Buckley and Repatriation Commission

[2001] AATA 782

DECISION AND REASONS FOR DECISION [2001] AATA 782

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2000/1343

VETERANS' APPEALS  DIVISION       )          

Re      CHRISTOPHER MARTIN BUCKLEY    

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date30 July 2001

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No N2000/1343
  )  
VETERANS' APPEALS DIVISION                )

Re:     CHRISTOPHER MARTIN
  BUCKLEY

Applicant

And:     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  30 July 2001

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:

the Applicant, CHRISTOPHER MARTIN BUCKLEY is entitled to pension for all war-caused diseases at 70% of the General Rate from 18 November 1999 and up to and including 28 February 2000 AND as and from 29 February 2000 at the Special Rate as set forth in section 24 of the Veterans' Entitlements Act 1986.

(Sgd)  M.D. ALLEN

.............................

Presiding Member
CATCHWORDS

VETERANS' ENTITLEMENTS: Special Rate. Non-accepted disabilities no barrier to Applicant working. Ability to do some voluntary work not indicative of ability to engage in remunerative work.

Veterans' Entitlements Act 1986 – ss24(1); 120(4)

Forbes v Repatriation Commission 58 ALD 394

REASONS FOR DECISION

Senior Member M D Allen Dr M E C Thorpe, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         Kwai-Ling Wong
          ..................................................................................……………………………….

Associate

Date of Hearing  30 July 2001
Date of Decision  30 July 2001

Counsel for Applicant                 Mr David Price
Advocate for Respondent          Ms G Pacey, Department of Veterans' Affairs

DRAFT DECISION  

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N2000/1343
By MR M.D. ALLEN, Senior Member;
Dr M.E.C. Thorpe, Member
BUCKLEY and REPATRIATION COMMISSION
SYDNEY, MONDAY, 30 JULY 2001

MR ALLEN: By an application made 13 August 2000, the applicant seeks review of a decision by the respondent made 12 January 2000 assessing his rate f disability pension at 70 per cent of the general rate. In these proceedings the applicant claims that he is entitled to pension at the special rate often referred to as the totally and permanently incapacitated pension.

In seeking to review the applicant's claim it must be pointed out that the standard of proof in such a matter is that provided by subsection 4 of section 120 of the Veterans Entitlements Act, namely that to the Tribunal's reasonable satisfaction. As was pointed out by the Full Court of the Federal Court n Repatriation Commission v Smith, 15 FCR 327 , that equates to the civil standard of proof, that is to say proof on the balance of probabilities. Subsection 6 of section 120 provides that neither party to this review bears any onus of proof.

The applicant was born on 15 October 1949, not 1979 as stated in the section 37 documents. As he is therefore under the age of 65 years the criteria for the grant of pension at the special rate is set out in section 24 of the Veterans Entitlements Act. That is to say he is entitled to pension at the special rate if he is receiving a pension at 70 per cent or more, which in fact he is and that he is totally and permanently incapacitated. That is to say his incapacity from war caused injury or disease or both is of such a nature that of itself, alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week and that the veteran is by reason of incapacity from that war caused injury or 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 his own account, that the veteran would not be suffering if the veteran were free of that I incapacity. In Forbe v Repatriation Commission 58 ALD 394, his Honour Nicholson J, undertook a review of the criteria as set forth in section 24 of the Veterans Entitlements Act.

At paragraph 24 of his judgment his Honour said:

The requirements of 24(1)(c) of the Act have been considered

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by the Full Court in Flentjar v Repatriation Commission, 48 ALDs 1 at 4.5.

There Branson J with whom Beaumont and Merkel JJ agreed said:

In my view the issues before the Tribunal in this case were as follows:

(1)     What was the relative remunerative work that the veteran was undertaking within the meaning of section 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 question (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?

At page 399, paragraph 32 his Honour went on to say:

In Cavell v Repatriation Commission, 9 AARs 534 and 549, Burchett J agreed with Davies J in re Easton v Repatriation Commission, 12 ALD 777. The word "alone" should not have substituted for it words in the absence of ambiguity.

