Charles and Repatriation Commission
[2011] AATA 614
•2 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 614
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4393
VETERANS' APPEALS DIVISION ) Re SEATON RUSSELL CHARLES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date2 September 2011
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Charles is entitled to disability pension at the special rate with effect from 17 August 2007. ..............(sgd)................................
Senior Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - special rate of pension - whether incapacity from war-caused injuries ‘alone’ prevented the veteran from undertaking remunerative work
Veterans’ Entitlements Act 1986 ss 24(1)(b), 24(1)(c)
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
2 September 2011 G. D. Friedman, Senior Member
1. Seaton Charles is receiving disability pension at 80 per cent of the general rate and he now seeks the higher loss-of-earnings related payment known as special rate. He last worked as a fork lift driver/store person and ceased employment in 2007.
2. The special rate of pension requires, among other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than eight hours per week, by reason of war-caused disability. The respondent says that Mr Charles is not entitled to special rate because there were reasons other than his war-caused psychiatric condition of post-traumatic stress disorder (PTSD) alone that account for him not being able to continue working in his previous occupation.
LEGISLATIVE BACKGROUND
3. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(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…
…
(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…
(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.
…
ISSUES
4.
There was no dispute that Mr Charles satisfies s 24(1)(a) of the Act and is incapable of undertaking remunerative work for more than 8 hours per week. The issues before the Tribunal are whether Mr Charles’ inability to work for more than
8 hours per week is due to war-caused conditions alone (s 24(1)(b) of the Act); and if so, whether his war-caused incapacity alone prevents him from continuing to undertake the remunerative work that he was undertaking (s 24(1)(c) of the Act).
IS MR CHARLES’ INABILITY TO WORK FOR MORE THAN EIGHT HOURS PER WEEK DUE TO WAR-CAUSED CONDITIONS ALONE?
5. Mr Charles told the Tribunal his war-caused conditions of sensorineural hearing loss of the left ear, bilateral tinnitus and irritable bowel syndrome do not prevent him from working more than eight hours per week, but that that the reason he is incapable of working for those hours is his war-caused PTSD.
6. By way of background he stated that he grew up in rural Victoria and left school in Year 11. He joined the Australian Army in 1967 at the age of 19 years and qualified as a fitter and turner before being posted to an aviation workshop as an engine fitter and mechanic. He served in this capacity at Nui Dat in Vietnam from
8 September 1969 until 8 October 1970. He was discharged on 15 January 1973 and found employment in the private aviation industry for about 16 years at Moorabbin Airport until his employer ceased operation. Mr Charles said that he was unable to secure another position in the industry, so he changed to sales, working for several insurance companies and in other short-term sales positions but could not retain positions because of difficulty in concentration and interacting with customers and work colleagues.
7. Mr Charles said that in 1998 he began to work as a driving instructor in his wife’s business until the company closed in 2000, and he attributed the closure partly to his loss of concentration while instructing. He was then employed as a taxi driver, but had several accidents due to lapses in concentration. He worked as a general labourer in his son’s carpentry business for one year, but a number of blackouts and his poor hearing caused him to cease this work because of safety concerns.
Mr Charles explained that his next employment commenced in about 2004 with a labour hire agency in a number of positions, until the agency found him a position as a fork lift driver/store person at an egg producing company. In 2007 he was the only employee who was not offered an individual contract, which he attributed to his psychological state that led to disagreements with other staff, several accidents while operating a fork lift and blackouts arising from a lack of concentration. He said that he has not worked since then because of his PTSD.
8. In a report dated 3 December 2007 Dr R Bonwick, consultant psychiatrist, who has been treating Mr Charles since August 2007, described a history of blackouts, poor concentration and accidents while Mr Charles was driving a fork lift prior to ceasing work in 2007, plus conflict with other workers and anger management issues. Dr Bonwick concluded that Mr Charles’ inability to work for more than eight hours per week was due solely to his war-caused PTSD. In a further report dated 25 January 2010 Dr Bonwick noted that Mr Charles did not suffer from alcohol abuse or dependence and that his earlier assessment remained unchanged.
9. Dr S Wild, psychiatrist, stated in a report dated 18 March 2011 that
Mr Charles’ alcohol-related emotional and behavioural symptoms would make it difficult for him to continue to work in his previous occupations such as aviation engineer or fork lift driver. Dr Wild concluded that he was not sure whether
Mr Charles was prevented from working more than eight hours or 20 hours per week because of his psychiatric condition.
