Crabb and Repatriation Commission

[2006] AATA 295

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 295

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/426

VETERANS’ APPEAL DIVISION		)
Re		RICHARD CRABB

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date15 March 2006

PlaceTownsville

Decision The decision under review is set aside. The applicant is eligible to receive a pension at the special rate under the Veterans Entitlements Act 1986.

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SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – special rate pension – alone test – look beyond applicant’s last employment to determine remunerate work – one can have regard to work done on previous occasions – veteran unable to work during the claim period due to war-caused condition – applicant satisfies the alone test

Veterans Entitlements Act 1986 s 24

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Hendy (2002) 76 ALD 47

WRITTEN REASONS FOR ORAL DECISION

31 March 2006 Senior Member B J McCabe         

1.      The hearing in this matter was held in Townsville. The Tribunal gave an oral decision on that occasion. One of the parties has subsequently requested written reasons for the decision. The reasons are set out below.

introduction

2.      Richard Crabb is the applicant in these proceedings. Mr Crabb claims he is entitled to be paid a pension under the Veterans Entitlements Act 1986 (the VEA) at the special rate. To qualify for the special rate, he must satisfy the requirements set out in s 24 of the VEA. The respondent says Mr Crabb cannot satisfy the requirements in s 24(1)(c) in particular, which sets out the so-called “alone” test.

the material before the tribunal

3.      The s 37 documents were tendered in evidence. The applicant tendered his statement. The transcripts of the proceedings before the Veterans’ Review Board were tendered by the respondent, together with correspondence from the Commonwealth Bank.

4.      Mr Honchin represented the applicant. He was instructed by Purcell Taylor, solicitors. Mr Williams appeared on behalf of the respondent.

the facts

5.      The background facts are not in dispute. Mr Crabb was a national serviceman in the Army during the Vietnam conflict. He undertook operational service in South Vietnam during that period. He has a number of accepted conditions, including PTSD and alcohol abuse/dependence.

6.      Prior to his national service and upon his discharge from the Army until 1996, the applicant worked for the Commonwealth Bank. He was employed by the Bank for around 30 years. He was an assistant manager when he left the Bank in 1996 to work for a mining company. He worked underground until he was injured in a work accident on 26 June 2000. He suffered a fracture to his ankle. He was off work for a number of months. His return to work program saw him carrying out clerical duties in the mine office. It soon became clear his ankle injury meant he couldn’t return to the mine as a miner and his employment was terminated in August 2001.

7.      The applicant says he has not worked since he was terminated, nor has he looked for work.

8.      The applicant said his accepted conditions of PTSD and alcohol abuse/dependence were affecting his work performance while he was still at the bank. Throughout the 1990s, he said he had increasing difficulty with his role. He was criticised for the way in which he dealt with staff he supervised. He was becoming irritable with colleagues and superiors and customers. He was unhappy with the direction the bank was taking at the time, but he was also very unhappy with his failure to advance through the ranks. He was convinced his superiors overlooked him for promotion because he was a drinker who turned up to work smelling of alcohol, and who had difficulties in managing relationships with customers, superiors and colleagues.

9.      The applicant said he knew his superiors were unhappy with his behaviour. Some of them told him of their concerns. He acknowledged he was never formally counselled or otherwise subjected to disciplinary action. There is no suggestion that he had to leave the bank’s employment when he departed in 1996; he could have remained there, albeit that he was unlikely to advance. He said he was thinking about leaving the bank for some years prior to 1996.

10.     Mr Crabb said he was attracted to work in a mine – a dramatic career change – by the prospect of being able to work alone. He said he did not want to have to deal with people. His work in the mine was largely solitary: even when he was working as part of a team, he was able to keep to himself.

11.     The applicant said he was becoming increasingly concerned about his poor memory and lack of concentration during this period. He said he started to feel nervous about collapses in the underground mines. He said he would not have been injured if he had been concentrating properly. He also said the lack of concentration and poor memory began to manifest themselves while he still worked for the bank.

12.     Mr Crabb said he experienced some conflict with other workmates in the mine. He referred to one incident in particular which resulted in a halt to production. He said he also began to have some difficulties with supervisors. He acknowledges once again that he was never counselled formally about his attitude.

13.     Mr Crabb said his return to work on clerical duties in the mine went smoothly enough. The work was easy enough, given his experience in the bank. He was able to operate on his own. He said he became irritated when he had to deal with other people and supervisors. It soon became clear that he would not be able to return to work in the mine, however. He was terminated.

14.     The applicant consulted several doctors. He currently receives medication in respect of his psychiatric condition that leaves him drowsy. He does not receive medication in respect of his ankle: although he occasionally experiences stiffness, he gave evidence that he walks 7-8 kilometres a day.

15.     Dr Morris opined in 2001 that the applicant’s ankle would prevent him returning to the mine to work. Dr Schneider, an occupational health specialist, opined in 2002 that the applicant could not return to work in a mine because of his ankle, but said the applicant could undertake a sedentary occupation - like the work he used to do in the bank. The psychiatric evidence, in contrast, suggests the applicant cannot work because of his psychiatric condition and alcohol abuse or dependence conditions.

the legislation

16.     The dispute in this case relates to the application of s 24(1)(c). The respondent conceded that ss 24(1)(a) and (b) are satisfied. Section 24(1)(c) limits the operation of s 24 to circumstances where:

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;

17.     The correct approach to dealing with this provision was discussed in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5. I will follow that approach in this case.

18.     The first step is to identify the remunerative work that the veteran was undertaking. Mr Honchin argued, and Mr Williams agreed, that the decision in Repatriation Commission v Hendy (2002) 76 ALD 47 at 54 meant one was not restricted to looking at the applicant’s last employment. One can look beyond that to work he did on earlier occasions. In this case, the applicant undertook managerial and administrative work in a bank for many years before spending a relatively short period doing physical labour in the mines. His work in the bank involved the exercise of a range of generic managerial skills. I think it is appropriate to look beyond the mining work since the vast bulk of his working life occurred in the service of one employer – the Commonwealth Bank. His work in the mine was a departure from that career.

19.     The second step is to identify whether the war-caused condition prevented him from continuing to undertake that work. While I am not convinced the applicant was prevented from continuing the work in the Bank when he left that job in 1996, I accept his war-caused conditions were and are the reason he could not do the work during the assessment period.

20.     The third question is whether the war-caused condition is the only reason why he cannot continue with that work. Given the medical evidence and the applicant’s own uncontradicted testimony, I accept it is. He says he cannot face returning to work where he has to deal with people and take responsibility for matters. He says he experiences a sense of panic and guilt whenever he contemplates the prospect. His ankle is not a problem; although he has been away from the work since 1996 and may no longer be familiar with the particular systems in place at the CBA, his generic managerial skills remain intact and appropriate. There was no evidence to suggest he could not find work, despite his age. Even if he would not be employed by the Commonwealth Bank, there is no evidence to suggest he could not use his generic managerial skills in other organisations. The only things stopping him from doing so are his war-caused conditions.

21.     The fourth question requires that I consider whether the applicant has suffered a loss of salary or wages or earnings. As a wage earner, his inability to work clearly causes him a loss of wages.

conclusion

22.     I am satisfied the applicant would still be working in a managerial capacity but for his war-caused conditions. The decision under review is set aside. The applicant is eligible to receive a pension at the special rate.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         Adam Ryan

Associate      Adam Ryan

Date of Hearing  14 March 2006
Date of Decision  15 March 2006
Date of Written Reasons          31 March 2006
The applicant was represented by Mr Honchin of Counsel.
The respondent was represented by Mr Williams, a departmental advocate.