Bunney and Repatriation Commission
[2005] AATA 447
•19 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 447
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/414
VETERANS' APPEALS DIVISION )
Re DARRYL EDWARD BUNNEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date19 May 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution thereof, determines that Mr Bunney is entitled to pension at the special rate, effective from 10 October 2002.
...................[Sgd]......................
KS Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – disability support pension – application for pension at the special rate – post-traumatic stress disorder, alcohol dependence or alcohol abuse and back condition – whether applicant is precluded from undertaking remunerative work by reason of his war-caused injury or disease alone – despite existences of other considerations applicant satisfies “alone” test – decision under review set aside and substituted accordingly.
Veterans’ Entitlements Act 1986 s 19, 24, 28, 120
Leane v Repatriation Commission (2004) FCAFC 83; (2004) 58 ALD 394
Flentjar v Repatriation Commission (1997) 48 ALD 1
Van Ewijk v Repatriation Commission (2004) FCA 17
Forbes v Repatriation Commission (2000) 171 ALR 131; (2000) 101 FLR 50; (2000) 58 ALD 394
Chambers v Repatriation Commission (1995) 36 ALD 207; (1995) 129 ALR 219
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Bowman (1981) 54 FLR 8; (1981) 38 ALR 650REASONS FOR DECISION
19 May 2005 Dr KS Levy, Member 1. This is an application made by Darryl Edward Bunney (“the applicant”) seeking payment of a pension at the special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (“the Act”).
2. The original claim by the applicant was made on 22 November 2002. That application was rejected by a delegate of the Commission on 23 May 2003 and on appeal, the Veterans’ Review Board upheld the delegate’s original decision on 19 April 2004. The latter decision was notified to the applicant on 23 April 2004 and he lodged an application with the Administrative Appeals Tribunal on 4 June 2004.
3. The applicant contends that he ceased work solely as a result of his accepted conditions and particularly the condition of post traumatic stress disorder, which was only formally diagnosed following the cessation of work. He also has had surgery for the condition of intervertebral disc prolapse at L5-S1.
4. The applicant was represented by Mr Selfridge of Counsel and instructed by Sciacca’s, Lawyers. The respondent was represented by Mr Malcolm Smith.
5. This appeal is being considered under section 43 of the Administrative Appeals Tribunal Act 1975.
6.The following documents were admitted into evidence before the Tribunal:
§Exhibit 1 T documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act1975;
§Exhibit 2 Statement of Darryl Edward Bunney dated 5 August 2004;
§Exhibit 3 Medical Impairment Assessment by Dr L Fenelow dated 20 October 2003.
Background
7. The applicant was born on 9 September 1947 and is now 57 years of age. He served in the Australian Army between 1965 and 1987 with the exception of a brief period of discharge in 1971 before re-enlisting. He had operational service in South Vietnam as a Signaller and Communications Corporal on two separate tours of duty. These occurred between 1968 and 1969 and again between 1969 and 1970. He attained the rank Warrant Officer Class 2 at the time of discharge in 1987.
8. Since that time he worked with the Department of Foreign Affairs and Trade in a clerical capacity but mainly undertaking duties associated with his military training by receiving and decoding signals. He was initially employed in this capacity in Canberra but spent a good part of that employment in Darwin. In the year or so prior to his retirement, Mr Bunney and his wife purchased a property in Bargara, a town near the Central Queensland coast.
9.He currently has the following accepted war-caused conditions:
· As from 13 November 1994
1.Bilateral sensorineural hearing loss with tinnitus
2.Eczema
3.Soft tissue scarring of the left proximal femur region
4.Osteoarthrosis of the left knee
5.Osteoarthrosis of the right knee
6.Solar skin damage
· As from 22 August 2002
1.Post traumatic stress disorder
2.Alcohol dependence or alcohol abuse
·As from 9 July 2003
1.Intervertebral Disc Prolapse at L5-S1
10. Mr Bunney’s employment as a high frequency communication specialist with Department of Foreign Affairs and Trade (“DFAT”) was clearly a position requiring a high degree of competency. In August or September 2001, he indicated his intention to retire on his 55th birthday (i.e. on 9 September 2002). He indicated that some of the motivation for selecting this date was so that he could maximise his retirement benefits. He also chose that date as some time would be required to recruit and train a successor for his position. Between the date of advice of intended retirement and his 55th birthday, he had a period of leave, which included sick leave. During that period of sick leave he availed himself of an opportunity to have surgery on his intervertebral disc prolapse. During this leave period, he also arranged to settle the purchase of his property in Bagara. After his replacement arrived and his other arrangements were finalised, he officially resigned on 9 October 2002.