He saw the requirement of the work "alone" as it appears in section 24(1)(c) as requiring a practical decision, whether the veteran's loss of remunerative work is attributable to his or her service related incapacities and not something else as well. He regarded that as a decision not to be made upon nice philosophical distinctions but with an eye to reality and as a matter in respect of which common sense is the proper guide. We would also mention having reference there to Easton v Repatriation Commission that his Honour Davies J in that case, pointed out that the duty of this Tribunal is to assess up to the date of its decision.

Exhibit A(4) in these proceedings is a statement by the applicant and in that statement and in his evidence today, he gave evidence that he commenced employment after leaving school with the New South Wales Government Railways as a clerk. He was then conscripted into

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the Australian Army and had service in Vietnam, on return to Australia and following discharge from national service, he returned to the New South Wales Government Railways and rose to management positions.
In 1999 he was responsible for organising the privatisation of the New South Wales Railways Institute. He was then made redundant by the New South Wales Government Railways but commenced employment as a manager with the Railways Institute. The period of privatisation at the Institute proved stressful for the applicant and then later, being responsible to a board he was subjected to further stresses, particularly as it would appear from the evidence that he was in conflict with his board.
One example of this he gave was that a Full Board decision was undermined by the executive board. It was clear that the tensions between board members on the one hand, and between part of the board and the applicant of the other. Eventually on 14 May 1999 he resigned from the Railways Institute in what can only be described as a fit of pique but brought about by his inability to handle the pressures of the job.
In exhibit A(4) he says of this time:

With the pressure of the every day running of the Railway Institute along with the organisation and running of numerous meetings, which nearly always resulted in arguments, especially those meetings held near to the deadline of transfer, caused me to get increasingly anxious.
This highly tense situation which built up slowly over the

previous years of employment, also impacted on my irritable bowel syndrome. Although I attended work regularly, I still suffered frequent abdominal pain and attacks of diarrhoea. It then became necessary
for me to wear pads to control soiling of my underwear.
There was also other evidence from which it would appear that at this time the applicant was self medicating by the use of alcohol. At the time of his resignation and indeed much earlier time, he had been diagnosed as having a post traumatic stress disorder as a result of his service in South Vietnam. He had also been diagnosed with diabetes mellitus and is insulin dependent and this is not an accepted disability. However the evidence before us makes it clear that the diabetes of itself was never a problem with his employment with State Rail.
Immediately after his resignation from New South Wales Government Railways the applicant felt that he could undertake some forms of

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employment, he therefore made an application to Australia Post as a van driver. He regarded this as a job which would involve little pressure. As a resuIt of his application for employment with Australia Post he was required to undertake a medical examination and upon disclosing the existence of his PTSD and diabetes mellitus, further reports were requested.

Those reports are contained within exhibit R6. The first report is from Dr Carl Koller who is the applicant's treating psychiatrist. That says inter alia:

Mr Buckley suffers chronic PTSD. He was a national serviceman in the Vietnam War. He had diabetes that becomes unstable when he is stressed and this apparently occurs often. I conclude that he should not be employed as a transport officer and working irregular hours.

The other report which occurs at page 30 of exhibit R6, is a report by Dr Tidmarsh and endocrinologist and related to the applicant's diabetes. He says on page 2 of his report:

I do not believe, however, that his diabetes will effect his ability to work with Australia Post as a transport officer. He should be able to do shift work during the day although I think it would be unwise for him to do night shift work. With more attention to his diet and exercise Chris should be able to improve his diabetic control so I feel his long-term prognosis is good.

Unfortunately, however, he was rejected for employment with Australia Post as a result of those conditions.
The particular report is on page 29 and there the medical officer with Health Services Australia says:

Doctor Koller states he should not be employed. Doctor Tidmarsh considers that he could do day shifts only, however Dr Tidmarsh indicates his diabetes is not well controlled. He therefore does not meet Australia Post's standards for employment which required good diabetic control for at least 12 months.

