Cathcart and Repatriation Commission

[2000] AATA 691

DECISION AND REASONS FOR DECISION [2000] AATA 691

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q98/762

VETERANS' APPEALS  DIVISION       )        
           Re      LAWRENCE CATHCART            
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date11 August 2000        

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant is entitled to be paid disability pension at the Special Rate with effect from 18 July 1997.  

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – special rate pension – actively seeking employment – substantial cause – loss suffered.

Veterans' Entitlements Act 1986 ss 24
Hall v Repatriation Commission (1994)    ALD 454
Fox v Repatriation Commission (1997) 24 AAR 527

REASONS FOR DECISION

11 August 2000      Deputy President DP Breen, Presidential Member                  

1. This is a review of a decision of the Repatriation Commission dated 25 August 1997, as affirmed by the Veterans' Review Board on 17 June 1998, which refused to increase the applicant's disability pension beyond 100% of the General Rate.

2. The matter was heard before me on 19 April 2000 in Brisbane.  The applicant was represented by Mr D O'Gorman of Counsel, instructed by Messrs Gilshenan and Luton.  The respondent Commission was represented by Mr J Dobbie, Departmental Advocate.

3. Oral evidence was given by the applicant, Mr Lawrence Cathcart, and by Doctors Ure, O'Connor; and Whittle.  The following documents were also taken into evidence:
   Exhibit 1                  "T" Documents
   Exhibit 2                  Statement of Lawrence Cathcart
   Exhibit 3                  Report of Dr NJ  O'Connor  dated 2.10.98
   Exhibit 4                  Report of Dr NJ O'Connor  dated 20.11.98
   Exhibit 5                  Report of Dr NJ O'Connor  dated 22.9.99
   Exhibit 6                  Report of Dr DG Ure dated 25.10.99
   Exhibit 7                  Documents prepared by WorkCover Queensland
   Exhibit 8                  Report of Dr A Whittle dated 10.3.99
   Exhibit 9                  Department of Veterans' Affairs Claim Form dated 15.7.96
   Exhibit 10                Department of Veteran's Affairs Claim Form dated 14.1.97
   Exhibit 11                Report of Dr G Gillett  dated 16.3.99

1. The applicant was seeking the Special Rate of pension under Section 24 of the Veterans' Entitlement Act 1986.  The applicable legislation is as follows:

   "(1)     This section applies to a veteran if:

   (aa)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

   (aab)the veteran had not yet turned 65 when the claim or application was made; and

   (a)either:

   (i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

   (ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

   (b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

   (c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

   (d)section 25 does not apply to the veteran.

   (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."

2. The applicant's accepted disabilities are depressive disorder, chronic bronchitis and emphysema.  He also suffers from chronic back pain due to an injury sustained in 1993.  The applicant is only 52 years of age and the current assessment of his incapacity is 100%.

1. It was conceded by the respondent that subsection 24(2)(b) did apply in this case, despite the fact that the applicant has not actively sought employment since 1996.  This concession was based on the decision of Spender J in Hall v Repatriation Commission (1994) 33 ALD 454. At page 461, His Honour stated:

   "Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade."

1. In the present case, the applicant had been given advice by his Psychologist, Dr Crompton, that he could not go back to work and he had been refused every job he went for once employers found out about his frequent hospitalisation.  As such, the ameliorating provision of subsection 24(2)(b) applies to Mr Cathcart without his having to go through such a charade.

2. Therefore, the main question to be decided by the Tribunal was whether the accepted disabilities are the substantial cause for his inability to engage in remunerative work.  Kiefel J in the case of Fox v Repatriation Commission (1997) 24 AAR 527 held that:

   "The words 'the substantial cause' require that if the capacity is not of itself productive of the inability to obtain work it is nonetheless the operative factor which more than any other explains it."

1. The medical evidence presented before the Tribunal on this point can be summarised as I set out in the following paragraphs.

2. Dr David G Ure is a General Practitioner and has treated Mr Cathcart for two and a half years.  In that time, the back pain was only mentioned once and Dr Ure stated that he had not noticed the applicant having any difficulty with his back in that time.  On the other hand, Dr Ure was very aware of the applicant's psychological condition and was of the view that this condition is so severe that it overshadows any other condition suffered by the applicant.