Issue for Determination
11. The issue for determination in this case is whether the applicant satisfies section 24 of the Act. This decision has taken account of all of the written and oral evidence available to the Tribunal. The decision requires determination of whether the applicant satisfies the requirement that he is prevented from undertaking remunerative work on the basis of his war-caused diseases alone. If these provisions are satisfied at any time during the assessment period as set out in section 19 of the Act, the applicant will be entitled to be paid the special rate of pension (Leane v Repatriation Commission (2004) FCAFC 83).
Sworn Evidence
§ Darryl Edward Bunney
12. Mr Bunney’s evidence-in-chief stated that predominately, he adjusted from the military environment where he was often on the move to his position with DFAT where he operated from a base only. There was no issue that he had not adjusted to working on a base but that he had numerous problems of an interpersonal nature in the work situation.
13. He had 37 years experience in total undertaking the sort of work he did in the military and DFAT. However, after leaving the Army, his employment with DFAT was checkered with numerous issues involving threatened violence, both verbal and physical and generally dealing with anger management. He indicated that he maintained a view of the world that he was always “right” and everybody else was “wrong”. He noticed particularly the camaraderie with staff in his position with DFAT was significantly different to that which he experienced in the Army.
14. At work, it came to be expected that Mr Bunney would at times have outbursts where he verbally abused colleagues and was also abusive with his supervisor, Mr McDonald. He stayed in the same mood for many hours afterwards and usually came home in the same agitated and angry state.
15. When at home, the mood was usually tense because of the applicant and he indicated that both of his sons left home in 1990. He said that had no relationship with them and that they related mainly to his wife.
16. He decided that the tension and his capacity to deal with his anger was becoming more problematical and he decided as he got closer to retirement age that he was becoming abusive to everyone and that the job was getting too much for him. He indicated that the only way to resolve the situation was for him to resign. He rationalised this in a way that he would give notice and undertake his duties to train a successor. Because of the remote location, the difficulty in finding a suitable person and then conducting a period of training for his successor, he nominated his 55th birthday as the anticipated date for retirement. He acknowledged that he could not get access to superannuation before the age of 55 and he had some debts. He acknowledged there was an awareness or motivation to deal with financial issues and therefore would work only until his circumstances allowed him to manage his affairs without having to work.
17. In terms of options for the future, he considered that he could go back to Canberra rather than work in Darwin, but in view of his interpersonal difficulties, he thought that would be “too crowded”. After he handed in his notice of intention to retire, he stated that he felt better in himself and that this was the only way out for him.
18. Even though he could not cope with the work environment, he also mentioned a serious back problem which he had had since he was in the Army in 1985. Whilst in the Army, he reported this matter to the Regimental Army Post (RAP) and was treated for a strained lower back. However, he had no significant problems with his back from then until 1997. His evidence was that he had twinges in his back from time to time and on one occasion in Darwin when he was required to lift a box, he collapsed on to his knees because of the pain in some part of his back. He was referred to a physiotherapist for treatment which he pursued for a period of time. However, after 1997 he became more restricted physically with increasing pain in his back. He stated that there was nerve damage that affected the whole of his left leg. This continued until November 2001 when his general practitioner referred him to the Darwin hospital. It was then diagnosed that he had a broken disc in his back. This was in early 2002. In April or May of 2002, he was referred to a specialist. In June 2002 he was referred to Dr Fenelow then later saw Dr Williams. He had a back operation in August 2002 and ceased work in September 2002.
19. He maintained that the problems with his back and requiring surgery were quite separate and distinct from the psychiatric problems that had become evident in the workplace. He was referred to Dr Scott Jenkins, psychiatrist, in November 2002. Dr Jenkins has produced two reports – the first report dated 22 January 2003 (Folios 52 and 53 of Exhibit 1); and a second report dated 31 March 2003 (Folios 54 to 57 of Exhibit 1). Dr Jenkins diagnosed Mr Bunney as having post traumatic stress disorder and alcohol abuse and advised that he was not capable of working again in the future. Mr Bunney stated that it was this condition and the fact that he could not control his emotions and get on with his fellow workers which finally triggered his decision to retire. Since leaving DFAT, he has never sought another job on the advice of Dr Jenkins.