10. Dr R Horsley, occupational physician, noted in a report dated 12 May 2011 that Mr Charles had a taxi licence, a fork lift licence, and excavator and bobcat certificates. She stated that the accepted condition of irritable bowel syndrome had no impact on Mr Charles’ ability to work, while his sensorineural hearing loss and bilateral tinnitus did potentially impact on the type of work he could undertake.
Dr Horsley concluded that, on the basis of the accepted physical conditions,
Mr Charles had the capacity to work for more than eight hours or more than 20 hours per week, although she acknowledged that psychiatric issues relating to PTSD must be taken into account.
11. In a report dated 4 March 2008 Dr L Van Geyzel, occupational physician, stated that irritable bowel syndrome would not impact negatively on Mr Charles’ ability to work, and the hearing conditions may render him unsuited to work where safety issues require a mandatory level of hearing. Dr Van Geyzel said that the mini blackouts might be neurological in origin rather than psychiatric, and would render Mr Charles incapable of working as a fork lift driver or in any other position involved in driving a vehicle. However Dr Van Geyzel also noted Dr Bonwick’s opinion and stated that, given the difficulties outlined by Mr Charles, it appears medically reasonable to accept that the psychiatric condition renders Mr Charles incapable of working more than eight hours per week in the long term.
12. In a report dated 14 December 2010 Dr C Thomas, consultant in rehabilitation and pain medicine, said that from a physical point of view Mr Charles presents as a very healthy man who is not suffering from any physical disability that would affect his ability to work for more than eight hours per week. He noted that any assessment of inability to work arising from Mr Charles’ PTSD would be a matter for psychiatrists.
13. The Tribunal accepts the evidence from Dr Horsley, Dr Thomas and Dr Van Geyzel that the accepted physical conditions do not prevent Mr Charles from working more than eight hours per week. However after taking into account the evidence from psychiatrists the Tribunal finds that Mr Charles’ evidence is consistent with the conclusions by Dr Bonwick, whose evidence is preferred to the equivocal conclusions by Dr Wild. The Tribunal is reasonably satisfied that Mr Charles’ inability to work for more than eight hours per week is due to his war-caused condition of PTSD alone, and therefore he satisfies s 24(1)(b) of the Act.
DOES MR CHARLES’ WAR-CAUSED INCAPACITY ALONE PREVENT HIM FROM CONTINUING TO UNDERTAKE REMUNERATIVE WORK?
14. Mr Charles told the Tribunal that his war-caused condition of PTSD prevents him from continuing to undertake remunerative work. He explained that during his employment with the egg producer he was having significant problems coping with his duties as a result of his PTSD, and was making mistakes such as picking the wrong orders because of lapses in concentration. In addition he experienced blackouts while driving the fork lift, resulting in regular reprimands from his supervisor and a number of incidents when he accidentally drove the fork lift into other vehicles or pallets of eggs. He narrowly avoided injuring other staff.
15. In relation to ongoing employment, Mr Charles stated that the egg producer wished to place each of its casual staff on an individual workplace agreement (known as an Australian Workplace Agreement or AWA). He was the only person at the company engaged by the labour hire agency, and said that he expected to be offered employment in the form of an AWA, but he was not, which he believes was due to concerns by the employer about his performance and occupational health and safety issues. Mr Charles said that he obtained a copy of the AWA from another worker and discussed the matter with the labour hire agency, which he said had lost its contract with the egg producer and which advised him not to sign the AWA but to remain with the agency in order to obtain other work. Mr Charles emphasised that the agency did not offer him any other employment, which he attributed to his psychological issues.
16. Mr Charles said that he and his wife then contacted a number of employers and agencies seeking employment for up to eight hours per week based on
Dr Bonwick’s assessment of his work capacity but was unsuccessful because of the work restrictions caused by his PTSD symptoms. Under cross-examination he denied that he received an AWA from the egg producer but had failed to sign it because of the less favourable working conditions and remuneration contained in the proposed agreement. He was adamant that his alcohol consumption had never prevented him from performing his duties competently in any employment he had undertaken.
17. Mr Charles agreed that in evidence to the Veterans’ Review Board (VRB) he stated that he was told by the egg producer in 2007 that the company wanted to cut costs so they told everyone that they would …take everyone on that’s casuals…
He also agreed that the transcript of the VRB hearing on 9 September 2010 records his evidence that shortly before 20 July 2007 the company said …Right. You got your forms signed? And I said “No.” And they said: “Right. There’s no work for you tomorrow.” Mr Charles reiterated he had not been given an AWA to sign, as he had only obtained a copy from a colleague.18. Mr Charles agreed further that he contacted the labour hire agency on 22 May 2007 with his concerns about his prospects of being offered an AWA and that the agency recorded the following:
Spoke w Seaton regarding the AWA Farmpride are pushing through. He has only had a quick glimpse of the initial AWA before it was confiscated by union reps….he has indicated that he will probably not sign it, but is waiting for a revised copy to look out [sic] before making a final decision.
