Clarke and Repatriation Commission
[2004] AATA 253
•12 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 253
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/385
VETERANS’ APPEALS DIVISION ) Re
NEVILLE CLARKE
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date12 March 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes a new decision that the applicant is entitled to pension at the Special Rate with effect from 3 May 2000.
...................(Sgd).......................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS - benefits and entitlements – assessment - special rate of pension - whether Applicant’s war caused disabilities alone prevent him from working - Applicant unable to obtain work due to non-service related conditions, his age and the length of time out of the workforce- ameliorating provisions
Veterans’ Entitlements Act 1986 ss 24
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission [2000] FCA 328
Moorcroft v Repatriation Commission [1999] FCA 862
Repatriation Commission v Smith (1987) 15 FCR 337
Stracevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
12 March 2004 Mr O Rinaudo, Member 1. This application is made by Neville A Clarke (“the Applicant”) for a review of a decision of the Veterans’ Review Board dated 27 March 2001 which affirmed the decision of the Repatriation Commission dated 20 December 2000 increasing the disability pension to 100% of the general rate from 3 May 2000. The Applicant is claiming the special rate pension pursuant to section 24 of the Veterans’ Entitlements Act 1986 (“the Act”).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T8) and documentary evidence as follows:
Exhibit 2
Statement of Neville Clarke dated 11 December 2001
Exhibit 3
Letter to Mr John Cockburn from Mr Kenneth R Farquharson (undated)
Exhibit 4
Statement of Iris Scott Clarke dated 6 June 2002
Exhibit 5
Letter from Mr George McIvor to Veterans’ Affairs dated 21 August 2001
Exhibit 6
Progress Medical Report of Dr Tucker dated 31 August 2001
Exhibit 7
Medical Report of Dr Tucker dated 28 November 2002
Exhibit 8
Psychiatric Medico-Legal Report of Dr Mulholland dated 14 January 2002
Exhibit 9
Transcript of Veterans’ Review Board Hearing dated 27 March 2001
Exhibit 10
Report of Dr Mulholland (1 page) dated 14 January 2002
Exhibit 11
Three letters detailing travel arrangements for Mr & Mrs Clarke
3. Mr Harding of Counsel represented the Applicant and Ms Helen Bruce, a Departmental Advocate, represented the Respondent. The Applicant gave oral evidence, as well as Mr Farquharson, Mrs Clarke, Mr McIvor and Dr Tucker. Dr Mulholland gave evidence by telephone.
4. The Applicant was born on 10 July 1937 and served with the Royal Australian Air Force (“RAAF”) from to 9 November 1991. He performed operational service in Vietnam from 7 April 1971 to 6 October 1971. At the time of his resignation the Applicant had attained the rank of Wing Commander and was employed in the Special Duties Branch of the Police Division (T7).
5. The Applicant’s accepted service related disabilities are:
· Sensori-neural deafness with tinnitus
· Cervical spondylosis
· Post Traumatic Stress Disorder
· Chronic Solar skin damage
· Osteoarthrosis affecting both knees
· Rotator Cuff Syndrome of the left shoulder
· Rotator Cuff Syndrome of the right shoulder
· Malignant neoplasm of the prostate
· All malignant conditions- adenocarcinoma of the prostate (treatment only)
· Alcohol abuse or dependence – as conceded by the Respondent at the hearing.
6. The Applicant’s non-service related disabilities are:
· Solar Keratoses Hyperlipidaemia
7. The Respondent conceded the Applicant has satisfied section 24(1)(a) and (b) of the Act at all material times.
8. The issue before the Tribunal is whether the Applicant’s war-caused conditions alone prevented him from carrying out remunerative work, thereby resulting in a loss of salary, wages or earnings, pursuant to section 24(1)(c) of the Act. If the Applicant cannot satisfy the “alone test”, the Tribunal must then consider whether the Applicant’s war-caused conditions substantially contributed to his inability to participate in remunerative work and whether the Applicant was genuinely seeking employment in accordance with the ameliorating provisions contained in section 24(2)(b) of the Act.
