Carter and Repatriation Commission
[2001] AATA 86
•8 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 86
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/68
VETERANS' APPEALS DIVISION )
Re EDWARD GORDON CARTER
Applicant
And REPATRIATION COMMISISON
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Date8 February 2001
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 31 March 1998 as affirmed by the Veterans' Review Board on 19 October 1998 to increase the disability pension payable to the Applicant to 90% of the General Rate pursuant to the Veterans' Entitlements Act 1986.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Veterans pension - whether veteran ceased work due to accepted disability of PTSD alone – whether Special or Intermediate Rate – decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986 ss 23, 24 and 120(4)
Second Reading Speech for Repatriation Legislation Amendment Bill 1995
CASES
Banovich v Repatriation Commission (1986) 69 ALR 395
Briginshaw v Briginshaw (1938) 60 CLR 336
Courtney and Repatriation Commission (AAT 11549, 16 January 1997)
Sheehy v Repatriation Commission (1996) 137 ALR 223
Starcevich v Repatriation Commission (1987) 14 ALD 160
Thomson v Repatriation Commission [2000] FCA 204 (7 March 2000)
Tuckett v Repatriation Commission (AAT 11969, 20 June 1997)
REASONS FOR DECISION
8 February 2001 Ms G Ettinger, Senior Member
The decision under review before the Administrative Appeals Tribunal ("the Tribunal"), was the decision of the Repatriation Commission of 31 March 1998 (T2/3) as affirmed by the Veterans' Review Board on 19 October 1998 (T12/56), that the Applicant, Mr Edward Gordon Carter's disability pension be increased to 90% of the General Rate effective from 5 November 1997 due to the acceptance of chronic solar skin damage as an accepted war-caused condition.
At the Hearing the Applicant was represented by Mr P Gerber of counsel, whilst Mr M Vincent of counsel later prepared the written closing submissions. The Respondent Repatriation Commission was represented by its advocate Ms S Breuer.
ISSUE BEFORE THE TRIBUNALThe Tribunal had to consider whether Mr Carter was eligible for pension at either his present rate, being 90% of the General Rate or the Intermediate (section 23 of the Veterans' Entitlements Act 1986 (the Act)) or Special Rate (section 24 of the Act).
The Tribunal was mindful that the veteran had served on operational service from 30 May 1940 to 13 October 1945. The earliest date of effect in this matter as accepted by both parties and the Tribunal was 5 November 1997.
LEGISLATIONThe relevant legislation in this matter was the Veterans' Entitlements Act 1986, in particular sections 23 and 24 which follow as relevant:
"23 Intermediate 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 pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran's incapacity from war–caused injury or war-caused disease, or both is, of itself alone, of such a nature to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
…
(3A) This section applies to a veteran if:
(a)the veteran has made a claim under section 14 for a pension or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)the veteran has turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) (as affected by subsection (2)) apply to the veteran; and
(d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking his or her last paid work, the veteran:
(i)if he or she was then working as an employee of another person – had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)section 24 or 25 does not apply to the veteran.
(3B)For the purposes of paragraph (3A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1)(b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)the veteran has ceased to engage in remunerative work for reasons other than his or her own incapacity from that war-caused injury or war-caused disease, or both; or
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or
(c)the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.
…
24Special 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
…
(2A) This section applies to a veteran if:
(a) the veteran has made a claim under section 14 for a pension, or application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking his or her last paid work, the veteran:
(i)if he or she was then working as an employee of another person – had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
…"
As the Veteran was aged over 65 years at the date of application on 5 February 1998, sections 23(3A) and 24(2A) of the Act applied.
The standard of proof applicable to matters related to sections 23 and 24 of the Act is that the Tribunal must decide all relevant matters to its reasonable satisfaction pursuant to section 120(4) of the Act, and Briginshaw v Briginshaw (1938) 60 CLR 336.
Section 120(4) of the Act provides:
"120 Standard of proof
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), and the following other Exhibits:
ITEM DATE NAME
Medical Report of Dr M Baz 12 July 1999 Exhibit A1
Medical Report of Dr A Dinnen 5 January 2000 Exhibit A2
Statement of Kenneth Newton Lyttle 21 January 2000 Exhibit A3
Applicant's Income Tax Returns 1990 - 1995 Exhibit A4
Applicant's Medical Examination for Reclassification 6 February 1945 Exhibit A5
Medical Opinion of Dr J Harbison 16 September 1965 Exhibit A6
Record of Work Performed for NZI Insurance including two (2) examples of Accounts Rendered 1990 - 1993 Exhibit A7
Applicant's Response to Medical Report of Dr M Burns (Original Letter and Typed Transcript) 6 January 2000 Exhibit A8
T-Documents Exhibit R1
Medical Report of Dr M Burns 6 November 1999 Exhibit R2
Medical Report of Dr N Schultz 4 January 2000 Exhibit R3
Medical Impairment Assessment by Dr J Bosler 20 May 1997 Exhibit R4
Departmental Decision by Mr L Varga 24 February 1992 Exhibit R5
Medical Report of Dr E Tan 16 October 1991 Exhibit R6
Psychiatric Medical Examination by Dr J Bosler 20 September 1991 Exhibit R7
Oral evidence was given by the Applicant, Mr Carter, Dr A Dinnen, psychiatrist, Dr M Baz, occupational physician.