Mr Charles said that the record of conversation is accurate because the initial AWA referred to the copy he borrowed, and a revised copy referred to an actual AWA that he never received.
19. Mrs M Charles told the Tribunal that she met Mr Charles after his return from Vietnam and they were married in 1974. She said that from the beginning of the marriage Mr Charles had difficulty sleeping and experienced nightmares. He also suffered from poor concentration and memory, and drank alcohol to excess, although his drinking did not affect his ability to work. She noted that he was first diagnosed with PTSD in 2005 and said that she believed he had been suffering from the symptoms since she met him. Mrs Charles described how Mr Charles was unable to hold jobs as a driving instructor, labourer and taxi driver because of conflict, poor concentration and anger management issues related to his PTSD.
20. In relation to Mr Charles’ employment with the egg producer, Mrs Charles said that he admitted losing concentration and experiencing blackouts which she feared might be due to neurological issues, but a brain scan in 2008 showed no abnormality. She explained that in 2007 the egg producer decided to hire staff directly rather than through the agency, but that Mr Charles was the only person not offered employment, which she attributed to the company’s view of his work performance as a result of psychological problems arising from his PTSD symptoms. She confirmed that Mr Charles obtained a copy of the AWA from another worker and took it to the labour hire agency which advised him not to sign. Mrs Charles maintained that despite the work restrictions imposed by Dr Bonwick, the family’s financial difficulties at that time required Mr Charles to seek employment, so she submitted numerous job applications on his behalf seeking work for up to eight hours per week but these were unsuccessful.
21. Dr Bonwick said that Mr Charles’ PTSD alone prevents him from continuing to undertake remunerative work because of the issues relating to blackouts (which he characterised as impairment of attention caused by PTSD), poor concentration, irritability, stress and difficulty interacting with other people in the workplace.
Dr Bonwick noted that treatment has included medication which has helped to some extent, but that blackouts have continued and are likely to do so in the future. In relation to alcohol use, Dr Bonwick said that Mr Charles’ drinking has not had any impact on his capacity for employment.
22. Dr Wild told the Tribunal that after carrying out a medico-legal psychiatric assessment as requested by the respondent he was sceptical about the diagnosis of PTSD and preferred a diagnosis of alcohol abuse, based on a history of excessive alcohol consumption and because of additional information about Mr Charles’ experiences in Vietnam provided to him in 2011. Dr Wild concluded that it would be difficult to envisage Mr Charles continuing to work as he had done because of blackouts and his general demeanour, although Dr Wild attributed this to alcohol abuse which makes occupations such as fork lift driving unsafe, and the onset of the blackouts, the cause of which Dr Wild said remained obscure.
23. Under cross-examination Dr Wild agreed that PTSD had been accepted as a war-caused condition about six years before his assessment of Mr Charles, and that he was aware that the application for review was limited to the question of
Mr Charles’ work capacity rather than issues concerning diagnosis. Dr Wild agreed further that the symptoms of PTSD may be similar to those of alcohol abuse, and that disentangling or differentiating the symptoms of the two conditions is extremely difficult. Dr Wild did not concede that Dr Bonwick, as the treating psychiatrist, was necessarily in a better position to assess questions of work capacity than an independent psychiatrist undertaking a medico-legal assessment.
24. Mr W Charles (Mr Charles’ son) told the Tribunal that he is a self-employed carpenter in the building industry. He confirmed that in about 2001 he employed
his father as a labourer, but after one year they came to an understanding that
Mr Charles could not continue because of serious safety concerns arising from
his frequent lapses in concentration and hearing problems. He also confirmed that when growing up he observed that Mr Charles suffered from anger management issues, stress and sleeping difficulties.
25. In a statement dated 10 October 2008 Mr D Marcovici said that he worked at the egg producer as a Leading Hand for a number of years and observed that
Mr Charles preferred to work alone. He stated that occasionally Mr Charles became aggressive towards other employees, and appeared to be dazed at times or even asleep standing up. In a statement dated 29 October 2010 Mr N Harper said that he was engaged as a fork lift driver by the egg producer under a labour hire agreement on 18 July 2007 and worked with Mr Charles for about two or three days before
Mr Charles ceased employment. He said that effectively Mr Charles trained him to take over the role performed by Mr Charles.
