Coulson and Repatriation Commission
[2000] AATA 511
•26 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 511
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/234
VETERANS' APPEALS DIVISION )
Re HERBERT KING COULSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date26 June 2000
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely THAT: the Applicant, Herbert King Coulson, is entitled to pension at 100% of the General Rate as and from 13 May 1997 to 13 December 1997 inclusive and thereafter at the Special Rate as prescribed by section 24 of the Veterans' Entitlements Act 1986.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Recalculation of General Rate Pension and subsequent grant of Special Rate Pension. Operative cause of ceasing work accepted disabilities although other disabilities present. Those disabilities plus age not disabling.
Veterans Entitlements Act 1986 - subss23(1), 24(1) and 120(4) and (6)
Repatriation Commission v Smith (MJ) 15 FCR 327
REASONS FOR DECISION
26 June 2000 Senior Member M D Allen
By application made 16 February 1999 the Applicant sought review of a determination by the Respondent, as amended by a Veterans' Review Board, on 3 December 1998, that inter alia assessed pension to be paid for incapacity occasioned by the war-caused diseases of post traumatic stress disorder, hypertension, chronic bronchitis, anal fissure and peptic ulcer disease at 60% of the General Rate as and from 13 May 1997.
On 5 January 2000 a delegate of the Repatriation Commission determined that the Applicant suffered from war-caused conditions of bilateral sensorineural hearing loss with tinnitus and chronic solar skin damage. The amount of General Rate pension payable to the Applicant following that determination was increased to that of 90% of the General Rate with effect from 26 December 1998. That delegate also determined that the Applicant's condition of carpal tunnel syndrome of each wrist, lumbar spondylosis and bilateral tarsal tunnel syndrome were not war-caused and refused the claimed condition of bilateral peripheral neuropathy lower extremity on the basis that the diagnosis could not be confirmed.
In these proceedings the Applicant claimed that he was entitled to pension at the Intermediate and Special Rates. As the Applicant was born on 23 May 1936, that is to say he was under 65 years at all material times, the relevant criteria for the grant of pension at the Special Rate are set forth in subsection 24(1) of the Veterans Entitlements Act 1986 (the VEA), namely:
"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."
Subsection 24(2) of the VEA then goes on to state:
"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."
Similar criteria apply to the grant of pension at the Intermediate Rate pursuant to s23 of the VEA except that the period able to be engaged in remunerative work is 20 or more hours per week.
Although subs120(6) of the VEA provides that no onus of proof lies upon either party to this review, subs120(4) provides that the Tribunal must be satisfied of the Applicant's entitlement to pension to its "reasonable satisfaction". In Repatriation Commission v Smith (MJ) 15 FCR 327 the Full Court of the Federal Court pointed out that this term "reasonable satisfaction" imports the civil standard of proof, that is to say proof of the balance of probabilities.
After service in the Royal Australian Navy (RAN) the Applicant returned to Tamworth and, after a succession of jobs, in 1981 started his own business of carpet cleaning and also as a salesman for John Sands Calendars. Eventually the two businesses became too much for him to handle so the carpet cleaning business was given to his brother to run. Unfortunately the brother was unable to satisfactorily manage that business and, in effect, destroyed it.
The Applicant continued with the calendar business, the territory allocated to him being Central and Northern New South Wales from Scone, in the Hunter Valley, to Tenterfield, which is near the Queensland border, and from Laurieton to Grafton on the New South Wales coast. The business involved showing samples of calendars and promotional products to businesses in the assigned territory, and obtaining orders. It meant considerable travel but initially the Applicant was able to cope.
From 1989 onwards the Applicant found that his attitude to work began to worsen. He became easily upset with prospective customers and began to retaliate verbally to perceived aggravations. Obviously this was not a good strategy to employ whilst attempting to make sales.
In evidence in chief the Applicant stated that, apart from his anger, he found that he had lost motivation and, although a heavy drinker, he started to drink during the day, which also affected his performance. Other disabilities also affected him, his bronchitis resulted in his becoming short of breath and his anal fissure resulted in a painful anus when driving so that he had to pad the car seat. This disability also resulted in incontinence so that the Applicant had to place pads in his underpants.
By mid 1997 the Applicant could not motivate himself, plus he was aggressive towards customers. Asked about the work he did in the last week he worked, the Applicant stated that he had done a "run" to the Coffs Harbour area for four days where he had tried to work each day but estimated that he only worked two or three hours a day for each of the four days. That work pattern had existed since July of that year.
At the end of the calendar year 1997 the Applicant could no longer support himself by his own efforts and so ceased his business and applied for Social Security benefits. He renegotiated a loan with a finance institution in order to meet his debts.
Apart from his disabilities which are accepted by the Respondent as being war-caused, the Applicant suffers from plantar fasciitis of the left foot, pain in the lower back (diagnosed as lumbar spondylosis – see T40 p186) and bilateral tarsal tunnel syndrome. Panic attacks have been regarded as symptoms referrable to his accepted disability of post traumatic stress disorder. The Applicant gave evidence that although he experienced pain in his feet and low back, he was able to cope with this pain. The carpal tunnel syndrome of both wrists was operated on in 1998, apparently successfully.
