Challenger and Repatriation Commission - [2000] AATA 322

DECISION AND REASONS FOR DECISION [2000] AATA 322

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/499

VETERANS' APPEALS DIVISION          )
           Re      TERRENCE JOSEPH CHALLENGER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Brigadier I R W Brumfield CBE, DSO, RL Dr J M Lawrence AM

Date27 April 2000
PlaceBrisbane

Decision The decision under review is affirmed.

Decision No. 322/2000 (Sgd) K L Beddoe
Senior Member
CATCHWORDS
VETERANS' AFFAIRS: – Disability pension – War-caused disease – PTSD and permanent incapacity – Remunerative work

Veterans' Entitlements Act 1986 – s20, s24, s28, s120(1)

Banovich v Repatriation Commission (1986) 69 ALR 395
Delkou v Repatriation Commission (1986)69 ALR 406
Lucas v Repatriation Commission (1986) 69 ALR 415
Re Davis and Repatriation Commission (1996) 44 ALD 80
Repatriation Commission v Smith (1987) 74 ALR 537

REASONS FOR DECISION

Mr K L Beddoe (Senior Member) Brigadier I R W Brumfield CBE, DSO, RL Dr J M Lawrence AM

By a decision dated 4 August 1998 the Veteran's Review Board decided that post traumatic stress disorder ("PTSD") should be accepted as a war-caused disability for the purposes of the Veterans' Entitlements Act 1986 ("the Act").
The respondent assessed the disability pension payable at 80% of the general rate with effect from 27 December 1995. The Veterans' Review Board subsequently varied the decision to 90% of the general rate. The applicant seeks review of the Board's decision on the basis that he is entitled to pension at the special rate pursuant to section 24 of the Act.
So far as is relevant section 24 of the Act reads 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.

Section 28 of the Act reads as follows:
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

Section 24(2) of the Act reads as follows:
(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.

