Case and Repatriation Commission
[2004] AATA 45
•22 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 45
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/482
VETERANS APPEALS DIVISION ) Re NEVILLE JOHN CASE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President , Don Muller Date22 January 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution determines that the Applicant is eligible to be paid disability pension at the Special Rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 from 6 September 1999. ................SIGNED...........................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS AFFAIRS – the applicant ceased remunerative employment due to a combination of non-war-caused injuries and war-caused disabilities - war-caused disabilities alone have not prevented the applicant from undertaking remunerative work- war caused disabilities have been the substantial cause of the applicant’s inability to obtain remunerative work- genuinely seeking remunerative work – applicant entitled to special rate
Veterans’ Entitlements Act 1986 subsections 24 (1) (c), and 24 (2) (b)
REASONS FOR DECISION
Deputy President , Don Muller 1. This is an application for review by Neville John Case, the Applicant, of a decision of a delegate of the Repatriation Commission, the Respondent, dated 24 November 1999, rejecting the Applicant’s claim for an increase in the disability pension from 100% of the General Rate to the Special Rate pursuant to section 24 of the Veterans’ Entitlements Act1986 (“the Act”).
2. The Veterans’ Review Board affirmed the decision of the delegate on 20 May 2000 and the Applicant lodged an application for review to this Tribunal on 2 August 2000.
3. The Tribunal set aside the decision of the Veterans’ Review Board on 24 April 2001 and substituted the following decision :
(a)the Applicant’s claims for lumbar spondylosis and thoracic spondylosis were not war-caused diseases within section 9 of the Act; and
(b)the Applicant qualified for payment of pension at the Special Rate in accordance with section 24 of the Act with effect from 6 September 1999.
4. The Respondent appealed the Tribunal’s decision and the Federal Magistrates Court remitted the matter to a differently constituted Tribunal.
5. At the hearing on 24 July 2003 the Applicant was represented by Mr Honchin of Counsel and Mr Derrington of Counsel represented the Respondent.
6. The Tribunal heard oral evidence from the Applicant and the following documents were before the Tribunal:
(a)Appeal Papers from Federal Court proceeding No BZ307 of 2001, exhibit 1; and
(b)Report of Dr Trezise dated 20 June 1998, exhibit 2.
7. The Applicant has the following disabilities which have been accepted as war- caused :
(a)Post Traumatic Stress Disorder (PTSD);
(b)Bilateral Sensori-neural hearing loss;
(c)Hypertension; and
(d)Gastro oesophageal reflux disease.
8. The Applicant has also had the following significant disabilities which are not war –caused:
(a)Senile Seborrhoeic Hyperkeratoses;
(b)Actinic comedones;
(c)Prostatitis;
(d)Diverticular Disease of the Colon;
(e)Peptic Ulcer Disease;
(f)Thoracic Spondylosis; and
(g)Lumbar Spondylosis.
9. The only issue before the Tribunal is whether the Applicant meets the eligibility for payment at the Special Rate pursuant to section 24 of the Act. Earlier consideration by the VRB and the Tribunal of whether the Applicant’s lumbar spondylosis condition is war-caused is not before the Tribunal on this occasion.
10. The legislation relevant to this matter is as follows:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa)….
(aab) …..
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)….
(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 or 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.”
11. The relevant background to this matter is not in dispute and the Tribunal finds as follows :
(a)The Applicant was born on 17 June 1941 and is currently 62 years of age.
(b)He served in the Royal Australian Army (“RAA”) from 3 December 1958 to 16 December 1967.
(c)He had a 12 month period of operational service in South Vietnam from 8 May 1966 to 12 May 1967.
(d)During his service in Vietnam he reached the rank of sergeant. From time to time he became the platoon’s leader. He completed many patrols in the bush and was often exposed to contact with the enemy.
(e)Upon his discharge from the RAA on 16 December 1967, the Applicant had several jobs over the following ten years.
(f)In 1978 he commenced work at Bowen Coke Pty Ltd in Bowen. The Applicant was employed there for twenty years as a labourer on the production line.
(g)In 1995, he was diagnosed by psychiatrist, Dr. John Rogers as suffering from PTSD. He continued to work for Bowen Coke for a further three years.
(h)He was retrenched on 31 July 1998 and he has not worked for remuneration since.
12. The Applicant gave evidence before the Tribunal and made the following points:
· Before his retrenchment he was experiencing problems at work. He had lost his social skills. He had trouble with his co-workers, which had on a few occasions ended in fistfights.
· The company introduced multi-skilling. He then had to rotate jobs every two weeks. This made his ability to cope with his work more difficult.
