Crooks and Repatriation Commission
[2001] AATA 922
•7 November 2001
DECISION AND REASONS FOR DECISION [2001] AATA 922
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/475
VETERANS' APPEALS DIVISION )
Re BERNARD CROOKS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Rear Admiral A R Horton, Member Dr M E C Thorpe, Member
Date 7 November 2001
PlaceSydney
Decision The Tribunal sets aside the decision under review. The Tribunal decides that the Applicant qualifies for payment of Disability Pension at the special rate with effect from the first pension payday on or after 19 April 1999.
..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – application for pension at the special rate – Disability Pension – post traumatic stress disorder an accepted disability – lumbar spinal problem a non-accepted condition - operational service – eligible service – application for increase in pension – inability to undertake remunerative work due to war caused disabilities alone – standard of proof – not genuinely seeking to engage in remunerative work
Veterans' Entitlements Act 1986, sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 15(1), (3), (4), 19(3), (5), (6), (9) (definition of "assessment period"), 21(1), 24(1), (2), 24A, 28, 120(4).
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Braund (1991) 23 ALD 591
Banovich v Repatriation Commission (1986) 69 ALR 395
Re Anthony Bryce Brennan and Repatriation Commission (1996) 42 ALD 191
Re James William Bonner and Repatriation Commission (1989) 17 ALD 680
Re Hornery and Repatriation Commission (1998) 52 ALD 333
REASONS FOR DECISION
Mr M J Sassella, Senior Member Rear Admiral A R Horton, Member Dr M E C Thorpe, Member
History of the application
On 19 April 1999 Mr Bernard Crooks ("the Applicant") lodged an application with the Repatriation Commission ("the Respondent") for an increase in his Disability Pension (T17). He currently receives a Disability Pension at 100% of the general rate. He stated on the application that his post traumatic stress disorder ("PTSD") "has become progressively worse" and that he had been advised by his psychiatrist that he would never work again because of this PTSD symptoms.
On 18 June 1999 the Respondent rejected the application for an increase in Disability Pension (T21). This decision stated that it was the Applicant's back injury, a non-accepted condition, that was preventing him from working, not the PTSD symptoms.
On 28 June 1999 the Applicant lodged with the Veterans' Review Board ("VRB") an application for review of the Repatriation Commission decision (T22).
The decision under reviewOn 14 February 2000 the VRB affirmed this decision (T24). It was determined that it was not the Applicant's PTSD alone that affected his capacity to work. The VRB noted that the Applicant's emotional and behavioural conditions predated the back condition, starting from at least 1984. The VRB further noted that the Applicant's work-related accident in 1991 was the cause of the termination of his employment. The Applicant has received a workers compensation settlement in respect of the diagnosis of a low back injury.
On 27 February 2000 the Applicant lodged an application for review with the Administrative Appeals Tribunal ("the Tribunal") (T1).
Relevant legislationThe following are the relevant provisions from the Veterans' Entitlements Act 1986 ("the Act"): sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 15(1), (3), (4), 19(3), (5), (6), (9) (definition of "assessment period"), 21(1), 24(1), (2), 24A, 28, 120(4).
"6C Operational service - post World War 2 service in operational areas
(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…""7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…""9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…"
"13 Eligibility for pension
(1) Where:
…
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;the Commonwealth is, subject to this Act, liable to pay:
…(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…""15 Application for increase in pension
(1) A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.
…(3) An application under subsection (1) or (2):
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the application and any evidence referred to in paragraph (b).(4) Subsection (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination, of the application.
…"
"19 Determination of claims and applications
…(3) The Commission shall determine a claim for a pension as follows:
(a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:(i) the incapacity of a veteran from war-caused injury or war-caused disease, or both; or
(ii) the death of a veteran that was war-caused;
(b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsection (5).
…(5) Where paragraph (3) (b) applies in respect of a claim or subsection (4) applies in respect of an application, the Commission shall assess, in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable:
(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b) subject to subsection (6), the rate at which the pension is payable from the date of the determination;
and shall make a determination approving the payment of pension in accordance with that assessment.(6) Where the Commission has, pursuant to paragraph (5) (a), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable from the date of the determination shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.
…(9) In this section:
application means an application made in accordance with section 15;
application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a) the day on which the claim or application was received at an office of the Department in Australia; or
(b) if subsection 20 (2) or 21 (2) applies to the person—the day on which the claim or application referred to in paragraph 20 (2) (a) or 21 (2) (a) was so received;
assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined;
claim means a claim made in accordance with section 14;
relevant documentary medical evidence, in relation to a claim or application referred to in subsection (8), means certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which the veteran or deceased veteran in respect of whom the claim is made had received medical treatment, in support of the claim or application, being certificates, reports or documents reasonably used:
(a) in support of the claim or application; or
(b) if a part only of the claim or application was granted—in support of that part of the claim or application.""21 Date of operation of grant of application under section 15
(1) The Commission may, subject to this Act, approve payment of pension at the increased rate, or payment of pension, from and including the date on which the application, in accordance with a form approved for the purposes of paragraph 15 (3) (a) was received at an office of the Department in Australia.
…"
"24 Special rate of pension
(1) 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.
(2) For the purpose of paragraph (1) (c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…""24A Continuation of rates of certain pensions
(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.(2) Paragraphs (1)(b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans' Vocational Rehabilitation Scheme or section 115D applies to the veteran."
"28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23 (1) (b) or 24 (1) (b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(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)."
"120 Standard of proof
…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…"
Background
The Applicant was born on 11 November 1946. He gained the intermediate certificate at school. He told Dr Shand (Exhibit R3) that his mother died shortly after his return from Vietnam. The Applicant was divorced in 1980, and then remarried. He has casual contact with his two daughters and ex-wife (T7).
The Applicant currently lives in Stroud with his second wife on a one and a quarter acre property. He has a vegetable garden and wood turning shed. He does landscaping and is able to use a ride-on mower (T4).
He served in the army for six years and was discharged in 1971 after his return from Vietnam. He was in Borneo in 1965/66 for six months and in Vietnam in 1967/68. Whilst in Vietnam the Applicant was responsible for cleaning and setting mines and saw arms and legs lying in the bush. Whilst in Borneo he was involved in building all weather roads for the locals (Dr Shand, Exhibit R3).
After leaving the army in March 1971 the Applicant worked as a slicer in a boning room, and then "driving beef trucks for about 18 months to 2 years". In June 1978 he worked for contractors for BHP, leaving after about 18 months because of drinking and fighting with the boss. The Applicant then worked for Novorcon Cranes for 7 months, being eventually sacked for fighting. Up until his final employment at Structural Cranes, where he had the accident, he had various crane driving positions, leaving or being sacked because of fighting or drinking (Exhibit A2). Exhibit A2 contains a more detailed chronology of his employment history consisting largely of crane and truck driving positions.