Let it be said now, however, that having regard to late reports of Dr Tidmarsh and indeed the report we have referred to, we do not
consider the applicant's diabetes mellitus an issue in these proceedings. It is clear that he would be denied employment in some positions but not all positions.
The applicant's psychiatric state is, however, a different matter. The

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first report is by his the treating psychiatrist, Dr Davies, and occurs at document T(3) of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. There in a report to the Deputy Commissioner for Veterans Affairs and dated 6 August 1993, Dr Davies considers that the applicant was entitled to pension at 40 per cent in the guide to assessment repatriation pension scales for his nervous disorder.
Doctor Anderson was also required to give a report regarding the applicant. His report dated 20 December 1999 is at document T(12). Interestingly enough in that report Dr Anderson refers to the applicant as being, "well motivated towards the concept of an occupation" and opines that he could return to work. That report should be compared and contrasted with the report of the applicant's treating psychiatrist Dr Koller which is exhibit T(4) where in a report dated 12 June 1998 Dr Koller says:

He continues his job as manager of the Railway Institute at Petersham. It is stressful but he intends to continue. He drinks a fair {sic] but although by no means as much as during and immediately after the Vietnam experiences. He also suffers irritable bowel syndrome, worse when he is particularly stressed.

Doctor Koller gave an impairment rating of 29 points on the GARP
scale at the time. Later reports by Dr Koller occur in exhibit R(6) which we have already referred to and a report of 24 November 2000
became exhibit A(2) in these proceedings. In that report Dr Koller
states:

Diabetes has no relation to the psychological issues or a role in his inability to work. The diabetes is currently well controlled by twice daily injections of insulin. He is chronically unemployable.

In that particular report Dr KoIler also enclosed other reports which he had rendered in relation to the relation, in particular one of 29 February 2000 discusses the applicant's resignation. He says:

In May 1999 Mr Buckley resigned from his job. He had no alternative. He was angry and irritable with the conditions of service and was drinking and this reflected his PTSD status. There were associated health problems with his irritable bowel. He in an emotional moment resigned after a row with the president of the Railways Institute. This was in a setting of a series of rows and irritabilities at his work.

Doctor Koller than goes on to say that he considered the applicant unemployable.           

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Exhibit A(3) is a further report from Dr Koller dated 21 June 2001, In that report he says:

Originally Dr Davis wrote a letter to the DVA in 1993 stating that Mr Buckley suffered anxiety state. This, fair enough, on the evidence available in 1993. However since then I have examined Mr Buckley a number of times and I confidently state that he has PTSD and meets the statement of principles for this. One is entitled to change the diagnosis with better contact and knowledge.

We would only interpose to say that there has been no point raised in these proceedings as to he correctness of the diagnosis and the fact that the applicant's PTSD is war caused. Doctor Koller, however, concludes his report by stating:

Finally Mr Buckley has PTSD and is chronically unemployable. This is the bottom line.

Exhibit R(4) is a report by Dr Shand, Psychiatrist for the respondent. At page 9 of that report D Shand says:

I am in receipt of the applicant's personal file from State Rail. It applies in detail his successful career with State Rail until the terminal phase.

Doctor Shand then continues:

My answers to your remaining questions are as follows: Mr Buckley's last day of work was in May 1999. From the history obtained the veteran's accepted anxiety condition prevented him from continuing him to work as a manager of the Railways Institute altogether. I am in agreement that the applicant's accepted anxiety prevents him from undertaking any remunerative work at all and I consider that he is chronically unemployable unless in some very much stress free position. He may be able do voluntary work.

Doctor Shand concludes h s report by stating:

I note that the applicant is to be examined by Dr Burns,

occupational physician. I will be interested in his report.
The report referred to by Dr Burns is exhibit R(2). He summarises his report by stating that he believes that the applicant would be capable of working in clerical duties at a lower level. He says:

There is certainly no reason he could not do general office work

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which would leave him near enough to a toilet. Also he would not have the same amount of stress that he was under when he was a manager of the Railway Institute. Thus I do not believe that Mr Buckley would be prohibited from working even eight or 20 hours per week solely by his accepted disabilities. From my discussions today I believe he still has work potential.
That opinion is repeated by Dr Burns in a later report of 17 April 2001 which is exhibit R(3). Exhibit R(5) is a report Dr Shand dated 8 May
2001 made after a consideration by Dr Burns' report. In that he says:

After reconsideration I would recommend a trial of routine, non-stressful clerical work which could occupy and distract him as well as reducing his characteristic worrying about the state of his finances. I would suggest an initial total of 8 hours per week with an increase to 20 hours per week if successful.

