Dobson and Repatriation Commission
[2007] AATA 1414
•7 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1414
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200500327
VETERANS’ APPEALS DIVISION ) Re KEVIN LAWRENCE DOBSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date7 June 2007
PlaceMelbourne
Decision The Tribunal sets aside the decision of the Repatriation Commission dated 14 November 2002 as affirmed by the Veterans’ Review Board on 20 October 2004 and in substitution decides that the applicant is entitled to pension at the special rate. The Tribunal remits the matter to the Respondent for assessment of the rate of pension and the date of effect.
.
(sgd) E.A. Shanahan
Member
VETERANS’ AFFAIRS – accepted disabilities resulting in pension at 100 per cent of general rate – application for special rate – alone test – age – other known war‑caused conditions – length of time out of workforce – loss of salary, wages or earnings –genuinely seeking to engage in remunerative work – decision set aside
Veterans’ Entitlements Act 1986
Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 76 ALR 449
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Graham (2004) 85 ALD 572
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 41 ALD 205
Leane v Repatriation Commission (2004) 81 ALD 625
Byrne v Repatriation Commission [2001] FCA 1134
Fox v Repatriation Commission (1997) 45 ALD 317
Forbes v Repatriation Commission (2000) 58 ALD 394
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Magill v Repatriation Commission [2002] FCA 744
Fry v Repatriation Commission, (1997) 47 ALD 776
Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997)
Peacock v Repatriation Commission [2004] FCA 1449
REASONS FOR DECISION
7 June 2007 Miss E.A. Shanahan, Member 1. Mr Dobson receives a disability pension at 100 per cent of the General Rate for the accepted conditions of post-traumatic stress disorder (PTSD) with alcohol abuse, bilateral sensorineural hearing loss with tinnitus, conduction hearing loss in the right ear, tinea, gastro‑oesophageal reflux disease and impotence. On 3 October 2002 he lodged a claim for an increase of pension to the Special Rate. The Repatriation Commission delegate rejected the claim on 14 November 2002 and the Veterans’ Review Board (VRB) affirmed this decision on 20 October 2004. Mr Dobson applied to the Administrative Appeals Tribunal for review of the decision on 22 April 2005 (there were applications for extension of time to lodge the application for review and these were granted).
2. The applicant was represented by Mr C Thomson of counsel, instructed by Mr P Liefman. The respondent was represented by Mr G Purcell of counsel, instructed by the Australian Government Solicitor. The Tribunal had before it the document lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (the T‑documents – Exhibit R1). The parties tendered the following documents:
Report of Dr Percival dated 28 June 2006
Exhibit A1
Chronology of Mr Dobson’s employment
Exhibit A2
Statement of Mr Ian Dobson dated 15 February 2007
Exhibit A3
Statement of Mr Gavin Murphy (unsigned)
Exhibit A4
Letter from James Hinchliffe dated 24 October 2006
Exhibit R2
Report of Dr Horsley dated 10 March 2006
Exhibit R3
Report of Dr B Kenny dated 16 December 2005
Exhibit R4
Report of Dr B Kenny dated 8 September 2006
Exhibit R5
Report of Dr B Kenny dated 19 January 2007
Exhibit R6
Transcript of the VRB Hearing dated 22 October 2004
Exhibit R7
Letter from Sugar Australia dated 5 August 2005
Exhibit R8
Clinical notes of Dr Hoare
Exhibit R9
Report of Dr C Ryan dated 6 October 2005
Exhibit R10
background to the application
3. There is no dissent as to Mr Dobson’s diagnosis and their acceptance as being war‑caused. Mr Dobson served in Vietnam from 13 August 1970 to March 1971. His diagnoses while involving multiple.systems are pre‑eminently post-traumatic stress disorder (PTSD) and alcohol abuse as accepted by the Repatriation Commission in 1998.
4. Following his discharge from the Army in October 1971, Mr Dobson worked as a truck driver, security guard, cab driver and from 9 July 1992 until 31 July 2002 as a storeman/warehouse operator. Prior to his redundancy on 31 July 2002, he claims to have become increasingly anxious and irritable, was drinking to excess and frequently absent from work because of his exacerbating PTSD symptoms and alcohol abuse. Following his redundancy neither he nor his wife believed he was fit enough to search for another job. They decided to sell their home in North Altona, as it was still subject to a $40,000 mortgage, and buy a cheaper property in Waubra, some 40kms north of Ballarat. Mr Dobson had lived and worked in Creswick (near Ballarat) in the 1980’s and his wife, Jenny, had come from the same district. In Waubra he had assisted the local publican on a voluntary basis, acted as a barman at the bowling club and for a period of 9 – 12 months in 2005-2006 worked two to four hours per week delivering mail for the local general store/postal agency. He said he looked at the Ballarat Courier newspaper for jobs in Ballarat; he had one interview but was rejected; and discussed the possibility of truck driving again with a local farmer/driver. Mr Dobson had lost his driver’s licence in 1992, for a period of two years for a drink driving offence. This resulted in him losing his job at Murphy and Sons Transport where he had worked for four years. His marriage broke down, he believes as a result of his drinking and PTSD symptomotology and they were divorced in mid-2006. He now does some voluntary work at the bowling club but since the hotel changed ownership, he no longer assists the publican and a falling out with the general store proprietor terminated his employment as a mail deliverer. He spends his time watching television, doing crosswords and drinking beer.