He was a crane driver for 11-12 years (T10). On 4 December 1991 he fell over a piece of steel and fell heavily on his buttocks. He returned to work but after some nine months the pain became considerably worse. Dr Harrington, his treating doctor, recommended light duties. Because his employer said he had no such duties available, his employment was terminated (T4). The Tribunal pauses to comment that there is later evidence to suggest that the employer took this opportunity to dismiss the Applicant. That evidence suggests that other workers confined to light duties were accommodated by the employer. The evidence of Mr Cox in paragraphs 94 and 95 below is relevant.
In November 1993 the Applicant was adjudged for workers compensation purposes as having a 20% permanent impairment of the back and was awarded $20,000 in respect of pain and suffering arising from the accident (Exhibit R8, p66).
A further 5% claim in respect of loss of efficient use of left and right legs was completed on 4 December 1997 (Exhibit R8, p39).
On 18 December 1997 Dr Plowman wrote to the Applicant's solicitors regarding the permanent loss of efficient use of his legs resulting from the workplace accident (Exhibit R8, p44).
On the Applicant's employment history form (T10) he stated that he left his employment in January of 1992 due to his "moods and disabilities". However there was the above-mentioned work-related accident in 1991 which eventually resulted in the termination of his employment. The Applicant makes no mention of this in his employment history. A letter from W Cox (T10), manager at Structural Cranes, stated that the Applicant ceased employment on 8 December 1992, almost a year later than the date the Applicant referred to (this may well be an honest mistake). This letter also states that "right up until the day Mr Crooks ceased employment with this company, every day was a challenge" as Mr Crooks resented being told what to do.
On 21 January 1996 in a letter from MMI insurance (T14), it is said that the Applicant was receiving incapacity payments of $252.10 a week with increases in April and October each year. These payments stem from the accident of 8 December 1992 and relate to the Applicant's back injury.
On 15 December 1998 a settlement was reached in regard to the Applicant's workers compensation claim (Exhibit R8, p37). The total amount was $70,000.
On 20 May 1999 the Applicant lodged a lifestyle questionnaire with the Respondent (T18). He stated that he does not sleep well, that he finds it difficult to discuss his problems, that he is moody and irritable most of the time and that he is withdrawn. He further stated that he has no friends and no social or sex life. The Applicant stated that both his daughters left home because of domestic arguments. He also stated that the medication that he is on makes him drowsy, further affecting his family and social life. The Applicant has shortness of breath when walking and cannot go out without his wife who "keeps me out of trouble." He suffers from "short memory retention" and has difficulty using public transport because of fear of crowds. He states that he has given up all social activities because of his disabilities. It was the Applicant's PTSD and other accepted disabilities that prevent him from working.
In the Applicant's statement of 12 March 2001 (Exhibit A5) the Applicant describes, in vague terms, his attempts to find work and his registration at the Cardiff and Wallsend CES branches. There is considerably more evidence on this matter canvassed below in paragraphs 101-106.
Medical evidenceOn 12 February 1971 the Applicant's army medical discharge card (T3, pp8-9) noted, among other conditions, severe headaches, bed-wetting and nail-biting, a back or joint injury and a severe head injury. The head injury was prior to entry into the service, the Applicant being unconscious for a short time. The back injury was sustained in Kapooka while playing football and there had been recurrences of the pain since his time in South Vietnam.
In a medical report of 4 January 1993, Dr McGuirk stated in relation to the Applicant's back pain complaint, "I don't think there is any doubt that this man's current condition is unrelated to the alleged original injury in December 1991…however…the nature and conditions of his employment are consistent with the findings that currently exist and the time frame described ie September, would be consistent and as such liability I believe should be accepted in respect of the latter" (Exhibit R8, p61).
On 3 February 1993 Dr Harrington stated that the Applicant wants and should go back to work providing there are no restrictions placed on his back for a further six weeks (Exhibit R8, p63).
On 13 April 1993 Dr Smyth, surgeon, completed a medical report on the Applicant in relation to his work injury of 4 December 1991 (T4). The Applicant reported lower lumbar region pain every day and tingling in his right thigh and toes. His back restrictions added up to an 11% whole person impairment. Taking into consideration the Applicant's disc herniation this becomes 18% whole person impairment. In relation to the Safety, Rehabilitation and Compensation Act 1988 this becomes 30% permanent impairment of the back. The impairments "are directly related to the incident of 4 December 1991."
On 22 June 1993 the Applicant completed a rehabilitation program at Hunter Rehabilitation Service (T5). The resulting report stated the diagnosis as disc herniation, with no "bony injury and the joints are normal." It was recommended that the Applicant not return to work as a crane driver and that he continue with a fitness program.
On 12 August 1993 Dr Nield completed a report for the workers compensation insurer in relation to the Applicant's claim for compensation. He found no diagnosis of the back condition that related to any workplace accident, however he did report that "he is a grossly dissipated man with a florid complexion, swollen eyes and a gross tremor" (Exhibit R8, p119).
On 27 April 1994 Dr Ang found early spondylosis and minimal wedge deformity (Exhibit R8, p70).
In an undated medical report on permanent incapacity (T7) Dr McQualter described the Applicant as depressed and anxious and as having poor lumbar spine mobility in all directions. The major diagnosis was chronic PTSD, with a minor diagnosis of generalised anxiety and depressive illness. He stated that the Applicant left his previous employment due to lumbar disc back injury. He described the Applicant as unfit for any work while his psychological disorder was untreated.
Dr Deacon reported on the Applicant on 20 April 1995 in relation his chest and lung problems, accepted disabilities (T8). He stated that the Applicant started smoking at age 18 and smoked up to 60 cigarettes a day. This equates to 55-60 pack years. In late 1993 the Applicant had an epistaxis at which time he was drinking 24 small bottles of beer a day. "There is no objective evidence of airflow limitation or of bronchial carcinoma."
Dr Westerink, consultant psychiatrist, found in reports of 7 February 1995 (T9, T15) that the Applicant suffered nightmares and flashbacks, poor anger and irritability control. "Mr Crooks has PTSD caused by the Vietnam war and is totally and permanently incapacitated." This opinion is also stated in Exhibit R7 at p36.
On 18 July 1995 (T9) Dr Westerink provided a supplementary psychiatric report on the Applicant. In relation to his PTSD Dr Westerink gave a GARP rating of between 45-70. He found the Applicant to be permanently and totally incapacitated from war-caused injury, incapable of working for more than eight hours a week. In a further report (undated) (T15) Dr Westerink reported a longstanding history of alcohol abuse ("ceased 18 months ago"). He described the gradual deterioration in the Applicant as resulting from the work accident and the ceasing of his employment in 1991 because the Applicant could no longer avoid traumatic memories by overworking.
On 12 September 1995 Dr McQualter (T11) conducted a psychiatric examination on the Applicant. He reported nightmares/flashbacks, irritability, avoidance of social situations, past alcohol abuse, depression, anxiety, inability to do domestic work and poor memory. These are often precipitated by other life stresses and pictures/films of Vietnam.
On 17 October 1995 Dr Westerink reported on an incident where the Applicant approached and assaulted two teenage youths with a pick handle (T13). "He needs further adjustment and a different medication regime."
On 13 March 1996 a letter from MMI (insurers) stated that the Applicant failed to attend a doctor's appointment for 9 January 1996 (T16).