· While employed at Bowen Coke Pty Ltd he had a serious accident in November 1997. He fell four meters on to a concrete slab. As a result of this accident he sustained an injury to his lower back and he was hospitalised for nine days.
· He took a lot of sick leave prior to being made redundant on 31 July 1998. He felt his PTSD was becoming worse during this time. When tension built up, he would take a day off work.
13. Bowen Coke Pty Ltd provided the following letter dated 14 December 2000 regarding the Applicant’s redundancy:
“I refer to your letter of 4th December regarding a review of the decision by the Repatriation Commission for Neville Case and advise as follows:
· He commenced with the coke works in August 1978 when it was operated as the State Coke Works by the Queensland Government.
· He was employed by Bowen Coke Pty Ltd as a permanent employee when they took over the operation in October 1988.
· The letter dated November 97 would have been relevant to redundancies at that time and separate for the labour reduction in 1998.
· The reason for the retrenchments in July 98 were because of reduction in coke tonnages to be produced at Bowen Coke which required a restructure to the way work was carried out. This saw the introduction of operator/maintainer work methods.
· All employees went through an interview process which covered a number of dimensions considered by the Company as important to the future operations. This included such matters as work standards, safety awareness, teamwork, etc, and also a matching of the relevant skills required for the operation. This did not include medical reasons.
· Neville was advised in a letter dated 14th July 1998 that he was to be retrenched effective 31st July 1998 (copy attached).
· He was one of a number of employees retrenched at this time.”
14. The Applicant gave evidence that since his redundancy he has applied for numerous positions. He registered in 1998 with the Commonwealth Employment Service. He stated that he was always honest with potential employers and informed them of his war-caused disabilities and his back condition.
15. Several letters of rejection by potential employers were before the Tribunal :
(a)Gannon Pastoral Co Pty Ltd letter dated 2 December 1998 stated:
“ I am in recept of your application for the position of Meat delivery Driver with our business. Thankyou for being so forthright in telling me of your injuries sustained whilst on active service.
Regretfully your application has been unsuccessful, at the time of receiving same I had already employed another person in that position.”
(b)Bowen Tyre and Mechanical Pty Ltd letter dated 17 October 2000:
“ Mr Neville Case has applied for employment with “Bowen Tyre & Mechanical” in the last eighteen months, though was found to be unsuitable due to his (war service) incapacities interfering with his work duties.”
(c)Bowen Fishermans Seafood Company letter dated 3 November 2000:
“We have been regularly approached by Mr Neville Case…
Due to the depressed nature of our industry and the poor economic climate of our region, we are unable to offer any employment of any nature.
We would be hesitant to offer Mr Case any serious labouring work because of his age and physical condition. …”
16. The Applicant told the Tribunal that he has not been successful in gaining any employment since he was made redundant. He firmly believes that he would be physically capable of doing the jobs which he applied for.
17. The Applicant described to the Tribunal how his PTSD has worsened and he has lost all social and communication skills. He said that his wife is the only person he can talk to. She is a nurse and is still employed. He stated that he never goes to the RSL and has become a loner.
18. On 20 January 1999 the Respondent accepted gastro-oesophageal reflux disease as being war-caused and increased the Applicant’s disability pension to 100% of the General Rate.
19. The Applicant made a further claim dated 6 September 1999 for an increase in the disability pension and also claimed that his lumbar spondylosis condition was war-caused. The Applicant stated in this application :
“I was taking a lot of time off due to my war caused disabilities. I was covering this time off with using leave and sick leave entitlements to try and shield the fact from my employer, but I became targeted for redundancy. My doctor was aware of my steadily worsening condition at work at various intervals each day I would have to stop and take it easy for a period of time. I was in a lot of pain at times but personal pride in not whingeing has always been paramount to me.”
20. In addition to the Applicant’s evidence the Tribunal had before it several medical reports. These are summarised as follows:
(a)Dr Arthur Trezise provided a medical report on the Applicant’s permanent incapacity dated 20 October 1998 and found that the Applicant had no capacity to work.
(b)Dr David Lewis , orthopaedic surgeon, provided a report on the Applicant’s back condition dated 2 November 1999:
“Physical examination shows a reduced range of movement of the thoracolumbar spine. He can flex to the mid shin. There is virtually no flexion or lateral flexion of the thoracic spine in its lower region, and there is a complaint of pain with all modalities of movement. He is tender over the T6 to 8 region, and in the low back.
Neurologically he has normal power, sensation and reflexes in his lower limbs. Straight leg raising is 80 degrees on the (R)and the (L).