In deciding this matter the Tribunal must be satisfied to its reasonable satisfaction that the elements of section 24(1) have been satisfied on the balance of probabilities (section 120(4)).
At the hearing the applicant was represented by Mr Ben-Avi and the respondent was represented by Mr Stoner. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and his partner. No oral evidence was called for the respondent.
The Evidence
We make the following findings of fact.
The applicant was born on 28 December 1939.
He commenced employment with the Queensland Government in 1955 and ceased that employment in December 1994 upon attaining the age of 55 years and thereby being eligible to elect to retire. He said in evidence that he resigned his employment but we are satisfied that he elected to retire.
In 1965 the applicant joined the Citizen Military Force while still continuing his employment with the Queensland Government and was attached to "Small Ships." In 1969 he volunteered for full time duty with the Australian Regular Army with a view to service in Vietnam. The Queensland Government approved leave for this purpose.
The applicant was attached to 32 Small Ships Squadron, Royal Australian Engineers and he served on AV John Monash between 10 October 1969 and 20 December 1969 including time in Vietnamese waters. He was the only CMF member in the 40 persons crew of the John Monash and found the situation beyond his experience and difficult to adjust to. He said he was not compatible with the regular soldiers and tended to withdraw from the situation.
Upon completion of his tour of duty the applicant returned to his employment with the Queensland Government, remaining in that employment until he elected to retire in December 1994 at 55 years of age.
The applicant says that he continued on from where he had left off upon his return from South Vietnam but now says with the benefit of hindsight, that his attitudes had been changed by the experience in South Vietnam. Several years after his return from Vietnam his wife divorced him on the basis that he was "something different" but the applicant thought at the same time that his wife was at fault.
Although he had been intending to remain working in the public service until he reached 65 years as the years passed he found life at work increasingly difficult and stressful. His employer accused him of having an "attitude" problem. This manifested in the applicant having difficulties in his relationship with senior staff at his place of employment.
Upon retirement in December 1994 the applicant moved from Brisbane to the Tweed River area so as to avoid having neighbours and to be able to participate in surfing although he did not seek to associate with other surfers.
Following retirement from the public service the applicant sought and obtained employment at a fish shop and subsequently on a demolition site. He could not cope with either job and left after a few days. At the demolition job he left after getting into an argument with neighbours over his method of demolition with a chain saw. He sought other employment but was unsuccessful. He says he cannot cope with confined spaces, objected to the Tribunal's hearing room and does not frequent clubs and bars because of the dislike of confined and populated spaces. His only regular commitment is meetings of his motor cycle club (Vietnam Veterans' Motorcycle Club). He relies on his partner to do shopping but does go to a local convenience store every couple of days.
In relation to his employment in the public service the applicant said he was promoted to a more highly paid position after he returned from South Vietnam but subsequent applications for promotion were unsuccessful. He developed problems with work attendance and a general dissatisfaction with the workplace. In 1990 he was transferred to another area of work but now cannot remember what he was doing in the new position. His letter of resignation (retirement) asserts his reason for resignation as being dissatisfaction with the workplace including discrimination in the workplace (T16).
The applicant had extended periods of leave from his employment from 1988 and lived in New Zealand. Details of the periods of leave are set out in Exhibit 1. Suffice it to say that the employer became unhappy about the extended leave and the applicant became unhappy about his situation.
On 24 October 1994 the applicant lodged a claim for workers' compensation for injury described as "work related stress" said to have occurred at the employer's "City office" and reported on 30 September 1994. An accompanying medical certificate from a general practitioner diagnosed "stress at work" and certified that the applicant was unfit for work from 29 September 1994 to 15 October 1994.
We do not understand "stress" to be a medical condition but there seems to have been a perception by the applicant and his doctor that his incapacity was caused by his work and not some other cause. We note that the applicant was diagnosed with PTSD after he retired from employment.
The applicant was unsure as to the outcome of his claim for compensation. In any event the claim was for a closed period during employment and does not appear to have had any "life" after retirement in December 1994.
On or about 27 March 1996 the applicant lodged a claim for disability pension with the respondent. The claim was for PTSD said to be caused by "stress – ship rocketed in VT (Vang Tau) harbour" and that he first became aware of the disability in 1969.
Following investigations by the respondent the Directorate of Army History provided advice in a letter, dated 10 July 1997, responding to allegations by the applicant as follows:
1.Mr Challenger was on full time duty from 5 Oct 69 until 31 Dec 69, and was part of the crew of the AV John Monash for Voyage 2/69 to Vietnam. The vessel departed Sydney on 10 Oct 69 and arrived back on 20 Dec 69. It arrived in Cam Ranh Bay on 18 Nov and departed on 21 Nov for Vung Tau where it arrived on 22 Nov and departed for Australia on 25 Nov 69. Mr Challenger had at most eight days in Vietnamese waters.
2.In response to his allegations the following should be noted:
a."When they were first attacked and the spouts of water were going up next to the ship…They called in the Yanks which bombed the area where they were under attack from." Another version of this was, "When in Vung Tau there were several explosions beside the ship and rockets landing only 20 yards away."
Vung Tau airfield was attacked by rockets on the night of 15/16 Oct 69. The previous attack took place about a year before that, again directed at the airfield. There was no enemy activity during the period AV John Monash was in Vietnamese waters. In fact the only Army vessel to actually come under fire when in Vietnamese waters was the LSM Clive Steele, which sustained minor damage from enemy fire while operating on the Bassac River on 5 Jan 69. The AV John Monash did not come under enemy attack at any time during the voyage when Mr Challenger was a member of the crew.
b."When anchored in Vietnamese ports, percussion grenades were exploded around the ships to dislodge 'potential mines' from the hull….ensuring disturbed sleep."
When ships were lying at an anchorage, there was no requirement for anti-swimming devices due to the currents. When they were alongside for discharging and loading cargo, a system of arc lights was rigged on the seaward side of the ship. If anything suspicious was seen in the water the watch would explode small charges or percussion grenades in the water. This was done to bring to the surface any frogmen who might be lurking about with evil intent, not to dislodge any 'potential mines.' Challenger is right when he says that these small explosions reverberated through the hull of the ship.
c.        Running down small fishing boats.
I find it difficult to accept this allegation from two points of view. The first was that boat traffic was controlled by the Vietnamese Navy, advised and at times supported by the USN. There were strict rules about moving at night, and displaying lights. The second point is that I find it hard to believe that an officer of the watch on an Army vessel would deliberately run down a boat. For one thing it would only take one member of the watch to report the matter and the officer concerned would undoubtedly be in serious trouble. If this happened, and Mr Challenger failed to report it to the Master, then he was derelict in his duty.
d.        Crashed into an assault boat tied up in the Brisbane River and sunk it.
This most probably took place during the time Mr Challenger was in the CMF, and is unrelated to any 'war service.'
e.The swimming at Cam Ranh Bay and the grenade incident.
If this took place as described by Mr Challenger then it was sufficiently serious to have been reported to the officer of the watch on AV John Monash. It would constitute an 'incident' and should have been reported to HQ Australian Force Vietnam under whose command the ship came while in Vietnamese waters. There is no evidence that such a report was made. It is understandable them being ordered out of the water, but hard to believe that a US patrol would attempt to deliberately harm them.
f.        Checking that the cargo in the hold was secure.
This is a standard practice for merchant ships, and is carried out on a regular basis to ensure that cargo, irrespective of what it is, remains securely lashed down.
3.In researching this case I consulted with Lieutenant Colonel J. Brien Retd, the President of 32 Small Ships Association, regarding the procedures for vessels in Vietnamese waters. Existing records relating to Voyage 2/69 of the AV John Monash, the HQ AFV Monthly Report for Nov 69, and related Intelligence summaries from HQ 1 ATF were examined.

