Davis and Repatriation Commission
[2004] AATA 126
•10 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 126
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1181
VETERANS’ APPEALS DIVISION
Re: THERESA MONICA DAVIS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 10 February 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
VETERANS’ AFFAIRS ‑ widow's entitlement ‑ pension at special rate ‑ acute renal failure ‑ anxiety ‑ substantial cause of inability to work
Veterans’ Entitlements Act 1986 s 24, 119
Cavell v Repatriation Commission (1988) 9 AAR 534
Fox v Repatriation Commission (1997) 45 ALD 317
Re Sutton and Repatriation Commission [2001] AATA 119
REASONS FOR DECISION
10 February 2004 G. D. Friedman, Member
1. This is an application by Theresa Monica Davis (the applicant), widow of Barry Arthur Davis (the veteran), for review of a decision of the Veterans’ Review Board (VRB) dated 7 August 2002. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 21 December 2001 to increase the veteran’s disability pension to 80 per cent of the general rate with effect from 16 October 2001.
2. At the hearing of this matter on 28 January 2004 Mr D. De Marchi, solicitor, represented the applicant and Mr R. Fergusson, an advocate with the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T284), together with seven exhibits (Exhibits A1‑A7) lodged by the applicant and four exhibits (Exhibits R1‑R4) lodged by the respondent.
4. The issue before the Tribunal is whether the veteran’s inability to work was due to his accepted war‑caused disabilities to the extent that the applicant is eligible for pension at the special rate.
BACKGROUND
5. The veteran was born in Melbourne on 30 January 1948. After completing the Intermediate Certificate he left school and began work as a clerk with the CBC Bank until the age of 20 years, when he volunteered for National Service. He enlisted in the Australian Army on 17 July 1968 and was discharged on 10 May 1971. His service included service in Vietnam from 13 May 1969 until 17 May 1970, and this period constitutes operational service under the Veterans’ Entitlements Act 1986 (the Act).
6. After his discharge the veteran re‑joined the CBC Bank, rising to positions of Accountant and Branch Manager. In 1988 he resigned and took up positions with several small businesses, which were unsuccessful, and he was unemployed for various periods until 1993, when he commenced employment with the Crown Casino (the Casino) as a security officer. In May 2001 the applicant resigned from the Casino, citing ill‑health as the reason, after developing polyarteritis nodosa and kidney failure. The veteran died on 4 January 2002. The death certificate recorded the cause of death as End stage renal failure ‑ 9 months Secondary to polyarteritis nadosa Myelodysplasia ‑ 2 months.
7. The respondent had previously accepted liability for the following disabilities: anxiety state; osteoarthritis in both knees; lumbar spondylosis; polyp of the sigmoid colon; gastro-oesophageal reflux disease; impotence. The respondent had previously rejected liability for the veteran's spasm of the caecum; cholethiasis with operation and pancreatitis; tinea; chronic solar skin damage; bilateral sensorineural hearing loss; hearing loss and bilateral tinnitus.
8. On 31 October 2002 the applicant applied to the Tribunal for review of the VRB decision.
EVIDENCE
9. In a written statement dated 16 October 2003 (Exhibit A1) the applicant described how she met the veteran in 1972 and married him in 1974. She stated that from the beginning of the marriage the veteran suffered from nightmares and profuse sweating at night. She said that he was difficult to live with and alienated himself from her and their three children. She explained that in the early 1980s the veteran became extremely dissatisfied and paranoid while working at the CBC Bank, and this had an impact on his work performance. The applicant noted that in 1987 the veteran was admitted to hospital for a gall bladder operation and had a mental breakdown in hospital, requiring a stay of 14 weeks.
10. The applicant told the Tribunal that after his discharge from hospital the veteran returned to the bank but found difficulty in coping with people and with the work, as he was restless, unsettled and sometimes violent at home. She said that he left the bank in 1988 and his working life went downhill. He was unemployed for lengthy periods, after attempting several office positions. The applicant stated that initially the veteran’s employment with the Casino was successful, but he had difficulty coping with the people and the noise. She said that after his resignation he was admitted to the psychiatric ward at the Austin and Repatriation Medical Centre.
