Burgess and Repatriation Commission

[2011] AATA 175

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 175

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1788

VETERANS APPEALS DIVISION		)
Re		CHARLES BURGESS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date18 March 2011

PlaceSydney

Decision The decision under review is affirmed.

...................[SGD]...........................

Dr J D Campbell
  Member

CATCHWORDS

Veterans’ Affairs – Entitlements – claim for special rate of pension. claim for intermediate rate of pension – remunerative work – capacity to undertake remunerative work – continuing to undertake the kind of remunerative work – the alone test

Veterans’ Entitlements Act 1986 ss 5Q, 23, 24, 28

Wright v Repatriation Commission (2005) 144 FCR 302

Repatriation Commission v Haskard (2002) 126 FCR 1

Flentjar v Repatriation Commission (1999) 48 ALD 1

Counsel v Repatriation Commission (2002) 122 FCR 476

REASONS FOR DECISION

18 March 2011 Dr J D Campbell, Member

1.      Mr Burgess lodged a claim for his post traumatic stress disorder (PTSD) to be accepted as a war caused disability on 26 June 2009. The Repatriation Commission determined on 18 December 2009 that his PTSD was a war caused disability, that his claim be accepted and his disability pension be increased to 100% of the General Rate with effect from 26 March 2009.

2.      Mr Burgess’s accepted war caused conditions as at 26 March 2009 are:

·     Rosacea

·     Bilateral tinnitus

·     Bilateral sensorineural hearing loss

·     Post traumatic stress disorder

3.      In his claim for disability pension Mr Burgess described himself as being a self employed macadamia farmer, an activity he noted as commencing in 2006. He also detailed that he had held senior management positions in bureaucracies in Canberra and in which he noted that “I became increasingly irritable and quick to anger at times. This played a major part in my decision to retire from that work after a dispute with the Minister”.

4.      In his application for review of the decision by the Veterans’ Review Board, Mr Burgess attached an accompanying statement dated 23 November 2009 in which he stated.

It became apparent to me in 2004 that I was having significant tensions at work. The symptoms were

·I was very quick to anger

·Withdrawn from interaction with work colleagues

·Unable to remain focused

·Feeling under great stress

·My rosacea [sic] was becoming embarrassing and difficult to control, even with increased use of antibiotics.

To maintain the appearance of normal behaviour at work, I compensated by working up to 14 hours per day and I put more responsibility on my subordinate Managers [sic].

These problems were also affecting my family and social life, my relationship with my wife and consequently our marriage was suffering…

I discussed these problems with my wife and family in January 2005 and I proposed that I resign from work and move to a suitable lifestyle property in Northern NSW.

My wife refused to leave Canberra at that time as she had recently been promoted to a much loved executive teaching position at her school, also our youngest child would complete year 12 in November 2005.

After considerable negotiation, my family agreed to a compromise i.e. we would remain in employment until December 2005 then, my wife and I would both resign from our jobs and pursue a lifestyle that allowed me to lead a quieter life and not be in constant public contact…

I intended to resign in December 2005 however; I was fortunate to receive an offer of redundancy on 24 October 2005.

5.      On 9 April 2010 the Veterans’ Review Board affirmed the decision of the Repatriation Commission. The current appeal is concerned with an appeal against the original decision as regards the determination not to grant a special or intermediate rate of pension.

Relevant Issues

6.      The relevant issues in this matter requiring consideration and determination are:

(a)What is remunerative work?

(b)What kinds of remunerative work might Mr Burgess reasonably undertake in the knowledge of his skills, qualifications and experience?

(c)Are Mr Burgess’s accepted conditions alone preventing him from undertaking the kind of remunerative work considered earlier for either less than eight hours or 20 hours per week?

(d)If Mr Burgess is qualified to undertake kinds of remunerative work, is Mr Burgess continuing to undertake that work and if so does such activity prevent him from satisfying either section 24(1)(c) or 23(1)(c) of the Veterans’ Entitlements Act 1986 (the Act)?

(e)Does Mr Burgess satisfy the “alone test” nominated in sections 24(1)(c) and 23(1)(c) of the Act?

Background

7.      Mr Burgess was under 65 years of age at the date of application. Mr Burgess served in the Royal Australian Air Force from 1967 to 1972. Mr Burgess was trained as an engine fitter and on air frames during his service career so that he could be a flight fitter and do mechanical type work on Iroquois helicopters. Mr Burgess had a period of operational service between 9 June 1971 and 17 December 1971

8.      Mr Burgess married in 1972. His employments after leaving the service were:

·     In 1972 – worked as a technical assistant with Department of Defence (Navy). After achieving qualifications became a technical officer within the Department of Defence, where he worked for three of four years

·     Late seventies – seconded to Foreign Affairs and was posted to Jakarta for two and a half years, where he occupied the position of building services officer. In this role he coordinated trade staff in the repairs and maintenance of the embassy buildings as well as coordinating the construction of new embassy buildings

·     In the early eighties, on his return to Canberra he successfully completed a TAFE certificate in horticulture

·     In 1982 he and his wife moved to Lismore, where they, in partnership with his parents, managed a nursery for two years.