20. In cross-examination, Mr Smith referred to an Employment Report questionnaire on page 30 of the T Documents and in particular item 11 of that document. That questionnaire indicated that his reason for ceasing work was an “inability to continue work due to swelling and pain in both knees; disagreement with both supervisors and peers due to irritability, short temper and argumentative”.
21. In relation to his effectiveness at work, he stated that he did his work efficiently but that once or twice per week that he would have an outburst. He did not want to be redeployed to Canberra and believed he could not reduce his hours at work because he was also conscious of his financial commitments. In answer to questions about his back problem he stated that he could not get adequate treatment in Darwin. He also stated that he had three years of leave credits and only took these when his replacement arrived in Darwin.
22. In re-examination, Mr Selfridge clarified that as there had been cutbacks in personnel, that it was difficult for Mr Bunney to take leave because of the staffing situation there. Mr Bunney further stated that he had a moral obligation to remain there until his replacement arrived. He also stated that in 22 years in the Army he had no real problem but only in his civilian employment did his problems arise.
§ Mrs Barbara Bunney
23. Mrs Bunney gave sworn evidence which was largely confirmatory of the evidence of Darryl Bunney but amplified how his psychiatric problems affected him at home.
24. Mrs Bunney stated that Mr Bunney would bring his anger home and then often get drunk and become even more angry at home. She stated that he often yelled at her or the children and then would run out of the house. She stated that she “could not have a discussion with Darryl” and that “he was violent both verbally and physically”.
25. After he was prescribed certain medication, his behaviour improved but still needs further modification. She said he is not angry as often now but that it was still a problem. She stated that Mr Bunney would be abusive of his work situation when he was at home, but that she regarded it not as a physical problem but only a mental condition.
26. She was aware of the diagnosis of post traumatic stress disorder. She stated that while she did not understand much about that condition, she knew he had poor sleeping habits and was very jumpy in bed. At one stage, he had even fallen out of the bed. He often awoke sweating and occasionally hit her in his sleep, although she emphasised this was not deliberate.
27. In 2002 they went for a holiday to New Zealand. His back problem was particularly acute at that stage and she had to help him into the bed. She recalls he had a back problem in the Army previously and then later in Canberra after he left the Army, although she thought it was not particularly significant at that stage. He never complained about pain and always emphasised that it was important when in the Army to be fit if you wish to stay in a specialised job.
28. It was only when they returned from the holiday in New Zealand that they got a specialist to review Mr Bunney. However, she stated that he had never left his employment because of his back problem.
29. Mrs Bunney stated that he is currently still angry and has been told by Dr Jenkins that he should not work again in the future. In the time he has been having psychiatric problems, she thought Mr Bunney was not capable of intimate relationships. However, the relationship with his own sons is a little improved in that they now better understand the problems with their father. Mrs Bunney stated that mostly through her married life, that she and her sons “walked on egg shells – we did not know when he would explode”. She also indicated that Dr Jenkins provided some information to her about PTSD and that she now understood her husband’s problems a little more, particularly because “Darryl wouldn’t reveal too much”.
§ Dr Scott Jenkins
30. Dr Jenkins provided reports of 22 January 2003 and 31 March 2003. Following a telephone directions hearing with Senior Member McCabe on 5 August 2004, Dr Jenkins forwarded a further undated letter (received under cover of fax cover sheet by Sciacca’s Lawyers dated 2 September 2004), which indicates that Dr Jenkins continues to support his diagnosis that Mr Bunney’s post traumatic stress disorder and alcohol abuse alone have resulted in his inability to continue working.
31. Dr Jenkins opinion is based on much of the operational service experienced by Mr Bunney. In particular, Mr Bunney had a friend who was killed by friendly fire while on patrol and had been regularly distressed by a death of a South Vietnamese officer on patrol who was discovered when he was patrolling with an American adviser. This South Vietnamese officer had obviously been tortured and had had his genitals cut off. He had also come under direct mortar fire.
32. Dr Jenkins stated that Mr Bunney suffers from significant sleep disturbance, intrusive memories and nightmares, and avoidant patterns where there are crowds and marked social interaction required. He had an increased startle reflex and a variety of other anxiety symptoms including tremors, low frustration tolerance and poor concentration. He also has excessive alcohol intake.