11. In oral evidence the applicant stated that the veteran’s inability to cope with life in general and his physical disabilities was due to his psychological state after returning from Vietnam. She explained that he refused to discuss his war experiences with her and refused to attend counselling. He maintained that there was nothing wrong with him, despite severe symptoms of angry and antisocial behaviour. She stated that his medical conditions, such as kidney failure, could have been treated by measures such as drinking quantities of water and undergoing regular dialysis. However, the veteran had refused to co‑operate with medical staff or accept recommended treatment because of his psychological state and his pretence that he was not ill.
12. In cross‑examination the applicant told the Tribunal that in the veteran’s letter of resignation to the Casino the reference to acute renal failure and other complications was incorrect, as his physical condition would have enabled him to continue working at that time, as long as he was not subjected to crowds and stressful situations. She agreed that in August 2001, after an unsuccessful application for a service pension, the veteran asked Professor G. J. Becker, Director of the Department of Nephrology at The Royal Melbourne Hospital, for a letter outlining the veteran’s health and employment prospects. The applicant stated that she was shocked at the contents of the letter, dated 6 August 2001 (T276), in which Professor Becker wrote:
…
Currently your health is extremely tenuous…
In both the short-term and long-term I am afraid your prospects for work are not good. If there was going to be significant recovery of renal function it would have occurred by now, and I think we can safely conclude that you have near end-stage renal disease which will require maintenance dialysis in the near future. The association of maintenance dialysis and diabetes will have such an impact on your health that it will be impossible for you to work.
…
13. The applicant reiterated that the veteran could have worked part‑time but for his mental state. The applicant conceded that the veteran had written, in a letter to the respondent dated 9 August 2001 (T277) (referring to Professor Becker’s letter):
…
The Report is quite specific regarding my future in respect of my health and work prospects and I confess that I am saddened by the comments therein. However, I am of the opinion that it contains all relevant information required for a review and is more precise than the report supplied by my local doctor.
…
The applicant told the Tribunal that the veteran wrote the letter because they needed money. She disputed the accuracy of the contents of the letter on the basis that the veteran’s mental state was the cause of his physical problems.
14. The applicant acknowledged that, in an assessment for the Department of Veterans’ Affairs dated 3 March 2000 (T200), the veteran’s general practitioner noted that the veteran’s anxiety state caused minimal or no interference with his daily living or his capacity to work. She said that this demonstrated the lies told by the veteran to medical professionals on a regular basis because of his mental state.
15. In a written statement dated 27 October 2003 (Exhibit A3) Mr K. Meachem, a former security and service supervisor at the Casino, stated that he was the veteran’s supervisor during the last four years of the veteran’s employment at the Casino. He said that the veteran could not keep up with the working pace and pressures that were required on the gaming floor, so a position was found for him at a staff entrance, which was away from the crowds and the noise. Mr Meachem described concerns expressed by himself and other staff about the veteran’s mental health and paranoia. He said that the veteran confided in him about his kidney problems and appeared to be obsessed by death. Mr Meachem explained that the veteran told him that it was trauma from his war service, rather than his physical health, that was worrying him and that he was planning to resign but would give his kidney condition as the reason.
16. In oral evidence Mr Meachem noted that at the Casino the veteran’s behaviour would change rapidly, and that often he was argumentative and disruptive, accompanied by frequent threats to resign.
17. In written statements dated 19 August 2003 (Exhibit A4) and 23 October 2003 (Exhibit A5) Mr W. J. Cane said that he served with the veteran in Vietnam and they remained friends after their return to Australia. He described the trauma experienced by the veteran because of incidents that occurred during service in Vietnam, and said that the veteran was tormented and felt extreme guilt for events that occurred. Mr Cane told the Tribunal that the veteran experienced difficulty with crowds and Asian people and suffered from depression. He said that and on numerous occasions the veteran said that he wished to end his life.
18. Mr Cane expressed the view that in 2001 the veteran was capable of working while undergoing dialysis for his kidney problems, yet his mental state was such that he could not cope, and resigned from the Casino after telling everyone that his physical health prevented him from continuing his employment. In cross‑examination Mr Cane agreed that in late 2001 the veteran was unwell, but said that his mental state was the reason for his inability to cope with employment or life in general.
