Colin Pfitzner and Repatriation Commission
[2013] AATA 492
•12 July 2013
[2013] AATA 492
Division VETERANS' APPEALS DIVISION File Number
2012/3651
Re
Colin Pfitzner
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 12 July 2013 Place Adelaide The decision under review is affirmed.
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Deputy President K Bean
CATCHWORDS
VETERANS' AFFAIRS - Veterans' entitlements - Rate of disability pension - Special and intermediate rates - Whether "alone test" satisfied - Availability of voluntary redundancy package contributed to veteran ceasing work when he did - Alone test not satisfied - Decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth), ss 19(9), 23 and 24
CASES
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
Deputy President K Bean
12 July 2013
INTRODUCTION
The applicant, Mr Pfitzner, was conscripted into the Australian Army in October 1967, and served for two years, which included seven months as a stretcher bearer in Vietnam. Unfortunately, as a consequence of his experiences during his service, he now suffers from chronic post-traumatic stress disorder (PTSD) and anxiety, which were first diagnosed in approximately 2001, and have been accepted as war-caused disabilities.
Although he worked full-time for many years following his service, in the period between 2001 and 2009, Mr Pfitzner’s PTSD condition became steadily worse and he had increasing difficulty coping with the demands of his work. In 2009, he decided to accept a voluntary redundancy package offered by his employer, Australian Vintage Winery (Australian Vintage), and he has not worked since that time.
Approximately two years after he left his employment with Australian Vintage, Mr Pfitzner lodged an application for an increase in his disability pension, which was then being paid at 60% of the general rate, and in a decision dated 24 October 2011, the Repatriation Commission (the Commission) increased Mr Pfitzner’s pension to 70% of the general rate but declined to grant him a pension at the special or intermediate rate. Following an application by Mr Pfitzner for review of that decision, on 3 July 2012 the Veterans’ Review Board (VRB) also decided that Mr Pfitzner did not qualify for the special or intermediate rate of pension, and affirmed the Commission’s decision.
Subsequently, on 23 August 2012, Mr Pfitzner applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings. He contends that he is qualified to receive disability pension at the special rate, although he concedes that he may only have been eligible for the intermediate rate of pension during the period immediately following the lodgement of his application for an increase in pension in 2011. If the Tribunal determines that he is not entitled to pension at the special or intermediate rate, Mr Pfitzner does not dispute the Commission’s assessment that he is entitled to pension at 70% of the general rate rather than a higher percentage.
LEGISLATION AND ISSUES
In order to establish that he is entitled to be paid disability pension at the special or intermediate rate, Mr Pfitzner must demonstrate that he satisfied all of the requirements of ss 24 or 23 of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act) respectively at some point during the assessment period. For the purposes of this matter, the assessment period is the period between when Mr Pfitzner first lodged his application for an increase in pension on 17 August 2011, and the date of this Tribunal’s decision.[1]
[1] VE Act, s 19(9).
Section 24 of the VE Act relevantly provides as follows:
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.
The provisions of s 23 are relevantly identical, except that s 23(1)(b) is satisfied where a veteran is rendered incapable of undertaking work for 50% of the time he or she would otherwise be working, or for more than 20 hours per week, whereas s 24(1)(b) requires a veteran to be unable to undertake remunerative work for more than eight hours per week.
As alluded to above, there is no dispute between the parties that the conditions suffered by Mr Pfitzner and which have been accepted as war-caused are:
(a)anxiety state; and
(b)PTSD.
There is also no dispute between the parties that Mr Pfitzner satisfies ss 24(1)(aa), (aab), (a) and (d) of the VE Act and the analogous provisions of s 23, and I also accept that he satisfies those provisions.
Mr Crowe, who appeared as advocate for the respondent, also conceded that Mr Pfitzner met the requirements of s 24(1)(b) of the VE Act from 19 October 2011, although he did not concede that Mr Pfitzner satisfied that provision prior to that date. He did concede that Mr Pfitzner satisfied s 23(1)(b) prior to 19 October 2011. He also conceded that Mr Pfitzner’s cessation of work had caused a loss of earnings. However, he contended that Mr Pfitzner did not satisfy the “alone” test prescribed by s 24(1)(c) and s 23(1)(c).
As I consider the concessions made by Mr Crowe to have been correctly made, it follows that the issues before me are as follows:
(a)whether, at any time during the assessment period, Mr Pfitzner satisfied the “alone” test; and
(b)if so, from what date he was qualified for the special rate of pension as opposed to the intermediate rate.
I will proceed to address the first of these issues, before turning to the second issue if it arises.
HAS MR PFITZNER BEEN PREVENTED, BY HIS ACCEPTED DISABILITIES ALONE, FROM CONTINUING TO UNDERTAKE REMUNERATIVE WORK THAT HE WAS UNDERTAKING?
