Costello and Repatriation Commission
[2011] AATA 727
•20 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 727
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5298
VETERANS' APPEALS DIVISION ) Re ROBERT COSTELLO Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms J Toohey, Senior Member and Dr I Alexander, Member Date20 October 2011
PlaceSydney
Decision We set aside the decision under review and decide instead that Mr Costello is entitled to the special rate of pension with effect from 8 June 2010.
......................[sgd]........................
Ms J Toohey
Senior Member
CATCHWORDS
VETERANS ENTITLEMENT – special rate of pension – post-traumatic stress disorder – alcohol dependence – veteran unable to have contact with the public – whether veteran’s accepted disabilities alone rendered him incapable of remunerative work for more than eight hours per week – whether veteran was prevented by war-caused incapacity alone from undertaking remunerative work that he was undertaking – whether restructure was the reason the veteran was prevented from undertaking remunerative work – decision under review set aside
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1; [1997] FCA 1200
Forbes v Repatriation Commission (2000) 101 FCR 50; [2000] FCA 328
Repatriation Commission v Butcher [2006] FCA 811
Repatriation Commission v Connell [2011] FCAFA 116
Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCAFC 424
Starcevich v Repatriation Commission (1987) 18 FCR 22.
REASONS FOR DECISION
20 October 2011 Ms J Toohey, Senior Member and Dr I Alexander, Member Background
1. Mr Robert Costello receives a disability pension at 100 per cent of the general rate for multiple accepted disabilities including post-traumatic stress disorder (PTSD) and major depression. He has a number of other disabilities which are not war-caused, none of which is of consequence in these proceedings.
2. Mr Costello now claims the special rate of pension. The Repatriation Commission (the Commission) has rejected his claim on the grounds that he does not satisfy s 24(1)(b) or s 24(1)(c) of the Veterans Entitlements Act 1986 (the Act). It is agreed that he satisfies all other criteria for the special rate. There is no dispute as to the facts.
3. We have to determine whether Mr Costello is entitled to the special rate of pension. For his claim to succeed, we have to be reasonably satisfied that:
(i)his accepted disabilities alone render him incapable of undertaking remunerative work for periods aggregating more than eight hours a week; and
(ii)he is prevented by those disabilities alone from engaging in remunerative work that he was undertaking.
The legislation
4. Section 24(1)(b) of the Act requires that Mr Costello be totally and permanently incapacitated, meaning that his war-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Section 28 sets out the only factors which may be taken into account in determining whether s 24(1)(b) is satisfied.
5. Section 24(1)(c) requires that Mr Costello be, by reason of war-caused incapacity alone, prevented from continuing to undertake remunerative work that he was undertaking, and be suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering were it not for that incapacity.
6. Mr Costello will not meet s 24(1)(c) if he has ceased to engage in remunerative work for reasons other than the war-caused incapacity, or is incapacitated, or prevented, from engaging in remunerative work for some other reason: s 24(2)(a).
7. By s 24(2)(b), for the purposes of s 24(1)(c), Mr Costello will be taken to be prevented from continuing to undertake the remunerative work that he was undertaking if:
(i)he has been genuinely seeking to engage in remunerative work;
(ii)he would, but for that incapacity, be continuing so to seek to engage in remunerative work; and
(iii)that incapacity is the substantial cause of his inability to obtain remunerative work in which to engage.
The facts
8. Mr Costello served as an aircraft radio technician in the Royal Australian Air Force from 1967 to 1987. In that time, while overseas, he experienced a number of traumatic events, the most traumatic of which occurred in 1975 while he was with the United Nations Medical Observer Group in India and Pakistan, observing the ceasefire in Kashmir. During sectarian bombing, he recovered a severely injured little girl from a house where a bomb had exploded. She died in his arms. She was about the same age as his daughter.
9. After this incident, Mr Costello started drinking, after three years’ abstinence. Over time, he became withdrawn; he socialised less and spent a lot of time on his own. His first marriage ended in 1985. He married again in 2008.
10. Mr Costello has had symptoms of depression since the late 1970s and at times has felt suicidal. His drinking increased over time to the point where he was drinking two to three bottles of whiskey each week and a bottle on Saturdays and Sundays, as well as eight to ten schooners of beer on a Friday night. He continues to drink approximately half a bottle of whiskey on five days of the week and approximately a full bottle on the other days.
11. Mr Costello suffers from debilitating PTSD, an effect of which is that he finds it very difficult to have contact with people. By way of example, he and his wife have described how 26 members of their families came to their home for Christmas in 2009. It was most unusual to have so many people around but Mr Costello’s mother was gravely ill and the family wanted to be together; she died not long after. When everyone was seated for dinner, Mr Costello could not be found. Mrs Costello eventually found him in his shed with the door locked and, after getting the spare key, found him inside, shaking uncontrollably.
