Cole and Repatriation Commission

[2006] AATA 316

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 316

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/117

VETERANS' APPEALS  DIVISION		)
Re		GARY RAYMOND COLE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date5 April 2006

PlaceHobart

Decision The decision under review is set aside and in substitution thereof the Tribunal finds that the applicant is to be paid disability pension at the Special Rate with effect from 5 May 2005.

..............................................

Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - general rate - special rate - anxiety depression - bilateral sensorineural hearing loss - bilateral tinnitus - psychiatric treatment - degree of incapacity - lifestyle rating - inability to work - Veterans' Review Board (VRB).

Veterans' Entitlements Act 1986 - ss22, 23, 24, 120

Guide to Assessment of rates of Veterans' Pensions (GARP) 5th Edition 1998.

Easton v Repatriation Commission (1985) 12 ALD 777

Repatriation Commission v Hendy (2002) FCA 424

Hendy v Repatriation Commission (2003) HCA  358

Re Graham and Repatriation Commission (2004) AATA 208

Flentjar v Repatriation Commission (1997) 48 ALD 1

Re Cavell and Repatriation Commission (1998) 9 AAR 534

REASONS FOR DECISION

5 April 2006 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1.      This is an appeal against the decision of the Repatriation Commission dated 2 August 2004, as varied by a decision of the Veterans’ Review Board on 19 July 2005, whereby the applicant’s rate of pension was increased to 70 percent of the General Rate with effect from 5 May 2005.

Issue

2. The issue in this case is whether the applicant, George Raymond Cole, is entitled to an increase of disability pension above 70 percent of the General Rate or alternatively is entitled to receive any of the above general rate pensions provided for in either sections 22, 23 or 24 of the Veterans’ Entitlements Act 1986 (“the Act”).

Date of Effect

3.      As all steps in this matter were taken within time, should the applicant succeed in his appeal the earliest date of effect will be 5 May 2005, being the date of application for increase in the rate of pension.

Standard of Proof

4. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal, as provided for in s120(4) of the Act.

Background

5.      Mr Cole served in the Royal Australian Air Force from 7 December 1972 to 22 February 1983.    During that period he was exposed to aircraft engine noise, suffered an ankle fracture during rock climbing and developed psychological problems, involving depression and anxiety such that resentment of the RAAF grew with time and he avoided social contact with colleagues.    After discharge from the Air Force he worked in a number of casual jobs of three to six months duration, primarily as an archives clerk (State and Commonwealth) until ceasing work in December 1988.

6.      The applicant commenced seeing Dr Reginald Parton, a community psychiatrist, in November 1987 and has continued having periodic consultations ever since.   Dr Parton’s initial diagnosis was that Mr Cole was suffering from a moderately intense depressive disorder, with anxiety overlay and some associated somatic symptoms arising from RAAF service.    Dr Parton has prescribed several anti-depressant medication over the years, with only a modest response in overall level of mood and cognitive functioning, according to a report prepared by him in October 2005.   Mr Cole appears to believe the treatment has been beneficial, as without it he would not have been able to control his moods and violence.   Nonetheless he claims to have become reclusive and unable to tolerate other people, even his wife and grandchildren at times.   He resents authority of any kind, but at age 50 believes he might be capable of some clerical work if operating alone.

7.      Mr Cole first sought a disability pension in 1989, being granted 50 per cent of the General Rate.    He applied for an increase in June 2004 and was granted 60 per cent of the General Rate on 2 August 2004, the disabilities of bilateral sensorineural hearing loss, bilateral tinnitus and anxiety depression as service related.   It was an overall assessment including lifestyle factors.

8.      Mr Cole was dissatisfied with this decision and sought review by the Veterans’ Review Board (VRB) on 3 August 2004.    On 19 July 2005 the VRB decided to substitute a finding that pension be increased to 70 percent of the General Rate from and including 5 May 2005.   The applicant also considered this inadequate and on 31 August 2000 appealed to the Administrative Appeals Tribunal (AAT).

AAT Hearing

9.      The AAT hearing was conducted in Hobart on 3 March 2006.    Ms Lindi Wall appeared as counsel for the applicant and the respondent Repatriation Commission was represented by Mr Michael Castle.   Dr Reginald Parton, community psychiatrist, gave evidence by phone.

