BRUCE FOWLER and REPATRIATION COMMISSION
[2013] AATA 499
[2013] AATA 499
Division VETERANS' APPEALS DIVISION File Number
2012/3462
Re
BRUCE FOWLER
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Member Dr M SullivanDate 15 July 2013 Place Brisbane The Tribunal affirms the decision under review.
………………[SGD]………………..
Senior Member Dr K S Levy, RFD
CATCHWORDS
VETERANS' AFFAIRS – Pensions and benefits – Disability pension – Special rate – Intermediate rate – Remunerative work – War-caused conditions “alone” – Period of remunerative work able to be performed – Loss of earnings – Not due to war caused conditions – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 25
Veterans' Entitlements Act 1986 (Cth) ss 19, 23, 24, 120
CASES
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Hopkins and Repatriation Commission [2013] AATA 270
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
Member Dr M SullivanBACKGROUND
The applicant, Bruce Fowler, was a national serviceman from 1970 to 1972. He has a number of accepted conditions which are attributed to his operational service and is entitled to a pension at 70% of the general rate. He made application to be paid the “intermediate rate” or the “special rate” in respect of two of his accepted conditions – posttraumatic stress disorder (PTSD) and alcohol dependence.
This application was rejected by the Repatriation Commission on 7 October 2010. It was the subject of further review by the Veterans’ Review Board and was again rejected by a decision dated 26 June 2012. He now seeks a re-hearing of this matter under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
ISSUES
The questions to be answered by this Tribunal are:
(1)Whether the applicant’s incapacity from his war caused conditions “alone” renders him incapable of undertaking remunerative work either “for periods aggregating more than 8 hours per week” within s 24(1)(b) or, alternatively, for “work otherwise than on a part-time basis or intermittently” within s 23(1)(b) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”); and
(2)If so, whether the applicant is by reason of his incapacity from war caused conditions “alone” prevented from continuing to undertake remunerative work and as a result suffering a loss of earnings that the veteran would not be suffering if the veteran were free from that incapacity within s 24(1)(c) or s 23(1)(c) of the Act?
EVIDENCE
Mr Fowler is now 63 years of age. He was selected, by ballot (as the system then existed), to undertake national service. The legislation required those so selected to undertake two years full-time military service and it required them to serve, if necessary, on active service in South Vietnam. Mr Fowler was allotted to the Royal Australian Artillery for his period of national service. Within that period (February 1970 to February 1972) he served in South Vietnam for seven and a half months (from 17 December 1970 to 29 July 1971). He was employed as a driver/signaller in a radar unit (131 Div Loc Bty).
As a result of that military service Mr Fowler has the following recognised disabilities:
(1)osteoarthritis of both knees;
(2)sensorineural hearing loss;
(3)tinnitus;
(4)posttraumatic stress disorder (PTSD); and
(5)alcohol dependence.
These recognised conditions have resulted in Mr Fowler’s eligibility for a veterans’ pension, at 30% of the general rate initially (for conditions (1) to (3) above) with effect from 18 March 2010; and then at 70% of the general rate with effect from 9 May 2010 (by the addition of conditions (4) and (5) above).
Mr Fowler’s civilian employment was as a clerk in the insurance industry prior to his national service training. On discharge from the army in February 1972, he returned to the insurance industry but undertook sales work. In 1979, he moved to New Zealand with his wife and continued to work in insurance sales for 15 years. He then worked for 16 years (1994 to February 2010) in sales and administration in the car industry (exclusively working for Greg Weeks Motors). In February 2010, he returned to Australia with his new partner.
In oral evidence before the Tribunal, Mr Fowler stated that he became friends with the owner of the car business he worked for and was “tolerated” for a long time as his performance was a problem owing to his propensity to drink too much. He said it was “on the cards” that he might be sacked.
In relation to dealing with his problem drinking, Mr Fowler said he could not get all of the assistance he needed in New Zealand and after speaking with other returned servicemen in New Zealand he left Greg Weeks Motors and returned to Australia in 2010. He did some voluntary work “on and off for six months” and then started looking for work at the end of 2011. He has not had success in obtaining work since that time.
This evidence was consistent with the written statements of Mr Kerry Weeks (the son of Mr Greg Weeks) and Mr Fowler’s de facto partner, Ms Alyson Fraser.
Under cross-examination by Mr Williams, Mr Fowler said he mainly took phone calls and did some administrative work at the car yard in New Zealand but also did driving and other work in support of the other staff as required. Greg Weeks was the owner of the business and was “the boss”. Mr Fowler had become friends with him. Mr Kerry Weeks was the manager of the car yard. Mr Fowler said that Greg Weeks indicated that he should get help for his condition or they will have to let him go. The main problem was that he was unreliable and sometimes did not turn up for work, although he indicated the frequency was four to five times per year.
Mr Fowler’s attempts to get work in Australia since 2010 involved knocking on doors and ‘cold calling’, offering his curriculum vitae and referee reports which showed his experience and indicating he was willing to work. These attempts were not in response to any advertised positions. After a couple of months he went to Centrelink for assistance.