Legislative Framework
9. The relevant provisions of the Act are as follows:
“24 Special rate of pension
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
Applicant’s Evidence
10. The Applicant provided reasons in his written statement dated 11 December 2001 (Exhibit 2), as to the manner in which his accepted service related disabilities prevented him from participating in remunerative employment. The following extracts are of particular relevance:
“15. I was often moody and irritable and I was having difficulty keeping concentration. I was also having difficulties sleeping and continued to do so due to the cold sweats and nightmares.
…..
23.During the last 12 months of my service, matters deteriorated over time. I was having a lot of difficulties and in fact started smoking again due to my stress.
24. There were some changes going on to which I just could not adjust. I had completely lost my confidence and was finding concentration almost impossible.
25. I had started relying on my staff officers to make decisions I would normally have made myself. Generally, I just agreed unless the decisions were dangerous or not in the RAAF interests.
… ..
36. My last paid employment was with the Royal Australian Air Force.
37. After leaving the Air Force I applied for a number of positions.
38. I applied for a job with Australian Protective Services. I attended an interview for this position but that was unsuccessful. The panel who interviewed me had known me in the RAAF. In fact one of the interview panel was someone who had been a subordinate office. They knew of my drinking problems and of the fact that I was on a disability pension as a result of active service.
…..
41. I continued to seek work over the years; however, the scope of the jobs I applied for narrowed significantly as I realised there were many things I could not do. The only work I was trained for was intelligence type work and I was unable to do this because of my problems. In particular, I was unable to get an appointment in this type of employment due to the fact that most people working in the area already knew me and were aware of my problems.
…..
48. I have been unable to apply for any physical work due to my orthopaedic conditions”.
11. In his oral evidence the Applicant confirmed that the contents of his statements were true and correct and provided the following additional evidence.
12. A member of the RSL in Sandgate suggested the Applicant see a psychiatrist. After getting a referral from a GP the Applicant saw Dr Leong. He had three appointments with Dr Leong. The Applicant said he felt confused, disappointed, ill at ease and uncomfortable with Dr Leong. He said, “we just didn’t hit it off”. He said he got home the first time and thought, “this is a waste of time”.
13. Mr Clarke said he could not remember saying to Dr Leong his symptoms had caused minimal impairment to occupational functioning as reported by Dr Leong in his report of 17 October 2000, at page 86 of the T documents.
14. Mr Clarke said he was not working when he saw Dr Leong. He confirmed his conditions did affect his work. He said he had not worked since leaving the airforce in 1991.
15. Mr Clarke gave evidence that prior to leaving the airforce he felt “discombobulated” he said he felt “at 6’s and 7’s” and “wasn’t hacking the mission all that well”.
16. After leaving the airforce he attended a college in Canberra to learn about airline passenger seating. He was interested in getting a job assessing threat for businessmen travelling overseas. This job fell through as the company went broke.
17. He then looked for a job as a security officer with Australian Protective Services. He said they knew he “hit the turps a bit”.
18. He then went for an interview for a job in the Attorney Generals Department. He said the interview panel consisted of three persons. Mr Clarke said they asked him inappropriate questions. He took exception to this and after having words with the panel told them to “stick the Job”.
19. Mr Clarke said he tried to find work. He approached the Crime Commission and in 1998 sought work with prisons.
20. Mr Clarke said when he left the airforce he was 54. He said he intended to use his experience and knowledge to work to 60.
21. Mr Clarke was cross-examined about the assertion made at paragraph 28 of his statement which read:
“I realised that a full medical board would probably be the end of my career in the Service due to my anger, loss of confidence and significant drinking habit”.
He conceded he had not sought help for his drinking habit nor had he ever been disciplined for drinking. Mr Clarke said he had a top-secret clearance and was concerned it might be taken away.
22. Mr Clarke said he was aware that if he were assessed he would have been administratively or medically discharged.
23. Mr Clarke said he completed about 80 hours of training in the course he was doing in seat allocation was called “Galileo”.
24. Mr Clarke denied he added the words in page 131 of the T documents “Nil public transport available”.. He said he walked to and from the TAFE which was about 3 Kilometres each way. He said he went home to Sydney each weekend, which he was entitled to do.