We accept that advice to be a fair summary relating to the applicant's operational service.
The Medical Evidence
Documents T4 and T9 are copies of medical reports by Dr Rees, Consultant Physician in Psychiatry who had been seeing the applicant from February 1997 on referral from a general practitioner. The first report is dated 29 April 1997. Dr Rees sets out a history which is inconsistent with the history set out above. In particular Dr Rees relates the serious allegations refuted by the Directorate of Army History. We are satisfied that the applicant supplied a false history to Dr Rees. Because Dr Rees relies on the alleged traumatic events which we do not accept have any basis in fact the report is of little value and we have not relied upon it.
Document T8 is a copy of a medical report in standard form by Dr Cairns, a general practitioner. The report is dated 13 February 1998. Dr Cairns diagnosed permanent incapacity in relation to PTSD and chronic back pain each of which she said was permanent. The chronic back pain is not an accepted disability.
Exhibit A is a copy of a report by Penny Watsford, Registered Psychologist, dated 16 December 1996. The report gives a detailed history which again recites the applicant's allegations about his experiences in South Vietnam which have not been accepted by the Tribunal. The report also addresses the applicant's dissatisfaction with the workplace and the effect of his PTSD on workplace relationships. The report attributes the PTSD to the tour of duty in Vietnam.
Exhibit B is a report by Dr Danesi, Consultant Psychiatrist, dated 20 May 1986 addressed to the Department of Veterans' Affairs. Dr Danesi relates a brief history which includes reference to a parachute accident in 1973 when the applicant "smashed six vertebrae." He also refers to a number of fractures from motorbike and speedway racing.
Dr Danesi diagnosed "anxiety disorder not otherwise specified." He said the main problem seemed secondary to personality traits – "his aggressiveness, irritability and arrogance."
Consideration
We do not disturb the decision that the applicant's PTSD is a war-caused disease. We have to decide firstly whether the applicant is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. In so doing we must take into account the criteria set out in section 28 of the Act.
We are satisfied that the applicant's vocational skills are of narrow compass and are the skills he acquired from 39 years service in the public service. His skills are essentially of a clerical/administrative character and that is the type of work he might reasonably undertake except for the war-caused PTSD. In that regard we do not see the chronic back pain as being an impediment to undertaking such work albeit that pain relief may be necessary from time to time. We are also satisfied that the applicant's PTSD is such that he can no longer work in an office type environment as would be the usual case with clerical/administrative employment. Further, we are satisfied on the balance of probabilities that the applicant's condition is such that he no longer relates in a tolerable way with other people. Others antagonise and stress him and he reciprocates to others. In essence we are satisfied that the applicant is unemployable in clerical/administrative type employment (section 28).
As to paragraph 24(1)(b) we also need to consider whether it is the PTSD alone which rendered the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. There is evidence that the applicant attempted alternative work but his PTSD which manifests as adverse personality traits caused those attempts at work to be unsuccessful. We accept that the applicant's condition is such that further attempts to obtain remunerative work would be futile.
Different considerations apply in considering paragraph 24(1)(c) of the Act. In considering that paragraph it is necessary to consider the criteria in sub-section 24(2). Of immediate concern is the fact of voluntary retirement from the public service in December 1994 which clearly, in our view, was a cessation to engage in remunerative work for a reason other than the PTSD. His notice of resignation (T16) makes it clear to us that the applicant retired from his employment because of his dissatisfaction with the workplace. He does not suggest that he was forced to retire by his employer nor does he assert health grounds. Rather he retired, on a voluntary basis, at the first opportunity i.e. immediately upon turning 55 years of age because of a general dissatisfaction with the workplace.