PRELIMINARY MATTERS
By way of background, I noted that a number of issues were raised at the hearing including whether the Applicant's loss of earnings emanated from his inability to carry on full-time work or part-time work. In their written submissions neither the Applicant nor the Respondent revisited this issue, and the Respondent conceded that Mr Carter satisfied the requirements of sections 24(2A)(a)-(f) and (h) of the Act. This meant that the main issue to be decided was whether Mr Carter satisfied the requirements of section 23(3A)(g) or 24(2A)(g) of the Act.
However, for the sake of completeness and out of respect for Mr Carter, I have included evidence given at the hearing and a summary of the medical evidence.
EVIDENCE OF THE VETERAN MR EDWARD GORDON CARTERMr Carter, whose date of birth was 14 August 1919, gave oral evidence before the Tribunal regarding his war service, disabilities and his career. He said that he enlisted in the AIF on 30 May 1940. He gave details of his training, his commission to the position of lieutenant and his posting by ship to Palestine. He said that his first active service was at Tobruk. Mr Carter gave some evidence regarding a disagreement with one of his superiors resulting in his becoming "somewhat of a supernumerary". He gave evidence of some confronting and difficult situations, including being for an entire day in the company of a soldier who had been shot dead, and of having to remove the body by night. It was clear from Mr Carter's evidence that the effect of that episode and other war time experiences had been quite traumatic. I noted that post traumatic stress disorder had been accepted as a war-caused injury on 15 April 1991.
Mr Carter also gave evidence of being extremely disappointed at not being promoted when he thought he should have been, and thus remaining a lieutenant until discharge.
Mr Carter said that when he returned to Australia in January 1944 he spent 14 months training at Canungra jungle training camp where he was downgraded for medical reasons (Exhibit A5). He said that he did not have the confidence he would like to have had and that he did not know what the future held for him.
In his evidence Mr Carter compared desert fighting where one could see the enemy to fighting in the New Guinea jungle where one was "working in the dark" and every step was a possible danger.
Mr Carter gave evidence that his pre-enlistment work had been as a junior clerk in an accountant's office in Sydney and that after his service, he had returned to similar work. He said that he studied at night and after four or five years became a chartered accountant and chartered secretary in 1952. He said that he was always in employment, and moved to Tamworth in 1957 to become more independent of his family. He said, however, that the partnership he entered into there did not work out, and ended after a year. He said that in 1960 he bought a run-down practice which he tried to build up over ten years.
Mr Carter said that in 1970, he went into business with his friend Mr K Lyttle, and Mr Alexander. The business lasted three years he said. Mr Carter said that their venture was small and less than successful. He left it because he did not like the way he was being treated.
Returning to discuss his practice, Mr Carter said that by July 1989 he recognised there were too many difficulties related to his practice and he sold his share. Much of it had to do with the introduction of computers, which did not interest the Applicant. He also said that between 1952 when he qualified, and 1972, there were many and complex changes to the tax and company laws and he found this stressful. I noted at T3/14, Mr Carter's application for pension dated 2 February 1998, that in reply to question 22, he nominated "nervous tension and age" as the reasons for ceasing work on 1 July 1989. In cross-examination Mr Carter said that he did not consider himself too old to run his practice at that time but that there were pressures from the younger members of the practice.
When referred to the report of Dr Burns dated 6 November 1999 (Exhibit R2) in which he reported that:
"In June 1989 [the Applicant] he sold his share of the business to his partners. He reported that he has been interested in doing this for a number of years but the time had never been right to maximise his profits."
Mr Carter said that there was never any question of profits but that he was trying to get a fair price.
Mr Carter said that he had manifestations of nervousness and started smoking intermittently with periods during which he gave up. He said that he had been treated for a sinus condition before 1957. He said that he internalised his anxieties to keep them from his family, and that the five years before he sold his practice in July 1989, were stressful.
Mr Carter summed up his stresses by:
·referring to his disappointment at not attaining a rank higher than lieutenant in the Army;
·lack of confidence arising out of the way he was treated in his firm, resulting in a loss of earning capacity in the practice, and dependence on his parents;
·saying that he found his clients demanding and that it was difficult to get things done for them; and
·his dislike of dealing with the ATO.
Mr Carter also said that he only started with superannuation in the 1980s, so that monies for retirement were an issue.
Mr Carter said that after he closed his practice, he was approached by NZI Workers' Compensation (NSW) Limited ("NZI"), to carry out auditing on workers' compensation files for them in the New England area, in Tamworth, Glen Innes, Inverell and Moree. I noted that Mr Carter said in contradiction of the earlier statement regarding the paucity of superannuation monies, that he accepted the work although he did not really need the money. He added however that it was handy to have it.
Mr Carter said that the work consisted of small jobs of approximately two hours duration or jobs of 6-7 hours duration but nothing that took longer than a day. Mr Carter said that he collected the information and wrote his reports at home. Mr Carter also said that he ceased working for NZI because the company changed its policy and closed the Tamworth office.
In cross-examination Ms Breuer asked Mr Carter about his work at NZI:
Ms Breuer: "The contract work that you were doing for NZI, did you think that that was a job, did you think it was a hobby?"