25. Mr Clarke acknowledged he did not write down on his employment record in 2000, at page 27 of the T documents that he had the certificate.
26. Mr Clarke was referred to his answers to the Veterans Review Board question at page 6 of the transcript that:
“And yet by getting out and applying for a job, completely different from anything you had done in the Air Force---“,
Mr Clarke replied:
“I thought that it would be less stressful. I thought it would be something that there wouldn’t be continual concentration, something that would perhaps allay my aggressiveness and bad temper. You know, I didn’t find it easy and I never ever assumed that I was going to leave the Air Force and …but I firmly believed that I had the capacity to do some sort of work. I knew that, you know, in the field that I had been employed in the RAAF, it was a fairly narrow envelope; I wasn’t an engineer, I had no qualifications – no tertiary qualifications – I couldn’t be a teacher or I couldn’t be a bricklayer. The Field that I had operated in the RAAF and that I had seen war service in was a very narrow field and it required – you know, the employment that I sought had specific criteria that a person – only a person who had done the sort of work that I had done could apply for”.
27. Mr Clarke acknowledged he had not registered for Newstart nor had he sought Centrelink help. He said he was 56 years of age in 1994 when he had relocated to Queensland but he had not registered for Centrelink nor had he sought work in the travel industry.
28. Mr Clarke said he had heard about a possible job in France through friends. The job did not eventuate. He said he took a trip over seas to see war graves instead. It was noted this was different from looking for work.
29. Mr Clarke said he looked through the job ads in the Weekend Australian every weekend and has continued to do so. He said the jobs advertised were directed at younger people
30. Mr Clarke said he did the Galileo course to advise Business Executives. He had thought this was an unmet need. The position was an advisory one on how to take precautions. He said DFAT only issued general warnings.
Mr Farquharson
31. Mr Farquharson confirmed in his written statement that Mr Clarke was known as a non-drinker when he worked with Mr Clarke from 1965 to 1969. He said:
“I was aware and it was common knowledge amongst the police officers at the Station that Clarke was a non-drinker. He did not even drink alcohol in my presence at any time during the period of our working and social relationships. I would have known if he had been a drinker. In close working relationships like ours was, such behaviour would have been quite obvious”.
32. Mr Farquharson said in cross-examination he was not aware Mr Clarke had ever been disciplined for alcohol use. He said he had never heard he had been.
Mr McIvor
33. Mr McIvor gave evidence and confirmed his statement (exhibit 5). Mr McIvor said he saw Mr Clarke on a daily basis as Mr Clarke’s staff officer for Counter Intelligence from October 1984 to about 1986. He said the Mr Clarke would be unable to function during the day. He said he and others had to “pick up his work load”.. Mr McIvor said Mr Clarke would become obsessed with one issue. He said he would be happy when this happened because he could then get on with their jobs.
34. He said, “we protected him”. In his statement Mr McIvor said:
“My next co posting with Mr Clarke was when I was transferred into the Intelligence Directorate in Canberra in December 1988. I was an Assistant Povost Marshall responsible directly to Wing Commander Clarke for security intelligence, personnel security, and counter intelligence operations.
During this tenure, I observed directly that the Wing Commander had in my view become more frequently irrational and angry and I do no believe he was coping well at all. This was never more evident than when the deputy Chief of the Air Staff expressed concerns about the Wing Commander’s lack of objectivity and appointed me to an independent review committee into RAAF Policing with orders not to engage the Wing Commander”.
35. Mr McIvor said after he left the Air Force in 1996 he had thought about offering Mr Clarke a job but he couldn’t because of Mr Clarke’s irrationality. He said that on paper Mr Clarke was more than qualified for the job.
36. Under cross-examination Mr McIvor said he was not aware if Mr Clarke had sought assistance for his problems. He said he understood Mr Clarke had a friendship with a psychologist. Mr McIvor said Mr Clarke displayed obvious anger and alcohol abuse. He reiterated there was a loss of confidence by senior staff.. He said there was no formal discipline taken against Mr Clarke.
