Conroy and Repatriation Commission
[2004] AATA 488
•17 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 488
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/179
VETERANS’ APPEALS DIVISION ) Re NOEL CONROY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member McCabe Date17 May 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review. The applicant is entitled to pension at the special rate, pursuant to s24 Veterans’ Entitlements Act 1986. The date of effect of this decision is 28 November 2001. ...............Sgd.........................
Senior Member
CATCHWORDS
VETERANS AFFAIRS – pensions and benefits – applicant seeks pensions at special rate under s24 Veterans’ Entitlements Act 1986 – whether applicant is totally and permanently incapacitated and incapable of undertaking remunerative work for periods aggregating more than 8 hours per week – whether applicant is prevented from undertaking remunerative work by reason of war-caused injury or war-caused disease alone – decision set aside
Veterans’ Entitlements Act 1986
REASONS FOR DECISION
Senior Member McCabe 1. This is an appeal from a decision of the Veterans’ Review Board (“the VRB”) of 26 November 2002. That decision affirmed an earlier decision of the respondent on 31 May 2002, which increased the applicant’s disability pension under the Veterans’ Entitlements Act 1986 (“the Act”) to 90 per cent of the general rate. The applicant seeks disability pension at the special rate under s24 of the Act.
2. The matter was heard on 1 March 2004. The applicant was represented by Mr Honchin of counsel. The respondent was represented by Mr Stoner, a departmental advocate. The evidence before the Tribunal consisted of:
•Documents submitted pursuant to s37 Administrative Appeals Tribunal Act 1975 (“the T-documents”);
•a statement of the applicant dated 5 September 2003;
•a medical report prepared by Dr Boyes dated 18 September 2003;
•a medical report prepared by Dr Mulholland dated 29 September 2003;
•a medical report prepared by Dr Rogers dated 27 February 2004;
•a letter from Thomas Borthwick and Sons Australia Pty Ltd, dated 30 April 2003 concerning the applicant’s termination of employment there; and
•a copy of the applicant’s claim for service pension dated 25 November 1999.
The applicant and Dr Rogers also gave oral testimony at the hearing.
The Facts
3. The applicant served in the Australian Army from 1967 to 1973. He completed two tours of duty in South Vietnam: from February 1969 to February 1970, and a period of approximately 7 months in 1972. This service constitutes operational service for the purposes of the Act. The applicant has defence service from December 1972 until discharge in August 1973.
4. The respondent has accepted several of the applicant’s conditions as related to service: sensorineural deafness, post traumatic stress disorder (PTSD), alcohol dependence or alcohol abuse, tinea and hypertension.
5. In 1982 the applicant commenced employment with Thomas Borthwick and Sons (Australia) Pty Ltd (“Thomas Borthwick”). On 20 June 1996 he seriously injured his left ankle at work and ceased employment for ten months as a result. He then returned to employment for a further two and a half years, working in the same capacity as he had prior to the injury. He says his injury did not interfere with the performance of his job.
6. He commenced proceedings against Thomas Borthwick in relation to his injury. Thomas Borthwick settled the matter for $115,000. Shortly after settling the matter the applicant ceased employment with Thomas Borthwick, in October 1999. He says in his statement
My cessation of employment was voluntary only in the sense that it was the result of my industrial relations action against them.
7. Having ceased employment at Thomas Borthwick the applicant says he sought work cane-cutting. He approached several farmers, but they declined to employ him. He says he explained to one of them he suffered PTSD, and that farmer didn’t want to give him work. He explained in his exam in chief:
I saw some of the farmers I had done work with and they – some of them didn’t have work… [with another] I said “I’m suffering from PTSD” and when I explained what that was, they didn’t really want to give me work.
8. He confirmed in cross-examination he recalled telling only one farmer he had PTSD.
9. The exam in chief continued:
So you finished in October 1999 with Borthwicks?—Yes….
Now, when do you say that you went and looked for work?—Well, straight after I finished with Borthwicks.
And when did you finish looking for work?—When we started getting a bit of rain and there wasn’t much work around that suited me, anyway. It would have been before Christmas ’99, yes.
Before Christmas ’99. Now, since that period of time, have you looked for any work?—No.
10. In cross-examination it was revealed the applicant was not diagnosed with PTSD until February 2000. He says he was able to tell the farmer of his PTSD in late 1999 because other veterans had told him he had the condition.
The Law
11. The applicant seeks disability pension at the special rate. To qualify for this pension he must satisfy s24 of the Act. Section 24(1) has two requirements:
(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…
12. Section 24(2) says
(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 Issue before the Tribunal
13. The Tribunal must determine whether the applicant can satisfy the two threshold tests in s24(1). If he cannot, he may be able to take advantage of the ameliorating provision s24(2). If the Tribunal finds he satisfies either, he is entitled to pension at the special rate.
Does the Applicant satisfy s24(1)?
14. The applicant must satisfy the two threshold tests in s24(1). He must show he is totally and permanently incapacitated, being incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (“the 8 hour test”). He must also show the war-caused injury or disease alone prevents him from continuing to undertake remunerative work that he was undertaking (“the alone test”).