Mr Carter: "Probably more of the latter, certainly not a job. It was just something to keep me occupied, or to put it into another terminology to keep me out of mother's hair."He said that because it was contract work he could accept it when he wanted to do it, and decline at other times. In contradiction of the above, Mr Carter said that he considered every activity to be work, even his gardening. He wrote on 29 April 1998 (T9) to the Department of Veterans' Affairs:
" I, in fact, sold my share of the practice as the nervous strain and my ability to keep up with all the law changes was becoming too much for me.
I then took on contract work carrying out wage audits for NZI Insurance for a period of five (5) years until I again found this too much of a nervous strain.
Enclosed is a letter from NZI Insurance confirming my period of contract with them.
With this additional information I request you give serious consideration to my entitlement for an Intermediate and Special Rate Pension."When asked if he could currently carry out work similar to that at NZI, Mr Carter said that he doubted it. He said that it was all done from Sydney now. He said that towards the end of his time with NZI he was very tense, and that he could not cope with the tension of doing the work. Clearly from the above, he considered his time with NZI to have been "work".
Mr Carter gave further evidence of being treasurer of an RSL Club from 1997 to 1999, and how his war experiences affected his functioning in that position. Mr Carter said that he did manage to do the accounting, which took him one to one and a half hours at a time with some work to follow at home, and he said that he attended monthly meetings. He said the war memories were always present and that he worried about intruders at night, relating it to his experiences in jungle warfare.
Mr Carter also worked for a period as an Official Prison Visitor and when questioned about why he left the position, Mr Carter said that in September 1999 he found that he did not want to be tied down, and that his nervous condition led him to resign. He found that at times he had a problem with relating to the prisoners and staff.
Mr Carter was also asked about his involvement with the Graziers' Association of which he was Secretary to the local branch (either 1961 or 1965), the Masonic Lodge (approximately 1975), Legacy, Rotary (1994), all of which he felt he had carried out well.
Mr Carter said that he no longer had the desire to hold public office and said that his nervous tension affected him. He said that he now spent his days pottering around his house and garden. He said that if thoughts of his war experiences arose, he would try to put them out of his mind by concentrating on what he was doing.
Mr Carter was referred to the report of Dr Schultz regarding his sleep patterns at Exhibit R3. I noted his report regarding Mr Carter's anxiety and restlessness was corroborated by the report of Dr Bosler (T6/21 & Exhibit R7).
Mr Carter's evidence was that he did not seek formal psychiatric treatment because he distrusted psychiatrists and that he concealed the extent of his anxieties and nervous distress.
MEDICAL EVIDENCE
EVIDENCE OF DR A DINNEN, PSYCHIATRISTDr Dinnen, whose report of 5 January 2000 was before the Tribunal as Exhibit A2, gave oral evidence. He said that Mr Carter was typical of persons with Post Traumatic Stress Disorder ("PTSD") in that he had a coping style. Dr Dinnen also said he was reserved and undemonstrative and had coped well on the face of things. In his report, Dr Dinnen opined:
"His appearance of superficial calm and competence belies the dysfunction due to depression."
Dr Dinnen said that Mr Carter appeared to be a competent accountant, and that the impact of the PTSD and not age, led to a lessening of his enjoyment of life. Dr Dinnen opined that the PTSD had not subsided, and that the impact of Mr Carter's war service was that he had achieved less than his optimal post war outcome in his professional life. In fact, being self employed was easier for Mr Carter with his conditions than a position in a corporation he said.
When cross-examined in relation to the satisfaction by Mr Carter of the requirements of section 24 of the Act, Dr Dinnen referred to Mr Carter's coping style and understatement of his experiences. Dr Dinnen indicated that although he considered that Mr Carter met certain sub-sections, he was unable to say more definitively whether Mr Carter satisfied the requirements bringing him within all subsections of section 24 of the Act without first undertaking a further examination.
I noted that Dr Dinnen had also reviewed the reports of other doctors and his opinion of Dr Schultz's report was that Dr Schultz had limited understanding of what happened in theatres of war. Dr Dinnen remarked also that Dr Schultz 's occupation was that of psychotherapist, and that he was inexperienced in veterans' matters.
EVIDENCE OF DR M BAZ OCCUPATIONAL PHYSICIANDr Baz whose report of 12 July 1999 was before the Tribunal as Exhibit A1, gave oral evidence before the Tribunal.
Dr Baz opined that Mr Carter would have continued his work, as is the practice of some accountants to an advanced age, but for the stress he suffered. She stated in her report that his irritability and tension would have been noticeable to people familiar with him, particularly his family.
Dr Baz stated that:
"… Mr Carter experiences significant disability as a consequence of the post-traumatic stress disorder. There is no psychiatric report provided within the Departmental file, but the detailed report from Mr Carter's General Practitioner is consistent with Mr Carter's presentation and manner at this review, although not with the specific history he was willing to admit at this appointment.
…
In my opinion Mr Carter is prevented from undertaking remunerative work for 8 or more hours weekly because of the effects of the post-traumatic stress disorder alone.
While he has a number of physical disabilities I do not consider they caused him to be unfit for work in 1989, nor that they would preclude him from working at the present time."In her oral evidence Dr Baz said that in a superficial interview, Mr Carter's problems did not emerge clearly, but that after evaluating the total situation and assessing other reports, the extent of his social problems became clear. Dr Baz opined that Mr Carter maintained his exterior calm and continued work in spite of his distress. She corroborated Dr Dinnen's view regarding Mr Carter's coping mechanism. One of the manifestations was Mr Carter's many appointments as he moved from one place of employment to the next. Dr Baz referred to T6/21, the report of Dr J Bosler, Mr Carter's General Practitioner in support of her findings that Mr Carter had difficulty coping with people and suffered anxiety.
