Clark and Repatriation Commission

[2008] AATA 126

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 126

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1898

VETERANS' APPEALS DIVISION		)
Re		RONALD STANLEY CLARK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

P McDermott, RFD Senior Member

Mr S Karas, AO, Senior Member

Date19 February 2008  

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes in lieu thereof its decision that the applicant is entitled to pension at the Special Rate pursuant to section 24 of the Veterans’ Entitlements Act 1986, as and from 30 January 2004.

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

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – special rate pension – whether the “alone” test is satisfied – Decision set aside

Administrative Appeals Tribunal Act 1975 s37

Veterans’ Entitlement Act 1986 ss 9, 24

Flentjar v Repatriation Commission (1998) 48 ALD 1 at 405
Cavell v Repatriation Commission (1988) 9 AAR 534 at 539

REASONS FOR DECISION

19 February 2008 Senior Member McDermott
Senior Member Karas        

1.      Ronald Stanley Clark (the applicant), applied to the Administrative Appeals Tribunal (the Tribunal) on 17 May 2007 for review of a decision of the Veterans Review Board (VRB) made on 12 April 2007.

2.      The decision by the Repatriation Commission 13 June 2006 increased the disability pension to 100% of the general rate.  The VRB affirmed the decision under review and found that the applicant was not eligible for payment of pension at the Special Rate.

3.      The applicant was represented by Mr G Kalimnios at the hearing held on 6 December 2007. Mr M Smith appeared for the respondent Repatriation Commission. The Tribunal had before it the T-documents lodged in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 together with other documents as follows:

·The respondent’s Statement of Issues enclosed under cover of its letter dated 21 May 2007.

·A transcript of the VRB hearing held on 12 April 2007.

·A report by Dr Smith submitted by the Respondent dated 22 August 2007.

·A Statement of Issues dated 16 July 2007 filed by the applicant’s representatives, Cockburn Legal and Consulting and a Statement of the Applicant dated 11 May 2007.

·A report by Dr Saul Geffen dated 6 September 2007

·The Respondent’s Statement of Facts and Contentions dated 6 November 2007

·A Statement of Facts and Contentions dated 7 November 2007 with a copy of a Statement of the applicant dated 16 October 2007.

4. The Tribunal notes that the VRB in a decision dated 23 January 2006 found that the applicant’s post traumatic stress disorder (PTSD), alcohol dependence and alcohol abuse were war caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (the Act).  As well, it was accepted that the applicant was also incapacitated by bilateral sensor-neural hearing loss with tinnitus and lumbar spondylosis.  These conditions are also war caused.

5.      The applicant had seen service in Vietnam with the Australian Army in 1967 – 1969.  He worked in a number of jobs over the years and last worked as a mail sorter with Australia Post before leaving that position in December 1998.  The applicant claimed he left work mainly because his hearing and back condition impacted on his capacity to work.  As well, he was suffering stress on the job and had knee problems.

6.      In a report dated 10 March 2005, a psychiatrist Dr B Anderson, who was the applicant’s treating doctor provided an opinion that the applicant suffered from PTSD, alcohol dependence and major depression and that he considered “him unable to work up to 8 hours per week” due to his “service related conditions alone….”.

7.      Dr H Khursandi, in a report dated 14 March 2006 and a supplementary report dated 3 May 2006, was of the opinion that the applicant had the capacity to work 8 – 20 hours a week in a sedentary position and that his back and knee condition contribute 50 per cent each to the applicant’s incapacity to work full time.

8.      Dr Smith, General Practitioner, who has been the applicant’s doctor for some years,considered that the applicant could not work at all because of his PTSD, lower back condition and left knee.

9.      Dr Saul Geffen, in a report dated 6 September 2007, found that the applicant’s “controlled asthma and significant osteoarthritis of his left knee” would “not prevent him working in a light sedentary occupation nor indeed in accessing normal work”.  The doctor further noted in the report that in his “medical opinion that the medical issues that prevent him working are his accepted service related complaints”.

10.A hearing of this matter was held in Brisbane on 6 December 2007.

11.The applicant gave evidence to the effect that:

·     He has difficulty “recalling things” due to his service medical ailments.

·     He is on medication.

·     He was in the Army as a national serviceman from 4 October 1967 to 4 October 1969 and that he served in Vietnam.

·     He has a back and knee problem and other medical ailments.