3. Dr NJ O'Connor is a Psychiatrist.  He treated the applicant between 1997 and 1999.  He believed the incapacity caused by the depressive disorder was moderate to sever.  It was his view that the disorder would interfere with his ability to work, due to its effect on his concentration and the occurrence of frequent mood swings and flashbacks.  In relation to the back injury, Dr O'Connor agreed that while the applicant is suffering pain, such pain is probably aggravated by his psychological problems.  Given that Mr Cathcart exhibits histrionic tendencies, it was Dr O'Connor's opinion that the descriptions of back pain given may be exaggerated.   Dr O'Connor formed the opinion that while the back pain does interfere with Mr Cathcart's life, the psychological problems were enough, on their own, to prevent the applicant from working.

4. Dr Andrew N Whittle, an Orthopaedic Surgeon, saw Mr Cathcart in March 1999 at the request of the respondent.  He felt that the applicant was unfit for any physical work based on the orthopaedic analysis alone.  However, he did believe that the psychological problems were significantly impinging on the presentation of his back condition.  He conceded in evidence that if the psychological problem did not exist, then Mr Cathcart might be able to engage in some form of remunerative work.  Whilst he maintained that heavy physical work was out of the question, there was radiological evidence that Mr Cathcart could carry out light clerical duties.

5. Dr G Gillett, is an Orthopaedic Surgeon who treated the applicant in 1993 and 1994.  Dr Gillett stated in his report dated 16 March 1999 that while he assessed impairment at 100%, the applicant in 1994 exhibited ongoing symptoms for which there was no surgically treatable condition and he suggested that, as such, there was an overstatement of the symptomatology.   Dr Gillett was unavailable to give evidence at the hearing.

6. Mr Cathcart's own evidence was that he could currently undertake light duties around the house including cleaning, cooking, doing laundry and light gardening.  However, he does have to alternate activities and take frequent rests.  In 1996, when he moved to Toowoomba, he applied for a number of computer repair jobs, but as soon as prospective employers became aware of the extent of time he had been hospitalised, his applications were turned down.  Mr Cathcart had only ever been hospitalised due to his psychological condition.  He also gave evidence that he had great difficulty in getting work, due to his phobia of working in a crowded environment.

7. It is the Tribunal's view on the evidence as presented, that while the back injury may restrict the work Mr Cathcart is able to undertake, the psychological condition he suffers is the operative reason for his inability to continue to undertake remunerative work.

8. The next issue to be considered is whether Mr Cathcart is suffering from a loss of salary or wages under subsection 24(1)(c).  As the applicant is less than 65 years of age, it is not the "alone test" which is to be applied but, rather, the "substantial cause test".

9. In 1994 the applicant was rendered medically unfit for employment by the Education Department due to his back injury.  However, it was the applicant's evidence that he was at the point of being unable to continue to work in that position due to his psychiatric condition at that time anyway.  He had accidentally attacked a female cleaner one afternoon when she walked up behind him and surprised him.  It was the applicant's opinion that he would still be working for the Education Department if he did not suffer from a depressive disorder.

10. It is the Tribunal's finding that, although the applicant initially stopped work due to his back condition, it was only intended as a temporary cessation until the back condition resolved.  This condition has now resolved to a substantial degree.  The Tribunal finds that the operative reason for the applicant permanently ceasing work and being unable to engage in remunerative work again is his accepted psychiatric condition.

11. As such, the applicant has suffered a loss of salary and wages as a result of his accepted ongoing incapacity and Section 24 is satisfied.

12. For these reasons the Tribunal sets aside the decision under review and in substitution therefor determines that the applicant is entitled to be paid disability pension at the Special Rate with effect from 18 July 1997.

    I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

    Signed:         Emma Oettinger
      Associate

    Date/s of Hearing  19.4.00
    Date of Decision  11.8.00
    Counsel for the Applicant        Mr D O'Gorman
    Solicitor for the Applicant         Messrs Gilshenan and Luton
    Counsel for the Respondent    Mr J Dobbie, Departmental Advocate
    Solicitor for the Respondent