At document T(23) is a report dated 11 April 2000 by Dr Baz an occupational physician. In that report Dr Baz says under the heading Work Fitness Assessment:

In my opinion Mr Buckley's psychiatric disability impacts significantly on his work capacity. I consider that as a result of this condition on its own he was unable to cope with the duties he was allocated in the last years of his employment with State Rail. This also impacted significantly on his ability to identify alternative which could reasonably be available to him, and I consider is the major factor in his being considered unfit for work with Australia Post.

It would be appropriate if Mr Buckley was otherwise fit for the work to at most, delay appointment while Mr Buckley achieved better control with the assistance of his endocrinologist. I consider this course would not have been chosen because of the effects of the anxiety disorder.

And concludes the report by stating:

Thus I consider that Mr Buckley, if not for the anxiety state, would have a wide range o employment opportunities and could have continued with his employment in State Rail. However the combination of disabilities effectively renders him unemployable. Thus I would consider Mr Buckley unfit for work of eight hours or more duration weekly, substantially because of the accepted disabilities and specifically the anxiety state.

So far as the applicant's diabetes is concerned at exhibit T(23) page 97 is a further report from endocrinologist Dr Tidmarsh. In that

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report he said:

As I have said in my last letter, however, I certainly do not feel that his diabetes mellitus would affect his ability in any way to have a day job.

Doctor Koller is the applicant's treating psychiatrist having taken over when Dr Davies retired. He originally considered that the applicant had a capacity for work but now has come to the opinion that the applicant cannot work. The inability to work is due to the applicant's anxiety state alone. Diabetes meIlitus would effect some jobs but as his endocrinologist Dr Tidmarsh states, would not affect his ability to do a day job.
The respondent made a submission that as the applicant is considering some voluntary work then he is fit for employment. We do not consider that this is a viable submission. No doubt if the applicant's voluntary work got to the state of equating to full time employment, the respondent has it within its powers to revisit the matter. However, section 24 itself refers to work in excess of eight hours per week an aggregation and therefore takes account of some voluntary work which no doubt would prove therapeutic.

In considering work we would also consider the works of Sir William Prentice, Senior Member in the matter of Davis v Repatriation Commission, unreported decision of the Tribunal numbered 3285. In
his decision Sir William said:

I do not understand the Act to contemplate, for example, as a rational decision that a veteran doctor rendered voiceless, might reasonably be thought capable of undertaking a job as a window cleaner, and therefore disentitled to pension. Or that a veteran barrister rendered voiceless, that of a gatekeeper.

In this case the applicant had risen to be a senior manager of the New South Wales Government Railways and could not be realistically supposed that he could go back as a ticket seller or station sweeper. Low stress clerical work is even beyond him according to his treating psychiatrist, Dr Koller. As we have stated Dr Koller is the treating psychiatrist and we therefore attach more weight to his report than to the reports of those medicaI practitioners who have seen the applicant for forensic purposes only.
Doctor Shand in his reports to the respondent does not disagree with Dr Koller. Doctor Mark Burns says the applicant could work but as
stated this is contrary to the applicant's treating psychiatrist and also to the opinion of Dr Baz the occupational physician. We are satisfied on

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a balance of probability that the applicant's inability to work is caused by his accepted disabilities alone.
For example, as was said in re Easton v Repatriation Commission as referred to in a later case of Martin v Repatriation Commission reported at 13 ALD 83, it was Mr Easton's anxiety state which was the cause of his continuing unemployment. His other conditions including his spondylitis gave rise to discomfort but they were not of sufficient severity to preclude his working full time.
Here as we have referred to he does have other conditions, most importantly the diabetes but we do not consider that condition having regards to the reports of the endocrinologist, Dr Tidmarsh, as preventing the applicant from undertaking remunerative work. The cause of his being unable to work is, as said by Dr Koller, the anxiety state. On the other hand this state of affairs did not occur immediately upon the applicant's leaving the Railways Institute. It seems that even then Dr Koller had some hope the applicant might be able to return to employment, but by later Dr Koller was firmly stating that the applicant was unemployable.
Doing the best we can it seems that we should have regard to Dr Koller's report of 29 February 2000 when he there says the
applicant is unemployable. The decision under review will therefore be set aside. The decision of this Tribunal is that the applicant is entitled to pension for incapacity occasioned by his war caused injuries and diseases, at the rate of 7 per cent of the general rate, up to and including the 28 February 2000 and as and from the 29 February 2000 at the special rate as provided by section 24 of the Veterans Entitlements Act.

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