33. He concluded that Mr Bunney’s affect was constricted that he was anxious and tearful at times during his interview with him. He also concluded that he now has a preference for solitary activities and for being alone. He reported that the onset of his alcohol intake occurred within six moths of his tour of duty of Vietnam and that he believed that the cluster of symptoms justifies official diagnosis of post traumatic stress disorder and alcohol abuse.
34. Under cross-examination from Mr Smith, Dr Jenkins agreed that Mr Bunney would have other skills to work in other occupations after twenty years in the Army. However, he stated that as his condition impacts on his life particularly in the area of socialising and taking into account that he had not been responsive to treatment, then he felt no work was possible without exacerbating his present condition. He felt that Mr Bunney’s condition had improved as much as possible under his treatment.
§ Mr Barry McDonald
35. Mr McDonald is the former manager of the work unit in Darwin in which Mr Bunney was employed for many years. He stated that his relationship with Mr Bunney was satisfactory but that he had had some “moments” with Mr Bunney while he was employed there. He said that Mr Bunney was really “the issue” and that without warning, he would be undertaking a simple task and then just explode and storm out of the office. He would generally say something very derogatory before walking out.
36. Mr McDonald described mood swings in the workplace and although he got on adequately with his work colleagues the majority of the time, that there were a few incidents which created difficulties. His technical work was satisfactory and even did things he was not required to do – for example, he even covered the gardener’s duties at particular times. However, there were temper outbursts over a long period prior to his resignation. He did not think that Mr Bunney gave a longer period of notice than was required although he mentioned that even though he was the manager, processing the resignation was not part of his responsibilities. He referred to Mr Bunney’s back problems but said this was not a big issue but it affected him from time to time. When asked to give some indication of the chronicity of the back problem, he indicated it might rate three or four on a ten point scale. Overall, he stated that Mr Bunney was a conscientious employee.
37. On cross-examination, Mr McDonald indicated that Mr Bunney’s work was an office job where he needed to be multi-skilled to do even menial tasks such as opening stores. This was an infrequent task and that the majority of the time the work required a fairly high degree of skill and was demanding. He stated that Mr Bunney never asked for a reduction in working hours.
§ Mr Patrick Scanlan
38. Mr Scanlan is now a Total and Permanent Incapacity pensioner. He formerly served 31 years in the Australian Army and retired with the rank of Major in 1999. He had previously been a senior Non Commissioned Officer (NCO) and was a neighbour of Mr Bunney earlier in his career. He and his wife had maintained fairly frequent contact with Mr Bunney and his wife except for a seven year period from 1988 to 1994 when their work commitments did not permit much contact.
39. After the seven year break, he indicated that he had seen a clear change in Mr Bunney. He was now aggressive and depressed. He thought there was a significant change after he left the Army.
40. He indicated that he had discussed these problems with Mr Bunney whilst he was in Darwin at one stage. He said Mr Bunney was not violent but had become antisocial. He thought the resignation in early 2001 was so that his employers did not find out about his psychiatric problems. He wanted to leave his employment with a good name and on good terms.
Submissions
41. Mr Selfridge referred to the authorities of Flentjar v Repatriation Commission (1997) 48 ALD 1 and the recent case of Van Ewijk vRepatriation Commission (2004) FCA 17. He submitted that on looking at the two limbs of section 24(1)(c) in conjunction with section 24(2) he submitted that the alone test was satisfied and therefore the applicant should succeed.
42. The respondent’s advocate, Mr Smith, emphasised that the alone test is critical and that it is not the “but for” test, which he stated was characterised by the evidence. He highlighted the problem of the back injury suffered and indicated that that has been accepted as war-caused. He indicated that consideration should be given to the effect of his back injury on ceasing work. He highlighted Dr Fenelow’s report about the degree of pain after standing, sitting and lying or walking a kilometre. He argued that the alone test does not have to require him to give up work, but if it is a contributing factor, then he would be disqualified under that test. He referred also to the case of Forbes v Repatriation Commission (2000) 171 ALR 131; (2000) 101 FLR 50; (2000) 58 ALD 394 and suggested that it would be most unlikely that when considering to give up work, that the problems of his back were not part of that decision making process. He also referred the Tribunal to the case of Chambers v Repatriation Commission (1995) 36 ALD 207 which requires that under section 24(1)(b), that it is work in general which is relevant to whether work is available to him, which would fit his skills and qualifications. He also stated that the reasons given by Mr Bunney were totally economic.