5. This matter was heard on 1 February 2007 and adjourned after a question posed by the Tribunal revealed that Mr Dobson’s adult son, Ian Dobson, was in the unusual position of having lived with his father until 1997, and worked side by side with his father at Havelock Food Products (also referred to as CSR and Australia Sugar and hereafter as CSR) from 1992 to 2002. After discussion with the parties, the Tribunal decided that a statement be obtained from Mr Ian Dobson and that the Tribunal reconvene to hear his evidence. The resumed hearing took place on 2 April 2007. The Tribunal, at that time, also received a statement from Mr Gavin Murphy, Managing Director of Ian Murphy and Sons Transport, for whom Mr Dobson had worked, as a driver, from 1988 to 1992. Mr Kevin Dobson, Mr Ian Dobson and Mr Gavin Murphy gave evidence.
mr kevin dobson
6. Mr Dobson described his pre-Vietnam and post-Vietnam employment history. Having left school at 16, after completing Year 11, he worked as a clerk for three employers over a four year period. During 1968 and 1969 he was an assistant to the Chief Chemist at Olympic Tyres. He enjoyed all of these roles but particularly the first, as an assistant to an SEC (State Electricity Commission) engineer, and the last at Olympic Tyres. Mr Dobson had joined the Air Training Corps when he was 14 years old, and at 18 transferred to the RAAF Reserve through whose auspices he learned to fly. He was 10 hours flying time short of obtaining his pilot’s licence when he volunteered, at the age of 24, for National Service. He decided to enlist in the Army after a friend was killed in Vietnam.
7. Prior to his enlistment, he neither drank nor smoked and was very fit. He had been a lifesaver at Williamstown Beach for many years.
8. Following eight months of training he was sent to Vietnam; initially he was an infantryman but shortly thereafter became a machine gunner. As Mr Dobson’s diagnosis of PTSD and alcohol abuse were not in contention, the details of his service in Vietnam were not pursued. Mr Dobson said he had commenced smoking and drinking alcohol during his Vietnam service.
9. Following his discharge from the Army, Mr Dobson worked as a truck driver and from 1974 to 1978 was a member of the security services at the Port of Melbourne. He enjoyed this work as he was outdoors. On his return from Vietnam he had realised he could not tolerate working indoors.
10. Mr Dobson had married in 1973, his son was born that year and the marriage was dissolved in approximately 1977. In 1978 he entered into a de facto relationship and moved to Creswick to live. He worked as a long distance truck driver; and seasonally as a bush carpenter for the Forests Commission. In 1980 his son came to live with him in Creswick.
11. The de facto relationship lasted for six and a half years and in 1988, Mr Dobson returned with his son to live in Melbourne. Shortly after his return to Melbourne he met Jenny and they married in 1991. From 1988 to 1992 Mr Dobson worked as a driver for Murphy and Sons Transport. In 1992 he lost his driver’s licence for drink driving and was unable to continue at Murphy’s. He obtained employment at CSR in July 1992 as a storeman or as he termed it, a lackey (trans p27). He believed someone at Murphy’s had been instrumental in getting him the job as Murphy’s were CSR’s main transporter.
12. After approximately six months Mr Dobson became a warehouse operator and took over the transport side of the warehouse. This entailed the organising of loading and despatch of trucks to various states, co‑ordinating with the sugar refinery and attending customers. He occasionally helped to load trucks using a forklift but estimated that 80 per cent of his time was spent in the office. He coped with the job requirements, although at times they were under tension (transcript p27) because of the CSR policy of OTIF (on time in full).
13. In mid-2001 he heard that CSR would be closing their operation in Yarraville and all 23 workers would be retrenched in three months’ time. The closure time was deferred in three-monthly aliquots for over 12 months. Mr Dobson took a redundancy package and ceased work on 31 July 2002.
14. Mr Dobson said he had suffered poor sleep, almost daily dry retching, noise intolerance and anxiety in crowds since his Vietnam service. He had tried sleeping tablets without benefit and had taken six courses of the anti‑depressant drug Exefor but ceased this medication as his symptoms were unchanged.
15. Mr Dobson agreed he had not sought work in Melbourne after his retrenchment, as he had come to breaking point with my nerves and anxiety (trans p30). His retrenchment, the consequent sale of his house in North Altona and the shift to Waubra had worsened his nerves and anxiety.
16. Some two and a half to three years ago, Mr Dobson said he had applied for a part‑time (three days per week) truck driving job with Berklee’s Motor Parts in Ballarat and at his interview was told they were looking for someone much younger. In 2005 – 2006 he had worked four hours per week delivering mail in Waubra before falling out with Mr Hinchliffe, the owner of the general store. Mr Dobson said he had been sounded out for a position driving interstate by a Mr Luke Malloy in approximately 2002, but felt he could not cope with interstate driving because of my nerves (transcript p32).