On 14 March 1996 (T15) Dr Westerink disagreed that the veteran was prevented from working from a non-service related back injury. He stated that irrespective of the back injury, PTSD (Vietnam war related) prevents the Applicant from working.
On 26 September 1996 Dr Plowman reported on the Applicant (Exhibit R8, pp77-78). He found that the Applicant's back pain and nervous depression rendered him permanently unfit for crane driving or heavy manual or labouring work. He found a 20% impairment of the back and a 5% permanent loss of use of each of his legs.
On 5 June 1997 Dr Innes-Brown completed a report for the insurers in regard to the Applicant's further claim in respect of the 5% permanent loss of the use of both legs, as diagnosed by Dr Plowman (Exhibit R8, pp88-92). Dr Innes-Brown stated: "I do not believe that the minor disc protrusions referred to…represent any significant disability…no good evidence of any ongoing musculoskeletal disability in either lower limb."
On 11 May 1998 Dr Plowman reported that Mr Crooks's disabilities (low back pain) will continue but are unlikely to deteriorate significantly (Exhibit R8, p17).
On 19 August 1998 (T17) Dr Westerink repeated his earlier opinion in an unsolicited letter on behalf of the Applicant.
On 23 February 1999 (T17) Dr Westerink reiterated this opinion relating to the Applicant's condition of PTSD, stating that the decision by the Department of Veterans' Affairs ("the DVA") was unfair and should be reversed.
On 11 May 1999 Dr Brown examined the Applicant in respect of hearing condition, respiratory condition, effort tolerance, emotional and behavioural condition and non-malignant skin condition. Dr Brown wrote "blind Freddy could diagnose". The Applicant suffered from:
Severe tinnitus
Having to rest after walking 200 metres
A chronic reproductive cough
Limiting symptoms in relation to light household duties of dyspnoea and sweating
Tremors, irritability, poor tolerance, aggression, hallucinations, causing considerable and profound stress
Difficulty concentrating more than several seconds
Difficulty relaxing limbs for examination
Forgetting his own daughter's name
Having to stop virtually all recreational activities
Side effects of medication of leg weakness, visual disturbance, anxiety
Dysidrotic eczema
Lack of social interaction
On 9 February 2000 Dr Brown wrote to the VRB stating that the Applicant was precluded from working by his PTSD condition, attributable to Vietnam. This condition would continue "for at least several years, if not for the rest of his life" (T24, p91).
Ms Leah Giarratano, clinical psychologist, agreed in a report (undated) (T24, p93) that the Applicant suffers from chronic PTSD, although his symptoms improved after treatment in 1995. "Mr Crooks was exposed to the death and serious injury of many men in Vietnam. His role as a combat engineer exposed him to mutilated and rotting corpses and contact with the enemy, including coming under heavy enemy fire…" She also found that the condition had a major impact on his social and occupational functioning.
On 15 February 2000 Dr Westerink stated "He has had a chronic PTSD disorder for many years. It is responsible totally and solely for him not being able to work…His PTSD is of the more severe variety…All these conditions are permanent and prevent him from going back to work" (T24, p99).
On 22 June 2000 Professor Sambrook (Exhibit R1) reported that the Applicant's lumbar condition "is not of sufficient severity to prevent him from working more than 8-10 hours per week."
On 13 July 2000 Dr Shand (Exhibit R3) reported a history of domestic instability including fitful sleep and nightmares, aggression and violence and alcohol abuse. He stated that the Applicant smokes two packets of cigarettes a day. The Applicant often refuses to go out, often creating arguments with his wife in order to do so. The Applicant's wife referred to "many violent fights."
On 2 August 2000 Dr Sambrook further stated Exhibit R2) that the Applicant's lumbar spine condition was a "significant contributing factor to his inability to work…between eight and 20 hours per week."
On 4 August 2000 Dr Shand stated (Exhibit R4) that the reports of Drs Smyth, Plowman, and Innes-Brown are "consistent with the diagnosis of PTSD."
On 29 August 2000 Dr Baz, occupational physician, stated in her report (Exhibit A1) that the Applicant had a combined impairment rating of 64 points and a lifestyle rating of 5, converting to an incapacity of 100%. "In my opinion Mr Crooks is unfit for work because of his psychiatric disability." She found that the back injury aggravated the pre-existing psychiatric condition.
On 10 November 2000 Dr Shand reported (Exhibit R5) that "…the psychiatric disorder is…the major impediment to work."
On 21 December 2000 Dr Westerink again stated (Exhibit A3) his opinion of the Applicant's PTSD and further that the Applicant had fully recovered from his back problem.
Hearing and appearancesThe Tribunal convened a hearing on 27 March 2001 in Sydney. Mr Neale Dawson of counsel appeared for the Applicant. Mr S Modder of the DVA appeared for the Respondent.
The Tribunal had access to the following documentary evidence:
Exhibit TD1 – Section 37 Statement and associated documents, 18 April 2000.
Exhibit A1 – Report by Dr M Baz, occupational physician, 29 August 2000.
Exhibit A2 – Statement by the Applicant, 1 September 2000.
Exhibit A3 – Report by Dr J Westerink, psychiatrist, 21 December 2000.
Exhibit A4 – Statement by the Applicant, 19 December 2000.
Exhibit A5 – Statement by the Applicant, 12 March 2001.
Exhibit A6 – statement by Mr W J Cox, 8 March 2001.
Exhibit A7 – Applicant's statement of facts and contentions, 26 October 2000.
Exhibit R1 – Report by Professor P Sambrook, rheumatologist, 22 June 2000.
Exhibit R2 – Report by Professor P Sambrook, 2 August 2000.
Exhibit R3 – Report by Dr J W Shand, psychiatrist, 13 July 2000.
Exhibit R4 – Report by Dr Shand, 4 August 2000.
Exhibit R5 – Report by Dr Shand, 10 November 2000.
Exhibit R6 - Letter dated 29 April 1997 from MMI Insurance to Structural Cranes.
Exhibit R7 – Dr McQualter's clinical notes.
Exhibit R8 – Documents from Allianz Australia Workers' Compensation (NSW) Limited.
Exhibit R9 – Respondent's amended statement of facts and contentions, 3 January 2001.
Findings on material questions of fact with reference to the evidence and other material in support of those findings
The Tribunal notes, or makes findings, in relation to the following non-contentious matters:
The Applicant has been assessed as having the following war-caused disabilities: PTSD, bilateral sensori-neural hearing loss ("BSHL"), tinnitus (left ear), chronic airflow limitation and dysidrotic eczema (Exhibit TD1, p1).
The Applicant was born on 11 November 1946 (exhibit TD1). He was aged 52 when he claimed an increased rate of Disability Pension.
The Applicant lodged a valid claim for an increase in his Disability Pension on 19 April 1999 (T17) (s 15 of the Act).
The date of effect of any decision in the Applicant's favour would be 19 April 1999 (s 21 of the Act).
The standard of proof in matters of assessment requires that the Tribunal has reached a state of reasonable satisfaction as to the applicable rate (s 120(4) of the Act).