43. In relation to the psychiatric condition, it was argued that the difficulties at work as well as financial issues prompted him to cease work. Therefore, it was argued the alone test is not satisfied.
Findings of Fact
44. The Tribunal has made the following findings of fact in connection with the evidence presented:
1.The operational service incident relayed to Dr Jenkins and the symptoms described, are consistent to support the diagnosis of post traumatic stress disorder (PTSD) and alcohol abuse for the periods of employment with DFAT.
2.Mr Bunney’s behaviour at work demonstrated a mood disorder of dysfunctionality for himself, and he was undoubtedly aware that that affected the perception of him by his work colleagues.
3.His wife and family has suffered a traumatic lifestyle owing to Mr Bunney’s violent behaviour and alcohol abuse, together with the fact that he never discussed his feelings and he has been distanced from his wife and sons for a considerable part of his life following service in South Vietnam.
4.His back problems existed concurrently with his psychiatric disorders, but independently of those disorders. It is accepted that his psychiatric disorders were the drivers behind his decision to retire.
5.Given the timing of the psychiatric diagnosis after his cessation of work, and the fact that he did not objectively rationalise the reasons for his ceasing work, it is accepted that, in accordance with his military training, he decided to retire based on his assessment of his ability to cope, but subordinated the timing of that in a co-operative manner, until his replacement was virtually in place. This is so, notwithstanding a period of leave for recreational purposes and for surgery, over the latter part of that period.
6.Mr Bunney is presently incapable of working at all, notwithstanding some improvement in his condition since he has been treated by Dr Scott Jenkins.
Legal Framework
45. Sections 24 and 28 of the Veterans’ Entitlements Act 1986 delineate the requirements for the applicant to justify entitlement to the special rate of pension. These provisions are outlined below:
“24 Special rate of pension
(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; 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
(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.
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”
Consideration and Analysis
46. All of the written and oral evidence available to the Tribunal has been taken into account in arriving at a decision in this matter. In assessing the evidence, the Tribunal is required to determine the evidence to its reasonable satisfaction or the civil standard of proof (see section 120(4) of the Act). Also, in considering entitlement to the special rate of pension, Mr Bunney’s application is subject to section 19 of the Act which requires that the relevant time period relates to the “assessment period”, that is from 22 November 2002 (the date of lodgement of the original application for special rate of pension) until the date of the Tribunal’s decision: Forbes v Repatriation Commission (2000) 171 ALR 131.
47. In considering the statutory requirements, the compliance of the application in relation to those requirements are set out below:
§ Section 24(1)(a)
48. The Tribunal finds that Mr Bunney has made application for special rate of pension, he has not turned 65 years of age at the time of that claim and his degree of incapacity from war-caused disabilities has been determined under the Act to be 100% since 22 August 2002. Therefore, the requirement that the applicant must be in receipt of pension of at least 70% is satisfied.
§ Section 24(1)(b)
49. Section 24(1)(b) requires that the veteran is totally and permanently incapacitated. This means that the veteran must a have war-caused incapacity alone which prevents him from undertaking remunerative work for more than an aggregate of 8 hours per week. In determining whether these criteria are met, the Tribunal must have regard only to the matters listed in section 28(a)(b) and (c).
50. In considering the requirement of section 28, the Tribunal must only consider the veteran’s skills, qualifications and experience (section 28(a)); other kinds of work which are relevant to the skills and qualifications and experience of the veteran which could be reasonably undertaken (section 28(b)); and taking account of any physical or mental impairment, what existing capacity exists for the veteran to undertake any kind of work listed in section 28(b), section 28(c). In Chambers v Repatriation Commission (1995) 129 ALR 219, it was held by the Federal Court that a narrow construction was not to be placed on the interpretation of these provisions. Specifically, Mr Bunney could not be required to undergo extensive retraining merely to enable him to undertake remunerative work of any kind. Indeed, “Section 28(b) requires the question of reasonableness to be addressed” (see Chambers at page 236). Clearly, Mr Bunney had 37 years experience as a signaller or a communications officer with both the Australian Army and with DFAT. Therefore, he has specialist skills and qualifications spanning some 37 years. He has undertaken some clerical and miscellaneous tasks in his role with DFAT in Darwin, and is not incapable of performing similar roles in a technical sense. However, in considering the requirements of section 28(c), the Tribunal must have regard to the impairment attributable to the his war-caused injuries and the effect that has had on his capacity to undertake the kinds of remunerative work referred to above.