·     In 1985 Mr Burgess returned to Canberra to a position in engineering maintenance with the Commonwealth Government where he was responsible for 150 trade’s staff, including, mechanics, plumbers, carpenters, plant operators and brick layers.

·     On formation of the ACT Government, Mr Burgess was transferred to the ACT Government nursery at Yarralumla, where he remained for a period of about six years managing a staff of 32 people.

·     Around 1998 Mr Burgess commenced as an officer SOG-C with ACT Parks and Places (City Scape). Over time and prior to his redundancy in October 2005, Mr Burgess was promoted to SOG-A and had a responsibility for some two hundred permanent workers and some 100-200 contractors.

·     Following redundancy in October 2005, Mr Burgess and his wife moved to a 12 hectare rural property some 15-20 kilometres outside Lismore. Eight hectares of their property was planted with various types of Macadamia nut trees. Mr Burgess admits to undertaking most of the activities associated with the property with varying degrees of assistance from his wife, son and contractors at various times and with particular activities.

9.      Mr Burgess’s condition of PTSD was diagnosed in 2008 by Dr Hayes, a consultant psychiatrist, after referral by a counsellor and his general practitioner, Dr Lempke. Such a diagnosis was affirmed by both Drs Dinnen and Lewin – both consultant psychiatrists.

Considerations and Findings

10.     I have reviewed all the material in this matter and have noted the various contentions put forward by Mr Burgess or others on his behalf. I have paid particular attention to both the written and oral evidence of Mr Burgess and his wife Mrs Burgess, and I note the relative consistency of the evidence of both in relation to the circumstances and events leading to his departure from his last position and the move to and activities undertaken over the subsequent years on the macadamia farm in the Lismore region. I also note the consistency in description of Mr Burgess’s personality traits so described by himself, his wife and Dr Lewin. I do note Mrs Burgess’s description of his work habits over time, Mr Burgess’s desire to be doing things when at home and both their descriptions that such practices seemed to be more apparent post the death of a similar aged male friend in 2004.

11.     In addressing the issues at the centre of this matter, I note and find that Mr Burgess satisfies sections 24(1)(aa), s24(1)(aab) and 24(1)(a)(i) and the corresponding provisions under section 23 of the Act, in that he has made a claim under sections 14 and 15 of the Act, when he was under 65 years of age and there exists a determination that his degree of incapacity from war caused disease is 100%.

12.     In addressing the issue whether Mr Burgess is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (section 24(1)(b)) or 20 hours per week (section 23(1)(b)) I note the following subsection of the Act.

Section 24(1)(b)

(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

13.     I note the definition of remunerative work contained within section 5Q of the Act.

Remunerative work includes any remunerative activity.

14.     Mr Burgess contended that his macadamia farm was a hobby farm, and that a profitable business could not be created because of advice received prior to purchasing the property. Nevertheless he proceeded to purchase the property in partnership with his wife, borrowed money to invest in the property, and while enjoying variable revenue returns each year, depending on the price received for the nuts, the partnership never returned an annual profit, as expenses including interest loan payment and depreciation exceeded gross returns. The two nominated expenses were the most significant items in producing a tax loss outcome in each of the annual partnership tax returns in evidence. This tax loss was shared equally between the parties and deducted from their personal returns, as evidenced by Mr Burgess’s annual returns. I observe that Mr Burgess was undertaking all the activities on the farm over the years including: mowing; nut collecting; tree fertilising; nut sorting;   machinery maintenance; record keeping, including taxation activity statements; general ground maintenance, with assistance from a contractor for nut collection (first year only); and spraying, with mowing from his wife in the previous year and his son on one occasion.

15.     I note that during the period in question (2006-2010) Mr Burgess was in receipt of a pension from his previous employer, while Mrs Burgess was employed as a teacher full time and later casual, with her income assisting partnership cash flow needs as required.

16.     While I note that an operating profit has not been made by the trading partnership over time, I conclude that the partnership was carrying on a business as characterised by its creation and structure, the completion of tax activity statements, the partners indicating an intention to have access to the benefits of partnership including cash flow and an ability to distribute operating profit and/or loss to individual annual returns. I also note that Mr Burgess was of a view that there would be capital appreciation on the property, with such distribution if it was to eventuate being distributed equally to the two partners.

