Creek and Repatriation Commission
[2010] AATA 563
•28 July 2010
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2009/4403
Veterans' Appeals Division )
Re: Douglas Creek
Applicant
And: Repatriation Commission
Respondent
CORRIGENDUM
TRIBUNAL: Dr K S Levy RFD, Senior Member
DATE: 16 August 2010
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The last sentence of paragraph 29 should read: In assessing the evidence, I must be satisfied as to the standard of reasonable satisfaction, or colloquially, on the balance of probabilities, as set out in s 120(4) of the Act.
The last sentence of paragraph 61 should read: I find that Mr Creek would be capable of working more than 8 hours per week and therefore that the 8 hour work test is not satisfied in relation to the applicant for both the periods in issue.
...................................................................
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 563
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4403
VETERANS' APPEALS DIVISION ) Re DOUGLAS CREEK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date28 July 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............[Sgd]...............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Special rate of pension – Applicant’s entitlement to special rate of pension – Is the applicant capable of undertaking remunerative work for more than 8 hours per week for the relevant periods – Applicant is capable of working more than 8 hours per week – Credit and credibility of applicant considered - Applicant not prevented from undertaking remunerative work because of war-caused injury or received – Decision affirmed.
Evidence Act 1995 (Cth) ss 76, 79, 135, 136
Veterans’ Entitlement Act 1986 (Cth) ss 5Q, 19 24, 28, 31, 120
Banovich v Repatriation Commission (1986) 69 ALR 395
Birtles and Repatriation Commission (1991) 105 ALR 359 at 368-269
Chambers v Repatriation Commission (1994) 33 ALD 473 at 234
Clark v Ryan (1960) 103 CLR 486
Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579; (1993) 125 L Ed 2d 469
Farrell v R (1998) 194 CLR 286
Flentjar v Repatriation Commission (1997) 48 ALD 1
HG v R (1999) 197 CLR 414 at 58
Jackman and Repatriation Commission (1997) FCA 97/564; 30 June 1997
Magill v Repatriation Commission [2002] FCA 744
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 59 to 63
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 at 118
R v Christie [1914] AC 545
Osland v R (1998) 197 CLR 316
Starcevich v Repatriation Commission (1987) 18 FCR 221; 76 ALR 449
Velevski v R [2002] HCA 4
REASONS FOR DECISION
28 July 2010 Dr K S Levy RFD, Senior Member INTRODUCTION
1. This is an application for review of two decisions made by the Veterans’ Review Board (“the VRB”). The first part of the application relates to a decision made on 17 July 2008 which recognised defence-caused post traumatic stress disorder and awarded 100% of the general rate with effect from 28 February 2006 and the special rate from 23 June 2006; but was varied on 9 April 2009 when the VRB decided to reduce Mr Creek’s pension to 100% of the general rate with effect from 29 January 2007. The second part of the application is for review of the decision of the VRB dated 6 August 2009 which affirmed the Repatriation Commission’s decision of 9 April 2009.
ISSUE
2. The issue for determination in this matter is whether Mr Creek is entitled to the special rate of pension as prescribed by the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The issue for determination involves assessments for two separate periods – the period 23 June 2006 to 28 January 2007; and, the period 18 August 2008 and subsequently.
EVIDENCE
3. This matter has an extensive history, considerable documented evidence and consists of a number of formalised decisions of the Repatriation Commission and the VRB. At the hearing in this Tribunal, the applicant gave oral evidence as did his medical advisors Dr Katz, Psychiatrist and Dr Nolan, general practitioner.
4. By way of relevant background, Mr Creek enlisted in the Royal Australian Airforce (“RAAF”) in 1971. He trained in the catering trade. He was discharged from the RAAF in 1979. In that nine year (approximately) period, he served on Australian bases for the majority of his service but also served a six month period in the Sinai Peacekeeping Force as a caterer.
5. Given the lengthy history and inter-related facts for the two assessment periods, a summary of the evidence, in chronological sequence of the previous and current hearings, is outlined below.
Decision of 17 July 2008
6. While in the Sinai, there were allegedly two incidents which resulted in the applicant’s Post Traumatic Stress Disorder (“PTSD”). While Mr Creek’s claims in relation to these incidents presented at the hearing of 17 July 2008 show no official service record or a report about these incidents. Despite this the VRB accepted Mr Creek’s submissions and he was granted 100% of the general rate with effect from 28 February 2006 and the special rate with effect from 23 June 2006.
7. The VRB accepted that he had PTSD and that he was also entitled to the special rate with effect from 23 June 2006 on the basis of: the medical evidence of Dr Katz and Dr Nolan; a letter from Surfside Buslines indicating that Mr Creek had resigned from 25 July 2006; and, oral evidence from Mr Creek that he had not worked since February 2006.
