Cooper and Repatriation Commission - [2002] AATA 1257

DECISION AND REASONS FOR DECISION [2002] AATA 1257

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/165

VETERANS' APPEALS DIVISION          )
           Re      HAROLD JAMES COOPER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member K L Beddoe

Date6 December 2002
PlaceBrisbane

Decision The decision of the respondent notified on 4 May 2001 relating to assessment of pension is set aside and in substitution thereof THE TRIBUNAL DECIDES: The applicant is entitled to be paid pension in accordance with section 24 of the Veterans' Entitlements Act 1986 effective from 9 January 2001.

..........(Sgd) K L Beddoe..........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – special rate of pension – whether applicant's war caused conditions alone prevented him from continuing to undertake remunerative work – whether veteran has suffered a loss of earnings – whether veteran genuinely seeking remunerative work

Veterans' Entitlements Act 1988 s 24

Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

6 December 2002 Senior Member K L Beddoe

The applicant seeks review of a decision of the respondent which increased disability pension payable to 100% of the General Rate with effect from 9 January 2001, being three months prior to receipt of the applicant's claim for acceptance of atherosclerotic peripheral vascular disease. That claim was accepted. The respondent's decision as to assessment was subsequently affirmed by the Veterans' Review Board.
The issue before the Tribunal is whether section 24 of the Veterans' Entitlements Act 1988 is satisfied. The respondent has conceded that paragraphs 24(1)(a) and 24(1)(b) have been satisfied but does not accept that paragraph 24(1)(c) is satisfied.
Paragraph 24(1)(c) is to the effect that a veteran's accepted disabilities alone prevent him from continuing to undertake the remunerative work previously engaged in so that the veteran is suffering a loss of earnings on his own account because of his accepted disabilities.
The operation of paragraph 24(1)(c) is ameliorated as to the strictness of the "alone" test by sub-section 24(2) which reads as follows:
"Special rate of pension
24(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."

At the hearing Ms Brennan appeared for the applicant and Mr Stoner represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits as follows:
Exhibit A       Applicant's statement dated 7 June 2002
Exhibit B       Statement of Beatrice Ann Cooper dated 11 June 2002
Exhibit C       Report by Dr Kumar dated 4 June 2002
Exhibit 1        Internal minute dated 13 October 1994 notifying retirement from                 8 February 1995
Exhibit 2        Australian Security Intelligence Organisation ("ASIO") Staff   Agreement dated 17 November 1989

Oral evidence was given by the applicant and his wife.