17. Mr Dobson estimated that he was currently drinking 12 to 18 stubbies of full strength beer daily; although this had varied and had been less in the past. The longest period he had gone without a beer was three days.
18. Under cross-examination Mr Dobson said he never drank alcohol when he was driving trucks. His three drink-driving charges, the last of which resulted in the loss of his licence for two years, had all occurred when driving his own car and outside work hours. The last occasion had occurred on a Saturday, after he had been drinking at the end of his driving shift.
19. Mr Dobson agreed with Mr Purcell that in 2000 he had an episode of left-sided sciatica resulting in a two week period off work. He said that since that episode, he had occasionally experienced relatively mild back and left leg pain for which he would take an Aspirin.
20. Mr Dobson also agreed with Mr Purcell’s proposition that his (Mr Dobson’s) work history was positive and that he had enjoyed most of his various job placements until about 1997 when his nerves were getting that bad I was snapping at people, getting short tempered (trans p57).
21. Mr Dobson said that the news that the Yarraville CSR refinery was to close resulted in him being worried sick. He discussed the situation with his wife and they jointly decided to sell their house in North Altona and move to the bush.
22. Having shifted to Waubra, Mr Dobson said he did not expect to get work locally but thought a job in Ballarat was possible. Given the travelling distance from Waubra to Ballarat (approximately 60kms round trip), part-time work such as taxi driving was not economically sustainable. Some 10 years before, Mr Dobson had driven taxis part-time in Ballarat, while living in Creswick. He had held a taxi driver’s licence from the age of 21.
23. While Mr Dobson had told the VRB and this Tribunal that he would have continued to work at CSR had it not closed down, he said he would not have lasted long in his position because of his nerves. He felt he would have either resigned or been sacked as he had found it increasingly difficult to cope.
24. Under re-examination by Mr Thomson, Mr Dobson said that while at CSR he would have a counter lunch at a hotel twice per week during which time he would drink three to four pots of beer. On days when the warehouse was quiet he would stay at the pub longer and drink five to six pots. He said that on two occasions he had been reprimanded regarding his lengthy lunches.
25. The Tribunal asked Mr Dobson whether the workload at CSR decreased when they were advised in 2001 that the plant would close. Mr Dobson said there was a slight reduction in the workload. The Tribunal also asked when Mr Dobson’s son, Ian, became independent and left home, given that Mr Dobson had raised his son from the age of seven. It was at this stage that Mr Dobson revealed that he worked side by side with his son at CSR, his son drove him to work each day and that his son had left home at age 24 in 1997.
26. Neither counsel for Mr Dobson nor counsel for the respondent had been aware of the existence of Mr Ian Dobson; let alone that the son had lived with his father from 1980 to 1997 and worked with him, as what was later described as a two- man team, at CSR for ten years. After considerable discussion, the Tribunal decided to adjourn the hearing in order to obtain a statement from Mr Ian Dobson and to resume the hearing at a convenient time so that Mr Ian Dobson could give evidence. The hearing resumed on 2 April 2007.
mr ian dobson
27. Mr Ian Dobson provided a statement (Exhibit A3) dated 5 March 2007. He said he had commenced work with CSR in 1991, originally in the packaging plant. He was then shifted to the warehouse area and was responsible for all incoming materials and the despatch of deliveries. The position required two persons and when his assistant left in 1993, he requested that his father, Mr Kevin Dobson, take this place. Ian Dobson left the employment of Havelock in early 2002 and his father a few months later. According to Ian Dobson, the factory closed 8 months after his father was retrenched.
28. The Dobsons, father and son, worked as a team. The son was aware of his father’s diagnosis. Mr Ian Dobson said he normally drove his father to work but on occasions his father refused to come to work because of poor sleep and dry retching. Mr Ian Dobson had noted his father’s anxiety and intolerance of noise, increasingly long lunches and verbal stoushes with the foreman and production manager. He had concluded that his father was not coping with the job on his own and as a result accepted a redundancy package some eight months before the plant closed.
29. In his evidence before the Tribunal, Mr Ian Dobson confirmed his statement and enlarged on the work relationship between him and his father. He said they worked as a team and were of equivalent status within the company. He kept his eye on his father and assisted work wise when Mr Kevin Dobson was stressed. At the time he was aware of the long lunch breaks his father took and had discussed these with the production manager and foreman. He declined to intervene as it was their responsibility not his. The production manager was retrenched in 1998. Mr Ian Dobson said he was in a position where he could relieve his father when the latter appeared under stress.