She stated that Mr Carter's problems ultimately stopped him from continuing with his career. Dr Baz gave figures regarding chartered accountants in practice, based on figures from the Institute of Chartered Accountants, which indicated that of the 33,000 chartered accountants in Australia, 1% were in the work force at age 80 or more years, while 29% were aged more than 75 years.
When questioned regarding whether age played a part in Mr Carter ceasing work, Dr Baz, referring to T3/14, opined that Mr Carter did not ever admit that only his psychological problems interfered with what he was doing, and that he had answered the question on T3/14 with regard to reasons for ceasing work by adding that age had a role to play.
When questioned about the NZI work which Mr Carter did between 1990 and 1995, Dr Baz said that Mr Carter showed ability to do the work but could not work at it for a prolonged period, and had in fact been doing less than 10 hours a week.
EVIDENCE OF DR N SCHULTZ PSYCHIATRIST/PSYCHOTHERAPISTDr N Schultz whose report of his examination of Mr Carter dated 4 January 2000 was Exhibit R3, did not give oral evidence before the Tribunal.
He opined that:
"Mr Carter is an eighty year old man who saw considerable action in his five years in World War II. It appears that towards the end of this conflict Mr Carter had what he described as a "breakdown" though it is likely that this would have been, what we would now describe as an adjustment disorder with depressed or anxious mood. …
I note that in Dr Baz's report that he believes Mr Carter is understating his symptoms. In my view however, Mr Carter's performance at an occupational level demonstrates the reverse, in otherwords (sic) that the presentation of his symptoms must be relatively accurate otherwise he would not be able to complete a working life as successfully as he obviously did.It appears that the most likely reason for Mr Carter retiring at the age of seventy is indeed his age and that this would have been an appropriate decision for a seventy year old man running his own business.
Further the assertion that he could no longer keep up with the changes in law and technology required by his clients may well have been true but are more likely to have been a product of his age rather than any anxiety related problems."
EVIDENCE OF DR J BOSLER GENERAL PRACTITIONER
Dr Bosler, whose Medical Impairment Assessment dated 20 May 1997 and Medical Examination – Psychiatric dated 20 September 1991 were before the Tribunal at Exhibit R4 and R7 respectively, opined there that while the Applicant suffered PTSD, the condition did not interfere with his ability to cope in everyday situations. He said, however, at Exhibit R4 that it "… makes it more difficult. Occasionally 'blows his top'".
Dr Bosler, in Exhibit R7, further opined that the Applicant, "retired to avoid stress with increasing inability to cope with same." Dr Bosler affirmed this position in a further Medical Impairment Assessment dated 9 March 1998, which was before the Tribunal at T6/21.
EVIDENCE OF DR HARBISONDr J Harbison, in an opinion as to the Applicant's condition on 16 September 1965, which was before the Tribunal at Exhibit A6, opined that:
"There is no doubt that the ex-member suffered from a fear reaction under stress – vide Psychiatrist's report of 19.12.44, and report by his Company Commander, Capt. Cooke, dated 1.1.45.
Headaches were due at times to conjunctivitis and at other times to tension."
EVIDENCE OF DR M BURNS OCCUPATIONAL PHYSICIAN
Dr Burns, whose report dated 6 November 1999 was before the Tribunal at Exhibit R2, examined the Applicant for the purposes of a medico-legal opinion. Dr Burns documented the Applicant's history with respect to his PTSD as follows:
"Mr Carter states that he had a breakdown in Finchaven in the Pacific in 1944. He was downgraded to B2 and returned to Australia due to his nerves. He stated that at the time he had a total distrust for senior officers. He found it very hard to expect other soldiers to do what they would not do.
After the Army he had ongoing problems associated with his nerves. He was not severe enough, though, to require medication or treatment."
Dr Burns further noted that the Applicant's PTSD was not so significant that it would have greatly affected his ability to work. He opined that:
"… his post traumatic stress disorder had been present for many years and did not appear to have increased. In fact after he retired from work in 1989 he was able to take on two positions, one as President of Rotary eight years ago and another as Treasurer of the RSL Sub Branch two years ago. He was also actively involved in bowls during this period. None of this history points towards a person who is suffering such severe post traumatic stress disorder that he was unable to work.
He had retired from work approximately 12 months when he was approached to do some part time work by NZI Insurance. He was able to carry out this part time work without difficulty for a period of almost five years."Dr Burns, by way of conclusion, stated that factors other than his PTSD caused the Applicant to cease work. He said that:
"… I do not believe that he was forced to cease work in 1989 due to his accepted disabilities. I believe that it was a lifestyle decision which he made at the time. Certainly part of the decision was associated with his health problems but also a great deal was associated with the changes in legislation and also his lack of computer skills."
EVIDENCE OF MR LYTTLE
The statement of Mr K Lyttle dated 21 January 2000 was before the Tribunal as Exhibit A3. Mr Lyttle did not give oral evidence. He stated at Exhibit A3 that he had served with Mr Carter in the 2/3 Australian Pioneer Battalion from 1941 to 1944. He stated that he "first noticed that Lieutenant Carter was suffering from stress and was very anxious in 1942."
