr Scott states that the veteran's medical conditions, particularly his cardiac condition and his anxiety and depression and consequent obesity, render him unable to do any work. This overlooks the fact that the veteran has demonstrated an ability to work full time in 1996-1997 and that no significant change in his medical conditions appears to have occurred since that time. The reports of Dr Lee (Exhibit 1), Dr Burns (Exhibit 2), and Dr O'Neill (T22) support this view. In addition, Dr Scott did regard the veteran's back condition (not an accepted war-caused disability) as impacting on his capacity to work.
The veteran is in receipt of pension at 100% of General Rate, and therefore satisfies sub-section 24(1)(a) of the Act. However, on the evidence he fails to satisfy sub-section 24(1)(b) and (c). The veteran is not incapacitated for work in excess of 8 hours a week, and in any event, his incapacity since 18 November 1997 and consequent loss of earnings is not as a consequence of his war-caused disabilities alone. The tribunal finds that the veteran is not entitled to a pension at Special Rate.
DecisionThe tribunal affirms the decision under review.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member and Dr Michael Miller, AO, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 31 May 2000
Date of Decision 8 August 2000
Counsel for the Applicant Mr Paul Crabb
Solicitor for the Applicant Snedden, Hall & Gallop
Counsel for the Respondent Ms Glenys Pacey
Solicitor for the Respondent Department of Veterans' Affairs, Advocacy
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