19. In a claim for service pension dated 26 April 2001 (T262) the veteran stated:
Ill health from my accepted disabilities and claimed disabilities have rendered me unemployable. My anxiety state is such that I cannot cope and physically I am a mess.
20. In a Work Ability Report for the Department of Veterans' Affairs dated 21 May 2001 (T239‑244) Dr M. Date, the veteran‘s treating doctor, listed severe crescentric nephritis March 2001; gout 1997; history of sigmoid colon polyp resection as the major diagnoses, and osteoarthritis both knees as minor diagnosis. Under the heading Mental State he stated Gets easily angered; can upset family life. He concluded that because of the veteran’s renal failure and consequent lethargy and weakness, his dialysis treatment, daily injections and the effects of diabetes, the veteran would be unable to work for nine more months. Dr Date stated that there are no other factors that would prevent him working.
21. In a written report dated 13 December 2001 (T10) Dr J. L. Gelb, consultant psychiatrist, referred to the letter from Professor Becker and stated at T10 p49:
…It is clear, therefore, that Mr Davis’ mental health was already significantly impaired, and the development of systemic vasculitis simply was the straw that broke the camel’s back.
…
Dr Gelb concluded that the veteran was significantly impaired and that he was totally and permanently incapacitated for remunerative employment.
22. In the Determination Sheet for Permanent Incapacity for Invalidity Service Pension (Exhibit A7) dated 18 July 2001 a delegate of the respondent noted that in the opinion of the veteran’s treating doctor the veteran’s acute renal failure may improve to such an extent that he may be able to join the workforce by March 2002.
23. In a letter dated 28 March 2001 Dr J. Morey of The Royal Melbourne Hospital (T250) noted that the veteran was an inpatient suffering from a serious medical condition (acute renal failure secondary to a rapidly progressive glomerulonephritis). Dr Morey said:
…He has also demonstrated evidence of anxiety and depression. He was commenced on hemodialysis which may be longterm. He is anticipated at this stage to be in clinical renal failure. It is unclear when he will be well enough to return to his former employment, but it not foreseeable in the short term.
…
24. In a written statement dated 3 May 2001 (T249) Ms M. Forrest, social worker at the Renal Unit of The Royal Melbourne Hospital, stated:
…
Barry has had a prolonged hospital admission for acute renal failure which has had a profound effect upon Barry and his family. The treatment he now requires is dialysis twice per week, for a period of four hours…
…At this time I feel that returning to Security work for would not be appropriate for Barry due to his illness, and to his treatment requirements, which have been very stressful for him.
…
CONSIDERATION OF THE ISSUES
25. Section 24 of the the Act makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
(aa)…
(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)…
(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
…
(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.
26. Mr De Marchi submitted that there was no material presented to the Tribunal that contradicts the applicant’s evidence that the veteran’s accepted condition of anxiety prevented him from undertaking employment. He noted that in 1987 the veteran underwent gall bladder surgery but remained in hospital for 14 weeks because of his mental state, which ultimately ended his employment at the CBC Bank. Mr De Marchi said that a similar situation occurred in 2001 when the veteran resigned from the Casino after admission to a psychiatric ward because his behaviour was out of control. Mr De Marchi referred to the evidence from the applicant and treating doctors and stated that the veteran’s kidney condition could have been treated successfully, but the veteran allowed it to deteriorate due to his psychological state.
27. Mr De Marchi submitted that the Tribunal must make a decision that is practical and based on all the material (Cavell v Repatriation Commission (1988) 9 AAR 534). He referred to Exhibit A7 and said that there was no evidence that the veteran‘s kidney condition prevented him from working. Mr De Marchi submitted that there was ample material to support the applicant’s evidence that the veteran lied consistently about his physical and mental health, and this was demonstrated by his letter of resignation to the Casino and to the Department of Veterans' Affairs seeking review of the refusal of a service pension.
28. In relation to s 24(1)(c) of the Act, Mr De Marchi submitted that the ameliorative provision of s 24(2)(b) of the Act applied in this case, as the veteran was less than 65 years old at the relevant time, and he satisfied the test of whether the war‑caused incapacity is the substantial cause of the veteran’s inability to obtain remunerative work (Re Sutton and Repatriation Commission [2001] AATA 119). Mr De Marchi also noted the beneficial provisions of s 119 of the Act, which he said should be applied in this case.