His statement corroborated Mr Carter's evidence that he had problems with his commanding officers.
Mr Lyttle stated that from 1958 to 1970, he saw Mr Carter on average 10 times a year, and that in the latter part of 1970 he went into business with Mr Carter and two other people. Mr Lyttle corroborated Mr Carter's evidence that difficulties occurred due to Mr Carter's anxious behaviour, and that he eventually resigned as a director of the company in which both were involved.
Mr Lyttle also stated that after he encouraged Mr Carter to take up the position of treasurer of the Tamworth Sub-Branch of the RSL, the anxiety Mr Carter suffered caused him to work more slowly and also caused him to become "worked up."
SUBMISSIONS AND CONCLUSIONSI have to take into account the evidence before me and the submissions, case law and the legislation to make the correct and preferable decision, deciding at what rate the Veteran was eligible for pension. I noted that his existing rate of pension was 90% of the General Rate and that he was seeking the Special Rate of pension (section 24 of the Act) or in the alternative, the Intermediate Rate (section 23 of the Act). I noted that the earliest date of effect was 5 November 1997.
I had before me the T-documents, exhibits tendered, medical reports and other written evidence regarding Mr Carter's accepted medical conditions. I also had, of course, the evidence Mr Carter gave at the Tribunal regarding how his disabilities affected him.
WHETHER MR CARTER QUALIFIED FOR PENSION AT THE SPECIAL RATE PURSUANT TO SECTION 24 OF THE ACT OR THE INTERMEDIATE RATE PURSUANT TO SECTION 23 OF THE ACTI turned then to consider Mr Carter's eligibility to be paid the disability pension at the Special Rate pursuant to section 24 of the Act, noting that the same set of facts related to consideration of pension at the Intermediate Rate pursuant to section 23 of the Act. The main difference would be a consideration of whether Mr Carter could work 20 hours per week in satisfaction of the requirements of section 23 of the Act. This was originally argued in the alternative on behalf of the Applicant.
I noted that Mr Carter's accepted war-caused disabilities were as follows:
· Dysidrotic eczema;
· Sprain Right Ankle;
· Post Traumatic Stress Disorder;
· Dental Caries;
· Chronic Conjunctivitis;
· Osteoarthritis Left Knee Joint;
· Bilateral Sensorineural Deafness;
· Lumbar Spondylosis;
· Morton's Metatarsalgia (Right);
· Cervical Spondylosis; and
· Chronic Solar Skin Damage.
I was mindful that the Repatriation Commission in a decision of 31 March 1998, which was affirmed by the Veterans' Review Board of 19 October 1998, determined that the condition of chronic solar skin damage was war-caused, and that as a result of that decision, Mr Carter's disability pension was assessed at 90 percent of the General Rate effective 5 November 1997.
I was mindful that Mr Carter's claim had to be assessed pursuant to sections 23(3A) and 24(2A) of the Act because his date of birth was 14 August 1919, and he was well in excess of 65 years of age when his application was made.
I was satisfied that Mr Carter came within sections 23(3A)(a) and 24(2A)(a) of the Act in that he was receiving pension and applied to have it increased (sections 23(3A)(b) and 24(2A)(b) of the Act). I moved then to consider the Veteran in relation to the requirements of sections 23(3A)(c) and 24(2A)(c) of the Act which referred me back to sections 23(1)(a) and (b) and 24(1)(a) and (b). There was no disagreement between the parties, and I accepted that Mr Carter had been found to have incapacity from war-caused injury or disease of at least 70 percent in a previous determination.
In the normal course of considering whether the Applicant satisfied the requirements of sections 23(1)(b) or 24(1)(b), I would have had to consider whether pursuant to section 23(1)(b) the war-caused diseases/injuries suffered by Mr Carter, alone, were such as to render him incapable of undertaking remunerative work other than on a part time basis, or less than 20 hours per week. In the alternative it would have been a question of whether pursuant to section 24(1)(b) of the Act, Mr Carter was totally and permanently incapacitated, that is, that his incapacity from war-caused injury or war-caused disease, or both, was of such a nature as of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
I noted the submission of Mr Carter's counsel (paragraph 14 of his written submissions) that relying on Dr Dinnen and Dr Baz, the Applicant could not work more eight hours or more per week because of his chronic post traumatic stress disorder. It was further added:
"The Applicant notes that subsequent to the hearing on 1 February 2000 the respondent stated to the Applicant's solicitors by telephone that that point [re section 24(2A)(1)(b)] was no longer in issue."
I accepted the above submissions and noted that Ms Breuer in her written submissions for the Respondent (paragraph 13), stated:
"The Respondent accepts that the Applicant satisfies the requirements of s 24(2A)(a)-(f) and (h) of the Act."
I therefore moved to consider Mr Carter's situation pursuant to section 24(2A)(g) of the Act, which was the only sub-section in contention. Essentially I had to consider:
"…when the veteran stopped undertaking his or her last paid work, the veteran:
(i)…
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, employment vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
…"I have not further detailed Mr Carter's situation in relation to section 23 of the Act because section 23(3A) is virtually identical to section 24(2A). Therefore, for the purposes of the following discussion I have sought to avoid undue repetition by restricting the discussion to section 24(2A).