X-rays show some signs of lumbar and thoracic Spondylosis.
His diagnosis is spondylitic change to the thoracic and lumbar spines.
I do not consider that Mr Case is capable of working more than twenty hours a week, in any occupation, and I think it most unlikely that he would be able to work more than eight hours per week.
There is no likelihood of further treatment or rehabilitation improving his condition.”
(c)Dr David King, general practitioner, stated in his letter dated 3 April 2000 that the Applicant was totally unemployable due to his PTSD.
(d)Dr John Rodgers, psychiatrist, provided a report dated 11 April 2000 in it he concludes:
“SUMMARY
This 58 year-old Vietnam Veteran is examined at your request in relationship to an appeal against an earlier decision of Veteran Affairs. I saw him initially on one occasion following referral by his general practitioner in 1995 when he presented principally with physical symptoms almost certainly psychophysiological and relating to the mental consequences of post traumatic stress disorder.
Following more recent referral it is apparent the pattern of his illness has become more typical of post traumatic stress disorder in that he is pre-occupied about specific events in the war of a life threatening and distressing kind. He is generally socially withdrawn and gets flashbacks with reminders of the war. Hyperarousal leading to irritability has also been in evidence and was a major factor in his redundancy from his employers in Bowen 20 months ago. For bureaucratic reasons there is no mention made of his irritability and time off work, however with the benefit of hindsight it is clear that this was a major contributing factor to his redundancy. Subsequent to redundancy with the worsening of symptoms he has been unable to gain work and in my opinion even if he had been given work it is highly unlikely that this would have lasted for very long.
He is currently suffering from an acute major depressive illness arising out of his war-related post traumatic stress disorder which exacerbates long-standing symptoms as well as having it’s own characteristic impairments particularly mood instability, ruminations about the past and a sense of guilt. I will be continuing regular outpatient treatment and have made another appointment to see him in a month’s time.
In my opinion he should now be regarded as totally and permanently incapacitated. Even before his depressive decline it is clear he was unable to work on account of his war-caused psychiatric disability. In my opinion this applies to full or part-time work even up to 8 hours per week.”
21. The Tribunal accepts the evidence of Dr. Rogers that the Applicant’s PTSD, alone, would render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
22. The Applicant satisfies the provisions of subsections 24(1), (aa), (aab) and (b) of the Act.
23. The Question for determination is whether the Applicant satisfies the provisions of subsection 24(1)(c) of the Act. That is, whether the Applicant’s war-caused disabilities, in particular his PTSD, alone, prevent him from continuing to undertake remunerative work that he was undertaking, and is, by reason thereof suffering a loss of wages that he would not be suffering if he were free of the PTSD.
24. The Applicant has a range of work skills. He operated heavy equipment and plant equipment while at Bowen Coke Pty Ltd. The Tribunal accepts that the remunerative work the Applicant was undertaking was of the labouring type.
25. The Tribunal has some difficulty in accepting at face value the report from the Applicant’s previous employers about the reason for declaring the Applicant redundant. The Applicant’s evidence and the fact of the Applicant’s age tend towards a reasonable inference that the Applicant was made redundant because of a combination of factors which also included his back problem, his age, his irritability and his taking a large number of sick days due to his PTSD.
26. The Tribunal concludes that the alone test in subsection 24(1)(c) of the Act is not met because the Applicant’s war-caused and non war-caused disabilities have both prevented the Applicant from undertaking remunerative work.
27. The question then remains as to whether the provisions of subsection 24(2)(b) should apply to the Applicant. That is, whether the Applicant has been seeking to engage in remunerative work, and whether his PTSD is the substantial cause of his inability to obtain remunerative work.
28. The Tribunal considers that the Applicant’s PTSD is severe and has significantly incapacitated him. The Tribunal accepts the Applicant’s evidence that he is willing to work and that he has demonstrated genuine attempts to engage in remunerative work. The Tribunal also accepts that the Applicant would be physically capable of doing the jobs for which he applied.
29. The Tribunal finds the Applicant’s war-caused disability of PTSD has been the substantial cause of his inability to obtain remunerative work.
30. The Applicant has satisfied the ameliorating provision in subsection 24(2)(b) of the Act.
31. The Tribunal sets aside the decision under review and in substitution determines that the Applicant is eligible to be paid disability pension at the Special Rate, with effect from 6 September 1999.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President , Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 24 July 2003
Date of Decision 22 January 2004
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor
Counsel for the Respondent Mr. R. Derrington
Solicitor for the Respondent Australian Government Solicitor
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