17.     While I am mindful that the contention has been made that the macadamia farm was a hobby, I am of a view that a hobby activity is one which may be undertaken, or not, at the whim of an individual, depending on the desire of the individual to so do. In the circumstance of the matter to hand there is the conduct of a wide range of activities continued over a number of years, a clear strategy put in place to structure the conduct of such activities in a clearly identifiable accounting and business model, with the clear intention of both providing a satisfying lifestyle and environment within the benefits and constraints of the model established. It is for these reasons that Mr Burgess, when operating his macadamia farm from 2006 in partnership with his wife, was involved in activities for which remuneration was received. I conclude that such activities involved Mr Burgess undertaking remunerative work.

18.     Section 28 of the Act provides for the following matters only to be considered in determining whether an individual, who is incapacitated from war caused injury or disease or both, is incapable of undertaking remunerative work.

(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).

19.     Earlier in this decision, I outlined briefly Mr Burgess’s qualifications and work experiences. I am mindful that his last employment involved further and significant managerial responsibilities, which were congruent with a progression in his public service career. I would point to Mr Burgess having a wide range of vocational skills, qualifications and experiences. These include

·     maintenance and repair of machines

·     supervision of those who were involved in machining, building and workshop activities involved in maintenance

·     horticulture, management of nurseries and

·     management up to senior levels in the public sector in areas of his demonstrated expertise.

20.     I am aware that there are a range of employments theoretically available to Mr Burgess given his vocational, trade and professional skills, qualifications and experiences. Where I have nominated activities which I believe Mr Burgess could reasonably undertake I note the accepted disabilities of PTSD, Rosacea, tinnitus and hearing loss. I note the opinion of Dr Dinnen, that with regards to PTSD, Mr Burgess has a capacity to work up to 20 hours per week in some non-defined work situations. I further note the opinion of Dr Lewin (oral evidence) in relation to Mr Burgess’s capacity to work.

21.     While I note that both psychiatrists indicated in their written reports that PTSD was a significant factor associated with Mr Burgess’s departure from his last place of employment, the evidence before me suggests that the activities of carrying on the running a macadamia farm are within the capacity of Mr Burgess to undertake, with some restriction as to sun exposure. Further such evidence suggests that Mr Burgess has the capacity to undertake work of a bureaucratic nature, provided there is a minimum of difficult interactions with people.

22.     I find that the activities of running a macadamia farm are all activities for which Mr Burgess is capable of undertaking. In so finding I rely upon the evidence of Mr Burgess, his wife, Dr Dinnen and Dr Lewin. In relation to the other bureaucratic suggested area of work for which Mr Burgess is theoretically able to undertake, I appreciate that this is an employment activity that is theoretical as it involves a lesser range of responsibilities and activities than he enjoyed in his last paid employments, but it is employment consistent with his qualifications, skills and experiences and for which the incapacity arising from the war caused disability has been considered. In that regard I rely upon the opinion of Dr Lewin and to a lesser extent the general opinion of Dr Dinnen as regards his capacity to work.

23.     In concluding, Mr Burgess is not rendered incapable of undertaking remunerative work of the kind I have found him capable of, namely activities associated with operating a macadamia farm or a lower responsibility public sector position in an area of his expertise, both being considered and found to be remunerative work. The issue remains as to how many hours a week Mr Burgess is able to undertake such remunerative work.

24.     In evidence Mr Burgess indicated the range of activities he did undertake in relation to the farm. He estimated this at an average of less than eight hours per week, and this encompassed what had to be done, perhaps with the exception of machinery maintenance. Mr Burgess admitted that the work was seasonal and that his calculations involved an averaging, suggesting periods of intense and less intense activities. Mrs Burgess confirmed that Mr Burgess did what had to be done, that he spent an average of two hours per day on the computer and that over the last year she had assisted in the mowing.

25.     I note the oral opinion of Dr Lewin that Mr Burgess is capable of undertaking such activities to more than half time and almost to full time basis, allowing for some down time in relation to sun exposure for the Rosacea. Dr Lewin was also of the view that such work capacity by Mr Burgess would extend to theoretically less extensive public sector activities in his area of expertise. I also note Dr Dinnen’s opinion which indicated that Mr Burgess could work part time up to 20 hours per week.

26.     In the light of this evidence before me I conclude that Mr Burgess has a capacity to undertake remunerative work for more than 20 hours per week. In so finding I rely upon what Mr Burgess and his wife says he does. I recognise that he has averaged his work activities over a year and has not necessarily included to finite detail every work activity he undertakes. More importantly there is no evidence before me which indicates Mr Burgess would have difficulty in undertaking further farm activity if it had to be done. In the light of no such evidence I accept the opinions of both Dr Lewin and Dr Dinnen in relation to his work capacity, recognising in turn some limitations around Dr Dinnen’s opinion – limited by both generality and a lack of underlying reasoning. In such circumstances I conclude that Mr Burgess fails to satisfy either section 24(1)(b) or section 23(1)(b) of the Act and as a consequence does not qualify for either the special rate or intermediate rate of disability pension.

