Cameron and Repatriation Commission
[2007] AATA 1836
•5 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1836
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 2005/656
VETERANS’ APPEALS DIVISION ) Re PETER CAMERON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member B J McCabe
Dr G Maynard, MemberDate5 October 2007
PlaceBrisbane
Decision The decision under review is affirmed. .................[Sgd].....................
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – special rate pension – war-caused injury not the sole cause for leaving remunerative work – war-caused injury not the sole cause for not continuing same work – decision under review affirmed
Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Banovich v Repatriation Commission (1986) 69 ALR 395
REASONS FOR DECISION
5 October 2007 Senior Member B J McCabe
Dr G Maynard, Member1. Peter John Cameron suffers from post-traumatic stress disorder (PTSD), depression and several other ailments that are attributable to his military service. He has been receiving a service disability pension for several years as a result. He applied to have his pension increased to the special rate because he says he can no longer work as a result of the PTSD in particular. The application was rejected.
2. Applications for a special rate pension are dealt with under s 24 of the Veterans Entitlements Act 1986 (the Act). The dispute in this case revolves around the operation of s 24(1)(c). That provision has two limbs: the ‘work limb’ and the ‘loss of income limb’. The loss of income limb is qualified by ss 24(2)(a) while the work limb is qualified by s 24(2)(b) (the ‘ameliorating provision’). It will be necessary for us to decide whether the applicant is able to satisfy both limbs of the subsection. The respondent concedes the applicant is able to satisfy the other requirements of s 24, and we accept that concession was appropriately made.
3. We will begin by discussing the facts. We will then turn to the application of s 24(1)(c).
the facts
4. Mr Cameron was born on 15 April 1944. He was 59 years of age on the date of his application. There is no dispute he suffers from a range of accepted medical conditions including PTSD and depression. Those conditions are related to his operational service with the RAAF in Vietnam in 1967 and 1968 and to his eligible defence service between 1972 and 1985.
5. The applicant left the RAAF in 1985 and commenced work with the Department of Foreign Affairs and Trade (DFAT). Although he was nominally an administrative officer, his role was to provide diplomatic security in various DFAT offices and posts. In that role, he was required to handle classified material, operate computers, file and process documents and attend to a range of other administrative processes in the office. The work was mainly of a clerical nature although he was also responsible for monitoring the physical security of the post or office in which he worked. Most of his work was done outside of business hours, and he tended to work on his own. Mr Cameron says he liked it that way as his health conditions (especially the PTSD) made it difficult for him to deal with people.
6. Mr Cameron needed a security clearance to do his job. He said he was reluctant to discuss his medical conditions with anyone at DFAT or to obtain medical treatment from a psychiatrist because he might lose his security clearance. He said in his oral testimony that he had been taking medication for anxiety since 1993. The medication was prescribed by his general practitioner.
7. The applicant learned in 2001 that diplomatic security positions were to be abolished. He was serving in Port Moresby at the time. He said it was a very stressful period. After returning to Canberra, he consulted his general practitioner who provided him with certificates that enabled him to take sick leave. In his statement of 6 January 2006, he says he did not return to work at DFAT headquarters after that point.
8. There is evidence suggesting the quality of the applicant’s work was unaffected by the stress. He pointed out in his application to Group 4 Security on 5 September 2002 that his annual performance assessment for 2001 assigned him a ‘superior’ rating. His security clearance was also renewed after a review in November 2001: exhibit 8 at 3.
9. The applicant took a redundancy package in August 2002. He told us in his testimony at the hearing there were no other positions available at DFAT, although his answers on this point are confusing: transcript, p 11. It appears other positions might have been available in Canberra but he did not want to take them up because he did not want to return to a traditional office environment.
10. Mr Cameron was looking for jobs while he was still in Port Moresby. He entered into a contract with the Australian War Graves Commission in August 2002 after he was made redundant from DFAT. The contract required that he develop specifications for security arrangements at the Bomana war cemetery in Port Moresby. He was able to complete the work from his home in Canberra. He told the hearing he worked for around 15 hours over a three month period, concluding sometime in November 2002. In the meantime, he said he applied for work with a security firm, a recruiting firm that was acting on behalf of a government agency, the Australian Protective Service, the Attorney-General’s department, an intelligence agency and the National Archives: transcript at pp 12-15. None of the applications were successful although he confirmed he did not pursue one or two of them because they were stressful jobs that would require lots of contact with people: transcript at p 15. They were all ‘government security’ jobs and most of them required a security clearance. He did not apply for any other kind of job, although he said he did register with Centrelink in early 2004 and dealt with Job Futures, an employment agency. He was alerted to a number of potential positions, he explained; the last of these related to a clerical position with the Commonwealth Director of Public Prosecutions in January 2005. Mr Cameron said he did not apply for the position because it would have been too stressful: transcript p 17.
11. The applicant began seeing a clinical psychologist in around April 2003. He says the psychologist referred him to a psychiatrist. He saw the psychiatrist in around August 2003. He says at that point he became ineligible for various government security jobs because he would have to disclose his medical treatment. He said it was unlikely he could retain a security clearance once it became known he had a psychiatric condition. He says the war-caused psychiatric condition explains his failure to continue work.
12. Dr Morris, who was engaged by the respondent, agreed in his report of 18 May 2006 (exhibit 5) that the applicant has a serious psychiatric condition that limits his ability to work. However Dr Morris says the applicant is still capable of working around 10 hours per week in clerical or manual jobs that do not entail contact with the public or require him to manage staff. We note the opinion is qualified in the sense that it sets out a number of conditions under which work would have to be performed, and suggests the work would have to take place in divided sessions. Dr Gibson, the applicant’s treating psychiatrist, is more pessimistic. His report of 20 March 2006 (exhibit 2) suggests it was unlikely the applicant could work more than eight hours per week because of his war-caused medical condition.