Mr Fowler was also cross examined by Dr Sullivan, psychiatrist and a member of the Tribunal. She inquired as to his direct family relationships. Mr Fowler indicated he had four adult children, three of whom reside in New Zealand, as does his previous wife. He has one son who now works in Sydney. He also has nine grandchildren, all of whom live in New Zealand. He has a new partner and now lives on the Gold Coast. His new partner has three grandchildren in Australia. He does not see his New Zealand grandchildren. Mr Fowler indicated he had been seeing Dr Neil Hutchinson, a general practitioner, who diagnosed a mood disorder and has also treated him for arthritis of the knees. He did not order blood tests for further investigations.
Medical evidence was also provided by Dr Christopher Danesi, consultant psychiatrist. He has provided three reports.[1] He also gave evidence, by telephone, of the symptoms provided by the applicant as loss of concentration, motivation and drive. These were related mainly to the diagnosed condition of PTSD but also were relevant to alcoholism. In addition, Dr Danesi referred to sleep apnoea and insomnia, the latter being relevant to Mr Fowler’s excessive drinking. Dr Danesi attributed the applicant’s drinking to his work difficulties when his employer “managed around him” or “accommodated him”. This also put strain on his marriage. Dr Danesi had an fMRI performed which revealed no abnormality of the brain.
[1] See Exhibit 1, T-documents pp. 66-70 and 102-103 and Exhibit 5.
In cross examination by Mr Williams, Dr Danesi said his opinion was based on the administrative duties Mr Fowler described and did not realise he had also undertaken sales work. However, Dr Danesi thought the public health system in New Zealand was not very good for people in Mr Fowler’s position. Specifically, he told the Tribunal as he understood the health system in New Zealand, that psychiatry was less available in the public hospital system for servicemen such as Mr Fowler. However, Dr Danesi admitted that he had no detailed knowledge of psychiatry services in New Zealand.
Dr Danesi did not consider the factors of age, background and lack of skills when he issued his psychiatric opinions.
Dr Sullivan also questioned Dr Danesi about Mr Fowler’s treatment. Mr Fowler went to a day patient program but there was no psychotropic medication. In response to Dr Sullivan’s questioning, Dr Danesi said he did not explore the issue of loss of contact by Mr Fowler with his children and grandchildren since he has moved to Australia.
SUBMISSIONS
Mr Black, for the veteran, submitted that the kind of “remunerative work” for Mr Fowler is administrative or sales. He also said the diagnosed conditions are linked to his war caused conditions and he could not work more than eight hours per week. Alternatively, he pointed to the report of Dr Grehan, a compensation medical advisor, who suggested that Mr Fowler would be likely to have long periods of absence from work.[2] He also referred the Tribunal to the recent decision of the AAT in Hopkins and Repatriation Commission [2013] AATA 270.
CONSIDERATION
[2] Exhibit 1, T-documents, p. 84.
Legislative Framework
Section 19(9) of the Act requires determination of eligibility under ss 23 and 24 to be made in relation to the “assessment period”. In this case, the assessment period commences on 9 August 2010 (the date of the applicant’s claim) and concludes on the date of determination.
Other relevant provisions of the Act are as follows:
23 Intermediate 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) 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’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part‑time basis or intermittently for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; 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.
…
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) 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.
In addition, s 28 of the Act requires the Tribunal to have regard to the “vocational, trade and professional skills, qualifications and experience of the veteran” and the “kinds of remunerative work” which he “might reasonably undertake”.
The Onus and Standard of Proof
In these applications, the applicant is to establish evidence in support of his case. The standard of proof which must be reached is that set out in s 120(4) of the Act which states that the standard is that of reasonable satisfaction, meaning that the proof required is to the civil standard of on the balance of probabilities.[3]
[3] Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363 at 373.
Dealing with the Issues
In answering the issues posed for determination, we have had regard to the questions set out by the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 (Flentjar). These are:
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2. Was [the veteran] by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If so, was 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 so, was [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?
In relation to Question 1 of Flentjar, we agree with Mr Black that administrative or sales work are the relevant kinds of “remunerative work” to be considered for Mr Fowler in the context of this application.
In relation to Question 2 of Flentjar, this relates to Issue 1 for determination. Mr Fowler has PTSD and Alcohol Dependence recognised as war caused injuries or diseases within the terms of s 9 of the Act. Counsel for both parties referred us to Banovich v Repatriation Commission (1986) 69 ALR 395 (Banovich). Mr Black referred us to Jarvis DP consideration of that case in Hopkins and Repatriation Commission [2013] AATA 270 and the flexibility to be applied to the term “remunerative work that the member was undertaking”. Mr Williams made similar submissions. We find that the types of work which Mr Fowler has been seeking are within the scope of the types of relevant “remunerative work” for his qualifications and experience as explained by the Full Court of the Federal Court in Banovich.
Issue 1 is also concerned with whether Mr Fowler’s incapacity from his war caused conditions “alone” has resulted in him being incapable of undertaking remunerative work, either:
(1)for periods aggregating more than eight hours per week (s 24(1)(b)); or
(2)work which is otherwise than on a part time basis or intermittently (s 23(1)(b)).