·     He left school at 14 years and has had a number of jobs including general labouring work both before and after his Army service.

·     He was at Australia Post for 16 years as a mail sorter and left in 1998, at 52 years of age, as his “back was playing up badly”.  He was drinking, on medication and having flashbacks.  He was irritable, suffering PTSD, “things were getting on his nerves”, he was “forever drinking”, he had hearing problems and his left knee was “playing up”.   He keeps to himself and has only one mate.

·     He referred to his resignation letter to Australia Post in November 1998 when he was “stressed out” and his “brain was not thinking” at a time when he was having problems with others in the workplace and he feared he might be sacked.

·     When he wrote the resignation letter to Australia Post he “was very confused” and “could have explained things better”.

·     He was always trying to be honest.

·     He applied for a service pension in 2004.

12.     Dr Bob Anderson, who gave evidence by telephone, referred to his earlier written reports and his treatment over time with the applicant relating to his Army service conditions.  He first saw the applicant in 2004 and he is still his patient.  He described the applicant as not being a happy man who suffered severe depression, who cannot think quickly and has anxiety and “intrusive memories of Vietnam”.  He stated the applicant’s knee was not the cause of his resigning from Australia Post and despite the non-constant pain the knee had become worse.

13.     Dr Geffen, who gave evidence by telephone, stated that the applicant had had “multiple traumas in life”.  He referred to his 6 September 2007 report and the applicant’s knee problem noting that the knee could be painful and that this would not prevent him from doing sedentary work, although he might not be able to work “for other reasons”.  He thought the applicant was not an articulate person and that his knee did not prevent him from working.  Dr Geffen also thought it could restrict his ability to work.  (Dr Geffen saw the applicant on one occasion for about 45 minutes).

14.     Dr Khursandi, who gave evidence by telephone, referred to his two reports in 2006 after seeing the applicant on one occasion for about an hour.  He thought the applicant’s back and knee could affect his ability to work and that the applicant would have difficulty crouching or squatting.

15.The applicant gave further evidence stating

·     He was not quite sure about what he meant about the effect of his knee injury and his ability to work although he did have pain in both his back and knee.

·     He was confused and under pressure when he left Australia Post and did not know why he raised his knee problem although he had not raised it or mentioned it earlier.  He stated he gave honest answers at the time as he perceived things.

·     After leaving Australia Post he looked for work for a time before doing some volunteer work.  He had no job interviews but did advise of his health.

16.     After the hearing Mr G Kalimnios under cover of letter dated 21 December 2007 made a lengthy submission to the Tribunal on behalf of the applicant.   Mr M Smith on behalf of the respondent made a further submission on 24 December 2007.

17.     The Tribunal finds that the applicant was credible with his answers and has no reason to doubt his evidence.  The main reasons for his leaving work at Australia Post are on balance service related as identified also by his treating doctors.  Although the applicant referred to a number of ailments and concerns for his reasons in leaving Australia Post, the Tribunal finds that he was being particularly honest and up front in referring to even “trivial” ailments or concerns like his knee when in fact the doctors had identified the service conditions like PTSD, alcohol dependence and his hearing difficulties as the reasons involved.  The Tribunal also notes that the applicant made genuine efforts to seek work when on Newstart and that these efforts were unsuccessful.  Indeed it appears at the time that the Commonwealth Employment Service was satisfied the applicant was genuinely making efforts to seek employment.

18. Section 24 of the Act, provides for the Special Rate of pension sought by the applicant. We should mention that the respondent has quite properly conceded that the veteran satisfies s 24(1)(a) and s 24(1)(b) of the Act. The essential ground for the application for review to this Tribunal is that the Veterans Review Board erred when it determined that the applicant did not satisfy the “alone” test set out in section 24(1)(c) of the Act.

19. The requirements of section 24(1)(c) of the Act have been considered by the Full Court of the Federal Court in Flentjar v Repatriation Commission (1998) 48 ALD 1 at 405. Where the Court identified four factors to be considered in relation to section 24(1)(c). These factors provide as follows:

(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?

20.     The first Flentjar question that we must consider is what was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act. The Federal Court of Australia has held that we should have regard to “the substantial remunerative work that the veteran has undertaken in the past”: see Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. We also appreciate that there must be an identification of the “remunerative work that the veteran was undertaking”.