Dr Baz, Occupational Physician, in her report of 8 July 1999 (Exhibit A3), opined that it was the Applicant's accepted disability of post traumatic stress disorder that caused him to cease work. At page 7 of her report she stated:
"He also describes pain in the feet when working and pain due to the anal fissure. However I do not consider that either of these conditions prevented him from working. He also gives a history of pain in the low back but I do not consider this impacted on his ability to do his usual work."
The opinion of Dr Baz was contrasted by the Respondent with the opinion of Dr Lewin, Psychiatrist, who interviewed the Applicant on 14 July 1999. His report is Exhibit R2. In the opinion of Dr Lewin the Applicant retired for reasons other than his psychiatric condition, including age. In evidence Dr Lewin stated:
"I think that when people make a decision to retire they look at a whole range of factors and weigh them up."
I do note that, however, that Dr Lewin was not correct in stating that the Applicant's "run" was "somewhat further North than Tamworth in a different geographical area" in that the particular territory covered by the Applicant was both to the North, South and East of Tamworth. Further, contrary to the nuances of Dr Lewin's report the Applicant's wife on occasion travelled with him so that domestic factors did not affect a decision to retire.
Dr McEwin, Consultant in Rehabilitation Medicine, also examined the Applicant on behalf of the Respondent. In his report (Exhibit R3) he took a history that:
"He says he retired because he was too irritable with the customers. If they made some remark which he felt was not helpful he was inclined to lose his temper and argue back which he thought ruined his capacity as a salesman."
But opined:
"Age is a factor in my view and post traumatic stress disorder is also a factor. However I do not consider that the post traumatic stress disorder is sufficient to prevent him working at the type of work that he has been used to doing which is mostly as a salesman. Similarly his other accepted disabilities do not prevent him working in the fields in which he has experience."
In evidence Dr McEwin opined that the Applicant was capable of working up to 15 hours a week and that he would encourage him to undertake work.
Although Dr Lewin was of the opinion that age played its part in the Applicant's decision to retire, as did Dr McEwin, that point was never directly put to the Applicant by Dr Lewin. I have no doubt that both doctors are correct in observing that age plays a part in a decision to retire as a generality. However, the Applicant was not asked his reaction to this suggestion but significantly, in evidence, did say with regard to other non accepted disabilities, namely his low back pain, plantar fasciitis and tarsal tunnel syndrome of both feet, that these problems did not interfere with his working in that they were "one of those problems who have to bear when old age catches up with you". What I understood the Applicant to be saying in his evidence was that there were other problems, associated with ageing, but had they been the only problems he could have coped. This impression is confirmed by the report of Dr Baz in the passage quoted above.
Submissions by the Respondent pointed out that the criteria for the grant of pension at the Intermediate Rate, pursuant to s23 of the VEA, required an inability on the part of the Applicant to undertake remunerative work for 20 hours or more per week. Although the Applicant, in the period up to when he ceased work entirely, was working reduced hours, in calculating the number of hours worked the time spent in driving to the places of business must be taken into account. Thus in the last week of his working life, although the Applicant stated that he was engaged in selling for only 12 hours of that week, when driving time is calculated he was working in excess of 20 hours. I consider that there is much force in this submission and I am not satisfied that in the period up to 13 December 1997 the Applicant was incapable of working more than 20 hours per week and thus the application for payment at the Intermediate Rate is refused.
So far as the period post 13 December 1997 is concerned, I am more persuaded by the evidence of the Applicant and Dr Baz and find that, although non accepted disabilities and age affected the Applicant adversely, he could have coped with these adversities and that as a matter of practicality the reason for his ceasing work was incapacity caused by his accepted disability of post traumatic stress disorder.
In making this finding I note also that Dr McEwin implicates both age and post traumatic stress disorder as the factors which occasioned the Applicant to cease work. Having regard to the Applicant's evidence, I am satisfied that, notwithstanding age and other disabilities, he would have continued to work albeit that the enthusiasm and number of hours worked may have decreased but for his post traumatic stress disorder.
In written submissions the Respondent made reference to the provisions of paragraph 24(2)(b) of the VEA. In my opinion that subsection has no application to this matter as the Applicant can bring himself within the provisions of paragraph 24(1)(c).
At paragraph 14 of his written submissions the advocate for the Respondent stated:
"With regard to the assessment of impairment ratings by the Applicant at paragraphs 24 to 37 inclusive of the Applicant's Submissions dated 26 April 2000 we agree with the assessment presented."
The submissions by the Applicant's counsel, in paragraphs 24 to 37, were directed towards evidence which supported the Applicant's claim that he had been under-assessed with regard to the General Rate of pension and that pursuant to the Guide to the Assessment of Repatriation Pensions, Fifth Edition, he was entitled to pension at 100% of the General Rate as and from 13 May 1997. As I understand the evidence before me, both in the reports and given orally at the hearing in this matter by the various medical specialists together with the Applicant's evidence, the concession by the Respondent is properly made.
As the Applicant was at 13 December 1997, when he retired from remunerative work, receiving pension at a rate of 70% or more of the General Rate of pension he is entitled as and from 14 December 1997 to pension at the Special Rate for the reasons outlined above. Likewise, for the reasons stated above, the claim for pension at the Intermediate Rate for the period 1 July 1997 to 13 December 1997 is refused.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic .....................................................................................
AssociateDate of Hearing 23 March 2000
Date of Decision 26 June 2000
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant R L Whyburn & Associates
Advocate for the Respondent Mr R Wallis, Department of Veterans' Affairs
0
0
0