As subsections (g) of sections 23(3A) and 24(2A) were the only matters in contention, I moved to consider the background to Mr Carter's change in employment in 1989/1990. I was mindful that in July 1989 he sold his share of the accountancy practice where he had been since 1970, and that he wrote in the reasons for this, at T9, "as the nervous strain and my ability to keep up with all the law changes was becoming too much for me." I further noted that in a document date stamped as received on 6 February 1998 by the Department of Veterans' Affairs, (T3/14) he gave the reason for ceasing work as "Nervous Tension and Age".
Mr Carter's oral evidence was to the effect that there were pressures in the accountancy practice from the younger members, and that although he did not consider himself too old to continue, the changes in company law which took place between 1952 when he qualified, and 1972, were extensive and complex.
In his written closing submissions on behalf of the Applicant, his counsel submitted that the reason for the Applicant ceasing work in his practice was that he was no longer able to cope with the work as a result of his war-caused post traumatic stress disorder.
I noted the undisputed evidence that Mr Carter worked on a contract basis with NZI (T9/49) as an auditor and was retained to carry out wage audits as required for the Workcover Authority from June 1990 to June 1995. I was satisfied that there was a gap of approximately one year from the time of selling his share of the accountancy practice in July 1989 until Mr Carter commenced contract work with NZI in June 1990.
In deciding whether Mr Carter met the requirements of section 24(2A)(g) of the Act, I had to consider whether when he stopped undertaking his last paid work, he had been working on his own account, in his case in the accounting profession, for a continuous period of at least 10 years that began before he turned 65. I noted briefly that this applied also in the case of an Intermediate Pension pursuant to section 23 of the Act.
By way of background, Ms Breuer for the Respondent, drew my attention to the Second Reading Speech in the introduction of the Repatriation Legislation Amendment Bill 1995, ("the Second Reading Speech") which was also cited in the decision of Starcevich v Repatriation Commission (1987) 14 ALD 160, where the Minister stated as follows:
"… the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension. Special provision is made by the Bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work. An intermediate rate of pension may be payable where a veteran is prevented by accepted disabilities from engaging in other than part time or intermittent work. The Bill clarifies the test for this rate of pension in a similar way. Part time work is to be less than 20 hours work a week."
Ms Breuer submitted that the intention of the legislation was clear from the Second Reading Speech. In this respect, I noted the comments of the Acting Minister for Veterans' Affairs, Mr Scholes, who stated:
"The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian workforce."
I further noted the Respondent's concession that the Applicant was "working on his own account" in satisfaction of sections 24(2A)(g)(ii) and 23(3A)(g)(ii).
The Applicant's counsel argued that Mr Carter's last paid work had been in his accountancy practice which he left in June 1989. He submitted that Mr Carter's later consultancy work and work as an Official Prison Visitor were de minimus and should not disentitle him from the Intermediate or Special Rate of pension. I noted in that connection at Exhibit A4, the tax returns of Mr Carter for the period 1990 to 1995.
Ms Breuer submitted for the Respondent that the appropriate test for last paid work was not concerned with whether the work was de minimis in nature. She argued, in accordance with the decision of the Full Federal Court in Sheehy v Repatriation Commission (1996) 137 ALR 223, that:
"There is nothing in the words of the Act that explicitly or implicitly state that there is a minimum period for which of (sic) any kind of work must be performed before it qualifies as last paid work."
The Applicant's counsel, in the alternative, submitted at paragraphs 24 and 25 of his written submissions that:
"If the Applicant's last paid work was his work in the accountancy practice, then (g) is clearly met as the Applicant clearly worked on his own account for more than 10 years.
However, even if the relevant work is that which includes the consultancy work, the Applicant worked on his own account for more than 10 years as the phrase "a continuous period of at least 10 years" is a requirement that goes to the nature of the work that has been done. The paragraph requires that a person remain in the same "profession, trade, employment, vocation or calling" for a 10 year period – it is a provision designed to require an applicant to show a determination to remain in their chosen field for a considerable period of time. There is nothing inherently meaningful about the prescribed period of 10 years other than it requires an applicant to thereby demonstrate a long-standing commitment to the occupation about which it is claimed the applicant is now prevented from continuing. In construing the words of the provision, no intent should or need be found to disqualify an applicant simply because there are periods of time during which no work is in fact being done. The provision is designed to disqualify persons who might have done some years of a particular occupation earlier in their working life who then return to that occupation late in life – the early years plus the late years would not constitute a "continuous period" performing that occupation."In support of this proposition, the Applicant directed the Tribunal's attention to the decisions in Banovich v Repatriation Commission (1986) 69 ALR 395 and Thomson v Repatriation Commission [2000] FCA 204.
Ms Breuer, relying on the decision of Senior Member Handley in Tuckett v Repatriation Commission (AAT 11969, 20 June 1997) argued that the construction of the phrase "last paid work" as contained in section 24(2A) (and 23(3A)) of the Act, referred to the "remunerative work that the Applicant was last undertaking before he made his application for an increase in pension". She directed me to Senior Member Handley's comments where he had stated:
"Following the words "remunerative work" as appear in sub-section (d) the words "last paid work" appear in italics, in brackets and in bold print. I have assumed (in the absence of any legislative guidance) that the words "last paid work" are intended to mean "the remunerative work". The phrase "last paid work" appears in sub-sections (e)(f) and (g). The words "remunerative work" do not appear in those sub-sections. Sub-section (d) and the remaining sub-sections of s.24(2A), noting also their conjunctive construction, appear to impose a more rigid qualification for special rate pension than s.24(1)(c) and entitlement will be determined in part by age and by continuity of employment before and after the age of 65."