30. Mr Ian Dobson said he became fed up with the extended closure dates for the plant and left in early 2002. He obtained a position as storeman for a logistics company via a placement agency, and he continues to work in this capacity.
mr gavin murphy (by telephone)
31. Mr Murphy is the Managing Director of Ian Murphy and Sons Transport. He provided a statement (Exhibit A4) and gave evidence by telephone. Mr Dobson had worked for his company for four years from 1988 to 1992. Mr Murphy described Mr Dobson as an honest and dutiful employee and a decent bloke (Exhibit A4). While being aware that Mr Dobson drank too much, Mr Murphy allowed some latitude as he knew the applicant was a Vietnam veteran. Mr Murphy said he would have endeavoured to employ Mr Dobson after his retrenchment from CSR in 2002 but Mr Dobson would have had to meet their recent policy of zero tolerance of alcohol in truck driving, warehouse work and courier activities. In Mr Murphy’s opinion the applicant’s age was not an issue although generally the company did not employ persons older than 50 years.
32. In his evidence before the Tribunal, Mr Murphy confirmed that Mr Dobson was a skilled and diligent employee until his drink-driving precipitated the loss of his licence. Mr Murphy also confirmed that he would have endeavoured to have helped Mr Dobson with respect to employment in 2002 as he believed he had a duty to assist Vietnam veterans. However, the then current legislation prevented such employment except in their warehouse. Mr Murphy said the company, about to be taken over by his children who were in their 30’s, preferred workers in the 27 to 35 year age range. Mr Dobson’s employment in Murphy’s warehouse would have been subject to him having driver and forklift licences, computer skills and good general health.
mr kevin dobson
33. Following the evidence of Mr Ian Dobson and Mr Gavin Murphy, Mr Kevin Dobson was recalled to give evidence. Mr Dobson agreed with his son’s evidence regarding their working relationship. He admitted to drinking one to two cans of beer per day at work.
34. The Tribunal asked if Mr Dobson retained his licence to drive rigid trucks. In response, Mr Dobson produced his licence which was due to expire on 10 June 2007. Mr Ian Dobson indicated that his father would need to pass medical tests to renew that soon to expire licence.
Documentary Evidence Before The Tribunal
dr b kenny, psychiatrist
35. Dr Kenny first saw Mr Dobson in October 2002 and was aware that the diagnosis of PTSD with alcohol abuse had been made by Dr Parkin in 1998. Dr Kenny agreed with these diagnoses. He noted that Mr Dobson looked older than his years, smelt of alcohol and had a hopeless resigned quality about him (T9, p40). Dr Kenny concluded that Mr Dobson was prevented from employment solely because of his PTSD and alcohol abuse. A GARP score of 37 was assigned.
36. Dr Kenny reviewed Mr Dobson in December 2005 at the request of the respondent. At this review he was provided with multiple medical reports and work reports. Dr Kenny’s opinion was unchanged; but as Mr Dobson was then performing the mail run two days per week for the Waubra general store, Dr Kenny concluded that Mr Dobson had the capacity to work eight hours per week but less than 20 hours if such extra work was available. He assigned a GARP (Guide to the Assessment of Rates of Veterans’ Pensions) assessment of 42 points.
37. Dr Kenny reviewed his file on Mr Dobson, having been provided with reports of Dr Percival (Exhibit A1) and Dr R Horsley (Exhibit R3). On 8 September 2006 he accepted, in light of these reports, that Mr Dobson may be unfit for even eight hours work per week (Exhibit R5).
38. Dr Kenny saw Mr Dobson again on 19 January 2007, at the respondent’s request. He noted Mr Dobson looked older than when I last saw him, looked very well-worn, indeed quite run down (Exhibit R6) and presented himself at this stage as markedly impaired. Dr Kenny reframed his opinion to the effect that Mr Dobson had not been capable of any work since he first saw him and that the voluntary work and the mail run had been token work and not meaningful employment.
dr c percival, psychiatrist
39. Dr Percival saw and assessed Mr Dobson on 28 June 2006, having been provided with all the reports filed to that date. Dr Percival was under the impression that Mr Dobson ceased work when the CSR warehouse closed down. (The Tribunal notes that this does not appear to be correct).
40. Dr Percival otherwise obtained a history in accordance with the history Mr Dobson provided to the Tribunal and to the consultant medical officers he had seen. Dr Percival analysed Dr Kenny’s reports at length and the VRB decision. He concluded that while Mr Dobson’s cessation of employment with CSR was due to the plant’s closure, he would have inevitably ended his employment with CSR and his accepted psychiatric disabilities would indeed have been the sole and only cause of the ending of this employment (Exhibit A1). Dr Percival provided an excellent discussion, in psychiatric terms, regarding the differences in voluntary and remunerative employment. Dr Kenny acknowledged the validity of this argument in his report of 19 January 2007 (Exhibit R6).