In considering he Applicant's entitlement to special rate Disability Pension it is necessary to make findings by way of answers to the following questions drawn from the Act and the decided cases:
Question 1 – Has the Applicant lodged a claim (s 24(1)(aa) of the Act).
Question 2 – Was the Applicant aged under 65 when the claim was made (s 24(1)(aab) of the Act)?
Question 3 – Is the Applicant's degree of incapacity at least 70% under s 21A of the Act (s 24(1)(a)(i) of the Act)?
Question 4 – What are the vocational, trade and professional skills, qualifications and experience of the Applicant (ss 24(1)(b) and 28(a) of the Act)?
Question 5 – What are the kinds of remunerative work which a person with the skills, qualifications and experience referred to in question 4 might reasonably undertake (ss 24(1)(b) and 28(b) of the Act)?
Question 6 – What is the degree to which the physical or mental impairment of the Applicant as result of the war-caused injury or war-caused disease, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in answer to question 5 (ss 24(1)(b) and 28(c) of the Act)?
Question 7 – What was the relevant remunerative work that the Applicant was undertaking within the meaning of s 24(1)(c) of the Act (s 24(1)(c) of the Act, Flentjar v Repatriation Commission (1997) 48 ALD 1, 4-5)?
Question 8 – Is the Applicant, by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work (s 24(1)(c) of the Act and Flentjar (supra))?
Question 9 – If the answer to question 8 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the applicant from continuing to undertake that work (s 24(1)(c) of the Act and Flentjar (supra))?
Question 10 – If the answers to questions 8 and 9 are yes, is the Applicant 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 (s 24(1)(c) of the Act and Flentjar (supra))?
It may also be necessary to consider the requirements in s 24(2) of the Act.
Question 1 – Has the Applicant lodged a claim (s 24(1)(aa) of the Act).
The answer is yes, as found above.
Question 2 – Was the Applicant aged under 65 when the claim was made (s 24(1)(aab) of the Act)?Yes. The Applicant was found above to be aged 52 when he made his claim.
Question 3 – Is the Applicant's degree of incapacity at least 70% under s 21A of the Act (s 24(1)(a)(i) of the Act)?Yes. The Applicant's degree of incapacity is 100% under s 21A of the Act (T21, T24).
Question 4 – What are the vocational, trade and professional skills, qualifications and experience of the Applicant (ss 24(1)(b) and 28(a) of the Act)?The Applicant has few qualifications. His work experience is most relevant. In addition to his six years in the army he has worked almost exclusively in crane operation or truck driving (Exhibit A2).
Question 5 – What are the kinds of remunerative work which a person with the skills, qualifications and experience referred to in question 4 might reasonably undertake (ss 24(1)(b) and 28(b) of the Act)?The Applicant is fitted almost exclusively for work as a crane operator or truck driver.
Question 6 – What is the degree to which the physical or mental impairment of the Applicant as result of the war-caused injury or war-caused disease, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in answer to question 5 (ss 24(1)(b) and 28(c) of the Act)?Dr Baz (Exhibit A1) considered Mr Crooks to be unfit for work in August 2000 because of his psychiatric disability. She writes, "His general presentation at this review, the history he gives and the psychiatric reports which date from 1995 show significant difficulty with interpersonal relationships, impulse control, anxiety and depression. I do not consider that Mr Crooks could work in productively efficient manner because of the problems associated with his accepted psychiatric disorder."
Dr McQualter (T7) said that the Applicant was unfit for any work while his psychological disorder was untreated.
Dr Westerink (T9, T15) considered in 1995 that Mr Crooks' PTSD had rendered him permanently incapacitated. Later, in 2000, Dr Westerink stated that the Applicant had a chronic PTSD disorder and had had so many years. He said that was responsible totally and solely for him not being able to work. He said that the condition was permanent and prevented him from going back to work.
Dr Plowman reported in 1996 (Exhibit R8, pp77-78) that the Applicant's back pain and nervous depression rendered him permanently unfit for crane driving or heavy manual labouring work.
Dr Brown (T24) wrote in February 2000 that the Applicant was precluded from working because of his PTSD condition. This condition would continue, said Dr Brown, for at least several years if not the rest of his life.
Clinical psychologist, Leah Giarratano (T24), considered that the Applicant's PTSD had a major impact on his social and occupational functioning.
Psychiatrist Dr Shand in Exhibit R5 wrote:
"In short, information and opinions in these reports forwarded to me support a diagnosis of significant continuing low back/spinal disorder, but unemployment since back injury at Christmas 1991 has been more due to psychiatric disorder, comprising Post-Traumatic Stress Disorder, and to low back disorder, but not now, alcohol abuse/dependence.
"I note the various estimates of physical fitness for work, ranging between eight and 20 hours per week, including restrictions and limitations. From the psychiatric .point of view, from the history obtained, and other information, I consider the Applicant unfit for any employment. In view of his previous occupation, the combination of physical and psychiatric disorder renders the Applicant totally unfit for work....
"Information and opinion in report of Dr Baz is consistent with the opinion that psychiatric disorder is, and has been, since at least, 1992-1993, the major impediment to work. The degree of low back pain has decreased since then, probably related to unemployment, but the post-traumatic stress disorder has persisted to the present. The main other improvement has been that he has stopped drinking, which has improved his behaviour disorder."
The Applicant's work history suggests frequent short periods in work leading to disagreements or violence and dismissal or resignation. These incidents predate the diagnosis of PTSD but, in the Tribunal's view, are more likely than not an incidence of the disorder prior to its diagnosis. On the basis of the preponderance of the above medical evidence the Tribunal finds that the Applicant's accepted disability of PTSD has reduced his capacity to undertake the kinds of remunerative work referred to in answer to question 5 effectively to nil. The Tribunal is therefore reasonably satisfied that Applicant's condition meets the requirements of s 24(1)(b) of the Act.
Question 7 – What was the relevant remunerative work that the Applicant was undertaking within the meaning of s 24(1)(c) of the Act (s 24(1)(c) of the Act, Flentjar v Repatriation Commission (1997) 48 ALD 1, 4-5)?Questions 7 to 10 test the ability of the Applicant's accepted disabilities to satisfy the requirements in s 24(1)(c) of the Act. The Tribunal regards its finding in relation to question 5 as equally appropriate in response to question 7. This is not one of those cases where the veteran has undergone a significant change in his or her remunerative work at some stage of a working life. The Tribunal therefore finds that the relevant remunerative work for the purposes of s 24(1)(c) was crane operating and truck driving.
Question 8 – Is the Applicant, by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work (s 24(1)(c) of the Act and Flentjar (supra))?
The answer is yes for the same reasons as in response to question 6, above.
Question 9 – If the answer to question 8 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the applicant from continuing to undertake that work (s 24(1)(c) of the Act and Flentjar (supra))?The problem here in finding for the Applicant is that there are several factors other than his accepted disabilities that might contribute to his inability to continue to undertake the relevant remunerative work. These are his back condition, his time out of the work force and his age. The Respondent takes these points in Exhibit R9.
