Child and Repatriation Commission

[2005] AATA 411

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 411

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/762

VETERANS’ APPEALS DIVISION		)
Re		JOHN CHILD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Ms M J Carstairs, Member

Date9 May 2005

Place Brisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to pension at the special rate with effect from 22 October 2002.

..........[Sgd].........

M J Carstairs
  Member          

CATCHWORDS

VETERANS’ AFFAIRS –veterans’ entitlements - post-traumatic stress disorder – ability to work – whether special rate applies

Veterans’ Entitlements Act 1986 ss 19, 24

Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Flentjar v Repatriation Commission (1997) 48 ALD 1
Cavell v Repatriation Commission (1988) 9 AAR 534
Hall v Repatriation Commission (1994) 33 ALD 454

REASONS FOR DECISION

9 May 2005 Ms M J Carstairs, Member

1.      This is an application by John Child (the applicant) for review of a decision made by the Repatriation Commission (the respondent) and affirmed by the Veterans’ Review Board that the applicant’s disability pension is payable at 100% of the General Rate of pension and not a higher rate.  

2.      At the hearing the applicant was represented by Mr Anderson of Counsel instructed by Terry O’Connor Solicitor. The respondent was represented by its advocate Mr M Smith.   

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1-A4 for the applicant and R1 for the respondent.

BACKGROUND

4.      The applicant is aged fifty-five.  He left school at the age of fifteen having achieved the equivalent of a Grade Nine education.  He had a number of labouring jobs after leaving school and also partially completed training as a tiler.  He served in the Australian Army between 1968 and 1970 including a year in Vietnam as a rifleman.

5.      After leaving the army the applicant obtained casual work as a labourer in the family building business.  After his grandfather retired from building, the applicant then obtained other work, including as a warehouse storeman.  He achieved qualification as a forklift driver.  From 1989 to 1996 he operated a forklift at Dairy Farmers on the night shift.  The applicant left this employment at the age of forty-eight and has not worked since. 

6.      In early 1997 he and his mother moved to Queensland.  Prior to the move they had lived together in Sydney.  His mother, who was seriously ill, died in 1999.  For some eighteen months before her death the applicant cared for her and was paid Centrelink carer payments.   

7.      The applicant was granted service pension in 1998.   The applicant stated in his claim form for service pension dated 14 May 1998 that he left work at Dairy Farmers because of illness.  In the part of the service pension claim form that is filled in by a doctor, Dr R Smith, general practitioner, cited the conditions of post traumatic stress disorder (PTSD) and lumbar spondylosis as incapacities which would affect the applicant’s capacity for employment.

8.      On 22 October 2002 he claimed for an increase in the rate of disability pension.  He was then aged fifty-three.  This is the starting date for the assessment period.   

EVIDENCE

9.      In a written statement dated 29 October 2004 (exhibit A1) the applicant referred to drinking problems that he experienced shortly after he returned from Vietnam.  He stated that drinking problems affected his working life as he was drinking heavily including sometimes in working hours.  He said that on a number of occasions at work he was physically violent to others, even his supervisors.  As a result of one such occurrence he was asked to leave the employment.

10.     The applicant said that whenever seeking employment he had a practice of telling employment agencies that he preferred working in positions where he could work alone.  He said he told this to Manpower Agency, who assisted him in obtaining casual work.  When he obtained employment at Dairy Farmers he told the employer that he wanted to work the night shifts. 

11.     The applicant referred to several incidents at Dairy Farmers where he pushed or punched others.  He said that these incidents went unreported.  No medical intervention was required as a result of the incidents and in those circumstances the employer did not require a written report.  He also said that at Dairy Farmers there was a convention amongst the shift workers that what happened on night shift stayed on night shift.  He said that he would drink at night before commencing his shift at Dairy Farmers and sometimes drank at work as alcohol helped him cope with his inability to get on with others.  He stated that he was not aware until diagnosed in 1998 with PTSD that he had a psychiatric condition. 