Evidence and Contentions
In the course of his evidence, Mr Pfitzner explained that following the end of his Army service in 1969, he returned to Loxton in the Riverland of South Australia where he grew up, and took a number of different jobs between 1969 and 1977. These included truck driving, general farm-hand duties and welding work, and some of this work was undertaken on the Yorke Peninsula. Subsequently, in approximately February 1977, Mr Pfitzner commenced work with Australian Vintage in Loxton, which at that time was owned by the Loxton Co-operative Winery.
Mr Pfitzner said his main role at Australian Vintage was as a “boiler attendant/ concentrator”, which involved operating the machines that made up grape juice concentrate as well as “undertaking general vineyard assistant work”.[2] Mr Pfitzner said that he remained with Australian Vintage until 2009, performing essentially the same duties throughout his employment.
[2] Exhibit 2, [19].
Throughout the period of his employment with Australian Vintage Mr Pfitzner said the busiest and most stressful time of year was “vintage”, which took place between the end of January and the end of April each year. In his oral evidence he explained that he would come under increased pressure during this period due to the volume of grape juice which needed to be processed during these months. He said he was partly responsible for ensuring that all of the equipment was running properly, and for fixing any problems. He said this was especially difficult and stressful during vintage given the pressure to ensure that all of the machinery was working at full capacity at all times, which meant that numerous jobs often needed to be attended to in a short space of time. He also explained that more causal workers were employed at this time of year and, due to their relative lack of experience and competence, Mr Pfitzner often became frustrated with these workers.
Mr Pfitzner said that, on reflection, he now realised that some of the difficulties he had during his employment, particularly during vintage, were related to his PTSD and anxiety state. In particular, he said that the degree of stress he experienced and some of his outbursts of temper were related to his PTSD and anxiety state.
Mr Pfitzner also explained in the course of his evidence that he ultimately decided to accept a voluntary redundancy package from Australian Vintage in August 2009. In his statement, he explained his decision as follows:
43.For some 12-18 months before that, the winery had several rounds of forced redundancies as the owners were trying to reduce the workforce.
44.After the forced redundancies, it was left open to the workers to nominate for a voluntary redundancy. A number of the workforce did put their names forward for voluntary redundancies.
45.In 2009, I was having ongoing difficulties in the workplace due to my irritability, I was rebelling against my manager and was making mistakes at work.
46.After hearing those voluntary redundancies would be made available, I had a good long think about what would be best for me and my family.
47.Ultimately, I decided to apply for a voluntary redundancy because I was at the point where I just could not go through another Vintage with all of its pressures and my ongoing symptoms.
48.I was worried about what the next Vintage would bring for me if I didn’t leave the winery beforehand.
49. I then applied for a voluntary redundancy and was accepted. I received a redundancy of [sic] amount of about $42,000.00 which included my leave entitlements.[3]
[3] Exhibit 2.
Mr Pfitzner also confirmed in his oral evidence that at the time he decided to take the voluntary redundancy, he was concerned about how he would cope with going through another vintage. His oral evidence was to the effect that if the redundancy had not been available or he had not taken it, he would have had to go through another vintage, with all of the associated stress and difficulty this had previously caused him.
Having regard to this evidence, Mr Floreani, who appeared as counsel for Mr Pfitzner, contended that Mr Pfitzner left his employment with Australian Vintage by reason of his PTSD and anxiety conditions, alone. In support of that contention, Mr Floreani also relied on a number of reports prepared by Dr Marty Ewer, a psychiatrist who examined Mr Pfitzner at intervals between 2001 and 2011. Mr Floreani contended that Dr Ewer’s reports recorded a steady deterioration of Mr Pfitzner’s mental state, consistent with Mr Pfitzner’s reported experience of steadily worsening symptoms during that period. He pointed in particular to the following statement in Dr Ewer’s report of 20 October 2011:
Mr Pfitzner said that in 2009 he was struggling to cope at work and he said “I’d had enough”. He said his concentration was poor and that he was losing his temper and swearing at work. He said he was generally intolerant of people. His anxiety interfered with his ability to function at work. A redundancy package became available (because the company was losing money and it was trying to reduce its costs) and he accepted a package. He has not worked since.[4]
[4] Exhibit 1, T16/111.
Mr Floreani also pointed to Dr Ewer’s opinion as expressed in that report that a variety of the symptoms experienced by Mr Pfitzner as a result of his chronic PSTD were interfering with his ability to function in the workplace and that “when considered together”, these rendered Mr Pfitzner unfit to work eight hours per week as at October 2011.[5] Mr Floreani submitted that the voluntary redundancy was the mechanism by which Mr Pfitzner left his employment with Australian Vintage, but was not the reason he left, or a reason for him leaving.
[5] Exhibit 1, T16/115.
In his submissions in reply however, Mr Crowe pointed out that Mr Pfitzner had made a comment during his oral evidence to the effect that, “if it wasn’t for the voluntary business, who knows what would have happened [at vintage time]”. Mr Crowe contended that this implied that Mr Pfitzner believed if the voluntary redundancy package had not been available, he would have had to go through another vintage, with all of the stresses and difficulties that entailed.