The first point to note is that the Tribunal must consider the role of any of these extraneous factors as they apply in the "assessment period", ie from 19 April 1999 to the date of the Tribunal's decision (s 19(9) of the Act, Repatriation Commission v Braund (1991) 23 ALD 591 and Banovich v Repatriation Commission (1986) 69 ALR 395). Their role at the time of the Applicant's cessation of work is not directly relevant, especially as he ceased work in December 1992 (T17, p47) or February 1993 (Exhibit A6).
There is considerable evidence as to the continuing effect of the Applicant's non-accepted back condition. In 1971 in T3 there is mention of a back injury sustained during service at Kapooka while playing football. There had been recurrences of pain since the Applicant's time in South Vietnam.
Dr McQuirk in Exhibit R8 at pages 60-61 on 4 January 1993 accepted that the Applicant had a back condition and was fit for only very light work. Dr Smyth (T4) agreed. At the same time Dr Harrington considered the Applicant fit for work (Exhibit R8, p63). He was also considered fit for some work after a rehabilitation program (T5). Dr Nield on 12 August 1993 (Exhibit R8, p119) considered that the Applicant had degenerative changes in his lumbar spine that were not related to any incident or period of employment. The Applicant's general condition was extremely poor but his lumbar spine did not play a significant role. On 27 April 1994 radiologist Dr Ang (Exhibit R8, p70) found early spondylosis at T12/L1, L1/2, L3/4 and in the lower thoracic spine. There was a "minimal wedge deformity of the body of L1 which could be developmental or the result of previous trauma."
Dr McQualter in T7 identified a lumbar disc prolapse at L4/5 and L5/S1. This report is undated but seems to date from 1994-1995 to judge from the context. He said that the Applicant was unable to lift or bend due to his back injury. He saw the Applicant as "unable to do manual work. Not trained for other work. Not fit for any work while psych disorder untreated."
Dr Westerink on 14 March 1996 (T15) criticised the Disability Pension assessment which concluded that the veteran was prevented from working due to a non-service-related back injury and that therefore pension could not be paid at the intermediate rate or at the special rate. The doctor was at pains to stress that the Applicant's PTSD, alone, was sufficient to prevent the Applicant from working. This assessment is of limited use in this context because the doctor is unclear as to whether the back condition has any impact at all on the Applicant's ability to work. In T17 at p50 Dr Westerink wrote on 23 February 1999, "He had an injury at work to his back with which he continued to work. He had a few days off work with back pain, was sent back to work by his specialist and the department uses this as an excuse not to give him a TPI pension." He wrote in somewhat similar terms in August 1999 (T17, p51) and February 2000 (T24, p99).
Dr Plowman on 26 September 1996 (Exhibit R8, pp77-78) considered that the Applicant had a 20% impairment of his back.
On 5 June 1997 Dr Innes-Brown (Exhibit R8, pp88-92) wrote that he did not believe that the minor disc protrusions in the Applicant's spine represented any significant disability. The doctor wrote, "My examination defined no good evidence of any major ongoing musculoskeletal disability in this obviously healthy 50-year-old man. The degenerative changes in his thoracolumbar spine are constitutional in nature and unrelated to his work or to the transient effects of the injury at work in December 1991." However, on 11 May 1998 Dr Plowman (Exhibit R8, p17) wrote saying that the Applicant continued to have back problems. He described as "present complaints": "He has a constant pain and aching in the lower back, of variable severity. He gets tingling down his legs a lot of the time and especially when he lies down. With his back the to [sic] tries to do everything and he finds he can do most things a little at a time, but he avoids chopping wood or using a chainsaw to chop down trees and cut up wood. He has 'a go' at most other things." Later the doctor wrote that although the Applicant stated that his back seemed to be worse than it was, there had been no significant clinical deterioration in the period.
Professor Sambrook wrote several reports on the Applicant. On 22 June 2000 (Exhibit R1) he described a physical examination that "revealed a normal posture with little abdominal obesity. Thoracolumbar flexion was possible to 80 [degrees] and extension to 20 [degrees] lateral flexion was possible to 30 [degrees]. Straight leg raising was normal and reflexes were symmetrical and equal in the lower limbs". His diagnosis was of a back injury at work in 1991 associated with disc herniation at L4/5 and L5/S1 causing persistent pain for about twelve months afterwards. He observed that Dr Smyth on 13 April 1993 had noted considerably more disability in the Applicant's lumbar spine than was present for Professor Sambrook. The professor concluded that, although the Applicant was clearly severely disabled by his back condition in 1993, currently he was functionally able to work between eight and 20 hours a week if given appropriate duties. "However", said Professor Sambrook, "he is probably unfit for work as a crane driver." Professor Sambrook expressly disregarded the psychiatric condition in making his assessment.
In Exhibit R2, written on 2 August 2000, Professor Sambrook addressed reports by:
Dr Plowman (Exhibit R8, p17),
Dr Connolly, a neurosurgeon (Exhibit R8, p23), who in November 1998 noted pain in the lower back said to be present most days and restricted range of movement,
Dr Innes-Brown (Exhibit R8, p26) who on 25 November 1998 noted frequent back pain and restricted thoracolumbar movement, and
Dr Smyth (Exhibit R8, p6) who on 14 January 1998 recorded that the Applicant gets pain every day which can often be severe and which radiates to his legs restricting his lumbar flexion. Dr Smyth considered that the Applicant had a 25% impaired range of motion and was totally and permanently unfit for work because of his lumbar spine problem.
Professor Sambrook concluded that these reports, alongside his own, suggest that the Applicant's symptoms are quite variable in degree. Professor Sambrook modified his earlier opinion so that he now opined that:
"I indicated in my previous report that Mr Crooks was functionally able to perform work between eight and 20 hours per week if given appropriate duties, but this would only be the case during phases when his symptoms are improved, whereas when his back pain is more severe he would be unable to perform such work. Moreover appropriate duties would certainly not include returning to work is a crane driver and it may be difficult to find appropriate duties that did not place significant stress upon his thoracolumbar spine. Certainly the recent reports indicate that he has had significant ongoing disability over the last two years ago [sic] and it is likely, should he return to such work, that his lumbar condition would exacerbate. But I consider it is likely that his lumbar spine condition is a significant contributing factor to his inability to work and would significantly affect his ability to work between eight and twenty hours per week."
Dr Baz (Exhibit A1) examined the Applicant on 25 August 2000 and he appeared very little restricted in his movements. She wrote, "There was no tenderness or spasm in the lumbar region. He flexes the lumbar spine to about three-quarters normal and has a good range of extension. Straight leg raising was 60 degrees bilaterally. The lower limb deep tendon reflexes are normally brisk. The movement was about three-quarters normal."
Dr Baz concluded, "In my opinion Mr Crooks' reason for leaving work in the time between 1992 in 1993 was based on both the back injury and the psychiatric symptomatology. Some years later, and certainly now, the psychiatric symptomatology is the most significant problem limiting employability and causes much more significant restriction than does the back condition."
Dr Shand (Exhibit R5) concluded on 10 November 2000, "My opinion therefore, is consistent with that of Dr Baz, with respect to the major importance of psychiatric disorder and the comparatively minor importance of low back disorder, with particular respect to unemployment".