I make the following findings of fact.
The applicant was born on 23 January 1938 and married his present wife on 1 August 1959, having enlisted in the RAAF in 1958. He served in South Vietnam for a period of over twelve months from June 1968 returning to Australia to serve in the RAAF at Richmond, and then overseas to serve at Butterworth, then RAAF Fairbairn and finally at RAAF Headquarters in Canberra. He was discharged from the RAAF on 16 April 1979.
Almost immediately the applicant commenced employment with the Department of Housing and Construction in Canberra leaving that department on 1 August 1979 and commencing employment with ASIO the next day. He ceased employment with ASIO with effect from 8 February 1995.
While serving with the RAAF in South Vietnam the applicant was seconded (although he described it differently) for duty at the Australian Embassy in Saigon. The applicant and an Australian Federal Police officer were responsible for 24 hours security of the Embassy in the deteriorating situation of the Tet offensive. He was therefore serving "in Australia" in the sense that an Embassy is said to be part of the Embassy's country. His service at the Embassy was recognised by award of the British Empire Medal. He was subsequently awarded service medals to recognise he was, in reality, serving in South Vietnam.
Employment with ASIO was of a surveillance nature and then field work in the earlier days with more computer/clerical work as time passed.
For three months to November 1994 the applicant was transferred to a position of house security officer at ASIO headquarters. This represented a significant change in duties but not a change in remuneration. The applicant said he found aspects of the duties of house security officer difficult because he had to deal with lapses of security by his superiors.
The applicant ceased work at ASIO in November 1994 and went on leave pending retirement. He said that in the five years prior to ceasing work he had experienced health problems including memory loss and "white-outs". It seems that several cerebral vascular incidents occurred but these seem to have been passed over or ignored without resort to medical attention. The applicant's wife said that with the benefit of hindsight she realised that the applicant should have been receiving medical attention because of these incidents.
The applicant said that during this time he was also using alcohol to excess including two hour lunch times. He did not link the excessive consumption of alcohol to the "white-outs" which might be more appropriately described as a form of partial loss of consciousness but there is no proper medical explanation before me.
All of these circumstances contributed to an overnight decision to retire from work at ASIO prior to the compulsory retirement date. The applicant did not decide to retire per se but decided to also commence a computer based business. Although he formally retired in February 1995 the business name was not registered until 29 November 1995.
While the business was to be conducted, at least in part, in Canberra, the applicant and his wife decided to move away from Canberra. This decision resulted in the applicant's wife also retiring from her employment with the Department of Defence in Canberra. Both the applicant and his wife became eligible for pensions on retirement from their employment.
Apparently seeking a lifestyle change away from Canberra, the applicant and his wife decided to settle in Bundaberg and conduct the computer based business from there. The applicant said that he had a partner in Canberra for the Canberra aspects of the business. The business was conducted by a partnership with a registered business name. The business had printed stationery and business cards (T4/117). I was told that the business was not successful and registration of the business name was not renewed after the first year. It seems the business was not profitable because the business only did voluntary work. The business names registration shows that the business ceased 30 January 1999 (T4/116).
Essential to determining this case are the circumstances of the early retirement from ASIO. The applicant understood that his retirement age was 60 years. He elected to retire at 57 years of age. I am satisfied that he elected to retire because "of family reasons" and "other factors have added weight" (Exhibit 1). In evidence the applicant said that "family reasons" meant that he wanted to resign because of his health and his wife's health. There was also a lifestyle issue and the applicant and his wife travelled north for lifestyle reasons. He also said that he had resigned from ASIO because he wished to set up the computer based business.
He also said that he found it difficult to cope with additional stress arising from the change of duties to house security officer. He found he was getting involved with problems at a high level which he was unable to solve by a traditional command hierarchy, and this caused him to be more stressed. He was unaware at that time that he was suffering from post traumatic stress disorder but I am satisfied that this condition was the influencing factor in the desire to seek a change in lifestyle.
The Medical Evidence
The applicant's accepted conditions are:
(a)carotid arterial disease;
(b)atherosclerotic peripheral vascular disease affecting both legs;
(c)hypertension;
(d)post traumatic stress disorder;
(e)alcohol dependence or alcohol abuse;
(f)cerebral ischaemia;
(g)chronic bronchitis and emphysema; and
(h)impotence.