12.     The applicant said that he was worried that altercations at work were happening more frequently and he was concerned in case he seriously injured someone.   He said that this was the main factor for his decision to leave Dairy Farmers.  The applicant said that his back pain had never prevented him working.  His back condition was not a problem to him when he drove forklifts.  He said that in the past when he held labouring positions he practiced careful lifting to avoid back strain.  The applicant described his back condition as only a minor inconvenience that had played no part in his ceasing work, or in preventing him re-entering the workforce.

13.     The applicant was adamant that the reason for terminating his employment was his concern about his temper and fear of injuring others and denied that he was influenced by his mother’s prospective move to Queensland.  The applicant said that he decided to move with his mother as he felt she should not live on her own, but he made that decision after he had terminated his employment at Dairy Farmers. He said that he had discussed the move with his mother and expressed his concerns about work and that she encouraged him to leave before something serious happened.  He stated that his employers put pressure on him to stay and the move to Queensland was a convenient excuse to remove the pressure of their urging that he stay on.

14.     The applicant said that for a year after he went to Queensland he tried to obtain work as a storeman, forklift operator, or labourer, anywhere between Brisbane and Gympie.  He said that he was interviewed on a couple of occasions if he called in upon an employer rather than making a written application for an advertised vacancy, but these were the only interviews he obtained.  The Blue Nursing Service who attended his mother suggested that he apply for a Centrelink carer pension and he then received this payment for caring for his mother until she died in 1999.   

15.     The applicant said that he still considers himself employable but he was told in 1998 by Dr Gelb that he must cease looking for work.

16.     The applicant’s sister Debra Hawkes gave oral evidence that the applicant exhibited terrible anger and that other family members avoided him.  She did not recall taking part in discussions with the applicant concerning his move to Queensland and said that the siblings simply assumed that he would accompany their mother.  She said that she was aware that her brother was not coping at work.

17.     In a report dated 8 May 1998 (T4, p1-3) Dr Smith stated that the applicant had lumbar spondylosis for years with some restriction of back movement.  Dr Smith recorded his view that the back condition would possibly affect the applicant’s ability to work in moderately heavy employment or heavy jobs.  Dr Smith stated that the applicant would be capable of moderate/skilled or unskilled work if there were no lifting component, but his back made him unsuitable for any heavy work.  In a letter dated 21 January 2005 (exhibit A2) Dr Smith stated that the applicant was totally and permanently incapacitated by PTSD and diabetes alone and that lumbar spondylosis did not prevent the applicant working.

18.     In oral evidence Dr Smith said that he has treated the applicant since 1996.  He noted that there was no specific clinical record that the applicant had attended for back pain.   Dr Smith said the applicant had a minor limitation of back movement and treatment would be simple analgesics.  Dr Smith said that the applicant’s back condition would not prevent him from working.  He said the applicant might experience some discomfort operating a forklift, but back pain would not prevent him doing this work. 

An employer statement completed by Dairy Farmers stated that the applicant was employed from 28 December 1989 to 8 March 1996 as a forklift driver, but Dairy Farmers Group no longer held the applicant’s sick leave records and letter of resignation. 

20. In a letter dated 10 March 2003, Centrelink wrote to the Department of Veterans’ Affairs stating that the applicant received the following Centrelink payments:

§  Newstart allowance                  9 April  1996    -   19 March 1997

§  Carer pension  20 March 1997  -  11 June 1998

§  Carer allowance  8 July 1999     -    9 December 1999

The letter continued:

Mr Child was paid Newstart to look for full time paid work with no medical limitations.  He was then paid Carers Pension and Allowance to provide full time constant care and attention for his late mother until her death……there is no information on our files or records to indicate that Mr Child had any physical, mental, emotional or medical limitations of any kind while being paid by Centrelink.