21.     It was submitted on behalf of the applicant that the remunerative work that the applicant had undertaken was that of a postal worker (unskilled work): see applicant’s submissions dated 21 December 2007, p.13.  The respondent in its final submissions of 24 December 2007 did not reply to this submission. From 1982 until 1998 the applicant worked as a mail sorter. Viewing the employment history we have taken the view that the remunerative work that the applicant had undertaken could properly be regarded as unskilled work. We would not confine the remunerative work to postal work.

22.     The second Flentjar question that we must consider is whether the veteran is by reason of his war-caused injury or war-caused disease is prevented from continuing to undertake that remunerative work. This second Flentjar question is a judicial formulation of the second limb of s 24(1)(c) of the Act which refers to the veteran being “incapable undertaking remunerative work for periods aggregating more than 8 hours per week”.

23.     We have already referred to the report of Dr Anderson of 10 March 2005. In that report Dr Anderson has referred to the veteran’s service-related conditions of post traumatic stress disorder, depressive disorder and alcohol abuse and dependence. Dr Anderson has expressed his opinion that the veteran is unable to work up to eight hours per week because of his service related conditions alone. We mention that the evidence of Dr Anderson has not been contradicted.

24.     We accept the evidence from Dr Anderson that the accepted psychiatric conditions of the veteran prevent him from working for more than 8 hours per week. Our answer to the second Flentjar question is accordingly: “Yes”.

25.     We must next consider the third Flentjar question which is whether the war-caused injury or war-caused disease is the only factor which prevents the veteran from continuing to undertake that work. This third Flentjar question is a judicial formulation of the first limb of s 24(1)(c) of the Act. We appreciate that this is a question which should be answered “with an eye to reality”: see Cavell v Repatriation Commission (1988) 9 AAR 534 at 539.

26.     We again mentioned the report of Dr Anderson of 10 March 2005. In that report Dr Anderson has expressed the view that the accepted service related conditions of post traumatic stress disorder, depressive disorder and alcohol abuse and dependence prevent the veteran from working eight hours per week because of his service related conditions alone. In examining this issue “with an eye to reality” we have concluded that the veteran ceased remunerative work because of his accepted psychiatric conditions.

27.     We have given some consideration to the orthopaedic conditions of the veteran. His lumbar spondylosis condition is an accepted condition. The veteran also has osteoarthrosis of the left knee. The respondent has contended that the knee condition of the veteran contributes to his incapacity of the veteran. However, under cross-examination Dr Kursani had agreed that the knee pain could be referred pain from the lumbar condition, which is itself an accepted condition, of the veteran.

28.     We appreciate that the veteran has listed his bad knee in an employment report [T4, fol 13]: however, that report did not ask the veteran the reason why he retired. We regard it as significant that the veteran made no mention of his knee condition in his letter of retirement.  We also place reliance upon the report of Dr Geffen of 6 September 3007 in which Dr Geffen expresses the opinion that the osteoarthrosis of the left knee of veteran “does not prevent him from working in a light sedentary occupation”.

29.     The respondent has made submissions that blackouts prevent the veteran from working. On 13 April 2002 the veteran wrote to the Department of Veterans Affairs in which he mentioned the blackout problem. The blackout problem does not appear to have been investigated by the Department. This has the consequence that there is no medical evidence before us as to the cause of the blackout problem.

30.     We also mention that the veteran has not really had the opportunity to obtain medical evidence on the blackouts issue. The issue of blackouts was not highlighted as an issue in the respondent’s statement of issues of 21 May 2007. We appreciate that the statement of issues was expressed to be “without prejudice”. The respondent appears to have first “flagged” the issue of backouts in the respondent’s statement of facts and contentions that was issued on 6 November 2007. This application was heard on 6 December 2007. This would not give the veteran adequate time to obtain specialist medical opinion on this issue in time for the hearing.

31.     We also point out that the veteran has obtained medical evidence from Dr Geffen on the issues of the left knee and asthma conditions which were “flagged” as issues in the respondent’s statement of issues of 21 May 2007.

32.     In relation to the blackout problem the respondent has drawn attention to a passage in the letter of 13 April 2002 in which the veteran remarked: “I get dizzy or giddy when I get up quickly after I’ve been doing some gardening or trying to do some vacuum cleaning and even when I try to carry heavy objects from one place to another”. However, to place those words in some context, we have thought it important to quote the whole sentence in which those remarks appear: “I still have those blackouts but must admit that I haven’t had one now as I am able to control the ones when I get dizzy or giddy when I get up quickly after I’ve been doing some gardening or trying to do some vacuum cleaning and even when I try to carry heavy objects from one place to another”.