The applicant’s case is that Dr Anderson’s report (a general practitioner’s report) dated 12 April 2012 supports the contention that Mr Fowler cannot work due to psychiatric disability. Dr Anderson is a general practitioner and has completed the Department of Veterans’ Affairs (medical impairment) assessment form.[4] That assessment is based on what Mr Fowler has told Dr Anderson. The other report is by consulting psychiatrist Dr Danesi, who concluded that Mr Fowler could not work due to his PTSD and alcohol dependence which, he says, is manifested in the applicant’s difficulties with concentration and motivation (see report of 13 December 2011)[5]. In his latest report of 5 February 2013, Dr Danesi said Mr Fowler is “not fit to work for more than eight hours a week” because of impaired concentration.[6] We therefore answer Question 2: “yes”.
[4] Exhibit 1, T-documents, pp. 73-81
[5] Exhibit 1, T-documents, pp. 102-103.
[6] Exhibit 5.
In relation to Question 3 of Flentjar, that is, whether this was the only factor affecting his inability to obtain work, this also related to Issue 1. The respondent submitted that Dr Danesi’s report of 13 December 2011 also refers to the day program at the Currumbin Clinic which has been described as “helpful” and that “he had never seen a VVCS psychologist”. The respondent also relies on the fact that Dr Danesi states “he is on no psychotropic medication”. That report also refers to the applicant’s drinking now being “under much better control” and that “he denies it causes any problems” despite ongoing problems with insomnia and nightmares.
In some respects, we think the respondent’s submission tends to understate the extent of the remaining difficulties experienced by Mr Fowler. On the other hand, we found Dr Danesi’s analysis did not provide a full account of Mr Fowler’s present condition. In that regard we accept that Mr Fowler has a level of psychological impairment and that he has not been treated with medication. Also, as Dr Danesi has pointed out, there are some indications that his drinking is not now causing a real problem.
The respondent also submitted that Dr Danesi’s initial report is inconsistent with the history of Mr Fowler’s alleged incapacity for work. Also, it submits that Dr Danesi’s second report relies upon a “work test” which is irrelevant. There is some merit in those arguments. However, notwithstanding that, we note the applicant’s oral evidence that his ongoing employment was under threat and likely to be terminated because of absences from work. He quantified these as four to five times per year. This did not seem abnormal or that it would be likely to result in termination, particularly where his employer was someone who was also regarded as a friend.
Of significance, Dr Danesi conceded that he did not explore the issue of the loss of contact by Mr Fowler with his children and grandchildren since moving to Australia as raised by Dr Sullivan. We noted that, in a clinical sense, he was cut off from his family in New Zealand but the main reason for this was because he wished to accompany his new partner to the Gold Coast where she had relatives. There was not much psychosocial evidence to support a link to the claimed conditions, nor was there evidence supporting the proposition that he had an inability to work. As Dr Danesi did not explore these issues, we make a finding of fact that Mr Fowler moved to Australia to be with his new partner (where her family is located) and that he is now significantly detached from his own family and grandchildren who, with one exception, are in New Zealand.
We are of the view that the present state of his recognised disability is also significantly affected, from a psychiatric perspective, by this recent change in his life and, therefore, that the war caused attribution is not the only factor contributing to his present inability to obtain work. Consequently, we are not satisfied to the required standard of proof that s 24(1)(b) is satisfied. Even if that was not the case, we could not be satisfied that the present state of his condition would prevent him working on a part-time basis for more than eight hours in a week (s 23(1)(b)).
We therefore find that Question 3 of Flentjar (and Issue 1) is not satisfied.
Question 4 of the Flentjar regime relates to Issue 2. This is the second legislative issue but it does not arise for consideration if Issue 1 is not satisfied. However, for completeness, even though Issue 1 has not been satisfied, we consider the effect of Issue 2. This would require the applicant to show to the standard of reasonable satisfaction that an incapacity which is due to a war caused condition “alone” (Issue 1) is consequentially “[preventing him] from continuing to undertake remunerative work” and, as a result, that he is “suffering a loss of salary or wages, or of earnings” (Issue 2).
Our finding in Issue 1 is that the applicant’s psychiatric condition is not the only factor which contributes his inability to obtain work and that we were not satisfied that the weight of evidence pointed to his inability to work. However, in addition, we note that his attempts at finding work in Australia by “cold calling” and door knocking on potential employers in his area where there was no indication of a vacancy, does not demonstrate an inability to obtain work due to his accepted war caused disabilities under wither s 24 or s 23 of the Act. Therefore, he is not suffering a loss of salary, wages or earnings due to his war caused conditions.
Therefore, Question 4 of Flentjar (Issue 2) is likewise not satisfied.
CONCLUSION
We therefore find that neither s 23 nor s 24 of the Act is satisfied.
DECISION
The decision under review is affirmed.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD and Member Dr M Sullivan. ........................[SGD].....................................
Associate
Dated 15 July 2013
Date of hearing 22 May 2013
Counsel for the Applicant Mr Matt Black Solicitors for the Applicant Mr Greg Isolani, KCI Lawyers Advocate for the Respondent Mr Bruce Williams
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