Ms Breuer submitted on behalf of the Respondent that therefore the test for "last paid work" be strictly applied. In this case, she argued that as at the date of his application for an increase in pension, 5 February 1998, the "last paid work" undertaken by the Applicant was with NZI between June 1990 and June 1995.
Ms Breuer further submitted that having established what constituted the Applicant's "last paid work" and regarding the Respondent's concession that the Applicant was "working on his own", the issue that remained for determination was whether the "last paid work" had been undertaken for a continuous period of 10 years. She referred me to the decision of Courtney and Repatriation Commission (AAT 11549, 16 January 1997), where Senior Member Handley had held at paragraph 9 as follows:
"I was satisfied then and now that the "continuous period of 10 years that began before a veteran turned 65 years" must be continuous "when the veteran stopped undertaking his … last paid work". That is, the period of paid work, which must have been continuous – that is, uninterrupted – must have been for at least 10 years at the time a veteran last worked."
Ms Breuer submitted that the Applicant did not satisfy the requirement for 10 years of continuous work as the Applicant was not:
"… working between June 1989 when he sold his practice and June 1990 when he began to do contract work for NZI Workers Compensation (NSW) Ltd. The Respondent submits that the Applicant stopped working for a period of one year, the continuous period is therefore broken."
Ms Breuer relied on the authority of Thomson (supra), where Ryan, North and Merkel JJ held that section 24(2A)(g) did not "… require a continuity of the work but rather the Applicant be working continuously during the 10 years prior to the relevant date." Therefore, in circumstances where there has been a break in the continuous work, the decision-maker must "… enquire into the gaps in the work and consider whether for instance the gaps are due to the unavailability of work."
Counsel for the Applicant contended that the view posited by the Respondent was unduly restrictive. He submitted that:
"The Respondent's argument … would place an unrealistic bar on veterans because it is out of step with common work practices. It would not be in accord with the beneficial nature of the legislation, to, for example, perpetually disqualify a person from pension simply because that person had taken leave without pay for a period say nine years prior to that person ceasing work because of war caused disabilities. A sensible interpretation of the meaning of the words can be made without going to such an extreme interpretation.
To interpret the paragraph in the manner proposed by the Respondent means that a person who works on a contract basis on their own account, or as an employee on a non-permanent basis (ie having employment on a casual, journeyman, or piecework basis) could never meet the section because there would inevitably be gaps between one piece of work and the next. Such a discriminatory provision against a certain class of workers should not be attributed to Parliament."
The Applicant's Counsel further submitted that the Applicant fulfilled the requirements of section 24(2A)(g) or in the alternative, 23(3A)(g) of the Act even taking into account the audit work he performed for NZI because:
"The work the Applicant did as a professional accountant is clearly the same nature as the audit work. It is to be noted that the Applicant's capacity to perform audit work existed because of his accounting expertise."
Ms Breuer submitted that the Respondent did not dispute that Mr Carter was working continuously between June 1990 and June 1995 even though there were many gaps in the employment, its "piecework" nature and the lack of availability of work. Notwithstanding, however, Ms Breuer submitted that the Applicant was not working as an accountant for a continuous period of at least 10 years at the time when he ceased his last paid work in June 1995. Ms Breuer said that:
"… the Applicant ceased his practice on 1 July 1989, he was offered contract work by NZI in June 1990 and he continued this work until June 1995. He did not seek work between July 1989 and June 1990 and he did not seek additional work between June 1990 and June 1995. There is no material evidence that the Applicant was working between July 1989 and June 1990".
In reaching my decision, I was mindful of the concessions of the Respondent that the Applicant satisfied the requirements of section 24(2A)(a)-(f) and (h) of the Act and that the Respondent further conceded that the Applicant was "working on his own account" in satisfaction of section 24(2A)(g)(ii). I agreed with the above on the basis of the evidence before me. Therefore, the only issue for determination as noted above, was whether at the time Mr Carter ceased his last paid work, he was working for a continuous period of at least 10 years that began prior to the age of 65.
I further noted that it was undisputed that section 25 did not apply to Mr Carter.
I considered the submissions of the parties and noted the evidence of Mr Carter that the work at NZI was more in the nature of a hobby and that he did not consider it to be a job because it was contract work. He said that he could accept it when he wanted to do it, and decline at other times. However, I also noted by way of contradiction that Mr Carter in a letter to the Department of Veteran's Affairs dated 29 April 1998 (T9/47-8) stated that:
"I then took on contract work [my emphasis] carrying out wage audits for NZI Insurance for a period of five (5) years until I again found this too much of a nervous strain."
I find that although the Applicant may not have characterised his audit work with NZI as paid work during the Tribunal Hearing, he nevertheless took on contracts from NZI in which he performed audits, and for which he was paid in return (Exhibit A4).
Furthermore, I find that the audit work undertaken by the Applicant for NZI could not be disregarded as paid work as submitted by the Applicant's counsel because it was de minimus in nature. I preferred the submissions of the Respondent and agreed with the Full Federal Court in Sheehy (supra) that:
"There is nothing in the words of the Act that explicitly or implicitly state that there is a minimum period for which of (sic) any kind of work must be performed before it qualifies as last paid work."