33.     In his evidence the veteran has stated that the blackout condition is a reaction to sudden movement and pain felt in his back. The evidence of the veteran that this condition is related to his lumbar condition is consistent with his remarks in his letter of 13 April 2002 which made reference to the fact that the condition occurs when he tries “to carry heavy objects”. In any event we cannot be reasonably satisfied that the blackout problem, of which we have no medical evidence, prevents the veteran from working.

34.     The respondent has also submitted that the asthma condition of the veteran contributes to his incapacity for work and that this is one reason why the veteran finished work. His letter of resignation certainly mentions the smoking in the toilets and locker rooms of the Australia Post premises as well as dust but that letter also stated that three doctors have told him that he is “stressed”. We can appreciate that the veteran found the smoking and dust to be a matter of concern to his health but we are not reasonably satisfied that this was a cause of his inability to undertake remunerative work.

35.     We place reliance upon the report of Dr Geffen dated 6 September 3007 in which Dr Geffen expresses the opinion that the veteran “has non significant and well controlled asthma”. There is no medical evidence to contradict this opinion. Indeed the report of Dr Smith of 22 August 2007 indicates that in May 2002, when the veteran complained of shortness of breath, a CXR reported that the veteran has “normal lung fields” and that the veteran “does not continue to use medication for this condition”.

36.     The respondent has also made submissions concerning the hips of the veteran although in final submissions has quite properly agreed that this condition is not as serious as the knee condition. This may be why this issue of the hips was not “flagged” as an issue in the respondent’s statement of issues of 21 May 2007. Dr Kursani in his report of 14 March 2006 did not mention of the hips of the veteran when reporting on the capacity of the veteran to work [T4, fol 137]. Dr Geffen in his report dated 6 September 2007 noted that there is left hip pain of the veteran, but that this pain did not prevent the veteran from ascending and descending stairs. We do not consider that the hip condition of the veteran is a serious condition which impacts upon the capacity of the veteran to work.

37.     We answer the third Flentjar question, “Yes”.

38.     In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 5, Branson J. (with whom Beaumont and Merkel JJ. agreed) that the fourth question should be answered if “[i]f the answers to questions 2 and 3 are in each case, yes”.

39.     We now have to answer the fourth Flentjar question. This question is whether the veteran by reason of being prevented from continuing to undertake that work is 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. This fourth Flentjar question is a judicial formulation of the second limb of s 24(1)(c) of the Act.

40.     We are reasonably satisfied that this veteran, who had a desire to continue to work, which is evidenced by his attempts to seek work after leaving Australia Post, was prevented from undertaking that work by his accepted psychiatric conditions. The respondent in final submissions has quite properly recognised that “Mr Clark did genuinely seek work in the immediate aftermath of his resignation” (para 15). We answer this fourth Flentjar question: “Yes”.

41. In view of our decision that the veteran satisfies s 24(1)(c) of the Act, we have taken the view that it is not necessary to consider the application of s 24(2)(b) of the Act. The respondent has made submissions that the veteran has not satisfied s 24(2)(b) of the Act because he had not genuinely sought work during the assessment period.

42. If it was necessary for us to consider the application of s 24(1)(c) of the Act, we would have accepted the submission of Mr Kalimnios, of counsel, that this would be a case where to require a veteran to genuinely seek work during the assessment period would (to use the language of Spender J in Hall v Repatriation Commission (1994) 33 ALD 454) would “involve something of a charade”.  This veteran has severe accepted disabilities that preclude his undertaking remunerative work for more than eight hours per week.

43.     We set aside the decision under review and substitute a decision that the veteran is entitled to pension at the special rate with effect from 30 January 2004.  .

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Mr S Karas, Senior Member.

Signed:         .....................................................................................
  E Young, Research Associate

Date/s of Hearing  6 December 2007
Date of Decision  19 February 2008
Date of close of submissions    3 January 2008
Counsel for the Applicant         Mr G Kalimnios
Solicitor for the Applicant          John Cockburn, Legal and Consulting
Respondent  Mr M Smith, departmental advocate