Decision of the Hearing of 9 April 2009
8. At this hearing, evidence was advanced about Mr Creek having re-applied for employment with Surfside Buslines on 18 January 2007 and was in fact employed with Surfside Buslines between 29 January 2007 and 17 August 2008 on a full-time basis. This was corroborated by the income tax return from the Australian Taxation Office (“ATO”) dated 4 November 2008 and 13 February 2009. At that hearing, there was a submission by the applicant’s advocate, Mr Chrolavicius, which was ultimately shown to be incorrect, although it was accepted that it was prepared in good faith by the advocate based on information provided by Mr Creek.
9. A proposed determination after the completion of that hearing was forwarded to Mr Creek. That determination was that the applicant’s pension should be reduced to 100% of the general rate with effect from 29 January 2007. His advocate contacted the Department of Veterans’ Affairs on 25 March 2009 and while not disputing the new evidence, he requested that he be allowed to provide written submissions in respect of the proposed determination. The advocate later advised the Department that no further submissions would be made.
Decision of 6 August 2009
10. The applicant said that he had been told by people with whom he drank and gambled with that he could work while his claim to the VRB was being determined.
11. His evidence at this hearing showed that he had not revealed to Surfside Buslines that he suffered from PTSD and a heart condition. In fact, shoulder problems were also claimed but the applicant said these did not prevent his driving and gave evidence that a “baby could steer the buses” which he drove.
12. Two back injuries in 2008 or 2009 were claimed, one where the applicant’s seat collapsed and the other where he was helping an overweight passenger. These were found to be only minor injuries and Workcover subsequently refused to provide support for these claims.
13. There was evidence that the applicant took medication for PTSD and his heart condition. Both Dr Katz and Dr Nolan were aware that he had returned to work even though both doctors had provided medical opinions/reports that Mr Creek was incapacitated for work.
14. Evidence was also led about the applicant’s heavy drinking and excessive gambling. He claimed others had advised him to tell the Board that he had ceased work (which he subsequently did). There is no indication that this evidence has been corroborated.
15. Mr Creek admitted that he had lied previously to the VRB and told them he was not working when in fact he had been working for almost 18 months. He said he returned to the workforce because of financial need. Mr Creek’s evidence was that he had significant debts from gambling and drinking; that he had stolen from his wife’s bank account in desperation; and, that he and his wife had terminated a pregnancy – a low point in his life financially and emotionally, where he admitted he had also hit his wife.
16. His evidence at this stage was also that he liked driving buses and that it was easy work.
Hearing of 8 April 2010
17. The applicant’s evidence at the hearing was that he did not handle stress or people well, and that this was the cause of his heavy drinking and smoking.
18. There was a report presented by Dr Katz which, as at 18 July 2006, certified that Mr Creek did not have the capacity to work more than 8 hours per week. There was evidence that he still sees Mr Creek on a regular (usually fortnightly) basis. Dr Katz gave oral evidence at the hearing and maintained the same opinion as in his original report of 18 July 2006.
19. The applicant’s general practitioner, Dr Andrew Nolan, had provided an initial report dated 31 July 2006. In that report, Dr Nolan said that Mr Creek was unable to continue employment due to heart disease, angina and severe anxiety. Dr Nolan mentioned that Mr Creek did not meet the health standards required of bus drivers and that he had told Mr Creek that if he did not stop driving, he would advise Queensland Transport.
20. Dr Nolan produced a second report which does not say that Mr Creek is unable to work. Under cross-examination, Dr Nolan said he did not report Mr Creek to transport authorities despite his earlier threat. His response to a question as to why he had not made a report to Queensland Transport was merely that Mr Creek’s “condition may have changed”.
21. Mr Creek also gave oral evidence at this hearing. He said his work history since leaving the RAAF was mainly driving in a number of work areas – long distance interstate trucks, buses for handicapped children, delivering furniture, driving and delivering eggs and chickens, and a tourist coach.
22. The applicant also said that he had other medical conditions – restless leg syndrome; degenerative changes to the lumbar spine; gastro oesophageal reflux disease; rotator cuff syndrome of the left and right shoulders; and a kidney stone condition.