29. Mr Fergusson acknowledged that the veteran’s anxiety condition played a role in his problems at work and at home, but submitted that the medical evidence showed clearly that the overwhelming cause of the veteran’s inability to work was his kidney condition. He referred to the statements by Professor Becker and Ms Forrest and stated that there was no medical evidence that supported the submissions made on behalf of the applicant. In relation to s 24(2)(b) of the Act, Mr Fergusson submitted that the veteran was working until June 2001 when his kidney problems led to his resignation. He stated further that there was no evidence that the veteran was genuinely seeking employment.
30. The Tribunal reached its decision taking into account the oral and written evidence and the submissions made at hearing.
31. The major area of disagreement between the parties was the application of the phrase the substantial cause in s 24(2)(b) of the Act. In Fox v Repatriation Commission (1997) 45 ALD 317 Kiefel J stated at p319‑320:
…
The words "the substantial cause" require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be "a substantial cause" has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as "substantial"… The definite article in s 24(2) of the 1986 Act (compare Repatriation Act 1920, Sch 2, as amended in 1985), requires a stronger and more direct causal connection between the incapacity and the inability to obtain remunerative work…
32. The Tribunal accepts the applicant’s evidence, supported by the evidence from Mr Meachem and Mr Cane, that the veteran exhibited disruptive and difficult behaviour and that he was reluctant to admit he had problems or required treatment. The Tribunal also notes that despite considerable difficulties with work colleagues and other people arising from his accepted condition of anxiety, the veteran succeeded in maintaining employment at the CBC Bank until 1988, and with other employers, including the Casino from 1993 until 2001.
33. The Tribunal takes into account the veteran’s comments in both his letter of resignation to the Casino confirming acute renal failure as a major contributing factor, and in his application for service pension in which he claims to be suffering from polyarteritis nodosa, acute kidney failure and diabetes. Although there is little doubt that at times the veteran minimised his medical problems and, on occasions, he refused treatment for his psychological and physical conditions, these comments support the view that the veteran believed his physical problems were significant.
34. The Tribunal notes that the veteran was admitted to a psychiatric ward in about September 2001 after suffering a breakdown. However, the Tribunal gives considerable weight to the letter from Professor Becker, who attributed the veteran’s inability to work to renal failure. The Tribunal also accepts the evidence from Ms Forrest, that a return to work was inappropriate due to the veteran’s illness from kidney failure and to his treatment requirements. The evidence from Dr Morey appears to indicate that the veteran’s inability to return to work was due to renal failure, although he acknowledged that the veteran exhibited signs of depression and anxiety. The report from Dr Gelb refers to the impact of vasculitis on the veteran’s inability to work.
35. The Tribunal also gives considerable weight to the evidence, in May 2001, from Dr Date, who had been treating the veteran for a number of years that the veteran was unable to work primarily because of acute renal failure and the effects of diabetes. In particular the Tribunal notes Dr Date’s comment that there were no other factors.
36. It follows that the Tribunal does not accept the evidence of the applicant and Mr Cane, that it was the veteran's mental state, notwithstanding his physical problems, that prevented him from being able to obtain remunerative work.
37. The Tribunal agrees with Mr Fergusson that there was no evidence that at the relevant time the veteran was genuinely seeking to engage in remunerative work.
38. The Tribunal concludes that the veteran’s accepted conditions, particularly anxiety, contributed to his inability to work for more than eight hours a week at the relevant time. However, on the balance of probabilities, taking into account the totality of the medical and other evidence, and taking the provisions of s 119 of the Act into consideration, the Tribunal finds that the veteran‘s accepted conditions were of lesser significance than the non‑accepted medical conditions. Therefore, the veteran's accepted conditions, including anxiety, were not the substantial cause of the veteran’s inability to engage in remunerative work. As a result, the veteran cannot satisfy s 24(2)(b) and s 24(1)(c) of the Act, and the application must fail.
DECISION
39. The Tribunal affirms the decision under review.
I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 28 January 2004
Date of decision: 10 February 2004
Advocate for applicant: Mr D. De Marchi
Solicitor for applicant: De Marchi & Associates
Advocate for respondent: Mr R. FergussonSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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