Dr McQualter's clinical notes contain an entry for 31 May 1994, "back pain chronic" (Exhibit R7, p2).
The oral evidence before the Tribunal in relation to this question was as follows.
Mrs Crooks, the Applicant's wifeThe Applicant's wife explained that the Applicant assists considerably about the house. He vacuums, does washing, cleans, mows the lawn (on a ride-on mower), does garden edging about twice a week, collects about five loads of wood a year and cuts it up to load on a trailer. His back "is not too bad when he does this". The witness said that the Applicant does not complain much about his Tribunal notes that, while this evidence suggests a significant degree of strenuous activity by the Applicant, in later evidence about the Applicant's psychiatric outlook she said that the Applicant "doesn't do anything". It is a little difficult to reconcile the two pieces of evidence.
The witness said that the Applicant had fished before his fall at work but does so no longer. He stopped in about 1993 when he generally ceased many activities.
He had tried ten-pin bowling a couple of times before his fall but had not done it since. He played darts for a time following the fall but does so no longer. He occasionally plays pool or snooker. He has never been keen on dancing or camping.
Use of the ride-on lawnmower causes no great pain to Mr Crooks.
Mrs Crooks said that the Applicant now does more than he used to do. She denied that his back "seizes up". His back has settled more since 1997-1998.
The ApplicantThe Applicant confirmed his wife's evidence about the work he does around the house. He said that mowing takes him about 90 minutes. His back can cope with sawing wood. He paces the work and does not do it all in a single day. His back does not suffer from his mowing. He has no back treatment now. He requires no painkillers.
Mr Modder indicated in cross-examination that the Applicant had told Dr Innes-Brown that sitting on the ride-on mower almost killed him (25 November 1998, Exhibit R8, p26). The Applicant explained in response that the block in question was a rough block. It was difficult to clear and hard work. He conceded that the work made his back "probably a bit sore".
He spoke about some of the activities commented on by Mrs Crooks. He had been fishing only ever a few times. He ceased ten pin bowling after his fall at work. He has played darts and pool but does no longer. He participated in dancing only before the work accident. He would go camping now but by himself. He does sometimes get up and go away. He has not been accompanied for at least three years.
Mr W J Cox, the Applicant's one-time supervisorMr Cox wrote the statement in Exhibit A6, the gist of which was that the Applicant's employer took the opportunity to sack the Applicant when he was certified as fit only for light duties in 1993. This was despite the fact that light duties had been found for other employees in the firm. The inference was that the Applicant was dismissed because of his lack of interpersonal skills.
In his oral evidence Mr Cox said that he worked for Structural Cranes for 12 years. Four or five others had been found light duties. A Mr Ian Bartrop, for example, had had a back fusion, could no longer work as a crane driver, and was trained into a supervisory office position. He had similar qualifications as Mr Crooks. Some were able to operate a crane after others did the hard preparatory work for them. Mr Cox had drafted a letter to the Applicant suggesting that the firm might be able to offer him light duties. The owner of the firm vetoed that letter and had the Applicant dismissed instead.
Tribunal's considerationThe Tribunal considers the following elements from the medical evidence of particular relevance:
From as early as 1993 the medical assessments related to the Applicant's back are inconsistent as to the severity of the condition. Dr McQuirk (Exhibit R8, pp60-61) saw it as serious. Dr McQualter identified a lumbar disc prolapse (T7) in 1994 or 1995. The Hunter Rehabilitation Service (T5) in March 1993 did not consider the applicant to be fit for work as a crane driver or crane chaser. However, Dr Harrington (Exhibit R8, p63) considered the Applicant fit for work with restrictions on 3 February 1993. Dr Nield in August 1993 did not regard the lumbar spine as contributing to any barrier to employment (Exhibit R8, p119).
In the later years it seems that a number of experts providing opinions for workers' compensation purposes regarded the Applicant as having a significant back condition. However, the Tribunal also noted the examination findings of Professor Sambrook and Dr Baz, both of whom found the Applicant in 2000 able to move fairly freely despite any lumbar spine condition. The Tribunal finds it difficult to believe that such results could be fabricated. On the other hand, some of the findings in the workers' compensation context may reflect the adoption of a role by the Applicant. The Tribunal refers especially to the reports considered by Professor Sambrook in his second report (Exhibit R2). The workers' compensation claim was settled in December 1998.
The Tribunal also notes the evidence of the Applicant and his wife as to the Applicant's capacity for physical work about the house. This would appear considerable indeed.
The strongest arguments against the Applicant's interests stem from comments by Professor Sambrook and Dr Baz. Professor Sambrook regarded the Applicant as unfit for work as a crane driver even in his first report in which he had seen the Applicant as less disabled than in his second report. The Tribunal notes Professor Sambrook's conclusion in Exhibit R2 that "several recent reports indicate Mr Crooks as suffering from fairly constant pain and restriction of movement. [T]his is certainly different to the history and physical findings when I saw him in June of this year and suggests his symptoms are quite variable in degree." The tribunal notes that Professor Sambrook appears content to accept that such symptoms as Mr Crooks exhibits can be variable in this way. Dr Baz concluded her report in terms that accepted that the Applicant was unable to work overwhelmingly because of his psychiatric condition. However, as she expressed her conclusion, she left room for a conclusion that the back condition plays a part, albeit a much lesser part, in the Applicant's situation.
The Tribunal notes that Dr Westerink has consistently maintained that the Applicant's only substantial disability is psychiatric. With due respect to Dr Westerink, and the Tribunal has respect for Dr Westerink's views as he is a treating psychiatrist, it considers that Dr Westerink has very probably understated the impact of the Applicant's spinal pathology on his ability to work in the relevant remunerative employment, crane driving. Dr Westerink is clearly impatient with the Respondent's decision-making and his reports suggest that he may have assumed some of the role of an advocate for the Applicant. His specialty is also psychiatry, not orthopaedics or rheumatology. The Tribunal considers that Professor Sambrook's assessments are considered, relatively recent, are informed by his particular expertise, and are provided as his best opinion after examining the Applicant and fully considering the level of his spinal disability. Professor Sambrook's conclusion, that the Applicant could not return to work as a crane driver in view of his spinal difficulties, appears in both of his reports.
The Tribunal notes also that Dr Shand sees the Applicant's back disorder as of small account in his employment. However, he expressly agrees with Dr Baz who, as noted earlier, seems to the Tribunal to regard the spinal condition as contributing to the Applicant's unemployment, albeit to a much less extent than his psychiatric condition.
The Tribunal factors into its consideration also the fact that the Applicant, in the assessment period, is aged over 50 and has a workers' compensation history attributable to a non-war-caused injury. These extraneous factors are considered by the Tribunal to be non-war-caused contributors to the Applicant's unemployment.
The Tribunal therefore finds to its reasonable satisfaction that the answer to question 9 is no, that it is not the war-caused injury or disease alone that in the assessment period prevents the Applicant from continuing to undertake the relevant work.