23. A further documentary exhibit by the applicant (exhibit 2) was received and date stamped 14 December 2009 and refers to his 2007 resignation from Surfside Buslines. Evidence at an earlier hearing was that he told Surfside Buslines that he was resigning because he had lost interest. The applicant has since admitted that that was a lie. He further said that he “didn’t want to burn his bridges”. The Tribunal also noted a transcript of a hearing of 17 July 2008 between Mr Creek before Senior Member MacDonald of the VRB as follows:
MS MacDONALD: So did you actually keep – did they keep your job open whilst you were trying to recover or …
MR CREEK: No, no, no. Once you resigned, you’re …
MS MacDONALD: No, no, no, before that.
MR CREEK: No.
MS MacDONALD: See, because you last worked on 26 February …
MR CREEK: Yes.
MS MacDONALD: … and you resigned some four months later on 22 June.
MR CREEK: Yes, that was my – they kept my job open – they keep your job open for three months and then after that you’re automatically no longer employed with the company. So between that and having to give them notice and then going into hospital – yes.
24. A further exchange between Mr Creek and Senior Member MacDonald was noted on page 21 of the transcript of that hearing as follows:
MS MacDONALD: Okay. And the payment summary takes it up to 22 June 2006 as well, okay. So you stopped work because you had an angina attack; is that right?
MR CREEK: I resigned under – my letter to them was stress.
MS MacDONALD: Stress.
MR CREEK: But which is – I didn’t want to put down angina attacks. I don’t like burning – it sounds to me like burning bridges. I didn’t want them to think I’ve had another – because they knew about my first heart attack.
MS MacDONALD: Right.
MR CREEK: And it was an issue getting me employed then.
MS MacDONALD: Right.
MR CREEK: And to tell them I had another one – so I resigned under a letter of stress. Plus I – yes.
25. The Tribunal also noted the transcript of the hearing of 6 August 2009 at Southport. Page 5 of that transcript reflects the exchange between Mr Creek and Senior Member Cowdroy:
MS COWDROY: All right. So when Surfside Bus Lines took your resignation, they weren’t aware that you had any medical condition?
MR CREEK: No, I told them – in 2006 I told them that I was having surgery on my shoulders and with surgery on my shoulders meant that I’d be out of work for more than three months, so I had to retire. So that’s why I used that excuse for retiring. I couldn’t tell them because of the stress I was under and all the rest of it.
MS COWDROY: So Dr Nolan’s reference at the end of his letter:
His employer tried to keep his job open –
That was in relation to your shoulders?
MR CREEK: Yes, because see, under the Act once I’d been out of work for three months due to something I’m supposed to – supposed to resign.
MS COWDROY: Yes.
MR CREEK: But they tried to hold it over for an extra month from me from my shoulders.
MS COWDROY: Because Dr Nolan doesn’t – it seemed to indicate from that letter that the job was held open by the employer on its understanding that you were having shoulder surgery.
MR CREEK: No, they knew that I retired because of shoulder surgery, but that was just – they just said “We’ll try and keep your job open for you.” I’m not a person that shirks my work, and if somebody asked me to do something, I’d do it, you know, without a question asked. That’s my service career.
MS COWDROY: Okay, so that answers my next question. So when you went back to Surfside, they weren’t aware that you had any problems at all apart from your shoulder surgery?
MR CREEK: No, and I’d been cleared.
MS COWDROY: Okay. Thanks.
26. It was noted that the reports of Dr Nolan and Dr Katz were both written after Mr Creek stopped work with Surfside Buslines. In relation to the report by Dr Katz (T4/24), it was prepared “on the basis of [his] consultation with Mr Creek and the history as reported to [him], he is, and has been for some decades suffering PTSD as clinically defined in DSM – IV(TR)” (emphasis added).
SUBMISSIONS BY THE PARTIES
27. The applicant’s submissions are that:
· It is conceded that the applicant was employed and therefore not eligible for the special rate for the period 23 June 2006 to 28 January 2007.
· The applicant’s work does not alter the medical diagnosis that Mr Creek was not capable of performing remunerative work.
· Dr Katz opines that the applicant had PTSD and was therefore unfit to drive buses.
28. The respondent’s case seems to be that for the period 23 June 2006 to 28 January 2007; and, for the period 18 August 2008 and any subsequent time, that Mr Creek is not entitled to the special rate. The respondent says that s 24(1)(b) and s 24(1)(c) of the Act are not satisfied for both of those periods.
CONSIDERATION
29. In considering this matter, there is a long chronology of relevant factual and medical evidence, some of which is conflicting. In assessing the evidence, I must be satisfied as to the standard of reasonable satisfaction, or colloquially, to the standard of beyond reasonable doubt, as set out in s 120(4) of the Act.
30. The assessment must also be made based on technical tests prescribed by the relevant statutory provisions and as amplified by the relevant common law. These tests must be applied on the basis of evidence, some of which raises a question as to the applicant’s credit. It is therefore appropriate to firstly make an assessment of the evidence which is conflicting or which appears to raise issues of credibility.