10.     After preliminary comments by counsel for the applicant, drawing attention to the issue under review and relevant statutory provisions, Mr Gary Raymond Cole was sworn and submitted a proof of evidence summarising his Air Force service, subsequent short-term employment situations and his decision to seek psychiatric assistance in late 1987.   He indicated he experienced psychological problems from 1982 onwards while in RAAF service and was discharged in 1983 as being incompatible with service life.    He later became depressed and withdrawn, resenting authority and being unable to interact with people.   At age 50 he did not believe he was totally incapable of clerical work, as long as he did not have to deal with other people.   He did not think clerical work had changed and he could resharpen his typing skills.

11.     Under cross-examination he was asked whether he possessed computer skills, given they were now fairly essential in clerical duties.   He said he did not have a computer or understand information technology.   Counsel for the respondent drew attention to Mr Cole’s long period of absence from the workforce, but indicated this factor had been examined in many other AAT case determinations.   The Tribunal would have to weigh Mr Cole’s mental condition and reasons for ceasing employment in 1988.

12.     Counsel for the applicant drew attention to a number of decisions, such as Hendy v Repatriation Commission (2003) HCA  358; Flentjar v Repatriation Commission (1997) 48 ALD 1; Cavell and Repatriation Commission (1998) 9 AAR 534 where issues relevant to Mr Cole’s situation had been determined.   She considered these tended to support the applicant’s case.

13.     Mr Cole stood down as witness and Dr Parton, his psychiatrist, was contacted by phone and affirmed.   Counsel for the applicant did not question Dr Parton, saying that Dr Parton’s reports indicated Mr Cole suffered from a mental problem that would prevent him working as a clerk or in other similar occupations.   Dr Parton agreed with this interpretation, drawing upon his report dated 21 October 2005, indicating inability to work was related solely to Mr Cole’s mental disorder and in his opinion the situation was unlikely to change significantly in the foreseeable future.

14.     Counsel for the respondent asked whether Dr Parton’s consultation notes gave any indication of Mr Cole’s mindset and reasons for ceasing work in 1988.   Dr Parton said he had not recorded any reason at the time, but was aware Mr Cole had not been coping with his work situation, being under great stress and threatening people, as well as suffering headaches and withdrawal symptoms.

15.     In closing submission Mr Castle for the respondent reiterated that the Tribunal would have to weigh Mr Cole’s long period out of the workforce, but also carefully examine whether there were any other factors than mental disability which induced him to cease employment in 1988.

Analysis

16.     This is a de-novo review which requires the Tribunal to consider all relevant evidence, any statutory provisions and policy guidelines as well as precedent set by prior case determinations.

17.     The applicant Gary Cole has appealed against the SSAT decision of 19 July 2005 that he be paid pension at 70 percent of the General Rate.    He claims he should be granted a pension above the General Rate i.e. at the Intermediate or Special Rate.

18. The relevant legislation is ss22, 23 and 24 of Veterans’ Entitlements Act 1986 (“the Act”). Section 22 sets out provisions for the General Rate of pension and Extreme Disablement Adjustment; s23 outlines criteria for the Intermediate Rate of pension; while s24 deals with the Special Rate.

19.     In order to qualify for the special rate the veteran must be less than 65 years old when the application or claim was made, with a degree of incapacity of at least 70 percent and incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, or suffering a loss of salary or wages that the veteran would earn if free of that incapacity.    The special rate is not payable if it can be demonstrated that the veteran ceased to engage in remunerative work for reasons other than incapacity of war-caused injury alone.

20. In more formal terms the Act specifies as follows( s24):

“(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.”

21.     In considering whether pension at the special rate should be granted, considerable emphasis is placed on the phrase “of itself alone” ; requiring clear demonstration that war-caused disabilities are the sole and principal cause of loss of employment or earning capacity.   See, for example Easton v Repatriation Commission (1985) 12 ALD 777, or more recent cases such as Hendy v Repatriation Commission (2003) HCA Trans 358 or Cavell v Repatriation Commission (1998) 9 AAR 534.

22. Provisions in respect of the Intermediate Rate of pension are much the same (s23 of the Act), but involve the issue of whether the applicant is in a position to work up to 20 hours per week or whether other part-time or intermittent work would be feasible.

23.     The fundamental questions to be asked about the applicant, Garry Raymond Cole, are whether he is totally and permanently incapacitated by service related disabilities alone, or whether such disabilities prevent him from engaging in remunerative employment in occupations he might have been able to pursue if no such disabilities existed.   Although he suffers from hearing and loss and tinnitus, the central issue is his claimed mental disorder and intolerance of virtually all social situations.