Question 10 – If the answers to questions 8 and 9 are yes, is the Applicant 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 (s 24(1)(c) of the Act and Flentjar (supra))?This question does not arise given the answer to question 9 and the consequent finding. However, had the Tribunal resolved question 9 in the Applicant's favour, the Tribunal considers that the answer to question 10 would have been yes. Being unable to continue his work as a crane driver, and having to rely only on his pension entitlements, the Applicant would be taken to have lost wages as a result of his war-caused injury or disease. This result will become important if the Applicant can succeed as a result of s 24(2)(b) of the Act.
Additional questions arising from s 24(2)(b) of the ActThe ameliorating provision, s 24(2)(b) of the Act, can assist a veteran where he or she fails to qualify for special rate under s 24(1) of the Act in certain situations. The decision-maker must be able to make the following findings in relation to the veteran:
That he or she is aged under 65.
That he or she has not been engaged in remunerative work.
That he or she has been genuinely seeking to engage in remunerative work.
That he or she would, but for the war-caused incapacity, be continuing to seek to engage in remunerative work.
That the war-caused incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage
Special rate can be paid if these conditions are regarded as met. In the present case the Applicant is aged under 65, has not been engaged in remunerative work since 1992 or 1993 and has a war-caused disease, PTSD, that is the substantial cause of his inability to obtain remunerative work. Drs Baz, Shand and Westerink support that last point. The fundamental issue of contention is whether the Applicant has been genuinely seeking to engage in remunerative work.
Dr Baz in Exhibit A1 noted that "Mr Crooks explained that he did not get other work after being dismissed from this job because he had 'sat at home too long', and had increased his alcohol consumption and tendency to argue. He states he could not get another job because of his 'drinking and arguing'.... He does not consider finding work at this time as he feels increasingly shaky and 'sick to the stomach' if he thinks about finding employment."
The Applicant's wife discussed aspects of the Applicant's work search. She told the Tribunal that in 1993 the Applicant had looked for other work. He approached a local garage, a hardware shop and hotel. He went to Canberra for about two weeks. He visited construction sites looking for work. He went to Stroud and inquired about work in mining. He intended to go looking for work elsewhere but did not because of a breakdown. In cross-examination Mrs Crooks told Mr Modder that in looking for a job in mining he was not looking for anything specific. He went looking on spec as new jobs had become available in coal mining.
The Applicant in his oral evidence said that after a couple of weeks of holiday in 1993 had looked for work in about six places. He had been to Canberra in 1993 looking for work on construction sites. After 1993 he did not look for work away from home as he returned to school at Wallsend High School doing a wood turning course with a view to earning an income. He found a problem with concentration, however. He has produced a number of items such as a table, bowls and a box but he considers them not of good quality. In cross-examination the Applicant agreed that he had filled no forms out in relation to work search in 1993. Employers near the Applicant's home knew where the Applicant had worked.
In Exhibit A2 the Applicant wrote, "I looked for employment at first, garage work, hardware stores, hotel work but everyone in town knew of me with my drinking problem, always fighting, abusiveness to my family and to anybody. They just told me that my attitude towards people wasn't right for the job. … I've tried several times to go out looking for work but I get so sick in the guts and I end up having a panic attack. …"
In Exhibit A4 he wrote:
"I tried various companies for work around West Wallsend where I lived, the Hunter Valley around the Mine area, Tea Gardens area. I even went to Canberra when all the construction work was going on. … I bought myself a wood turning lathe, went to school to learn wood turning, but lack of concentration & I didn't think my work was good enough to sell, I just lost interest in everything and climbed back in the bottle until I hit the wall. … For the last 18 months I have tried to get myself together and go up to the local coal mine to try and get work, but every time I think about it, I get ready to go, and I would get that wound up I would have a panic attack and I have to take medication to calm myself down (Murelax). … the doctor has advised me not to think about going for work because of my problem."
In Exhibit A5 the Applicant said "I do not have any documentation to support my search for work because with most construction sites you just walk onto the site and ask at the site office if and when there is going to be any work coming up. Most of the companies that I went to were places I had worked at before. … It was the same in Canberra. I just went around to the construction sites where all the crane work was going on and asked for work. … As far as the CES goes, I registered at Cardiff and then they told me to register at the Wallsend Branch. I registered in the 80's and again in the early 90's."
There is some useful authority regarding s 24(2)(b) of the Act. The case, Re Anthony Bryce Brennan and Repatriation Commission (1996) 42 ALD 191 is similar in many respects. The facts were as follows. The applicant joined the army in 1963. He retired therefrom in 1983. He found work delivering car parts. In late 1984 while lifting a heavy crate at work he injured his back, claimed workers' compensation and has not worked since. In 1985 he underwent a laminectomy. Late in 1985 the applicant's brother tried him out at minor clerical work but he failed at this after a couple of days because his PTSD caused him anxiety.
The Tribunal, as in the present application, held that the applicant's back condition contributed to his inability to continue his remunerative work. A Veterans' Affairs document dated 1990 found the applicant stating that his back injury was preventing him from getting a job and that he had never registered or applied for work. These aspects of the Brennan case (supra) are not to be found in Mr Crooks's case. The Tribunal wrote in paragraphs 21 and 22 of its reasons for decision:
"What is clear from the Applicant's own evidence and the documents tendered is that following his discharge from the Army the Applicant found employment which was within his experience and capabilities and only ceased that employment because of the work injury for which he received workers compensation. Since that time he has not worked, his source of income being a Defence Force Retirement and Death Benefits Fund Pension and an Invalid Pension pursuant to the Social Security Act.... I find that the ameliorating provisions of Ss 24(2)(b) of the VEA do not apply to the Applicant as when his claim was made he had not been genuinely seeking to engage in remunerative work. At the time of his claim he was content to exist on his Service Pension and his Military Superannuation following his workers compensation payout."
Later in the decision the Tribunal wrote, "A confounding factor is that at the application day the Applicant had been out of the workforce since September 1984 and, in any event, would be regarded by any potential employer as unacceptable workers compensation risk by reason of his prior back claim." (Paragraph 26)
Whilst the present Tribunal is not bound by the Brennan decision (supra), and whilst the present case can be distinguished from Brennan (supra) in that Mr Crooks argues that he has engaged in work search, Brennan (supra) may be instructive in several respects. First, it accepts that s 24(2)(b) is to be satisfied during the assessment period, a matter not made explicit in the Act. Second, it is legitimate to consider a veteran's lack of attractiveness to an employer resulting from a workers compensation settlement as a factor that can be taken as contributing to a veteran's inability to continue remunerative work.
The other case is Re James William Bonner and Repatriation Commission (1989) 17 ALD 680, decided by Deputy President B J McMahon. In that case the applicant was born in 1924. He left school at age 16 in 1940. He had enjoyed a period of civilian employment with the Maritime Services Board ("MSB") when he joined the army between 1942 and 1946. He injured his back during operational service and developed ischaemic cardiomyopathy, an anxiety state and hypertension, also accepted disabilities. He retired from the MSB at age 60. The Tribunal found that he was required to retire from the MSB at age 60 (1984) because he had no superannuation-based reason for continuing to work. The Applicant could not qualify for a special rate pension under s 24(1)(c) because his age was a factor in his inability to continue remunerative work. He sought the benefit of s 24(2)(b) as he claimed to have sought to engage in remunerative work as a crewman on a prawn trawler, as the head of a unit at St Vincent's Hospital and as a casual yard hand.