41. Dr Percival concluded that Mr Dobson is truly incapable of working more than eight hours a week in any role … that this is a sole consequence of his accepted psychiatric disabilities … (Exhibit A1).
dr c ryan (exibit r10)
42. Dr Ryan’s report states that he saw Mr Dobson on one occasion (14 December 2002) for the purpose of providing a prescription for Mr Dobson’s back pain.
dr j s hoare, general practitioner (clinical notes – exhibit r9)
43. Dr Hoare provided a copy of a letter dated 28 July 2004 or 2005, the writing being indecipherable. The letter confirmed that Mr Dobson suffered an episode of left-sided sciatica in February 2002, necessitating two weeks off work. X-rays had revealed degenerative changes showing L4-5 and L5-S1 disc narrowing. An examination in July 2004 (or 2005) showed a full and pain free range of movement of a thoracolumbar spine. In his opinion, Mr Dobson’s lumbar spinal degeneration did not and does not impede full time work. The attached haematological results are normal except for elevated liver enzymes on 18 April 2000 and again on 15 August 2002.
dr r horsley, occupational health physician (exhibit r3)
44. Dr Horsley saw Mr Dobson on 8 March 2006 at the respondent’s request. Dr Horsley obtained a detailed history consistent with earlier reports; except that she recorded two falls in 2005, the first of which resulted in fractured ribs, a pneumothorax and renal contusion; and the second, two rib fractures and fracture of the right clavicle.
45. Physical examination revealed Mr Dobson to be hypertensive and to have signs of early emphysema, mild limitation of movement of right shoulder attributed to the previous fracture of the clavicle and a mild reduction in lumbar spinal movement.
46. Dr Horsley found Mr Dobson’s unaccepted physical disabilities were not an impediment to remunerative work but his age and general presentation were barriers to re-employment. She relied on the psychiatrist’s assessment of Mr Dobson’s psychiatric disabilities.
dr r hunter, rehabilitation physician (t15, p. 63)
47. Dr Hunter assessed Mr Dobson at the request of his RSL Advocate. She concluded that the only conditions that impacted on Mr Dobson’s ability to work were his PTSD with alcohol abuse. Mr Dobson’s osteoarthritis of the lumbar spine would limit his ability to perform moderate to heavy manual labour but as he had never performed such duties this was not relevant. It would not affect his ability to work as a truck driver or a transport supervisor. Dr Hunter found that Mr Dobson’s PTSD with alcohol abuse prevented him from performing more than eight hours a week of work in his previous occupations of transport supervisor and truck driver. She considered him eligible for a pension at the special rate.
statement of karen hinchliffe (t17, p. 81) and james hinchliffe (exhibit r2)
48. Karen and James Hinchliffe are the proprietors of the Waubra General Store/Post Office Agency.
49. On 13 September 2004, Karen Hinchliffe advised that Mr Dobson had been offered casual employment up to 10 hours per week.
50. Mr James Hinchliffe, on 24 October 2006, advised the respondent that Mr Dobson had assisted the business delivering mail on an informal and casual basis once or twice a week for approximately 12 months (March 2005 to March 2006) and was paid $20 per day. He estimated that Mr Dobson was paid $1800 over this period. No records of this employment had been kept.
the springs hotel
51. The Licensee of the hotel in Waubra, Mr John Variey, confirmed on 14 September 2004, that Mr Dobson had been employed on a casual basis at this hotel for a period of 18 months.
sugar australia (exhibit r8) (CSR)
52. By letter dated 5 August 2005, Sugar Australia confirmed that Mr Dobson had been employed by this company from 9 July 1992 to 31 July 2002 and that he was retrenched on the latter date. Initially, he was employed as a casual relief storeman – despatch operator and then as a permanent warehouse operator. Mr Dobson’s sick leave records were provided. From 7 May 1998 to 2 April 2001 there was 23 days sick leave, 10 of which were due to his previously reported sciatica. Between 30 April 2001 and 7 March 2002 he took 13 days sick leave. In the four months from 14 March 2002 to 12 July 2002 he had 13 days sick leave.
vrb transcript and decision (exhibit r7 and t2, p.ix respectively)
53. Mr Dobson’s evidence before the VRB was substantially the same as the evidence that he gave to this Tribunal, except that (p6 of Exhibit R7) he explained that in about June 2002 CSR gave all Yarraville employees the option of voluntary redundancy and he accepted this offer after discussions with his wife. Mr Dobson said CSR told him the plant would close in December 2002 and in the interim there would be a skeleton staff. In its decision the VRB states that the CSR ceased production on 31 July 2003 and implies that Mr Dobson accepted a retrenchment package a few months before that date. (Tribunal comment: This does not tally with the evidence before the Tribunal or the statement of Sugar Australia.) Later in the decision, the VRB said (VRB decision No V02/1284 at page xvii):
… it is quite clear that Mr Dobson ceased work with CSR in July 2002 because he was involuntary retrenched his workplace having been shut down. He did not stop work because of his war‑caused disabilities. This means he does not meet all the requirements of sections 23(1)(c) or 24(1)(c) because he has not suffered a loss of wages, salary or remuneration by reason of incapacity from those disabilities. …
relevant legislation
54. The relevant legislation is contained in s24(1)(c), s24(2)(b) of the Veterans’ Entitlements Act 1986 (the Act).
24 Special rate of pension
(1)This section applies to a veteran if:
. . .
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
. . .
(2)For the purpose of paragraph (1)(c):
. . .
(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.
. . .
55. In addition, on the subject of relevant remunerative work the four steps identified by the Full Federal Court in Flentjarv Repatriation Commission (1987) 76 ALR 449 are attracted in an application for a special rate of pension. These four steps state:
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2. Was F [the veteran], by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If so, was the war-caused injury or war-caused disease, or both, the only factor or factors preventing F [the applicant] from continuing to undertake that work?