24.     After having treated Mr Cole for many years Dr Parton, an experienced community psychiatrist in a report dated 21 October 2005 was firmly of a view that Mr Cole’s impaired cognitive functioning (attention, concentration and memory) made it difficult for him to focus on mental tasks of a clerical nature and the persistent symptoms of his anxiety/depression disorder meant he would be unable to work as a clerk or in other similar occupations.    In his opinion the situation was unlikely to improve significantly in the foreseeable future.

25.     No other medical evidence pro or con was put to the Tribunal, but the Tribunal notes some earlier medical reports tending to support Dr Parton’s perspective.   In a report dated 16 July 2001 Dr P Macartney noted that the onset of Mr Cole’s mental disabilities occurred in 1982 during RAAF service.   Dr Macartney considered Mr Cole was unable to work with other people and unlikely to be able to manage a self-employed business due to depression.   Dr H Brigden DMO reported on 15 January 2003 that Mr Cole was unable to work at that time and he considered the situation unlikely to improve.   On 15 September 2004 Dr P Reid considered Mr Cole to have a personality disorder, not necessarily linked to military service, but likely to have arisen regardless of employment.   He considered the impairment to be a permanent condition.    The SSAT also noted an assessment by a Dr Hassan on 13 July 2004, but the SSAT preferred that of Dr Parton, because he was a treating specialist who had dealt with Mr Cole for many years.

26. Taken collectively these assessments indicate the criteria specified in ss24(1)(b) and (c) of the Act are met i.e.

·     The applicant’s disabilities of themselves alone are of such a nature as to render the individual totally and permanently incapacitated and incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

·     The individual’s disabilities of themselves alone are of such a nature as to preclude remunerative work, suffering a loss of salary or wages, or of earnings, that he would not be suffering if the applicant was free of that incapacity.

27. The applicant at age around 50 years has claimed he might be able to resume some clerical duties if left alone to conduct it. Medical evidence points to the contrary and his admission of inability to relate to others would seemingly preclude supervision. After such a long period out of the workforce he does not seem to understand the significant changes which have occurred there during the past two decades. Nonetheless the Tribunal is required under s24A of the Act to consider:

(a)the vocational, trade and professional skills, qualifications and experience of the applicant;

(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to above might reasonably undertake; and

(c)the degree to which mental impairment as a result of service-related disabilities might reduce capacity to undertake such work.

28.     It is fairly obvious that Mr Cole’s anxiety, depression and sometime aggressive behaviour, self-admitted, would preclude work as a sales person, vehicle driver or IT operative contacting others.    It is also improbable that he could conduct his own business with the focus or personal dealings required without alienating others, as much as himself.   The only other vocation where intermittent, largely self-conducted work might prove feasible is that of casual gardener, but he has no demonstrated ability in that field.    His experience is clerical and he has not shown any interest in updating or pursuing it since 1988, the long period out of the workplace also being a disincentive to potential employers.   Overall there appears little prospect of remunerative work being obtained.

29. The Tribunal must also consider whether there are any other factors than service-related disabilities which caused Mr Cole to cease work in 1988. As earlier indicated the Act places great emphasis on the phrase “of itself alone”, requiring clear demonstration that service-related disabilities are the sole and principal cause of loss of employment or earning capacity.   As Deputy President Jarvis said in Graham and Repatriation Commission (2004) AATA 208, following analysis of Federal Court decisions such as Flentjar and Repatriation Commission (1997) 48 ALD 1; and Cavell earlier cited:

“The word "alone" as it appears in s 24(1)(c) requires a practical decision as to whether the veteran's loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran's inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran's case for pension at the special rate.”

30.     The Tribunal has re-examined the evidence and notes that neither party made any claim about Mr Cole’s reason for abandoning employment in 1988, other than his disability becoming worse and his term as archives clerk coming to an end.    In the view of the Tribunal the “alone” test has been met.

31. Given the above the Tribunal considers that the provisions of s24 of the Act have been met and Mr Cole should be granted a disability pension at the Special Rate.

Decision

32.     The decision under review is set aside and in substitution thereof the applicant Gary Raymond Cole is to receive disability pension at the Special Rate with effect from 5 May 2005.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  3 March 2006
Date of Decision  5 April 2006
Counsel for the Applicant         Ms Lindi Wall
Solicitor for the Applicant          Wallace Wilkinson & Webster
Counsel for the Respondent     Mr Michael Castle
Solicitor for the Respondent     Repatriation Commission