51. Notwithstanding the applicant’s technical capacity to undertake both the specialist role for which he was trained as well as other more general or clerical duties, this cannot be viewed in isolation and in the absence of environmental factors within in which he could undertake remunerative work. The evidence provided by Mr Bunney together with the opinion of Dr Scott Jenkins, which has been accepted by the Tribunal indicates that he is not capable of performing any work in the future. The extent of his post traumatic stress disorder which was corroborated by his wife, Mrs Barbara Bunney, in a very compelling way, has satisfied the Tribunal that Mr Bunney is not capable of working at all in the future due to his psychiatric disabilities and the prognosis of any further improvement is unlikely. Consequently, the Tribunal is satisfied that the veteran is incapable of undertaking remunerative work aggregating more than 8 hours per week, as required by section 24(1)(b).
§ Section 24(1)(c)
52. The requirements of section 24(1)(c) are to assess whether for the period from 22 November 2002 to the date of this decision whether Mr Bunney’s incapacity from his war-caused injuries alone prevent him from continuing to undertake remunerative work and, is also suffering a loss of salary or wages or earnings that he would not otherwise suffer if he were free of that incapacity. The questions raised in section 24(1)(c) must have regard to the requirements of section 24(2) of the Act.
53. The interpretation of section 24(1)(c) is, as Nicholson J held in Forbes v Repatriation Commission (2000) 101 FCR 50 at 52 to 53 best understood by dividing it into two limbs relating the first limb of section 24(1)(c) to, or being read subject to, section 24(2)(b). The second limb of section 24(1)(c) should be read subject to section 24(2)(a).
54. Shortly put, the first limb of section 24(1)(c) requires that Mr Bunney satisfy the Tribunal that he is prevented from continuing to undertake remunerative work because of his war-caused injury or disease alone. The second limb of that sub-paragraph requires the Tribunal to be satisfied that he also suffers a loss of salary or wages that he would not otherwise suffer if he were free of that incapacity. These requirements are to be determined by consideration of four questions set out by the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at pages 4 to 5:
“1.What was the relevant ‘remunerative work’ 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 answer 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?”
55. In relation to Question 1 in Flentjar’s case, this refers to work generally or the type of work which the applicant has previously undertaken not to any particular job or employer (see Banovich v Repatriation Commission (1986) 69 ALR 395). In that context, as referred to previously, the type of remunerative work which Mr Bunney was undertaking was that of a communications officer who could send and receive messages, encrypted if necessary. He also undertook other clerical work and support duties either as part of his formal duties or merely as part of a work team.
56. In determining Question 2 as alluded to in assessing section 24(1)(b) above, based on the accepted specialist medical evidence provided, Mr Bunney has war-caused injury or disease, or both which prevents him from continuing to undertake the type of work referred to in Question 1 above.
57. In relation to Question 3 of Flentjar’s case, the question posed here is whether the war-caused incapacity is the only factor which prevents him from continuing to undertake the type of remunerative work referred to Question 1 above. Any factor other than the war-caused injury or disease which is influential in the applicant’s decision to cease work or his inability to work or to obtain and hold employment, will, on the face of it, disqualify him from eligibility for pension at the special rate. However, as the veteran has multiple accepted conditions, and as he suffered not only from post traumatic stress disorder but also serious back injury about the time of his decision to retire, the relevant question is whether that decision can be accepted as being based on war-caused injury alone. The Tribunal’s determination of this question is assisted by the principle adopted by Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534, where at 539, His Honour held:
“It is a decision that should not be made on nice philosophical distinctions, but with an eye to reality, and is a matter in respect of which common sense is the proper guide.”