Therefore, at the time of the Applicant's application for an increase in pension on 5 February 1998, I find that the "last paid work" undertaken by the Applicant was with NZI, which he commenced in July 1990 and ceased in June 1995.
I then turned to whether the Applicant, at the time he ceased working in his "last paid work", had worked for a continuous period of at least 10 years that began prior to his 65th birthday.
I noted the Applicant's submissions that the section 24(2A)(g) requirement of work for a "continuous period for 10 years" was:
"… designed to require an applicant to show a determination to remain in their chosen field for a considerable period of time. There is nothing inherently meaningful about the prescribed period of 10 years other than that it requires an applicant to thereby demonstrate a long-standing commitment to the occupation about which it is claimed the applicant is now prevented from continuing."
Notwithstanding, I was persuaded by the submissions of the Respondent and rely on the decision of Senior Member Handley of this Tribunal in Courtney (supra), that Mr Carter did not satisfy the section 24(2)(g) requirement because at the time of his application, he had not been working in his last paid employment for a period of at least 10 years that began prior to his 65th birthday. In this respect, I accepted the Respondent's submission that:
"… the Applicant ceased his practice on 1 July 1989, he was offered contract work by NZI in June 1990 and he continued this work until June 1995. He did not seek work between July 1989 and June 1990 and he did not seek additional work between June 1990 and June 1995. There is no material evidence that the Applicant was working between July 1989 and June 1990".
I was mindful that for the period of approximately one year, between July 1989 and June 1990, the Applicant was not engaged in any paid work in his professional capacity as an accountant, and that this was not because of seasonal or other unavailability. Rather it was the cessation of one activity with a gap of one year before the commencement of another within the Applicant's profession.
Whilst I noted and accepted the Applicant's submissions that the:
"… work the Applicant did as a professional accountant is clearly of the same nature as the audit work. It is to be noted that the Applicant's capacity to perform audit work existed because of his accounting expertise ..."
I was nevertheless, unable to ignore the break in the Applicant's work as an accountant during the period between July 1989 and June 1990. As a result I find that at the time of his application on 5 February 1998, the Applicant had only been engaged in his "last paid work" with NZI for a period of five years which began after Mr Carter turned 65 years of age.
I make the finding from the evidence before me that the gap of approximately a year between Mr Carter selling his practice in July 1989 and commencing work with NZI in July 1990 was not due to the vagaries of contract work or temporary unavailability of work. The NZI work, although apparently available to Mr Carter because of his qualifications and previous experience, was different from that he had carried out in his practice. I was mindful that it was conceded, and I accepted that Mr Carter had been "working on his own account" in his practice, as well as for NZI. The main thing that I decided was however, that the gap of one year from July 1989 to mid 1990 had, on the balance of probabilities, to be characterised as the ceasing of private practice by Mr Carter in June 1989 followed by recommencement of part-time contract work for a single client in July 1990.
Moreover, in considering the nature of, and the reason behind the gap in the work undertaken by the Applicant, I noted the decision of the Full Federal Court in Thomson (supra), where Ryan, North and Merkel JJ held in respect of the Applicant, a doctor, that:
"… if there were gaps in the continuity of work during the relevant period the reason for the gaps will be relevant. For example, if the gaps occurred solely as a result of a temporary unavailability of work, that could not, properly, lead to a conclusion of lack of continuity under s 24(2A)(g)(ii). This is particularly the case if the doctor had been actively, but unsuccessfully, seeking work during the relevant period. However, if the gaps occurred because the doctor had decided to retire, or the unavailability was more permanent, that would support a conclusion that he or she had ceased to continue working as a medical practitioner on his or her own account. Plainly, questions of fact and degree will be involved."
In the instant case, Mr Carter, in evidence before the Tribunal, said that by July 1989 he recognised there were too many difficulties related to his business and it was dissolved. When questioned about the difficulties, Mr Carter nominated the introduction of computers, which did not interest him, and the number of complex changes to the tax and company laws since his qualifications were obtained, which he found stressful.
I noted that Mr Carter sold his share of the accountancy practice effective 1 July 1989. I further noted at T3/14, in his application for pension dated 2 February 1998, that in reply to question 22, he nominated "nervous tension and age" as the reason for ceasing work on 1 July 1989.
Furthermore, from 1 July 1989 until June 1990, when Mr Carter was approached by NZI to carry out audits, there was no evidence before me that Mr Carter was seeking employment within his profession nor that there was a general unavailability of work for someone with his qualifications.
Therefore, I find that Mr Carter is not eligible for pension at the Special Rate pursuant to section 24 of the Act or the Intermediate Rate pursuant to section 23 of the Act because he had not, at the time he ceased his "last paid work", worked for a continuous period of at least 10 years that began prior to his 65th birthday pursuant to sections 24(2A)(g) and 23(3A)(g) of the Act.
DECISIONThe Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 31 March 1998 as affirmed by the Veterans' Review Board on 19 October 1998 to increase the disability pension payable to the Applicant to 90% of the General Rate pursuant to the Veterans' Entitlements Act 1986.
I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 1 February 2000
Date of Closing Submissions 17 October 2000
Date of Decision 8 February 2001
Counsel for the Applicant Mr P Gerber/ Mr M Vincent
Solicitor for the Applicant Mr S Lurie
Counsel for the Respondent N/A
Solicitor for the Respondent Ms S Breuer
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