37. Mr McIvor said he wouldn’t offer Mr Clarke a job because he was a risk although he did not consider him to be a security risk.
38. Mrs Clarke gave evidence and confirmed her statement in exhibit 4. She said Mr Clarke was a nervous wreck. She said he would come home on the weekend angry and anxious. He would drink and not sleep. She said he would smash things. On one occasion he smashed his glasses and then got upset because he could not see. She said she was concerned, as he was not coping.
Mrs Clarke
39. Mrs Clarke started of looking for jobs with high hopes. He thought that with his contacts he would be offered a job. He went to interviews and was knocked back. This caused him to become more and more depressed. There were problems at home and “he finally agreed to see a psychiatrist in 2000”. Mrs Clarke said she had asked him to do this over many years. Regrettably, it had been a bad experience. She said: “He came home from the appointment with Dr Leong feeling depressed, rejected and in worse shape than when he went.”
Dr Tucker
40. Dr Tucker gave evidence that he had been treating Mr Clarke since 2000. He said he had sent Mr Clarke some 17/18 times. He confirmed his hand written report (exhibit 6) stating that Mr Clarke suffers from worsening severe chronic Post Traumatic Stress Disorder and secondary alcohol abuse. Dr Neville also confirmed the comments in his report of 28 November 2002 at point 5 that “Neville’s decision to cease work was due to the effects of his chronic worsening PTSD”, and at point 6 that, “Neville’s decision to cease work was also due to his alcohol abuse”.. Dr Tucker said if Mr Clarke was to go back to work he would get worse.
41. Dr Tucker acknowledged he did not know Mr Clarke in 1992.
Submissions
42. Counsel for the Applicant submitted it was conceded by the Respondent that section 24(1)(a) and 24(1) (b) of the Act had been satisfied at all material times. In considering section 24(1)(c) it was submitted the matters to be considered were:
(a) the veteran must be prevented from continuing remunerative work he was undertaking;
(b) he must be so prevented because of the war-caused injury or disease referred to in paragraph (b) of sub-section 24(1) alone; and
(c) the incapacity results in the veteran suffering a loss of salary or wages or earning on his own account: referring the Tribunal to the decision in Stracevich v Repatriation Commission (1987) 18 FCR 221 (per Fox J. at 224.
43. Counsel submitted that as articulated in Flentjar v Repatriation Commission (1997) 48 ALD 1 the issue to be considered was
“1. What was the relevant ‘remunerative work the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?”
2Is 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 question 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?”
44. The Respondent’s counsel submitted the type of work relevant to the Applicant was work in the security industry. He said:
“Clearly, work in the security industry is a relevant type of remunerative work for the purposes of s 24 (1) (c). The range of remunerative work would include routine security work, more complex security work and management roles in the security industry”.
45. Counsel also submitted that based on the report of Dr Mulholland and Dr Tucker, the Applicant was prevented from undertaking this type of work. Counsel said the length of time the Applicant had spent out of the workforce was a factor preventing him from undertaking remunerative work.
46. It was submitted that the Tribunal should have regard to the decision of the Full Court in Repatriation Commission v Hendy (2002) FCAFC 424, when considering what the Applicant would probably have done absent the service disabilities.
“If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(10(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, expect in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran’s incapacity, the Tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
47. Counsel submitted the Tribunal should find that the Applicant’s time out of the workforce and age are not matters which prevent him from working in the security industry.
48. In any event it was submitted the Applicant meets the ameliorating provisions of section 24(2)(b) in that the Applicant was “genuinely seeking to engage in remunerative work” and his disabilities are the “substantial cause” of Applicant’s inability to obtain work.
49. The Applicant had documented his efforts to find work including seeking employment with Australian Protective Services the Commonwealth Crimes Commission as an investigator security director with Woolworths and the position of sheriff in the Family Law Court. It was submitted these were the types of jobs for which the Applicant had experience and was qualified including his experience in counter intelligence and counter espionage.
50. Counsel noted the various reasons given for not obtaining these jobs and concluded it was possible the Applicant’s “history” had “gone before him” and prejudiced his chances. Counsel also noted the behaviour of the Applicant at the interview for the sheriff position was attributable to the Applicant’s PTSD as discussed by both Dr Tucker and Dr Mulholland.