58. In considering the evidence presented to the Tribunal, the applicant’s counsel submitted that the first limb of section 24(1)(c) is satisfied based on the evidence of the psychiatrist Dr Jenkins. He also referred to a more recent report by Dr Jenkins who held the view consistent with his earlier opinion that Mr Bunney is suffering from post traumatic stress disorder and alcohol abuse alone and that it was the post traumatic stress disorder specifically which caused the applicant to cease employment. He also referred to a statement by Mr Bunney that he ceased work due to his inability to work with management and other employees and his disagreement over even trivial matters. While that fairly represents the evidence presented to the Tribunal, the latter statement by the applicant was dated 6 June 2003, well after the applicant’s formal notice of his intention to retire and a considerable period after he had lodged his application for pension at the special rate. On the other hand, Counsel for the respondent submitted that the issue for consideration is whether the alone test is satisfied. He rightly pointed out that the question for the Tribunal is not the “but for” test. He submitted the alone test referred to considering questions of whether the person finds work difficult does not mean that he is incapable of working as required by the statute. He also succinctly submitted that one relevant way of considering the matter is that merely because a person resigns does not mean “that his hand was forced”. He also submits that the respondent does not accept that the special rate of pension is appropriate in this case. In particular, he has referred to the medical condition with the applicant’s back while being accepted as war-caused, goes back many years, in particular to 1997 when he was lifting something. He subsequently had surgery. His supervisor, Mr Barry McDonald, confirmed that his back did cause some difficulties as work at times but his evidence did not indicate it was an over-riding problem with Mr Bunney’s incapacity to be effective at work. The respondent’s counsel submitted that while it was acknowledged that his back did cause some difficulty, the alone test only required that it be a contributing factor in his decision to cease work. Indeed, he submitted that it would be highly implausible that the problems with his back had not entered his mind in his decision to cease work. The respondent’s counsel also suggested that the reasons for ceasing work seemed to be completely economic issues and that the statutory requirement that the applicant be capable of undertaking work at least 8 hours per week, that is two hours a day for four days a week was very minimal indeed.
59. In assessing the submissions and the evidence as a whole, there are the overlapping factors of Mr Bunney’s psychiatric condition of post traumatic stress disorder and his back problems. Indeed, the condition of post traumatic stress disorder was not even diagnosed prior to his ceasing work or even his decision and notice to his employer that he intended to retire at the date he turned 55. It is clear however, the applicant had had some difficulty in integrating effectively with the workforce, albeit a very small workforce, for quite a considerable period of time. The Tribunal has considered the evidence of his supervisor and accepts the evidence presented both in terms of his mood dysfunctionality in the workplace and the degree of impact of his back injury. In addition, the extent of his experiences whilst on operational service and perhaps the subsequent effect on his capacity to cope are quite profound. While I note that the applicant served in the Army for a further 17 years (approximately) after that time, he was considerably younger and in a culture in the Army which may have been more supportive and/or acknowledging of some of those experiences.
60. However, there was little evidence presented about that period of his life which was unremarkable (other than the psychiatric evidence of his operational service) but rather the emphasis has been on his ability (or inability) to cope since his work for DFAT.
61. The medical evidence and the evidence of Mr Bunney’s supervisor was complemented by the evidence of Mrs Bunney. She and her sons clearly had a difficult existence with Mr Bunney coping with his withdrawn, often drunken and at times violent behaviour. Even though this was undoubtedly extremely difficult for her and her children, she was a very credible witness and the consistency and extent of Mr Bunney’s condition became more stark from her evidence. In fact, Mrs Bunney’s evidence gave greater insight into Mr Bunney’s condition than his own evidence. Her evidence together with that of the psychiatrist allowed the Tribunal to put considerable weight on that evidence in accepting his condition of post traumatic stress disorder and particularly that that was virtually the only cause of his retirement.
62. Having accepted that evidence, the question however is not whether Mr Bunney found it difficult at work but rather whether or not he could cope. The fact that his condition was not diagnosed until after he ceased work and the specialist medical evidence in support of the applicant, reflects clearly the condition which he suffered for many years and certainly during his period of work for DFAT. It is undoubtedly true that in addition to this, Mr Bunney’s problems with his back were concurrent considerations. The Tribunal has to determine which was the over-riding consideration in his intention to cease work and what was the major motivation – that were his reasons for ceasing work economic, was it due to his back problems or his mood disorder, or a combination of all of these.