12. Since leaving the RAAF in 1987, Mr Costello has been able to work largely on his own, at a computer at the office or at home. He left when he was offered a good job with a private company but stayed there for only three months when the job turned out not to be what he had expected. He then worked for a short time as a security guard before returning to electronics and working as a precision test and measurement engineer, specialising in aircraft flight test systems, for 15 years. His work involved limited contact with people and, generally, he was able to cope. His employers have apparently not known about his disabilities.
13. In 2004, Mr Costello started work for another company in Sydney as the quality control and new product testing manager. Shortly after, he also became responsible for designing systems, and that became the largest part of his work. He was a “one-man division” isolated from the rest of the company’s operations. At some point, the company moved its design work to Canberra where Mr Costello worked in a single office, isolated from everyone else.
14. Mr Costello had contact with customers by telephone or e-mail. Plans would be sent to him by e-mail or post and, occasionally, by courier. His home and office computers were set up in such a way that he could work from home when he found it too difficult to deal with people. In this way, he continued to hide his psychiatric condition. He would occasionally have to go on site or attend meetings but this was rare, and very stressful when it happened.
15. In 2008, Mr Costello's employer merged with a sister company and his position was restructured and expanded. His new position was to involve daily, direct contact with the public; he would be required to visit construction sites, be involved in customer relations, and undertake general sales and marketing role to attract more business. Mr Costello could not cope with that prospect. Rather than reveal his condition, he resigned in May 2008, before starting the new role. He has not worked since.
16. It was not until after he left work that Mr Costello talked about his service experiences to his current wife, who is very supportive. On the advice of a veteran advocate, he saw a psychiatrist, Dr Graham Altman, several times over several months. Dr Altman diagnosed him as suffering severe, chronic PTSD with associated Major Depression and Alcohol Dependence. Dr Patrick Morris, a consultant psychiatrist, who assessed Mr Costello in May 2011, diagnosed him as suffering from chronic PTSD with Delayed Onset, Dysthymic Disorder and Alcohol Abuse. The difference in diagnosis appears to be one of degree rather than of substance.
Does Mr Costello’s war-caused incapacity, of itself alone, render him incapable of undertaking remunerative work for more than eight hours per week
17. In determining whether s 24(1)(b) is satisfied, only the factors in s 28 may be taken into account: They are:
(i)the veteran’s vocational, trade and professional skills, qualifications and experience;
(ii)the kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake; and
(iii)the degree to which the impairment the veteran suffers as a result of his or her injury or disease has reduced his or her capacity to undertake that kind of remunerative work.
18. The respondent contends that the medical evidence shows that Mr Costello is capable of working more than eight hours each week. The respondent relies in particular on the reports of a specialist occupational physician, Dr Leon Le Leu, and Dr Morris.
19. Dr Le Leu saw Mr Costello for assessment in April 2011. He noted that Mr Costello's clinically significant disabilities were his psychiatric disabilities, which prevented him from working and were present daily. In his opinion, Mr Costello could only continue employment in his field “if he were isolated from direct contact with clients other than by telephone, e-mail or letter.” He thought Mr Costello could work with two other people, but preferably only one.
20. The respondent asked Dr le Leu to comment on whether Mr Costello was capable of undertaking remunerative employment of 20 or more hours a week and eight or more hours a week. He did not answer the question directly but wrote:
He would not be able to undertake any remunerative employment if he were required to have face to face client contact or was otherwise directly in the public eye. His condition makes him strictly a “backroom person” and it is the only way he could function.
21. Dr Le Leu commented that Mr Costello “conceals his disabilities well” but “he would not go for a job in which he would expect significant public exposure”; he would have difficulty with the interview process, because a selection panel generally comprises several people, and this would make the chances of getting a job difficult.
22. Dr Morris saw Mr Costello for psychiatric assessment in May 2011. He took a detailed history and completed an Emotional and Behavioural Medical Impairment worksheet. He did not comment specifically in his report on the number of hours Mr Costello might be able to work, but in relation to his occupation Dr Morris wrote:
His psychiatric disabilities significantly affect his capacity to work in any situation apart from working by himself in a situation where he does not have to interact with anybody else in his work.
23. In the questionnaire, Dr Morris wrote:
The veteran’s anxiety and depression are so severe that he could not work in any job dealing with the public. He may be able to cope with working on his own from home.