The Applicant failed for several reasons:
The proposition regarding prawn trawling was based on the applicant's having spent a few weeks of each his holidays each year assisting a friend operating a prawn trawler. He had ceased doing this when his friend relocated from Macksfield to Cairns in 1983. The applicant said that casual work of this type was available in Cairns. However, he considered that he could no longer do the work because of breathlessness. The Tribunal rejected this as a genuine search for work as required by the Act. There was no evidence that he had pursued this option since leaving the MSB.
The proposition regarding St Vincent's Hospital was based on the applicant having applied for a position as deputy director of the detoxification unit at the hospital. He applied because he had had problems with alcoholism earlier in life and works with Alcoholics Anonymous. He had a letter from the hospital telling him that his application had been unsuccessful. The Tribunal noted that the letter gave no reasons for this lack of success but it concluded that the applicant was simply not qualified for such a position. (His MSB work had been as a cashier.)
The applicant had engaged in a trial working for a produce merchant in early 1985. He was a casual yard hand. He had also to operate a forklift and front end loader as required. He was let go after two weeks because he was not physically up to the job. In paragraphs 16 to 18 of the reasons for decision Deputy President McMahon said:
"In my view the letter and the applicant's evidence do not amount to a case that the applicant's accepted disabilities prevented him from continuing to undertake this remunerative work. Mr Bonner has a number of disabilities which have been rejected as not being war-caused. These include cervical spondylosis. In addition he said that he has arthritis in his hands, although there was no medical evidence to support this diagnosis. A report by Dr Bornstein confirmed that in his view the applicant's incapacity was now due both to his lumber spondylosis (which is accepted) and his cervical spondylosis (which is not).... I am not satisfied therefore that the evidence relating to the job with the produce merchant is sufficient to bring it within the terms of paragraph 24(2)(b). In any event, the requirements of the occupation are so obviously out of reach of the applicant, both because of his accepted and non-accepted disabilities that I have doubts whether the element of genuineness required by the paragraph exists in the circumstances. It seems to me that it is not open to a veteran to apply for work which is patently unsuitable, for physical reasons, and then claim that the inability either to obtain the employment or to hold the job for physical reasons is a compliance with the paragraph.... The Applicant worked for most of his life with a government organisation."
The learned Deputy President does not seem to have required job search activity to have occurred during the assessment period. He also decided that it is not just any job search activity that will satisfy the paragraph of the Act. It must be job search for an appropriate type of work.
The Tribunal as constituted in this matter considers that the Applicant can potentially take advantage of s 24(2)(b) even though his alleged job search activity occurred prior to the assessment period. The Act is beneficial legislation. The Act does not explicitly require that s 24(2)(b) be satisfied through activities occurring at or after the application day. The Tribunal is therefore prepared to take account of the Applicant's attempts to find work in 1993. In relation to those activities the Tribunal makes the following findings.
The Tribunal finds that the Applicant did seek work in 1993. On his own evidence he approached about six places of work. These were in garages, hardware stores, hotels and construction sites. The Tribunal also finds that in the early 1990s the Applicant was registered with the Commonwealth Employment Service. The Tribunal finds, again on the Applicant's own evidence, that he did not actually seek work in the mining industry. The Tribunal does find, however, on the evidence of Mr and Mrs Crooks, that he tried for work in Canberra as part of his efforts.
The Tribunal finds that this pattern and level of job search activity is in Mr Crooks's case sufficient to satisfy the requirement in s 24(2)(b) that the veteran must have been "genuinely seeking to engage in remunerative work". The Tribunal has gained some assistance in this matter from the decision of the Tribunal in Re Hornery and Repatriation Commission (1998) 52 ALD 333 where (in paragraph 44 at page 332) the Tribunal had this to say about the operation of s 24(2)(b) in a case where a veteran engaged in job search which ended a long time before the veteran applied for special rate:
"Section 24(2)(b) refers to a veteran who 'has been genuinely seeking to engage in remunerative work' and in the tribunal's view, this being a special provision to ameliorate s 24(1)(c) in so far as its effect is that the alone test there does not apply, it was intended to apply where the veteran's genuine and active pursuit of work, that is, his or her efforts to obtain work were brought to an end by incapacity from war-caused injury or disease. By saying that, the tribunal does not mean to say that incapacity from wart-caused disease or war-caused injury must have supervened at such time as the veteran was seeking on a daily or weekly basis to find work but in the tribunal's view it must supervene at such a time as the veteran can properly be said to have been genuinely seeking to find remunerative work, with there being 'some objective signs of active pursuit of remunerative work: Re Bonner [and Repatriation Commission (1989) 17 ALD 680]".
In accordance with the Hornery case (supra), the Tribunal finds that the Applicant was making genuine attempts to find work in 1993 when he ceased such attempts because of the supervening effects of his PTSD. There is support for this conclusion in Dr Baz's report. The Tribunal is prepared to accept the Applicant's attempts to find work as genuine because he had a track record of finding other work after losing a job. In some instances a former employer even re-hired the Applicant after he had left or been dismissed. The Applicant described his state of mind in Exhibit A4. It seems to the Tribunal that the comments in Exhibit A4 indicate that it was some of the effects of PTSD that caused the Applicant to cease his job search activity.
The Tribunal finds also, as required by s 24(2)(b) that Mr Crooks would, but for the PTSD, be continuing to seek to engage in remunerative work. This flows logically from the finding in paragraph 117. The tribunal is convinced that the Applicant has demonstrated a work ethic over the years leading to his cessation of work that would, more probably than not, be still motivating him at age 54 to look for work.
These findings mean that the Applicant can succeed in obtaining special rate if his war-caused incapacity is the substantial cause of his inability to obtain remunerative work in which to engage. The Tribunal notes that the evidence supports the view that the Applicant's PTSD is the chief reason he cannot work. His back incapacity plays a much smaller part in his inability to work. The evidence of Drs Baz and Shand is firm in this regard.
The Applicant can therefore take advantage of s 24(2)(b) of the Act to qualify for special rate Disability Pension.
ConclusionThe Tribunal has found that the Applicant's case satisfies the requirements of s 24 of the Act because of the operation of s 24(2)(b). He therefore qualifies for Disability Pension at the special rate. The Applicant qualifies for special rate, rather than intermediate rate, because the Tribunal has found, under s 24(1)(b) that the Applicant's war-caused diseases, taken by themselves, prevent him from engaging in relevant remunerative work. In the Tribunal's view, the Applicant could not work for at least eight hours a week.
DecisionThe Tribunal sets aside the decision under review. The Tribunal decides that the Applicant qualifies for payment of Disability Pension at the special rate with effect from the first pension payday on or after 19 April 1999.
I certify that the 122 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member, Rear Admiral A R Horton and Dr M E C Thorpe, Member.
Signed: .....................................................................................
AssociateDate of Hearing 27 March 2001
Date of Decision 7 November 2001
Counsel for the Applicant Mr N DawsonRepresentative for the Respondent Mr S Modder
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