31. The evidence as a whole, now looking in retrospect, was not all available to some earlier decision-makers. Some questions of inconsistency and credibility, or in the alternative, the credit of the applicant, are raised as a result. The weight to be accorded to some of the expert evidence is also a matter which must be considered.
32. At the outset, when the applicant gave oral evidence at the Tribunal’s hearing, he was clearly a nervous, agitated man and as time went on, he had an obvious hand tremor. His report of events in his life demonstrated a hyper-vigilance which undoubtedly is consistent with the opinion of Dr Katz.
33. I note however that Dr Katz was asked for a more recent report in 2009 as his earlier report was of 18 July 2006 which is almost four years ago. A member of the VRB at the hearing on 6 August 2009 raised with Mr Creek whether Dr Katz had been asked for an updated report. An extract of that evidence is:
MEMBER: So you’re seeing Katz fortnightly. We haven’t got a report from him any later than 2006.
MR CREEK: He’s – when I went and saw him and asked him for a report, he said that he can’t just give a report to anybody, that if I wanted a report from him, it had to be requested by the DVA because he only answers to the DVA, and at this – at that stage his report would only read the same as what the last one would have read basically. That was basically his words to me at the time. See I couldn’t get a report from him, Joel or – well, I couldn’t get a report from him, even if …
MEMBER: Did you ask him did you, John?
MR CREEK: We offered – well, they sent him me to him.
MR KROLAVITIUS: I sent Mr Creek to him to ask him specifically for a report.
MR CREEK: Yes, there was a letter sent to him as well and we offered to pay for the – pay for the report.
MR KROLAVITIUS: Yes, the first one was a DVD …
MEMBER: Yes.
MR KROLAVITIUS: … and (inaudible 30:38).
MR CREEK: But as I said, he wouldn’t give us a report because he was actually working.
MEMBER: I’m just curious about – he wrote in quite definitive terms in 2006 about your incapacity to work.
MR CREEK: Yes.
MEMBER: And so did Dr Nolan concerning your – respectively your PTSD and your heart, and yet you went on and worked for 18 months despite that advice from those people and all the medications you were taking.
MR CREEK: Yes.
MEMBER: I don’t know whether that’s a comment on their professional capacity, so all your convincing histories, medical history that you’ve given them during consultations.
MR CREEK: No.
MEMBER: But …
MR CREEK: Their – their professionalism is good. I did not lie to them. The case was I had to suck it up and do it because my family problems. I did that because of the termination of my job, the things that were happening in my life at that stage. I accepted the drinking, the smoking, and I didn’t care if it killed me. I had to try and - …
34. I note the decision of the VRB dated 6 August 2009 where it is stated that:
· Both Drs Katz and Nolan are now aware he lost the TPI pension and Dr Katz refuses to provide a new report unless asked by the Department;
· Dr Katz said he had no new information to provide in any case and again declined to provide a report even after payment was offered.
35. At the hearing of this Tribunal, Dr Katz stated in answer to the question of whether he was asked by Mr Creek to prepare a second report, he replied “No”. He merely confirmed the opinion in his report of 18 July 2006.
36. I accept Dr Katz is adequately qualified as an expert to provide the Tribunal with a psychiatric opinion. Such evidence is admissible under s 79 of the Evidence Act 1995 (Cth) as an exception to the opinion rule contained in s 76 of that Act. But dicta in High Court of Australia decisions make it clear that:
(1)The evidence presented by an expert must be such as to invoke the special knowledge and experience of an expert which is not held by the court or tribunal;
(2)The purpose of evidence from experts is to assist the trier of fact to make a more reliable determination; and,
(3)The expert opinion must not only be relevant but must add to the capacity of the trier of fact in determining the ultimate issue. (Clark v Ryan (1960) 103 CLR 486; Farrell v R (1998) 194 CLR 286; and, Osland v R (1998) 197 CLR 316).
37. Unlike the position in the United States where reliability of expert evidence seems to be a threshold issue for it to be admissible (see Daubert v Merrell Dow PharmaceuticalsInc (1993) 509 US 579; (1993)125 L Ed 2d 469), the High Court of Australia has not put as much emphasis on this criteria at least not since the Evidence Act 1995 (Cth). In the High Court of Australia, the three principles outlined from earlier cases have been reinforced by that Court’s more recent pronouncements (see eg. HG v R (1999) 197 CLR 414 per Gaudron J at [58]; and Velevski v R [2002] HCA 4).