24. Dr Thomas Rosenthal, a specialist occupational physician, saw Mr Costello in April 2011 for assessment. He noted that Mr Costello's work had essentially been clerical or office-based work, and thought this most suitable to his skills and qualifications. He thought Mr Costello had the physical capacity to perform clerical duties for eight hours a day, five days a week but, taking into account Dr Altman’s report, Dr Rosenthal thought he would not have the psychological or mental capacity to perform the work.
25. Dr Altman was Mr Costello’s treating psychiatrist. In a report in November 2008, he wrote that Mr Costello was totally and permanently unfit to work; he was not well enough to work eight or more hours per week.
26. The respondent contends that it may be inferred from their reports that Dr Le Leu and Dr Morris consider Mr Costello is capable of working more than eight hours each week. We accept that, although he does not specify a number of hours, Dr Le Leu’s comments are open to that interpretation. However, at its highest, Dr Morris believes he may be able to cope with working from home.
27. We prefer the evidence of Dr Morris, who is a psychiatrist, to that of the occupational physicians because the impairment in question is a psychiatric disability. That said, even the occupational physicians lend considerable support to Mr Costello’s claim. Further, the evidence of Mr Costello and Mrs Costello, which we accept, supports the conclusion that he is not able to work for more than eight hours a week.
28. The transcript of a hearing before the Veteran's Review Board (the Board) in March 2010 shows that Mr Costello was asked whether he had sought any other work since retiring, such as through the Commonwealth Employment Service. He said that a number of people whom he knew through his former employment had contacted him with offers of work but he did not have “the confidence at the moment to be able to stand the strain”.
29. The transcript of the hearing at the Board shows that Mrs Costello, who was present, intervened at this point and said there was “more to it than that”. She said that, when people rang or emailed with requests for designs, Mr Costello would initially say yes, but then he would not do the work. When the customer contacted him on the due date, the work would not be done and he would ask for an extension. Another week would go by and the work would still not be done by which time, she said, “he’s fit to be put in a straitjacket sometimes”. She would field the calls and explain that he was not well and would get back to the customer, but in the meantime the customer apparently went elsewhere.
30. The respondent contends that Mr Costello was able to hold down various positions between 1975 and 2008 despite his accepted disabilities, and that he should be able to continue to do so. We recognise there is some force to that argument but against it is evidence that Mr Costello’s condition has worsened over time.
31. Dr Morris refers to a diagnosis of “[PTSD] with Delayed Onset”. It is not clear from his report exactly what this means, or when the onset occurred, but it suggests a change at some point. There is also evidence in the form of an Alcohol Questionnaire which Mr Costello completed in October 2008, in which he records a steady increase in his drinking from eight to ten beers a day in 1975, to eight to ten beers and three to four scotches a day in 1980, and a steady increase since then. Mrs Costello has confirmed the extent of his drinking now and also says his “episodes” were becoming more frequent in the time leading up to the restructure.
32. The respondent contends that there are kinds of remunerative work which a person with Mr Costello's skills and experience might reasonably undertake but has not suggested what, realistically, that work might be, given his disabilities.
33. Mr Costello gave evidence, which is not disputed and which we accept, that public interaction and face-to-face responsibilities are the norm in his field of work. We accept that, physically, he could probably undertake some form of clerical work for more than eight hours a week. However, the evidence is that even taking on work from home involves more contact with people than he is able to cope with and, realistically, his disabilities make contacting people about employment, let alone going through a selection process, beyond him. We are satisfied that his accepted conditions reduce his capacity to such an extent that it is unrealistic to say that he is capable of remunerative work.
34. We are satisfied on the evidence before us that, of itself alone, Mr Costello's war-caused incapacity renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
Is Mr Costello prevented by those disabilities alone from engaging in
remunerative work that he was undertaking
35. Section 24(1)(c) is in two parts, both of which must be satisfied. The first requires that Mr Costello be prevented by a reason of his incapacity alone from continuing to undertake remunerative work that he was undertaking. The second requires that he is, by reason of that incapacity, suffering a loss of income that he would not otherwise be suffering.
36. Mr Costello will not satisfy the second part of s 24(1)(c) if he has ceased to engage in remunerative work for reasons other than his accepted incapacity, or is incapacitated or prevented from engaging in remunerative work for some other reason: s 24 (2)(a).
37. The questions to be asked when applying s 24(1)(c) were set out by Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1; [1997] FCA 1200 as follows:
(i)what is the relevant remunerative work that the veteran was undertaking;
(ii)is the veteran, by reason of war-caused incapacity, prevented from continuing to undertake that work;
(iii)if the answer to question (ii) is yes, is that incapacity the only factor preventing the veteran from continuing to undertake that work;
(iv)if the answers to questions (ii) and (iii) are yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of income that he would not otherwise be.