The applicant's General Practitioner, Dr Kumar, reported that the applicant was suffering hypertension since 30 August 1972, the applicant being hospitalised for hypertension, anxiety and depression from 5 November 1974 to 25 November 1974 (T4/77).
On a pro forma report dated 1 August 2000, Dr Kumar reported several medical conditions including "PTSD" and excess alcohol consumption said by the applicant to have been suffered from 1967. Dr Kumar also reported blocked right carotid artery for which the applicant first consulted him on 13 January 2000, although the applicant said he first became aware of it in 1992 (T4/1-4).
In a report dated 31 October 2000, Dr Kumar confirmed a history of hypertension and that the applicant had refused treatment. Dr Kumar said the refusal of treatment had resulted in severe hypertensive arterial diseases affecting the cerebrovascular system, peripheral vascular system and more than likely, the cardiovascular system (T4/20-1). There is a further handwritten report dated 10 June 2001 which appears to confirm the earlier reports (T4/77-8).
There is a short report by Professor Thiele, a vascular surgeon, dated 26 March 2001 and addressed to the applicant (T4/76). The expressed opinion is that the applicant's assumed carotid arterial disease (not diagnosed in the report by Professor Thiele) would have been present for 15 to 20 years prior to having the operation in 2001 and would have been aggravated by hypertension.
Stenosis of the carotid arteries is reported on by Dr Mitchell who found the right internal carotid artery to be blocked and the left internal carotid artery a stenosis in the range 50-69% (T4/13). The report is dated 10 July 2000. Tomography of the brain and orbits was "essentially a normal study" (T4/14).
Dr Jenkins, a Psychiatrist, prepared a report for the Department of Veterans' Affairs dated 8 November 2000 (T4/22-24). He describes a history consistent with the evidence before the Tribunal. Dr Jenkins diagnosed post-traumatic stress disorder directly related to the applicant's service in South Vietnam. I am satisfied that Dr Jenkins considered the applicant's posting at the Australian Embassy in Saigon as part of that service.
In a further report "to whom it may concern" dated 4 July 2001 (T4/110) Dr Jenkins said the applicant was unemployable because of his accepted disabilities and that it was the accepted disabilities alone which caused the applicant to cease employment at ASIO although from his earlier report, it is not clear that Dr Jenkins was told that the applicant was employed by ASIO. He records what may be deliberate hypothetical employment as a clerk in the Attorney General's Department, a notorious cover for ASIO employees. Dr Jenkins said that the applicant remains unemployable. Dr Jenkins makes no mention in his reports of the attempt to set up a business after ceasing full-time employment.
Consideration
As is often the case, the applicant did not understand his physical and psychiatric problems when he ceased employment. There was no effective diagnosis of his conditions at that time.
He made a subjective decision that he could not handle the house security position because he could not cope. Whether there was some reflection back to his time at the Embassy in Saigon is not clear but it is clear to me, and I find, that the applicant decided to cease employment because he could no longer cope. I am not satisfied that the decision to commence a business was a motivating factor in that decision to cease employment. I am satisfied that the motivation to commence the business was caused by no longer being able to cope in his employment. He needed a less stressful alternative but he found he was unable to cope with that also.
In so far as the applicant relies on section 24(2)(b) I am not satisfied that can apply in this case. My reason for not being so satisfied is that upon leaving his employment at ASIO the applicant has not made any substantive attempts to gain remunerative employment preferring to do unpaid work in relation to the computer business. Since giving up the business it is my understanding that no other remunerative work has been sought.
There is a further difficulty in the applicant's evidence because he said that he resigned his employment at ASIO for lifestyle reasons. That was at least in part a recognition by the applicant that because of the state of his health he was not performing in his employment to his satisfaction and he considered a lifestyle change was necessary. He was also concerned for his wife's well being in the unsatisfactory situation in Canberra. They apparently made a joint decision to resign their respective employments and move north.
That situation, on its face, denies the satisfaction of the requirements of paragraph 24(1)(c) because it was not the accepted disabilities alone which prevented the applicant from undertaking remunerative work.
However, I am satisfied that would be an oversimplification of the circumstances existing at the time the applicant ceased remunerative employment and which were still existing at the date of application. The applicant did not understand his medical conditions when he resigned from ASIO but I am satisfied that it was those accepted medical conditions which caused him to decide that he needed a change of lifestyle and were the motivating force for his resignation albeit they were dressed up as family reasons.
The business did not get under way in the sense of being remunerative work. I am satisfied that the applicant was unable to cope because of the now accepted medical conditions and that continued to be the case at the date of application.
In my view the "alone" test in paragraph 24(1)(c) was satisfied at the date of application. Because paragraphs 24(1)(a) and 24(1)(b) have been conceded for the respondent it follows that the veteran must succeed.
In coming to my conclusion I have followed the dicta of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 where (at page 539) His Honour said:
"But the phrase used by the Tribunal, to which objection is taken, involves an almost scholastic insistence upon analysis of the concept of singularity. The tendency of that is to distract the Tribunal from its true task – to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well."

In this case I am satisfied that the conclusion that he could no longer cope at work and the decision to move away from Canberra to somewhere north (as it happened – Bundaberg) were both attributable to the war-caused disabilities and nothing else.
The applicant said in evidence that he is in receipt of pensions from employment in both the Air Force and the Public Service. However, I am satisfied that he is suffering a loss of earnings due to his resignation from ASIO and his business failure.
The decision under review relating to assessment of pension will be set aside and I will substitute a decision that the applicant is entitled to be paid pension at the Special Rate effective from 9 January 2001.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe
Signed:         .....................................................................................
  Sarah Oliver
   Associate
Date of Hearing  5 November 2002 (at Bundaberg)
Date of Decision  6 December 2002
For the Applicant  Ms Brennan of Counsel
For the Respondent                 Mr Stoner, Departmental Advocate