38. Section 79(1) of the Evidence Act 1995(Cth) requires that the evidence of an expert should be based “wholly or substantially” on “specialised knowledge”. This requires the expert to show how his or her evidence is based on specialised knowledge, why it is relevant and how it is justified for a Court or Tribunal to rely on that evidence to draw inferences in relation to the admissible evidence before the trier of fact (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59 to 63] per Heydon JA). His Honour explained in this context:
… the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible and so far as it is admissible, of diminished weight. (per Heydon JA at [85])
39. I do not find that the evidence of Dr Katz is inadmissible but rather, that it is admissible and informative particularly as at the time of his report. But as almost four years have elapsed and he has treated Mr Creek at least monthly during that period, and given that he is aware that the factual basis of his opinion has changed, there appears to be some basis to explain to the Tribunal, why such a significant difference in the facts leads him to maintain his original opinion of 2006. The fact that he was also apparently asked to provide a further opinion but refused, even with the offer of payment, is not explained. His opinion must be seen as less probative and therefore of reduced weight. An exercise of discretion to exclude or minimise the weight of that evidence is therefore justifiable (R v Christie [1914] AC 545 at 599). This has been given statutory effect in s 135 (Exclusion of evidence) and s 136 (Limit the use of evidence) of the Evidence Act 1995 (Cth). I find the evidence of Dr Katz should be given less weight as it is on the balance of probabilities, misleading.
40. This is a most unusual set of circumstances with respect to the medical evidence. I find similarly for part of Dr Nolan’s evidence. He had in his earlier opinion (31 July 2006) said Mr Creek could not work because “… his heart disease and angina and severe anxiety, made him unfit to be the driver of a passenger vehicle. You would understand there are strict standards to be met in bus drivers, for the safety of the public. He did not meet those and I advised him if he did not stop driving then I would advise Queensland Transport. His employer tried to keep his job open as long as they could but had to let him go”.
41. Almost four years on and still treating Mr Creek, Dr Nolan was aware of Mr Creek’s subsequent employment as a bus driver. In evidence at the Tribunal, he merely said that he had not informed Queensland Transport and that he had to consider a therapeutic duty and a legal duty. It was put to him that if he had a legal duty then it would be clear. However, he told the Tribunal that he had not advised Queensland Transport at any time in the past four years about Mr Creek as “his condition may have changed”.
42. Dr Nolan’s evidence was more forthright in relation to Mr Creek’s heart condition. He said that Mr Creek’s angina was “not so much of an issue”. He said further investigation revealed that the nature of his heart condition had stabilised. He emphasised that he is treating the applicant for ischemic heart disease which is now stable and said people can drive when such a condition is stable.
43. He also gave evidence of the complaint of aches in the applicant’s legs while driving and pins and needles in his feet (exhibit 7 – Dr Nolan’s clinical notes of 22 May 2008). Dr Nolan said this was not necessarily restless leg syndrome but could be referred pain from his back.
44. There is then the evidence of the applicant. Shortly put, Mr Creek has admitted he gave untruthful evidence at the hearing of 17 July 2008. He told that Tribunal that he had not worked since 2006 when in fact, he had been in employment for over 18 months since that time. It appears that his advocate at the time, a Mr Borger, ultimately decided no further submissions would be put when the Repatriation Commission indicated the basis of the proposed determination that special rate should not have been paid.
45. Mr Creek was also untruthful with Surfside Buslines as to his retirement in 2006. He said it was for shoulder surgery. Later, admissions by the applicant showed his shoulders did not affect driving a bus and he said he loves driving and that it is easy.
46. He told the VRB on 17 July 2008 that he resigned from Surfside Buslines because of “stress” so as to not declare that he had angina. But in his undated statement received on 14 December 2009 (exhibit 2), he has stated that he told Surfside Buslines “I had lost interest in my job, which was a lie as I did not want to burn my bridges for the future”.
47. He seemed competent as a witness even though he was highly anxious. Some of the applicant’s medical conditions undoubtedly contribute to some of his anxiety. However, considering evidence given to previous hearings and to this Tribunal and observing Mr Creek in the witness box, I formed the view that he was disingenuous and that he wanted to capitalise on every opportunity to describe his life history in a way which would attract the greatest degree of sympathy. The evidence over the past four years however has revealed inconsistencies and lies.
48. The applicant’s credit as a witness has been lowered as a result. Consequentially, the credibility of his evidence has also been diminished.
49. Given this context of evidence I make the following findings of fact.
(1)Mr Creek has not been a witness of truth in a number of material respects. He has admitted to lying about working while being paid the special rate of pension as well as the reasons for his resignations.