21.     In a written report dated 13 December 2004, Dr J Gelb, consultant psychiatrist said that the applicant is totally and permanently incapacitated by PTSD alone, though diabetes (a condition accepted as related to war service) made a small contribution to his inability to work.    Dr Gelb said that he believed that the applicant suffered from PTSD from the time of his return from Vietnam despite having no  treatment for the condition.  He noted that on his return from Vietnam he was having difficulty sleeping and was drinking heavily.

22.     Dr Gelb referred to the applicant’s work history including his employment as a warehouse storeman and forklift operator.  The applicant had described to Dr Gelb a number of clashes in the workplace over his working life, including the occasion of  physical violence to a supervisor when he was required to leave work by accepting retrenchment.  The applicant told Dr Gelb that he drank at work regularly and that he was a loner who was avoided by others because of his temper.   The applicant told Dr Gelb that he was frequently intoxicated at work, had an increasing number of incidents at Dairy Farmers, and said that he was worried that he would drive the forklift at someone in a fit of anger.

23.     Dr Gelb said that when the applicant moved to Queensland he at first actively sought employment, as was required by Centrelink for the payment of newstart allowance.  The applicant told Dr Gelb that he was not offered an interview during the twelve months that he was looking for work.  Dr Gelb said that when he diagnosed the applicant’s PTSD in 1998, he strongly advised him not to continue seeking work.

24.     In oral evidence Dr Gelb said that the applicant had a long history demonstrating classic symptoms of PTSD even though the disease was not diagnosed until 1998.  He said that the applicant’s PTSD is particularly severe and he described it as one of the most symptomatic cases of PTSD that he had experienced in medical practice.  Dr Gelb noted that the severity of the applicant’s condition is not readily appreciated, and the applicant has limited capacity for self-control, readily flying into dangerous rages.  He said therapeutic treatment had not been fully effective but has averted the disasters that might have occurred without treatment.  Dr Gelb said the applicant has no capacity to work. 

25.     Dr Gelb said that he received information from the applicant’s mother and sisters when he commenced treating the applicant.  He said the applicant’s mother was greatly concerned for her son’s psychiatric state and told Dr Gelb that he was difficult to tolerate within the family.  Dr Gelb said that the applicant’s sisters had provided him with other information and they were the source of the view recorded in Dr Gelb’s report that things were deteriorating at the applicant’s work at Dairy Farmers.

CONSIDERATION OF THE ISSUES

26. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) provides as follows:

(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

….

(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

…..

(2)       For the purpose of paragraph (1)(c):

……

(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.

27.     Section 19(5C) of the Act requires that the rate of pension is determined during the assessment period, then defined in s19(9) of the Act as the period starting on the application day (here 22 October 2002) and ending when the claim is determined.

28. The parties agreed that s24(1)(a) and s24(1)(b) of the Act were satisfied throughout the assessment period and the Tribunal accepts the correctness of that concession, as there is no medical or other evidence to the contrary. Dr Gelb and Dr Smith agree that the applicant is totally and permanently incapacitated for work for reasons of war caused disability alone.

29. The application of s24(1)(c) of the Act involves a hypothetical exercise which requires consideration of what the applicant would probably have done from the start of the assessment period in the absence of his accepted disabilities: Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. If there are factors other than accepted disabilities which would have prevented the applicant from continuing to undertake remunerative work, his claim will fail.

30.     The Federal Court in Flentjar v Repatriation Commission (1997) 26 AAR 93 said that a proper consideration of s24(1)(c) of the Act requires responses to the following questions:

“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 answers 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?”

31.     In reaching a decision the Tribunal takes into account the written and oral evidence and the submissions.  The Tribunal takes into account that in Cavell v Repatriation Commission (1988) 9 AAR 534 the Court said that when considering the provisions of s24 of the Act a commonsense approach must be maintained.