51. The Tribunal was urged in the circumstances to find the Applicant was “genuinely seeking to engage in remunerative work” and his war caused disabilities were the “substantial cause” of the inability to obtain work.
52. Counsel argued the Applicant left his employment “because he could not take it any more”. Mrs Clarke’s evidence corroborates this. Mr McIvor gave evidence the Applicant was not performing his job for 19 months before he resigned and his superiors had lost confidence in him. The Tribunal was urged to accept this evidence. The Tribunal was urged to find he Applicant was not coping at work due to his worsening PTSD and alcoholism. This high level of PTSD had persisted for years and had made work very difficult.
53. Counsel reminded the Tribunal that “Dr Tucker in fact concludes based on his knowledge of the history and his professional judgment, that the veteran ceased working due to his PTSD and Alcohol Abuse”. The Tribunal was urged to accept this.
54. The Applicant was not forced from the RAAF. He resigned only eight months before he was due for compulsory retirement. The Respondent’s advocate submitted the Applicant resigned early because:
“(i) He was reluctant to embrace major changes planned for the RAAF and for his branch in particular (transcript of proceedings, Veterans’ Review board, No Q01/1695, 27 March 2001, page 6 lines 7 – 18); and
(ii) he was in receipt of an offer of employment which was conditional upon his being able to commence full time work on 11 November 1991, ie two days after he resigned and eight months before his compulsory retirement date: T – documents, folio 133;”
55. It was further submitted the Applicant’s contention that his resignation was due to PTSD was “speculative and grossly self-serving”. Dr Leong reported that “the symptoms of his condition have caused minimal impairment to occupational functioning”.
56. The Respondent’s advocate submitted the Applicant’s alcohol abuse was not service related and could not be regarded as a sequela of PTSD as the clinical onset of PTSD was not until 2000.
57. It was submitted the Applicant did not satisfy the ameliorating provisions of section 24(2)(b) of the Act in that;
“(a)since he resigned from the RAAF in 1991 the Applicant has not been genuinely seeking to engage in remunerative work;
(b)In the alternative, the Applicant is not prevented by war-caused incapacity from continuing to seek to engage in remunerative work; and
(c)In any event, war-caused incapacity is not the substantial cause preventing the Applicant from obtaining remunerative work.”
58. The Respondent’s advocate argued the Applicant cannot work now but nine years ago he was capable of working. He had a job lined up but through no fault of the Applicant the job did not eventuate. He completed a course of study, which the Respondent contended showed Mr Clarke had the capacity to be gainfully employed. The Respondent’s submission was that in 1992 the Applicant was able to work. The Applicant had now been out of the work force for nine years and his age and time out of the work force were now factors in his capacity to gain employment.
Consideration
59. In determining eligibility for the special rate pension, known in the Act as the Totally and Permanently Incapacitated (TPI) pension, the Minister in his Second Reading Speech in May 1985 sought to clarify the criteria:
“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 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”.
60. Although the Applicant had reached 65 years at the date of the hearing, the more onerous criteria that must be met upon ascertaining this age are not required to be satisfied. As at the date of the application for review of the decision of the Veteran’s Review Board, the Applicant had not yet reached the age of 65 years, the further criteria is not applicable.
61. To succeed in his application, the Applicant must establish the war-caused injuries alone caused a loss of salary, wages or earnings under section 24(1)(c) of the Act. It is important to consider whether the loss of employment is a direct result of the war-caused injuries and not related to any other factors. As Beaumont J indicated in Repatriation Commission v Smith (1987) 15 FCR 337:
“The Tribunal must attempt an assessment of what the Respondent probably would have done if he had none of his service disabilities.”
62. The importance of attributing the loss of employment solely to the war-caused injuries was again emphasised by RD Nicholson J in Forbes v Repatriation Commission (2000) when he declined to follow the tests as outlined by Dowsett J in Moorcroft v Repatriation Commission (1999). Instead RD Nicholson J affirmed the view in Cavell v Repatriation Commission (1988) and restated (at 33):
“…any factor having employment consequences which played a part in the Applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the Applicant’s case for pension at the special rate.”