(2)Mr Creek’s financial position has caused huge difficulty, largely because of his gambling, drinking and other behaviour, and it has affected his health and wellbeing, physically and psychologically.
(3)Mr Creek’s heart condition is now stable.
(4)There appears to be some uncertainty about the cause of the aches in the applicant’s legs or the pins and needles in his feet.
(5)Despite the medical evidence, Mr Creek has shown he was capable of driving for at least 18 months up to August 2007 when he resigned.
(6)The applicant gave notice of an intention to cease work when the VRB decision was released in August 2009.
50. While accepting the facts and reduced weight of the evidence that was referred to earlier, it is not to say that Mr Creek does not have serious health problems. Looking back over previous decisions and the evidence that is now available, it might be that previous tribunals may have taken a different view of the credibility of Mr Creek or the effect of non-corroboration of his claims. However, that is not a matter before this Tribunal. The weaknesses of the applicant’s case, does not affect, in my view, any legitimacy of his accepted conditions of Gastro‑oesophageal reflux disease and PTSD.
51. The questions for the Tribunal to determine about Special Rate of pension can now be examined in light of the above findings. I hasten to add that notwithstanding the above evidence which highlights that the applicant has been untruthful on a number of occasions in the past, does not make other evidence suspect. In that circumstance, the Tribunal may, in its discretion, still accept other evidence without corroboration. The Tribunal is merely required to carefully assess the evidence (Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 at [118]).
The Assessment Periods
52. The original decision determined a decrease in the rate of pension to 100% of the general rate (i.e. withdrawing the special rate). This was authorised by s 31(6) and (7) of the Act. That decision cannot be in contention given the evidence of the periods for which Mr Creek, by his own admission, worked. The real questions for the Tribunal is whether Mr Creek satisfies the legislative provisions for the two periods specified, i.e.:
· 23 June 2006 to 28 January 2007; and
· 18 August 2007 et seq.
53. The statutory provisions in contention are s 24(1)(b) and s 24(1)(c) of the Act.
Section 24(1)(b)
54. Turning now to the substantive assessment under s 24(1)(b) that section provides:
24 Special rate of pension
(1) This section applies to a veteran if:
…
(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
55. Section 24(1)(b) involves the question of whether Mr Creek’s incapacity is such as to make him incapable of undertaking remunerative work for more than 8 hours per week for the two periods stated above. The test of that incapacity is assessed further by s 28, which identifies the only matters which can be taken into consideration for this purpose. These are:
(a)The vocational trade and professional skills, qualifications and experience of the veteran.
(b)The kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)The degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
56. In relation to s 28(a) above, the word “experience” has a wide meaning. Even though a veteran’s job experience does not include particular skills, a veteran might still be regarded as having particular skills, qualifications and experience (see Chambers v Repatriation Commission (1994) 33 ALD 473 per Whitlam J). The Court there indicated the breadth of the meaning of that term as follows:
A person’s skills are not confined to those acquired in formal training or by virtue of experience in particular employment …
Similarly ‘qualifications’ … is not confined to qualifications obtained as the result of formal training …
Of course the only skills, qualifications and experience that may be taken into account … are those that can be described as ‘vocational, trade and professional’ in character. (Chambers at [234])
57. Mr Creek has qualifications in the catering trade. It is noted that he has been out of that trade now for a long time. He also has lengthy experience in driving and manual tasks such as loading trucks. His experience as a bus driver is extensive which involved not only driving, but also accounting for money and dealing with people. The latter area describes the predominant skills and experience of Mr Creek.
58. In relation to s 28(b), the term “remunerative work” is defined in s 5Q(1) as meaning “any remunerative activity”. This does not mean the particular position or job the person held but is a reference to the type of work the applicant previously did (Flentjar v Repatriation Commission (1997) 48 ALD 1; Magill v Repatriation Commission [2002] FCA 744). The remunerative work must have been “substantial” remunerative work (Starcevich v Repatriation Commission (1987) 18 FCR 221; 76 ALR 449). In considering this paragraph, the evidence shows that Mr Creek has substantial skills and experience in driving or non-driving tasks although I accept contact with the public is something he would like to avoid. His background in driving might usefully involve driver and storeman type roles; short driving tasks such as working for a car dealership; sorting mail for the post office and/or driving and picking up mail; or delivering newspapers, flowers, books or magazines etc to private residences. The type of “remunerative work” should be limited to roles defined as above, that is, with minimising high frequency contact with the public.