38. “Remunerative work” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. It is not limited to the last employment that the veteran actually undertook: Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCAFC 424; Starcevich v Repatriation Commission (1987) 18 FCR 221.
39. In Repatriation Commission v Connell [2011] FCAFA 116, the Full Federal Court, considered the meaning of “remunerative work” for the purposes of s 23 (1) (c) which is not materially different from s 24(1) (c). The Court said:
… in the context of the beneficial nature of the act in question, “remunerative work” should not receive a restrictive interpretation. There is no valid reason to complain the expression to work of a particular type. “Remunerative work that the veteran was undertaking” should not be confined to the actual type of work involved but should also be referrable to its nature and quality.
40. There is no dispute of substance about the remunerative work that Mr Costello was undertaking. It involved, broadly, working in electronics, and encompassed the work of a radio technician and a systems designer for television, as well as quality assurance and design.
41. Section 24(1)(c) requires that a veteran’s inability to work be due to his or her war-caused disabilities alone and not to other matters. If some factor other than war-caused incapacity plays a part in preventing a veteran from continuing to undertake remunerative work, he will not satisfy s 24(1)(c). This is so even if the war caused condition is “by far and away the more dominant of the causes of the preventative effect”: Forbes v Repatriation Commission (2000) 101 FCR 50; [2000] FCA 328, per Nicholson J at 57; [40].
42. However, the matter should be approached in a “practical, common-sense, fashion”: Repatriation Commission v Butcher [2006] FCA 811 at [39] per Bersanko J. The word “alone” in s 24(1)(c) should be given its ordinary meaning. In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, Burchett J said that to characterise “alone” as “the sole, unique and absolute cause” of a veteran’s inability to work had a tendency:
… 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. It is a decision that should not 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.
43. The respondent contends that what prevented Mr Costello from continuing remunerative work that he was undertaking was not his war caused incapacity but his employer’s decision to restructure. In support of this contention, the respondent refers to the following exchange at the hearing before the Board:
MR MOORE: Had these changes in the company not occurred, do you think you would still be working if you were able to do that at home?
MR COSTELLO: I would say, possibly, yes. But I would still be depressed, angry, obstinate -- even drinking more and possibly doing everything to drive my current wife to be my ex-wife.
MRS COSTELLO: Our original plan was to us to work till Robert was 65, which meant I was a couple of years younger. And then doing what most retirees do, I suppose, and just travel or whatever.
44. The respondent also refers to a written statement which is in evidence in which Mr Costello says he would have continued his employment were it not for the restructure.
45. It is clear from the evidence that the decision by Mr Costello's employer to restructure his job precipitated his retirement. Had it not occurred, with its implications for his employment, nothing would have changed and Mr Costello may well have been able to continue in employment up to the age of 65 as was his plan.
46. The evidence is also clear that Mr Costello’s war-caused incapacity meant he could not have continued in his position once it involved dealing with the public. We are satisfied that, even had he tried to take on that work, he could not have done so. Even if he could have found some way to turn up to work on the first day, he clearly could not have done the new job and, whether on that day or within a short time, he would have left his employment. The medical evidence, as well as that of Mr and Mrs Costello, leaves us in no doubt that is what would have happened.
47. Mr Costello worked in unusual circumstances for many years, including with his previous employers. He was, in a sense, in a protected position. His disability could be accommodated by the work itself as well as by his employers, even if they were not aware of it. Once that changed, however, his war-caused incapacity meant he was effectively prevented from continuing to undertake remunerative work.
48. To say that the restructure was the reason Mr Costello ceased remunerative work for the purposes of s 24(1)(c) tends to obscure that it was simply a circumstance that created conditions which it was beyond him to cope with, for no other reason than his war-caused incapacity. The restructure was not what prevented him from continuing remunerative work in the sense contemplated by s 24(1)(c).
49. In those circumstances, we are satisfied that Mr Costello was prevented from continuing remunerative work that he was undertaking by reason of his war caused incapacity alone.
Conclusion
50. We are satisfied that Mr Costello satisfies ss 24(1)(b) and (c) of the Act. As he satisfied all other requirements for the special rate of pension, we find that he is entitled to that rate with effect from 8 June 2010, being six months prior to his application to the Tribunal.
51. We set aside the decision under review and decide instead that Mr Costello is entitled to the special rate of pension with effect from 8 June 2010.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr I Alexander, Member.
Signed: ...............................[sgd]...................................
Nicholas Olson, AssociateDate of Hearing 13 October 2011
Date of Decision 20 October 2011
Counsel for the Applicant Mr L KarpSolicitor for the Applicant Ms J Buss, Legal Aid Commission of NSW
Advocate for the Respondent Mr N Bunn, Repatriation Commission
0
6
0