26. In Flentjar v Repatriation Commission (1997) 48 ALD 1 the Full Federal Court described the test in s 24(1)(c) of the Act as:
(1) What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
(2) Is the veteran, by reason of war caused injury or war caused disease, or both, prevented from continuing to undertake that work?
(3) If the answer to question 2 is yes, is the war caused injury or war caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
(4) If the answer to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
27. In Cavell v Repatriation Commission (1988) 9 AAR 534 Burchett J said that decisions regarding s 24(1)(c) should be made with an eye to reality and that common sense is the proper guide. This principle was supported in Forbes v Repatriation Commission (2000) 101 FCR 50.
28. In Banovich v Repatriation Commission (1986) 69 ALR 395 the Full Federal Court stated at 402-3:
…the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity.
29. In applying Mr Charles’ circumstances to the Flentjar test, the answer to question one is operating a fork lift and working as a store person, which is the most recent type of work performed by Mr Charles since his discharge from the army. On the available material the Tribunal concludes that Mr Charles is prevented from continuing to undertake that work by reason of his war-caused condition of PTSD, so the answer to question two is yes.
30. In relation to question three the Tribunal takes into account the evidence from Mr Charles and Mrs Charles plus the medical evidence about the effect of the accepted physical and psychiatric conditions on Mr Charles’ ability to work. The Tribunal accepts that the war-caused physical conditions do not prevent Mr Charles from continuing to work as a fork lift driver/store person. In respect of the psychiatric issues the Tribunal places little weight on Dr Wild’s evidence. His diagnosis of alcohol abuse was based on material that was not relevant to the question of work capacity and was made several years after PTSD was accepted as war-caused. This material did not form part of the evidence before the Tribunal as it was not relevant to the issue of special rate of pension. In addition the Tribunal takes into account the concession by Dr Wild that the symptoms of PTSD and alcohol abuse may be similar. The Tribunal also notes that there is no evidence to support
Dr Wild’s conclusion that Mr Charles’ alcohol consumption had an adverse impact on his capacity to work at any time since leaving the army.
31. The Tribunal places considerable weight on the evidence of Dr Bonwick who, in the circumstances of this application, is best placed as the treating psychiatrist to provide an accurate assessment of Mr Charles’ work capacity and the reasons for his inability to continue to undertake his previous occupation. The Tribunal also finds Mr Charles to be an impressive witness who demonstrated a frank and candid assessment of his desire to work and to provide for his family, but has been prevented from returning to his previous occupation because of his behavioural and emotional issues arising from his PTSD. This is supported by the evidence from
Mrs Charles, whom the Tribunal also found to be credible and honest in her attempts to help Mr Charles to find work, but who recognised that he could not continue as a fork lift driver/store person because he was a danger to himself and others as a result of PTSD, and not from alcohol consumption or any other factor. The evidence from Mr W Charles, Mr Marcovici and Mr Harper adds weight to the consistency and accuracy of Mr Charles’ evidence.
32. For these reasons the Tribunal concludes that Mr Charles’ PTSD is the only factor preventing Mr Charles from continuing to undertake his previous work, so the answer to question three is yes.
33. In relation to question four the Tribunal accepts Mr Charles’ evidence as plausible and accurate that he expected to be offered an AWA by the egg producer and that after he obtained a copy from a colleague he discussed it with the labour hire agency but was never offered an AWA to sign, although he was keen to continue working. This is supported by Mrs Charles, who encouraged Mr Charles to continue to work with the egg producer, despite his PTSD and the reduced remuneration proposed in the AWA, because of financial difficulties faced by the family at the time. The Tribunal considers that Mr Charles’ evidence to the VRB, when taken in context, and the notes recorded by the labour hire agency, are not inconsistent with his account of the situation in which he found himself in July 2007 when he ceased work, and therefore he suffered a loss of earnings by losing his employment.
34. For these reasons the Tribunal finds that, by reasons of being prevented from continuing his previous work Mr Charles suffered a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of the war-caused PTSD. Therefore the answer to question 4 is yes.
35. Consequently Mr Charles satisfies s 24(1)(c) of the Act and there is no need to consider s 24(2)(a) or s 24(2)(b) of the Act. He meets the criteria for the grant of special rate.
DECISION
36. The Tribunal sets aside the decision under review and substitutes a decision that Mr Charles is entitled to disability pension at the special rate with effect from
17 August 2007.
I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision of:
G. D. Friedman, Senior Member
(sgd) Kate Conners
Associate
Dates of hearing: 25 and 26 August 2011
Date of decision: 2 September 2011
Counsel for the applicant: Ms F Ryan
Solicitor for the applicant: Williams Winter
Advocate for the respondent: Mr K Rudge
Department of Veterans’ Affairs
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