Mr Crowe also pointed to a statement made by Mr Pfitzner on a lifestyle questionnaire form to the effect that he had changed jobs due to “redundancy then retirement”.[6] In addition, Mr Crowe pointed to the fact that it had not been until October 2011 that Mr Pfitzner was considered medically unfit to work eight hours per week,[7] as Mr Floreani in fact conceded. Therefore at the time he took the redundancy in August 2009, Mr Pfitzner remained able to work between eight and 20 hours per week by reference to his accepted disabilities, which Mr Crowe contended pointed to some other factor having contributed to Mr Pfitzner’s complete cessation of work from August 2009.
[6] Exhibit 1, T14/98.
[7] Exhibit 1, T16/116.
Mr Crowe also relied upon the observations of his Honour Justice Nicholson in Forbes v Repatriation Commission[8] as follows:
[40] As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made. To date, the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration.
[41] For the applicant it was also submitted that the application of s 24(1)(c) comes down in the end to an issue of causation. It is said where there is a finding … that should be considered as the causative factor, a non war-related condition cannot also be causative. In my view this submission overlooks the requirements of the wording of the first limb of the paragraph. Furthermore, the finding in relation to the thoracic spondylosis of the applicant was not that it was non causative but rather that “alone” it was not causative of the preventative effect. That finding … did not preclude the tribunal from proceeding as required by s 24(1)(c) to consider with an eye to reality and common sense the combined effect of the war-caused and non war-caused conditions. That is a different question to whether the non war-caused condition “alone” was causative of the requisite preventative effect.
[8] (2000) 101 FCR 50, at [40] and [41].
Consideration
Although Mr Floreani sought to characterise the voluntary redundancy package as the means by which Mr Pfitzner left his employment with Australian Vintage rather than a reason for him leaving, after careful consideration of the evidence, I am not satisfied that that is an accurate characterisation of Mr Pfitzner’s departure from his employment with Australian Vintage.
Consistently with the reasoning of Nicholson J in Forbes, I accept that the symptoms resulting from Mr Pfitzner’s war-caused conditions were a major factor in his decision to leave Australian Vintage when he did. However, I am also satisfied that the availability of the voluntary redundancy package was a contributing factor to his decision to leave his employment when he did, and in fact was the main reason he left his employment in August 2009 rather than at some later time. As pointed out by Mr Crowe, Mr Pfitzner effectively acknowledged in the course of his oral evidence that if the voluntary redundancy package had not been offered when it was, he would probably have continued with his employment and had to go through another vintage. I am therefore not satisfied on the evidence that, in the absence of the voluntary redundancy package, Mr Pfitzner would have left his employment in August 2009 or at around that time.
Accordingly, I have concluded that the availability of the redundancy package not only provided the means by which Mr Pfitzner left his employment with Australian Vintage, it was also one of the reasons why he left that employment when he did, and partially explains why he left the workforce entirely at a time when he was not completely incapacitated for work by his war-caused disabilities. As Mr Pfitzner’s acceptance of the package led to the ending of his employment with Australian Vintage and took him out of the workforce in August 2009, in my view the availability of the package also played an ongoing role during the assessment period in preventing him from continuing to undertake the main form of remunerative work he had previously undertaken.
It therefore follows that, during the assessment period, Mr Pfitzner was not prevented, by his war-caused disabilities alone, from continuing to undertake the remunerative work he was previously undertaking. Rather, he was prevented from continuing to undertake his previous remunerative work as a boiler attendant/concentrator by a combination of his accepted disabilities and his decision in 2009 to take advantage of the availability of a voluntary redundancy package, which gave him an opportunity to leave his employment with Australian Vintage on financially attractive terms. For that reason, he did not satisfy the “alone” test and did not qualify for disability pension at either the special or intermediate rate.
For completeness, I note that Mr Floreani formally conceded that Mr Pfitzner had not sought remunerative employment in the period after accepting the voluntary redundancy, and therefore s 24(2)(b) is not applicable in the circumstances of this matter, and nor is the analogous subsection of s 23, 23(3)(b).
In light of my conclusion that Mr Pfitzner did not satisfy the “alone” test at any time during the assessment period, it is unnecessary for me to proceed to consider the question of whether Mr Pfitzner only qualified for the intermediate rate rather than the special rate of pension during part of the assessment period. As I have alluded to above, there was no contention put on behalf of Mr Pfitzner that he was entitled to pension at a higher percentage of the general rate than 70%, and therefore it is also unnecessary for me to address that issue.
CONCLUSION
As I am not satisfied that Mr Pfitzner satisfied the “alone” test at any time during the assessment period, I am obliged to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean. .... [Sgd] ....
Associate
Dated 12 July 2013
Date of hearing 24 April 2013 Counsel for the Applicant Mr N Floreani Solicitors for the Applicant Tindall Gask Bentley Advocate for the Respondent Mr A Crowe Solicitors for the Respondent Veterans' Affairs Advocacy Branch