4. If so, was F [the veteran] by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
56. As neither party raised the intermediate rate of pension for consideration, the relevant sections are not included.
SUBMISSIONS
57. Mr Thompson submitted that Mr Dobson satisfied the requirements of s 24(1)(c) and that the Tribunal was bound to consider the application of the section in terms of the questions posed by the Full Federal Court in Flentjar.
Question one: What was the relevant remunerative work that the veteran was undertaking?
Mr Thompson identified the relevant work as truck driving; transport officer/warehouse supervisor and warehouseman; forklift driving and general warehouse duties, with the last position being that of a warehouse operator/supervisor.
Question two: Is the veteran by reason of war-caused injury or disease prevented from continuing to undertake that work?
Mr Thompson relied on the reports of Dr Percival (Exhibit A1), Dr B. Kenny’s report of 30 October 2002 (T9, p37) and Dr R. Hunter’s report (T15, p63); all of which said the Mr Dobson was unfit for eight hours work per week because of his PTSD with alcohol abuse alone. Dr Kenny first saw Mr Dobson three months after he ceased work and in response to Mr Dobson’s claim for special rate. Mr Thompson also submitted that the Tribunal was bound not only to consider whether Mr Dobson was prevented from continuing to undertake that work but also whether he was prevented from seeking further employment. He relied on the decision in Flentjar and Banovich v Repatriation Commission (1986) 69 ALR 395 as approved in Starcevich v Repatriation Commission (1987) 76 ALR 449. The medical reports indicated the answer to question two was yes.
Question three: If the answer to questions one and two is yes, is the war-caused injury or disease the only factor preventing the veteran from continuing to undertake that work?
Mr Thompson submitted the answer to this question was yes. He acknowledged that the applicant’s employment at CSR ceased because he was retrenched, as the plant was to close down. However, he said that a position in the same areas of truck driving and warehouse operations would have been readily available to Mr Dobson, had he not been suffering from PTSD and alcohol abuse.
Question four: If so, was the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earning on his own account that he would not be suffering if he were free of that incapacity?
Mr Thompson submitted that Mr Dobson had earned a good wage at CSR; sufficient to make his mortgage repayments on his house in North Altona and pay his and his wife’s cost of living. Having accepted that he was no longer capable of working because of his war-caused disabilities, he had no option but to sell the house and move to a less expensive home in Waubra, where he could hopefully survive on his disability pension and perhaps seek work locally or in the district.
58. In the alternative, Mr Thompson submitted that the provisions of s 24(2)(b) were satisfied as Mr Dobson had not reached the age of 65, had not been engaged in remunerative work, had been genuinely seeking to engage in such work; and Mr Dobson would, but for his war-caused incapacity, be continuing to seek to engage in remunerative work. Mr Dobson’s incapacity was a substantial cause of his inability to obtain remunerative work. The work undertaken by Mr Dobson has been described by the psychiatrists as token work, in the form of unpaid relief of the hotel proprietor’s duties and less than eight hours per week in mail delivery. Mr Thompson contended that Mr Dobson had made it known prior to his retrenchment that he was available for work; and that he subsequently, in about 2004, sought work in Ballarat and its surrounds. He described these efforts as sincere or honest as enunciated in Leane v Repatriation Commission (2004) 81 ALD 625; and, consistent with that decision, the search did not have to be continuous.
THE RESPONDENT
59. Mr Purcell accepted Mr Dobson’s evidence, but argued that the evidence of Mr Ian Dobson and Mr Murphy were undermined by the circumstances in which this evidence was drawn. (The Tribunal notes that earlier in the hearing Mr Purcell had agreed that the process of obtaining this evidence was a matter purely for the Tribunal to decide upon, in accordance with s 33(1)(c) of the AAT Act.) Mr Purcell submitted that Mr Dobson ceased work because the CSR plant in Yarraville closed down. Thus s 24(1)(c) of the Act was not satisfied when s 24(2)(a) (1) was applied. Mr Dobson had given evidence that he would have continued to work for CSR had the plant remained open; although he wouldn’t have expected to last much longer in his warehouse operator position, being either forced to resign because of his health or being sacked.
60. As the alone test of s 24(1)(c) was not satisfied, Mr Purcell submitted that it was not necessary to consider s 24(2)(b). However, Mr Purcell said that if the Tribunal did consider s 24(2)(b), the Respondent relied on the Full Federal Court decision in Leane with respect to genuinely seeking remunerative work.
TRIBUNAL’S DELIBERATIONS ON THE EVIDENCE AND RELEVANT LEGISLATION
61. The parties agreed that the veteran satisfied the requirements on s 24(1)(aa), s 24(1)(aab), s 24(1)(a)(i) and s 24(1)(b). The Tribunal concurs.