32.     In respect of question 1 the Tribunal finds that the remunerative work that the applicant was undertaking was that of forklift driver as well as general storeman’s duties.  In respect of question 2 the Tribunal accepts the applicant’s evidence about his concerns relating to his aggressive behaviour at work as an honest account of his reasons for leaving his last employment.  The Tribunal accepts that he was seriously concerned in his last workplace that he would cause harm to others and accepts Dr Gelb’s evidence that these were genuine concerns of danger to others because of the severity of his PTSD.  Dr Gelb had the opportunity to consult other members of the family who also reported to him that the applicant was angry even within the family.  His sister, Mrs Hawkes confirmed that the applicant was not getting on well at work.  The Tribunal accepts the applicant’s evidence, as supported by medical evidence, that he was prevented by reason of war-caused disability alone from continuing to undertake remunerative work that he was undertaking.

33.     In respect of question 3 the Tribunal takes into account that the applicant was only forty-eight at the time of his resignation from Dairy Farmers and was fifty-three at the start of the assessment period.  His was not employment that required frequent updating of skills.  Furthermore it was not employment where time out of the workforce would be an impediment to securing further employment, particularly when he is relatively young throughout the assessment period, and well below normal retirement age.  The applicant retained the licence to operate a forklift and had extensive experience in forklift driving.  There was no evidence that his increasing age was an impediment to obtaining employment as a forklift driver and the Tribunal does not draw the inference that his failure to find employment in Queensland was as a result of his age.  In forming this view the Tribunal took into account that the employment questionnaire filled in by Dairy Farmers Group nominated forklift driver as light semi-skilled work, and this suggests that it is work well suited to a range of ages.    

34.     There was some inconsistency in the applicant’s evidence concerning his efforts looking for work after leaving employment at Dairy Farmers.  In a form dated 18 January 2001 the applicant stated that, since ceasing his last employment, he had not been seeking other employment due to my continuing bad memories, nightmares of Vietnam – I can’t deal with people.  However the Tribunal took into account the evidence about the requirement to look for work as part of his obligations when receiving newstart allowance from Centrelink.  The Centrelink letter dated 10 March 2003 confirmed that he was required to look for full-time paid work without medical limitations.   

35.     The Tribunal accepts that the applicant did seek work actively for the first year or so after leaving Dairy Farmers and accepts the evidence of Dr Gelb that in 1998 he instructed the applicant that he should not seek work.   Dr Gelb was very clear in his evidence that the applicant not only is incapable of working, but is a danger to others because of his violent mood swings.

36. Thus at the time that is relevant to the decision under review, that is from the start of the assessment period, the applicant was under medical instructions that he was not to seek work. He had been diagnosed with severe PTSD and the problems that he had experienced in his working life were explained by that diagnosis. There are no other medical conditions that prevent the applicant continuing to undertake remunerative work, as is made plain in Dr Smith’s evidence. The Tribunal does not accept that the period when the applicant received carer pension in respect of his mother, or his receipt of service pension payments, prevents him satisfying the requirements of s24 of the Act at a later time.

37.     Therefore the answer to the third of the Flentjar questions is yes.  In respect of question 4 the Tribunal finds that the applicant’s inability to work has resulted in a loss of wages that was caused by his condition of PTSD.

38.     For these reasons the Tribunal accepts the submission by Mr Anderson that the applicant satisfies the requirement of s24(1)(c) without the need to rely on s24(2)(b). Section 24(2)(b) is known as the ameliorating provision, as it allows where a person under 65 years is genuinely seeking work, that service related conditions only need be the substantial, rather than the sole, cause of incapacity for work. The Tribunal agrees with Mr Anderson’s submission that Dr Gelb’s clear advice to the applicant in 1998 that he should not be seeking work puts the applicant’s case into the category of cases referred to in Hall v Repatriation Commission (1994) 33 ALD 454 where the requirement that the applicant be seeking work would involve something of a charade. 

DECISION

39.     The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to pension at the special rate with effect from 22 October 2002.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member  

Signed:          Camille Banks

Associate

Date/s of Hearing  31 March 2005
Date of Decision  9 May 2005
Counsel for the Applicant         Mr R Anderson
Solicitor for the Applicant          Terry O'Connor
For the Respondent                  Mr M Smith, Departmental Advocate