13. It appears the applicant’s health may be deteriorating. We note his general practitioner, Dr Choong, opined in August 2003 that the applicant was at that stage capable of working for up to 20 hours per week in a suitable position: T documents at p 14.
the legislation
14. Section 24(1)(c) deals with situations where:
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;…
15. If the applicant is to succeed, we must be satisfied firstly that his war-caused conditions are the sole explanation for him not continuing to do the sort of work he had been doing. If other factors explain or contribute to his unemployment, his claim must be rejected.
16. The decision of the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 (at 4-5 per Branson J) says we should ask ourselves four questions. Those questions are set out below.
(i) What sort of work was the applicant doing?
17. We do not accept the applicant’s work should be characterised narrowly as ‘government security work’. The legislation refers to “remunerative work that the veteran was undertaking”. We think it would be artificial to define the nature of the work by the identity of the employer. One must look instead to the generic skills employed in a position: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402. In Mr Cameron’s case, they were essentially clerical skills. We accept the respondent’s contention that the applicant was engaged in mid-level clerical work.
(ii) Does the veteran’s service-related incapacity prevent him from continuing to undertake mid-level clerical work?
18. We are not satisfied the applicant left the employ of DFAT solely because of his service-related conditions. He was made redundant as a result of a reorganisation. The results of his performance review and the opinion of his treating general practitioner suggest he was still able to do mid-level clerical work at that stage. We note he continued to work (albeit from his home, under a short term contract) for the War Graves Office until late 2002. We accept the fact he was consulting a psychiatrist for treatment sometime around the middle of 2003 may have jeopardised his ability to retain a security clearance. We accept the applicant’s explanation that it would be practically impossible for him to obtain government security positions requiring a security clearance after that point. To that extent, his war-caused conditions were solely responsible for his failure to continue with government security work after he left DFAT. Even so, the conditions did not prevent him working in a position involving mid-level clerical skills in mid-to-late 2003.
19. We accept the medical opinion of Dr Gibson which suggests the applicant is now incapable of undertaking clerical work – or any other type of work – for more than about eight hours each week by reason of his service-related incapacity. We are satisfied Dr Gibson, the applicant’s treating psychiatrist, has had the opportunity to carefully observe the applicant and form a view of his capacity. Dr Morris, called by the respondent, takes a different view but we note it is heavily qualified. Dr Morris makes it clear the applicant might be able to work for up to 10 hours a week but only in limited circumstances. There is a small difference between the two doctors; on balance, we prefer the explanation of the treating doctor on the basis that he has had the opportunity to observe the applicant more closely over a longer period of time.
(iii) Was the service-related incapacity the only factor preventing the veteran from undertaking the remunerative work in question?
20. We are not satisfied the applicant’s service-related conditions are the only cause of his inability to find remunerative work. In the period following his departure from DFAT up until about mid-2003, the applicant focused his efforts on finding a job that was similar to what he had been doing at DFAT – ie, work in the government security field. He was unsuccessful in obtaining positions for a number of reasons that were unrelated to his incapacity. For example, his application to Group 4 Security did not receive a response, and he conceded he was told there were better qualified applicants for at least some of the other positions: transcript, pp 23-25. His application to the Australian Protective Service was declined because he had received a redundancy from another Commonwealth employer within the preceding 12 months.
21. The applicant might have had better prospects if he had considered other kinds of clerical work when he left DFAT. But the applicant was not looking at those other areas until at least mid-2003. From the time he finished his contract with the Office of War Graves until mid 2003, the applicant’s failure to get a job had nothing to do with his war-caused conditions. Thereafter, the evidence suggests he was not making a genuine attempt to find employment. He and his wife moved from Canberra to Brisbane, which was always their plan upon retirement. Mr Cameron applied for a disability pension. While he apparently read and considered advertisements brought to his attention by his employment agency and perused the newspapers in the period that followed, we are not persuaded he was genuinely seeking work. Indeed, we think Mr Cameron effectively left the workforce around July 2003 when he moved from Canberra and applied for a service pension. In any event, none of the jobs that were brought to his attention were deemed suitable, even though his treating general practitioner said he was still able to work at least 20 hours per week as of August 2003.
22. The applicant did consider a range of jobs throughout 2004 after he registered with Centrelink. He rejected some of the jobs on the basis that he thought they would be stressful. That is consistent with his conditions being an obstacle to remunerative work. But other jobs were unsuitable because the applicant did not meet the selection criteria or was not willing to move. It follows that his failure to undertake remunerative work is at least partly explained by a shortage of suitable job opportunities – in other words, as a result of conditions in the labour market. The difficulty of obtaining a position in that labour market was almost certainly increased by the narrow scope of Mr Cameron’s searches, his age and his length out of the workforce.
23. We do not accept the applicant is in a position to take advantage of the ameliorating provision in s 24(2)(b) because we are not satisfied he was actively looking for work during the period after mid-2003. Nor are we satisfied the applicant’s service-related incapacity is the substantial cause of his inability to find remunerative clerical work.
24. Given our conclusions on this point, it is unnecessary for us to address the last of the questions posed by Flentjar, which deals with the second limb of s 24(1)(c).
conclusion
25. The decision under review is affirmed. The applicant does not satisfy the alone test in s 24(1)(c) of the Veterans’ Entitlements Act 1986. He is therefore ineligible to receive a pension at the special rate.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr G Maynard, Member.
Signed:.....................................................................................
Associate: Stephen O’GradyDate of Hearing 11 January 2007, 1 August 2007
Date of Decision 5 October 2007
For the applicant Mr R Clutterbuck, of counsel
For the respondent Mr J Stoner, departmental advocate
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