62. The issue before the Tribunal was whether Mr Dobson satisfied s 24(1)(c). Section 24(1)(c) states:
the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; …
63. The parties agree, and the Tribunal concurs, that the first limb of s 24(1)(c) is subject to the application of s 24(2)(b); and that the second limb of s 24(1)(c) is to be read in conjunction with s 24(2)(a). This is the interpretation of Nicholson J in Forbes v Repatriation Commission (2000) 58 ALD 394. This interpretation has been followed in other decisions.
Section 24(2)(a) provides:
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 …
64. Although Mr Dobson’s evidence was to the effect that his PTSD with alcohol abuse had become more symptomatic and intrusive on his work performance from approximately 1997, Mr Dobson did not meet the alone test as of 31 July 2002. It is incorrect to say the CSR Yarraville plant closed on 31 July 2002, as the only evidence before the Tribunal is that it closed some eight months later; and according to the SSAT decision it closed on 31 July 2002.(T, PX111) and on 31 July 2003(TXV11). It does appear that after 31 July 2002 there was a skeleton staff of six at this worksite. It may be that Mr Dobson was not offered one of these positions because of his PTSD and particularly his alcohol abuse. He had been subject to cautions by the supervising production manager for taking long, alcohol-laced lunches. It is equally clear from Mr Ian Dobson’s evidence that he, Ian, was in a position to monitor, support and relieve his father, when the latter could not cope with his work duties.
65. However, the Tribunal cannot negate the fact that Mr Dobson was offered a redundancy in June 2002 and after consulting his wife, who believed him unfit for further work, he accepted the redundancy and was officially retrenched on 31 July 2002. Mr Dobson’s PTSD symptoms were exacerbated after his retrenchment and the consequent selling of his home and re-location to Waubra (his evidence, and Dr Kenny, Exhibit R6).
66. On the authority of Banovich, Flentjar and Starcevich it is clear that a veteran may qualify for special rate at any time within the assessment period (Section 19(9) of the Veterans’ Entitlements Act 1986) if he satisfies s 24(1)(c). Mr Dobson’s application was lodged on 3 October 2002 and remains on foot until this decision is handed down.
67. Dr B. Kenny, the Respondent’s preferred specialist, saw Mr Dobson on 18 October 2002. He confirmed Dr Parkin’s 1998 diagnosis of PTSD with alcohol abuse and found Mr Dobson unable to work eight hours per week. Dr Kenny attributed this inability to be solely due to Mr Dobson’s accepted condition of PTSD with alcohol abuse.
68. The Tribunal agrees that the loss of salary or wages or of earnings … that the veteran would not be suffering if the veteran were free of that incapacity applies not only to the loss of existing employment but also the inability to obtain new employment. (authorities Banovich, p402, Starcevich per Fox p455, Jenkinson p455-456, Flentjar at paragraphs 4 and 5, Repatriation Commission v Graham (2004) 85 ALD 572 at paragraphs 16-20, Repatriation Commission v Hendy (2002) 76 ALD 47 at paragraphs 7-8, 14-15 and 36.
69. Mr Dobson’s efforts to obtain employment commenced in late 2004 or early 2005, after the Repatriation Commission decision of 20 October 2004 rejecting his application for the Special Rate of pension. His formal job applications and informal enquiries for employment where unsuccessful. In 2005 to 2006, for a period of eight or nine months, he worked two mornings per week delivering mail. Before commencing he was told his services would be required for up to 10 hours per week. Mr Dobson’s evidence, and that of Mr Hinchliffe, indicates that Mr Dobson actually worked an average of four hours per week, at $10 per hour.
70. Dr Percival (psychiatrist) has described this mail delivery employment as token work (Exhibit A1). Dr Kenny agreed with this assessment (Exhibit R6); as does the Tribunal.
71. The medical evidence before the Tribunal is overwhelming devoid of conflicting opinion. Dr Hunter and Dr Horsley, both occupational health physicians, agree that there is no physical condition preventing Mr Dobson from working. Dr Hoare, Mr Dobson’s general practitioner, confirmed an episode of left-sided sciatica in 2000 and full and pain free movement of Mr Dobson’s thoracolumbar spine in 2004 or 2005. Dr Kenny and Dr Percival agree with Dr Parkin’s 1998 diagnosis of PTSD with alcohol abuse of moderate to severe degree. In Magill v Repatriation Commission [2002] FCA 744 the Tribunal’s decision was set aside by Drummond J on the basis that: (at para 26) where his Honour said:
The Tribunal appears to have been distracted from considering this powerful body of uncontradicted evidence, (Tribunal comment–this was a reference to medical evidence) directly relevant to an issue on which expert opinion is clearly of assistance to a decision-maker, …
and at paragraph 27:
Because the Tribunal wrongly considered there was no evidence that Mr Magill’s undiagnosed condition of ptsd (and associated war-caused disabilities) was the sole cause of his not being able to engage in remunerative employment … the Tribunal's decision must be set aside. …
72. On 30 October 2002 Dr Kenny, having seen Mr Dobson at the request of the Respondent, concluded that the veteran was prevented from employment solely because of his PTSD with alcohol abuse (T9, p37). Dr Kenny’s assessment of Mr Dobson took place on 18 October 2002, some 15 days after Mr Dobson lodged his claim, and 11 weeks after his retrenchment from CSR. Dr Kenny identified Mr Dobson’s retrenchment as being a further stressful event which exacerbated his PTSD symptoms. Dr Kenny saw Mr Dobson again in December 2005, at a time when Mr Dobson was performing the mail delivery runs for the Waubra general store (Exhibit R4) for six to seven hours per week. On this basis, Dr Kenny found Mr Dobson capable of working at least eight hours per week, although he predicted that Mr Dobson’s capacity for work would deteriorate. On 8 September 2006 Dr Kenny reviewed his files in light of Dr Percival’s and Dr Horsley’s reports which found Mr Dobson no longer capable of eight hours work per week (Exhibit R5). Dr Kenny saw Mr Dobson again on 16 January 2007. Subsequently, he reframed his earlier opinions, classifying the mail delivery work as token work and little more than occupational therapy, and concluded that Mr Dobson had not been capable of even eight hours per week since he first saw him in October 2002. Dr Kenny also expressed his concern that Mr Dobson was now cognitively impaired (Exhibit R6).