59. Section 28(c) is concerned with the effect of any war-caused or defence‑caused injury or disease and the extent to which it reduced the capacity of Mr Creek to undertake remunerative work. As stated earlier, Dr Katz’s opinion is of reduced weight. As submitted by the respondent, Dr Nolan’s most recent report does not attest to Mr Creek being unable to work and merely describes the difficulties in bus driving. Having observed Mr Creek as a witness and taking account of the whole of his evidence, I agree with the respondent’s submission in that regard.
60. His demonstrated capacity to work full-time for 18 months up until August 2007 shows he has been able to work full-time. There isn’t a more recent medical assessment to indicate any change to that fact which, despite the medical practitioners not changing their original opinions, the evidence of capacity to work contradicts those professional opinions. He clearly worked more than 8 hours per week and in fact worked full-time. The fact that the applicant had that in contemplation is evidenced from his more recent statement that he did not want to “burn bridges” when he resigned in 2006. He did not cease because of medical advice at the time, those reports being provided subsequently. The evidence shows that the extent to which Mr Creek’s conditions reduced his capacity for work did not prevent him from working full-time up to 2007. There is no medical evidence to indicate that the second assessment period should be regarded any differently.
61. Section 24(1)(b) is concerned with assessing the applicant’s incapacity resulting from war (peacekeeping) caused injury or disease alone and whether he could work more than 8 hours per week. From my comments above in relation to s 28(c), a reasonable assessment of the evidence is that the applicant’s capacity to undertake remunerative work would exceed 8 hours per week in any case. This is certainly true for the first assessment period, 23 June 2006 to 28 January 2007 based on the applicant’s own evidence. In relation to the second period, Dr Nolan’s recent evidence was that the angina had stabilised and Mr Creek was at no risk of driving while his heart condition was stable. Also, his background in driving reveals that there are many opportunities for a driving occupation which involves little contact with people but rather driving and loading a vehicle and perhaps other limited duties. His cessation of work at the commencement of the second period coincides with him giving notice of resignation on the day of the Repatriation Commission’s decision of 17 July 2008. I find that Mr Creek would be capable of working more than 8 hours per week and therefore that the 8 hour work test is satisfied in relation to the applicant for both the periods in issue.
Section 24(1)(c)
62. Section 24(1)(c) provides as follows:
24 Special rate of pension
(1) This section applies to a veteran if:
…
(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;
63. To assess this provision, four questions must be answered as follows:
(1)What was the relevant remunerative work that the veteran was undertaking within the meaning of s 24(1)(c) of the Act?
(2)Is the veteran, by reason of war-caused injury or war-caused disease or both, prevented from continuing to undertake that work?
(3)If the answer to question (2) is yes, is the war-caused injury or disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
(4)If the answers to questions (2) and (3) are in each case ‘yes’, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? (Flentjar v Repatriation Commission (1997) 48 ALD 1).
64. In relation to question (1), as this provision is concerned with an applicant “continuing” to undertake remunerative work which the person was previously undertaking (Birtles v Repatriation Commission (1991) 105 ALR 359), it is not the last remunerative work the person undertook but the main or predominant type of work which the person undertook previously (Banovich v Repatriation Commission (1986) 69 ALR 395). Based on the assessment period commencing on the application day and ending when the application is determined (s 19(9)), the remunerative work for the applicant would be that of a driving nature as previously referred to, including duties such as sorting mail, delivering newspapers, flowers or others with less high pressure interpersonal contact (see paragraph 58).
65. In relation to question 2, Mr Clutterbuck submitted that Mr Creek was prevented from continuing his previous work firstly, because of his medical conditions and that there had been an urgent need to work because of financial circumstances; and, secondly because he was a danger to himself and the public if he engaged in driving. Mr Stoner submitted that Mr Creek did not have to drive buses but could drive more generally where interaction with people was not a significant feature of driving employment. He also referred to other medical conditions such as degenerative changes of the lumbar spine; a kidney stone condition and a restless leg condition. This question has been amplified in s 24(2)(b) but that provision generally applies only where an applicant has been genuinely seeking to obtain remunerative work but has been unsuccessful. It is really an alternative test to the test specified in s 24(1)(c). This subsection requires a demonstration that an applicant could never perform duties for which he was previously employed. Those duties or “remunerative work” for the purpose of s 24(1)(c) is wider than the same work which Mr Creek might have previously undertaken, although it is a reference to work in the same field of endeavour as previously undertaken (Birtles and Repatriation Commission (1991) 105 ALR 359 at [368-369]).
66. As Counsel for the applicant rightly points out, it was a difficult period of the applicant’s life. He undoubtedly had financial problems. The Respondent’s Counsel argued that he also had other medical problems quite apart from his accepted defence related conditions. I do not think there is sufficient evidence to attribute his cessation of work or his incapacity to non-service related conditions. Equally, reliance on a claim about financial problems deals with reasons for working but does not answer question 2 of Flentjar, which is concerned with why a person might be prevented from continuing to undertake remunerative work.