27. As a result of the issues addressed in this matter I turn to a consideration of matters addressed in section 24(1)(c) of the Act which provides:

(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.

Section 24(2) For the purpose of paragraph (1)(c):

(a)  a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i)  the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or

(ii)  the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b)  where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

28.     I note that in this matter no evidence has been led of Mr Burgess genuinely seeking to engage in remunerative work, other than involving the remunerative work that I have so concluded in relation to his self employment as a macadamia farmer. In such circumstances the ameliorating provisions nominated in section 24(2)(b) are not activated.

29. In addressing the issue of the ‘alone test’, nominated in sections 24(1)(c) and 23(1)(c) of the Act, I am mindful of the four questions posed by Branson J in Flentjar v Repatriation Commission (1988) 48 ALD 1. I have already detailed earlier the nature of remunerative activities as defined in accordance with section 28 of the Act that I find Mr Burgess capable of undertaking. In turning to the issue of Mr Burgess’s departure from his last public sector position I am mindful of the history provided by Mr Burgess and his wife and in particular the worsening of his symptoms post 2004, leading to a decision between him and his wife to leave their jobs in Canberra in late 2005 and relocate to a property in the Lismore area. That Mr Burgess accepted a voluntary redundancy in October 2005 is of little consequence in this matter as it was his intention to leave anyway, to move to an environment where he would be more comfortable. I do note however that the relocation was a planned and focussed activity undertaken during 2005 and early 2006.

30.     There is no argument between the two psychiatrists that his decision to exit the public sector was associated with a worsening of psychiartic symptoms in 2004 associated with the death of a male friend. Both psychiatrists considered that he suffered from PTSD at the time and continuing and that this war caused condition (albiet not accepted until 2009) was pertinent in his decision to exit the public sector. Dr Dinnen considered Mr Burgess took early retirment as a coping strategy to deal with chronic PTSD to reduce stress and to ensure a better quality of life. Dr Dinnen was particular in stating that it was the diagnosed psyhciatric condition that was preventing Mr Burgess from continuing in work. Dr Lewin, however was particular in defining the psychiatric condition as a chronic PTSD, complicated by a comorbid depressive condition of the dysthymic type.

31.     In oral evidence Dr Lewin particularlised the comorbid depressive condition as arising from interaction between Mr Burgess’s personality characteristics (obsessional) and Mr Burgess grappling with being overburdened  in his work role, which resulted in Mr Burgess manifesting a range of reactive symptoms of anxiety and depression.

32.     I note that Mr Burgess has described his personality characteristics in a particular way, and has related the same charctersistcs to Dr Lewin. Mrs Burgess described similar characteristics exhibited by Mr Burgess, as well as detailing difficulties, issues and benefits of Mr Burgess possessing such characteristics over a long period of time, in relation to family and domestic circumtances. Mr Burgess was particular in defining deterioration of his satisfaction with the work place post 2004 associated with less than supportive actions by his superior and the Minister, as well as  trying to cope by working longer hours – a practice observed by Mrs Burgess to be in evidence long before 2004.

33. I am satisfied that after a careful consideration of the material before me that the view formulated by Dr Lewin that there are two separate but co-existent (comorbid) psychiatric disorders present during the period commencing in 2004 and continuing until Mr Burgess resolved his circumstances by deciding to leave public sector employment is correct. In so doing, I conclude that the non war related condition of reactive depression of the dysthymic type played a role in Mr Burgess’s decision to exit public sector employment. As a consequence Mr Burgess fails to satisfy either section 24(1)(c) or 23(1)(c) or the Act and is not entitled to payment of disabiilty pension at either the special or intermediate rate.

34.     Finally, by virtue of my earlier findings that operating the macadamia farm was remunerative work and that this was a kind of work that Mr Burgess might reasonably undertake, it is evident that this gives rise to further difficulty. While Mr Burgess has detailed that the operation of the macadamia farm never produced an operating proift, this does not alter the characterisation of the actitivty as remunerative (Counsel v Repatriation Commission (2002) 122 FCR 476). Further Mr Burgess acknowledged that he undertakes particular activites, albeit in his view of an average of less than eight hours per week. The fact remans the he is still undertaking remunerative work, i.e he has not ceased work, and as a conseuqences fails to satisfy section 24(1)(c) and section 23(1)(c) of the Act (Repatriation Commission v Haskard (2002) 126 FCR 1; Wright v Repatriation Commission (2005) 144 FCR 302).

35.     For the reasons nominated I affirm the decision under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         ...........................[SGD]...................................................
  Nicholas Olson, Associate

Date of Hearing  4 February 2011
Date of Decision  18 March 2011    
Solicitor for the Applicant          T. Latimore
Counsel for the Respondent     K. Rudge
Solicitor for the Respondent    J. Warmoll