73. Dr Percival (Exhibit A1) saw Mr Dobson on 28 June 2006. Based on the history he obtained and the voluminous documentation provided, he concluded that had he not been retrenched, Mr Dobson’s employment would have inevitably ended because of his psychiatric disability; that his employment by Waubra store was token and ended after a dispute with the storekeeper, which may have been contributed to by Mr Dobson’s irritability and intolerance (PTSD symptoms); and that the veteran is truly incapable of working more than eight hours per week in any role and that this is the sole consequence of his accepted psychiatric disabilities (Exhibit A1, p5 to 6).
74. Mr Dobson lodged his claim for the Special Rate of pension on 3 October 2002, nine weeks after his retrenchment. In that nine week period he made no effort to obtain further employment as his nerves where too bad and he was at breaking point.
75. The Tribunal is required to consider whether he qualified for the Special Rate within the assessment period; and to do so in accordance with the four questions enunciated by the Full Federal Court in Flentjar.
Question one: What was the relevant remunerative work that the veteran was undertaking in the meaning of s 124(1)(c) of the Act?
Mr Thompson correctly identified the relevant remunerative work as truck driving and warehouse storeman operator, to which the Tribunal would add courier driving. Mr Dobson ceased truck driving in 1992 after losing his license for a third drink driving offence. He was, however, held in high regard by Mr G. Murphy of Murphy and Sons Transport. Mr Murphy, had he known of Mr Dobson’s retrenchment in 2002, would have endeavoured to help with re-employment, although by that date his company had a zero alcohol tolerance policy (Exhibit A4).
Question two: Was the veteran by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
Based on the evidence of Dr B. Kenny and his report dated 30 October 2002, the answer to this question is yes. Drs Percival and Hunter were of the same opinion; and Dr Horsley excluded any physical condition contributing to an inability to work. Mr Dobson’s accepted disabilities were the only factors preventing him from work from 30 October 2002 onwards.
Question four: If so, was the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earning on his own account that he would not be suffering if he were free of that incapacity?
On the authorities cited, continuing to undertake that work also includes the inability to undertake new employment. In Banovich the Full Federal Court said at p402:
We accept that the loss referred to in para [1](b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment. There is no difficulty in regarding either circumstance as preventing the member “continuing to undertake” remunerative work. …
This interpretation has been followed in Starcevich, Flentjar and many other cases. Based on the medical evidence, the Tribunal finds the answer to this question is yes. At the time of his retrenchment Mr Dobson was 56 years old. The Respondent’s submission, that Mr Dobson’s age was a factor precluding re-employment, is not accepted by the Tribunal. The Tribunal has considered all the cases cited by both parties. Many have been cited above and many have been distinguished on the facts, as they address the effect of other physical conditions on the alone test of s 24(1)(c).
76. It is clear from Mr Dobson’s evidence that had he not been incapacitated by his PTSD, he would have continued to work. His work history was solid; he had a mortgage to repay and a family to support. Despite his responsibilities and his desire to continue working, he was unable to cope with his work solely because of his accepted disability of PTSD with alcohol abuse.
77. The Tribunal notes that Dr Kenny’s report dated 30 October 2002 is the only contemporaneous medical evidence as to the date that Mr Dobson qualified for the Special Rate of disability pension.
78. The Tribunal sets aside the decision under review and substitutes the decision that Mr Dobson qualified for the Special Rate of disability pension on 1 November 2002.
79. The matter is remitted to the Respondent to determine the rate of pension. Leave is granted to both parties to address the date of effect of payment of the Special Rate.
I certify that the seventy-nine (79) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan
Signed: .Dianne Eva.
ClerkDates of Hearing 1 February 2007 and 2 April 2007
Date of Decision 7 June 2007
Counsel for applicant: Mr C. Thomson
Solicitor for applicant: Peter J. Liefman
Counsel for respondent: Mr Gerry Purcell
Solicitor for respondent: Department of Veterans’ Affairs
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