67. Apart from the medical evidence already dealt with, there is a further context to the evidence of stress and driving and whether the applicant’s conditions prevent him from working. The applicant has had a propensity to colour versions of evidence for his benefit. There was no evidence of any accident while the applicant drove a bus in the 18 month period in which he was receiving the special rate. Also, he only ceased work on the day on which there was a determination that he could not receive the special rate if he was working. It cannot be accepted that Mr Creek was prevented from continuing to undertake “remunerative work” because of war‑caused injury or disease when he last ceased work. Indeed, he planned to seek further work when he ceased work in 2006. Therefore, question 2 is answered “no”.
68. In relation to question 3 (despite the answer to question 2), the applicant’s case is that the factors mentioned in question 2 on his behalf are the only factors which prevent him from continuing to undertake that “remunerative work”. He says the issues about Workcover and his other orthopaedic problems have not affected his ability to work.
69. The respondent says service related incapacity is not the only cause of the applicant’s inability to cease work. In particular, the respondent says:
· The applicant has not led evidence regarding the legal restriction that he claims would be breached if he was to work as a driver;
· He has not led evidence of particular medications relevant to his claims; and,
· Some medications which are taken are for non-accepted conditions of kidney stone complaint and restless leg syndrome.
70. I accept the submission of Counsel for the applicant that for Mr Creek’s other orthopaedic problems such as his shoulders, these are not critical to his reason for resigning from Surfside Buslines. That was not the genuine reason for his resignation. The applicant also cited other reasons to explain his working when receiving the special rate. He attributes his financial difficulties as one reason. The respondent submits that motive is not relevant. That is true on a strict reading of the legislation. Some flexibility must be permitted in evaluating an applicant’s case with the black letter of the law where some of his circumstances may still be attributable (tangentially or otherwise) to a defence-caused condition.
71. The question to be evaluated here is the ‘alone’ test. I accept that defence service may be at least partially responsible for his medical conditions and desire to cease work. But there is ample evidence that the applicant had the capacity to work as at 23 June 2006 and that he anticipated the likelihood of his working again at the time of his resignation in 2006 as he did not wish “to burn his bridges”. Given the extent of inconsistency of the applicant’s evidence over the past 15 months (approximately) and the less than direct medical evidence, I am left in very serious doubt as to the attribution of war/peace keeping disease as being the only factors preventing Mr Creek from continuing to undertake “remunerative work”. I therefore find on the balance of probabilities, that his war-caused injuries were not the only factors preventing his ability to continue to undertake remunerative work in the first assessment period.
72. In the second assessment period, the Repatriation Commission decision of 9 April 2009 notes that it affirmed the decision of 17 July 2008. The applicant resigned effectively on 17 August 2008 and therefore must have given notice a month earlier, or on the date of the decision of the Repatriation Commission on 17 July 2008. The applicant obviously worked through that four week notice period and for the previous 18 months. For the period commencing 18 August 2008 and subsequently, there is no presumption of continuance i.e. even if there was some defence-caused injury or disease which caused an earlier retirement, that cannot be presumed to continue into the future (Jackman and Repatriation Commission (1997) FCA 97/564; 30 June 1997 (per Tamberlin J). I note Dr Nolan’s second opinion that Mr Creek’s heart disease has stabilised and that he had not reported Mr Creek’s driving over the previous 4 years as it may have improved. At its best, I do not regard that as strong evidence of Mr Creek’s capacity for working over the previous 2 years.
73. I also note the applicant’s time out of the workforce, which is less than two years. His age is not such as to make any real effect on this assessment. Neither Counsel for the applicant or for the respondent saw fit to make a specific submission on that point.
74. In the circumstances, I find the applicant’s claims with respect to the second assessment period in this question must also fail on the balance of probabilities. The answer to question 3 is “no”.
75. It is unnecessary therefore to consider question 4. I find that Mr Creek does not satisfy the requirements for the special rate of pension as prescribed by the Act for the period 23 June 2006 to 28 January 2007; and, he does not satisfy those requirements for the period commencing 18 August 2008 and subsequently.
76. The decision under review is therefore affirmed.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member
Signed: .........................[Sgd]....................................................
Kate Slack, Research AssociateDate/s of Hearing 8 April 2010
Date Final Submissions: 9 June 2010
Date of Decision 28 July 2010
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Ms C Haney
Solicitor for the Respondent Mr J Stoner, departmental advocate
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