63. Having made this comment however, RD Nicholson J highlighted the difficulty veterans incurred in attempting to determine their injuries alone were the cause of their unemployment. He also acknowledged the further difficulty incurred under section 24(2) and concurred with Burchett J of the need to apply a common sense approach ‘with an eye to reality’ when considering veteran applications under this section. Burchett J’s view expressed in Cavell is often cited as the preferred approach to be utilised in ascertaining whether an Applicant has satisfied the ‘alone test’.. Burchett J stated that to characterise the test as the “sole, unique and absolute cause” of the cessation of remunerative work was incorrect because it has the tendency to:
“…distract the tribunal from its true task... It is a decision that should be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”
64. Bearing this in mind, the Tribunal must, to its reasonable satisfaction, determine in accordance with section 24 (1)(c) whether the Applicant is prevented from continuing remunerative work because of war-caused injury or disease alone.
65. It is accepted that the Applicant satisfies the requirements of sections 24(1)(a) and 24(1)(b) of the Act. The Respondent accepts this, (see paragraph 4 of the Respondent’s statement of facts and contentions).
66. If the Tribunal is satisfied that the Applicant meets the test in section 24(1)(c) then the application will be successful. However, if the Tribunal is not satisfied the Applicant meets that test the Tribunal must then consider if the Applicant satisfies the ameliorating provisions of section 24(2)(b). To meet the test in this section he Applicant must have been genuinely seeking to engage in employment. If so the Tribunal will then be required to determine if the Applicant’s incapacity is the substantial cause of his inability to obtain remunerative work in which to engage.
67. Considering first then the provisions of section 24(1)(c) of the Act and whether the Applicant was prevented by reason of “incapacity from war-caused injury or disease, or both, alone, prevented from continuing to undertake remunerative work the veteran was undertaking”.
68. In considering this issue the Tribunal must also have regard to the provisions of section 24(2). The Respondent argues the Applicant does not meet the test in this section, as the Applicant was not prevented from engaging in remunerative employment when he ceased employment in the RAAF. The Respondent says at the time the Applicant ceased employment the Applicant had not received treatment for his incapacity nor was he medically discharged nor had there been any complaint against the Applicant.
69. The Applicant relies on the evidence of Mr McIvor and Mrs Clarke as to his medical condition at the time of leaving employment with the RAAF. In this regard the Tribunal found both to be most credible witnesses. In particular, the Tribunal accepts the evidence of Mr McIvor to the effect that the Applicant was incapable of performing his job for some 19 months prior to his leaving the service and that during this time his superiors had lost confidence in him. The picture painted by Mr McIvor is that of a person who is simply not coping and to a large extent living in a state of disillusionment.
70. In this regard it should be noted Dr Tucker reported in 2002 (exhibit 7):
“Neville’s PTSD and alcohol abuse are interrelated disorders. The primary reason for his alcohol abuse was to relieve (or ‘medicate’) symptoms of his PTSD. Neville’s decision to cease work was due to the effects of his chronic worsening PTSD. Neville’s decision to cease work was due to his alcohol abuse.”
71. The Respondent conceded the Applicant’s alcohol abuse was war caused. In any event the evidence to support this is overwhelming and the Tribunal finds to the extent that it is necessary given the Respondent’s concession the Applicant’s alcohol dependence is war caused.
72. Dr Leong reported in October 2000 the Applicant was suffering from PTSD and that this disorder commenced immediately after traumatic events in 1971. He therefore concluded the illness was war-caused. However, Dr Leong noted “the veteran reports that the symptoms of his condition have caused minimal impairment to occupational functioning”.
73. This surprising restatement of what the Applicant told the doctor is, with respect, unhelpful. Dr Leong makes no attempt to offer an opinion of his own on this issue. No context is given for the statement, and in isolation it makes no sense.
74. In the circumstances, the Tribunal does not rely on the statement reported by Dr Leong and instead prefers the assessment of Dr Tucker.