However these circumstance took place outside the assessment period. In Bonovich v Repatriation Commission (1986) 69 ALR 395 and Repatriation Commission v Smith (1987) 74 ALR 537 the Federal Court makes it clear that assessment of pension pursuant to section 24 of the Act is to be made in the assessment period being the period from three months before the date of application for pension to the determination of that application by this Tribunal on the circumstances of this case.
At 69 ALR 404 the Full Court said:
"The task of the Administrative Appeals Tribunal, in reviewing a decision relating to an application for a pension, is to make the decision which the primary decision-maker ought to have made, upon the basis of the evidence before the tribunal. Subject to any change in the relevant law, the tribunal should put the applicant in the position in which he or she was entitled to be put at the time of the primary decision. It follows, we think, that the question whether a particular applicant complies with the criteria in para (1)(b) of the Schedule should be considered as at the time of his or her application to the primary decision-maker for the grant of a special rate pension."

No issue arises here in relation to the date of effect – Re Davis 44 ALD 80.

The Court went on to refer to the amendments made to the Repatriation legislation in 1985 and then at 69 ALR 405 said:
"The amendments clarify the eligibility criteria and made it clear that to qualify for a TPI pension a veteran must be eligible for the 100 per cent general rate pension. In addition, 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" (see Parliamentary Debates, House of Representatives, 17 May 1985 at 2645-6)."
(In referring to a "TPI pension" their Honours were referring to the special rate pension now provided for in section 24 of the Act).

In Repatriation Commission v Smith (1987) 74 ALR 537 Beaumont J (with whom Northrop and Spender JJ agreed) said at 74 ALR 545:
"Although a person is not automatically disentitled to a special rate pension on attaining 65 years, eligibility will only be established if, on the facts, the member was prevented from working by the service-related disabilities alone (Banovich 69 ALR 404; Delkou 69 ALR 413-4; Lucas 69 ALR 421-2)."

and at page 548 his Honour said it is open to the applicant to show that he would have undertaken other remunerative employment.

In the present case we are satisfied on the balance of probabilities that the applicant ceased work in December 1994 because he elected to take voluntary retirement for reasons other than his medical condition. As has been explained that is not determinative. We must consider the circumstances as they were at 27 December 1995 being the earliest date determined in accordance with section 20(1) of the Act.
At 27 December 1995 the applicant was incapable of undertaking remunerative work because, given his long and almost exclusive experience as a public servant employed by the Queensland Government and the skills he acquired based on that experience the condition of PTSD was more likely than not to cause a reduction in capacity to undertake that work. We have also considered the applicant's attempts to find other remunerative work but we are satisfied he lacked experience and skills for work outside public service administrative work and we so find. We are satisfied and find that the accepted condition of PTSD reduced the applicant's capacity to undertake remunerative work consistent with his work experience. Paragraph 24(1)(b) is satisfied and we so find.
However, the reason the applicant was not undertaking remunerative work at 27 December 1995 was his voluntary retirement from the employment with the Queensland Government in December 1994. There is nothing in the material before us that satisfies us that the applicant's employment would not have continued if he had not elected to take voluntary retirement. We are satisfied that the applicant is suffering a loss of salary or wages but we are not satisfied that the loss of salary or wages was caused by or can be attributed solely to the PTSD. We are satisfied the applicant ceased to engage in remunerative employment because he elected to take voluntary retirement from the public service not on medical grounds. The applicant has not been relevantly prevented or precluded from engaging in remunerative work. We are satisfied he elected to give up his remunerative work. That was in our view a voluntary act which takes him outside section 24(2). It follows paragraph 24(1)(c) is not satisfied because it was not the PTSD alone which prevented him from undertaking remunerative work that he was undertaking and except for his voluntary retirement could have been undertaking in December 1995.
For these reasons we are satisfied the decision under review should be affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member), Brigadier I R W Brumfield CBE DSO RL, and Dr J M Lawrence AM.
Signed:
  T G Lowther
   Associate
Date/s of Hearing  27 January 2000
Date of Decision  27 April 2000
Representative for the Applicant              Mr Ben-Avi
Representative for the Respondent        Mr Stoner