63. The Tribunal has found that the over-riding consideration was undoubtedly his psychiatric rather than economic factors. It is clear that he had an awareness of financial issues relevant to him and that he continued to work. Had he been formally diagnosed with PTSD earlier, he may have articulated the seriousness of his condition and retired earlier. That does not minimise his condition or whether he was well enough to continue work. It is clear therefore it was not that he was not physically capable of working but rather that he had a psychiatric condition which made him incapable of being at work and made it difficult for others around him. Clearly, from the medical evidence, he was not well enough to keep working at the time of his notice to retire and for a period much earlier than that. The extent of his dysfunctional behaviour and his mood disorder seems to be of such magnitude that that would have been the overwhelming consideration for him to retire from the workforce. This was so even though he did not have the knowledge at the time, or a label for his condition. Now that he knows that he has post traumatic stress disorder, it is made easier for him to rationalise and understand his feelings and why he wanted to retire then. However, in the absence of that information, while he also had some financial pressures, it is clear he remained in the workforce owing to his training and perhaps other indications of willingness to be co-operative at work. He waited until his replacement had arrived, although this also was synchronised to some degree with the date of his planned retirement.
64. Therefore, in determining this question “with an eye to reality”, the Tribunal accepts that, despite other considerations evident in his life (financial issues; the way he internalised his psychological problems leading to abusive behaviour), it is accepted that the war-caused incapacity alone prevents Mr Bunney from continuing to undertake remunerative work as required by section 24(1)(c).
65. That provision is related to section 24(2)(b). The latter section has been regarded as an ameliorative provision if a veteran does not satisfy the provisions of section 24(1). Compliance with section 24(2)(b) would generally be a substitute for having to meet the “alone” test in section 24(1)(c). As the applicant in this case has satisfied the first limb of section 24(1)(c), then section 24(2)(b) does not require any further consideration in this matter.
66. In relation to Question 4 of Flentjar’s case, this deals with the second limb of section 24(1)(c). In other words, has the veteran’s war-caused incapacity made him totally and permanently incapacitated such that he is also “… suffering a loss of salary or wages … that the veteran would not be suffering if the veteran were free of that incapacity;”? In Flentjar’s case, Branson J said that “it is issue 4 which throws up for consideration the question of what Mr Flentjar would have done if he had none of his service disabilities…”. This question is read subject to section 24(2)(a).
67. One approach to assessing this question is by considering a hypothetical scenario where the applicant does not suffer from his current service disabilities. (Repatriation Commission v Bowman (1981) 54 FLR 8). In practical terms, this requires the Tribunal to consider the hypothetical scenario of Mr Bunney at 57 years of age with the experience, skill and qualification of a communications officer seeking remunerative work, unimpeded by his psychiatric condition.
68. Considering the second limb of section 24(1)(c) the veteran will not be taken to be suffering a loss of salary or wages if either of the two conditions mentioned are satisfied. It has been accepted by the Tribunal that the over-riding consideration was Mr Bunney’s psychiatric condition and his inability to integrate effectively in the workplace. There are not “other reasons” such as advancing age or deterioration in health (see Cavell v Repatriation Commission) which were influential in Mr Bunney’s decision to retire. Likewise there are no “other reasons” which had been held by the Tribunal which have been instrumental in the decision to retire. It was almost exclusively the applicant’s difficulty in communication, his post traumatic stress disorder and inability to control his temper in the workplace which have been accepted as the predominant reasons for cessation of work.
69. The Tribunal has considered the assessment period as required by section 19. It has also given weight to the three sub-sections of section 28 in terms of the reasoning set down in Chambers v Repatriation Commission. On all of the evidence available, the Tribunal is satisfied on the balance of probabilities that Mr Bunney’s accepted service related condition of PTSD, alone, prevents him from continuing to undertake remunerative work of a type which he had previously undertaken.
70. Accordingly, the Tribunal determines that, on the balance of probabilities, the requirements of section 24(1) are satisfied in this case. For the reasons set out above, the Tribunal sets aside the decision under review and in substitution thereof, determines that Mr Bunney is entitled to pension at the special rate. The earliest date of effect, primarily, is three months prior to the date of the application, or 22 August 2002. However, as Mr Bunney did not cease work until 9 October 2002, the earliest effective date is 10 October 2002.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Denise Burton
Administrative Assistant
Date/s of Hearing 9 February 2005
Date of Decision 19 May 2005
For the Applicant Mr J Selfridge of Counsel
For the Applicant Sciaccas Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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