75. Dr Tucker reported in December 2000 that the Applicant was suffering from PTSD “which has become severe”.. He noted Mr Clarke would require lifelong treatment and would never be able to work at any kind of paid employment for more than eight hours per week.
76. Mrs Clarke said in her statement (exhibit 4) that:
“The last couple of years before Neville retired became increasingly difficult. The nightmares, his drinking and his depression had worsened. He got upset very easily over nothing and he often smashed things. He was always angry and depressed. I anticipated that this might be relieved by a change of occupation because he could not continue the way he was”.
77. Mrs Clarke went on to say that, “in spite of his every effort and painstaking job applications he was unsuccessful in obtaining work. We both came to the conclusion that his chances were very slight if not nil’.”
78. Mr Clarke did undertake a course with the TAFE in Canberra. He did this so as to take up a job offered to him after he left the Air Force. The work failed to materialise. Mr Clarke sought other jobs unsuccessfully. However, based on the totality of the evidence the Tribunal finds that is most unlikely that Mr Clarke would have never started held such a position given his accepted medical condition.
79. In the circumstances the Tribunal is satisfied the Applicant was incapacitated for his employment due to his accepted conditions alone, when he sought discharge from the Air Force. The Tribunal is satisfied Mr Clarke was in such a position, as described by Mr McIvor, that he was not capable of carrying out his duties, nor had he been capable of carrying out his duties for sometime, in the Air Force. The Applicant was correct in assuming he was getting to the point where he would no longer be able to hide his ongoing problems.
80. Accordingly the Tribunal accepts the Applicant satisfies section 24(1)(c) of the Act.
81. Whilst it is not strictly necessary to consider he ameliorating provisions of section 24(2)(b) the Tribunal determines it is satisfied the Applicant was genuinely looking for work after discharge in 1991. There is little doubt given the effect of the Applicant’s condition on him such attempts to find work were largely fruitless. This can be seen from the evidence of Mr McIvor who was not prepared to employ the Applicant.
82. However the Tribunal is satisfied that the Applicant still sought work. The Tribunal is satisfied the Applicant’s attempts to find work were not affected by the Applicant’s age or time out of he workforce.
83. The Applicant possessed skills, which if he were not otherwise incapacitated would have been valuable to a particular employer irrespective of age. Again this can be seen from the evidence of Mr McIvor who said on paper the Applicant was more than qualified but he could not employ him because of his irrationality.
84. Accordingly the Tribunal is satisfied the Applicant complies with the provisions of section 24(2)(b) in that he has genuinely sought work but the substantial cause of his not being able to obtaining employment is his war cause conditions.
85. Dr Mulholland’s conclusions should be kept in mind. He said in his report of January 2002:
“14.1 Mr Neville Clarke is psychiatrically ill. The main issue is that he has chronic post traumatic stress disorder with which is associated chronic excessive intake of alcohol and chronic depression. The chronic PTSD is the main issue. Despite appropriate treatment his overall psychiatric condition appears to be becoming steadily worse and this is likely to be due to his chronic excessive intake of alcohol rather than anything else.
14.2 Mr Clarke is now 64 years of age and the realities of life are that at his age and with his medical history there is no way he is ever going to be employed.
14.6 The end result of his PTSD is that his presentation at interview is such that no one is going to employ him and even if he was employed he would not be capable of keeping a job. His basic chronic level of agitation, depression, irritability and obsessive dithering is such that:
(a)He is not capable of effectively looking for a job
(b)No one is going to employ him
(c)Even if by some quirk of fate he was to receive an appropriate job then he would not be able to function effectively and keep it.
(d)He would not be capable of working the requisite 8 hours per week.”
86. It is agreed the date of effect is from 3 May 2000.
87. In this case the tribunal is satisfied the Applicant satisfies the requirements of section 24 of the Act and is therefore entitled to pension at the higher rate.
88. Accordingly, the Tribunal sets aside the decision under review and substitutes a new decision that the applicant is entitled to pension at the special rate.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Nicca Grant
AssociateDate/s of Hearing 8 October 2003
Date of Decision 12 March 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Ms H Bruce
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