The 8-hour test: s24(1) (b)
15. I turn to the medical reports submitted in evidence. Two documents are relevant to the question of whether the applicant’s PTSD makes him totally and permanently incapacitated: the report of Dr Mulholland and the letter of Dr Rogers.
16. In his report dated 29 September 2003 (exhibit 4), Dr Mulholland says
I note this man has been diagnosed as suffering from PTSD and alcohol abuse /dependence however the current and recent psychiatric situation is that they are in remission.
There is not any current psychiatric limitation or impairment to his working ability…
From his history and from observations of him at interview there does not appear to be any psychiatric reason why he could not work a normal working week. The situation as to why he is not working…is that he is not looking for work at and he is not particularly motivated to work at the present time and in any event there is a lack of local work readily available.
17. In a letter dated 27 February 2004, Dr Rogers expresses a very different view (exhibit 3). He says
I do not agree with Dr Mulholland’s view that his condition is in remission. At a symptomatic level his symptoms are somewhat less however this is only because of his restricted and avoidant lifestyle which enables him to avoid conflict with others…He may feel that he is capable of work but his work history does not suggest this and in my view it is highly likely that even if he did obtain work this would rapidly come to an end because of the return of his explosive irritability, not to say the likely increase in alcohol consumption which this would entail.
I remain of the same view…that the reasons for him finishing work and not gaining further employment are the direct consequence of his war caused conditions…
It is my very strong view that were he to return to work, or attempt to do so, that there would be a very rapid deterioration in his condition.
18. I note Dr Rogers’ letter was written in response to Dr Mulholland’s report. The substantive report of Dr Rogers dated 13 November 2003 was not put into evidence.
19. The two expert opinions before the Tribunal are in stark conflict. Having considered all of the evidence, I prefer the opinion of Dr Rogers. He has seen the applicant at regular intervals following an initial referral on 1 October 2002. On the other hand Dr Mulholland has seen the applicant once. Having heard the witness give evidence, I do not think one examination would necessarily allow an accurate assessment of the witness.
20. As a witness the applicant appeared honest but stoical. For example, this was revealed when he was questioned about the symptoms of his PTSD:
What was happening then?—I was having nightmares at times and just couldn’t sleep.
Nightmares – what were they about?—Oh, some silly dreams, and recall of my army service…mainly flashbacks from when I was in Vietnam…
What about concentration?---At times it was a bit not good…I’d sort of be thinking of other things… When things got a bit quiet, I’d be hosing yards and mud off cattle, I’d think of things what happened in Vietnam at times.
What about your drinking? How much were you drinking?—Up to seven or eight stubbies, I suppose, average.
So you were a bit of a drinker, were you?—Yes, I reckon I am…
I think he understated his symptoms and their effects in his cross examination. He may have done so in Dr Mulholland’s examination, which would explain the difference in the expert opinions. For these reasons I prefer Dr Rogers’ opinion.
The Alone Test: s24(1)(c)
21. The applicant says his PTSD alone prevents him from undertaking remunerative work. In assessing the seriousness of the applicant’s condition, I prefer the opinion of Dr Rogers to that of Dr Mulholland for reasons stated above. Dr Rogers says and I accept the applicant’s PTSD would make him incapable of holding a job for any length of time.
22. The only question, then, is whether the applicant’s ankle injury has contributed to his inability to work. The ankle injury is not war-caused. If it contributes to the applicant’s inability to engage in remunerative work, the alone test is not satisfied and the applicant’s claim must fail. There is conflicting evidence on the employment consequences of the applicant’s ankle injury.
23. The applicant himself says he was able to work in his previous capacity after he had suffered the injury, without the ankle causing him any significant difficulties (exhibit 2). He also says his ankle poses no problems for his recreational activities which are physical in nature (such as manual labour on his property including fencing, and fishing involving standing and walking about in small boats).
24. In the applicant’s Claim for Service Pension, it was written the applicant suffered “multiple fractures in left ankle”, a condition described as “deteriorating” (exhibit 7 at p12). It was established in cross examination the applicant had not filled out the form himself, although he had signed it.
25. Finally Dr Boys, an orthopaedic surgeon, wrote a report about the ankle injury on 18 September 2003. He said:
This gentleman does describe an aching sensation in the left ankle which is intermittent and generally associated with weather change…He states he is able to squat and run…He relates no instability or giving way of the articulation…
Physical examination findings do show subtle restriction of ankle and hind foor function, which would not, on the objective evidence available to me, preclude employment if desired.
I believe this impairment is stable and most recent radiographs (1999) show no evidence of past-traumatic osteoarthritic degenerative change.
26. Based on the report of Dr Boys and the applicant’s own evidence, I am satisfied his ankle injury does not have employment consequences. The alone test in s24(1)(c) is satisfied.
Conclusion
27. The applicant satisfies s24(1). The decision of the respondent is set aside. The applicant is entitled to pension at the special rate pursuant to s24 of the Act. The date of effect for this decision is 28 November 2001.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe
Signed: .....................................................................................
Associate: Thomas RitchieDate of Hearing: 1 March 2004
Date of Decision: 17 May 2004.
The Applicant was represented by Mr Honchin of counsel
The Respondent was represented by Mr Stoner, a departmental advocate
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