DUNCAN ARMSTEAD and REPATRIATION COMMISSION

[2009] AATA 941

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 941

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3840

VETERANS’ APPEALS DIVISION		)
Re		DUNCAN ARMSTEAD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

DateBrisbane

Place8 December 2009

Decision The Tribunal sets aside the decision under review and decides in substitution that the applicant is eligible to receive a pension paid at the special rate pursuant to s 24 of the Veterans’ Entitlements Act 1986.

.....................[Sgd].........................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – special rate pension – accepted PTSD and lumbar spondylosis conditions – whether applicant is by reason of incapacity from the war-caused injury alone prevented from continuing to undertake remunerative work –incapacity from war-caused injury alone prevented applicant from continuing to undertake remunerative work – decision set aside and substituted

Veterans’ Entitlements Act 1986 (Cth) s 24(1)(c)

Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1

REASONS FOR DECISION

8 December 2009 Senior Member Bernard J McCabe         

1.      

Mr Duncan Armstead, the applicant, has applied for a pension paid at the special rate under s 24 of the Veterans’ Entitlements Act 1986 (“the Act”). He says he cannot work because of his accepted conditions, which include lumbar spondylosis and post traumatic stress disorder (“PTSD”). The Repatriation Commission, the respondent, says Mr Armstead does not satisfy the test in

s 24(1)(c) of the Act. In those circumstances, the Commission says Mr Armstead should continue to be paid at 100% of the (lower) general rate of pension.

Mr Armstead has asked the Tribunal to reconsider the matter.

2. The dispute in this case centres around the application of the so-called “alone test” in s 24(1)(c) of the Act. For reasons I will explain, I am satisfied Mr Armstead is able to satisfy the test. It follows the decision under review must be set aside.

The facts

3.      Mr Armstead had a lengthy career in the Army. He served in Vietnam and was discharged in 1987 after 21 years of service. He developed particular expertise in logistic management while he was in the Army. By all accounts, he was very good at his job.

4.      After leaving the Army, Mr Armstead worked in a variety of jobs. He initially worked for a business providing swimming pool supplies. He lasted less than six months. He said he left because he did not like the way the company’s management treated employees. He then began work as a warehouse manager. That job came to a spectacular end after three months when he punched a senior manager at a Christmas function. Mr Armstead took exception to the manager’s description of him as a “lazy fucking AJ [ie army jerk] bastard”. Apparently the manager was upset at Mr Armstead’s refusal to lift some heavy pipes without a forklift. Mr Armstead pointed out that lifting the pipes without assistance would contravene the company’s workplace health and safety guidelines.  

5.      Mr Armstead’s next job did not last much longer. He left Chemical Mining Ltd where he was working as a store supervisor in February 1989. He says the company employed Vietnamese workers. He had difficulty coping with those individuals given his history in Vietnam. He left another employer after less than two years in 1996 after it was acquired by Japanese owners. He again referred to the difficulty he experienced working with Asian people.

6.      

His next job was with Brimac Transport. He began work as a warehouse distribution manager at the firm’s Rocklea warehouse in 1996. Mr Armstead apparently got on well with his supervisor, Mr Darrell Behan. Things appeared to work well until Brimac took over the logistics for Southcorp, the company that produced “Hoover” household appliances. Under the terms of the arrangement with Southcorp, Mr Armstead and other Brimac employees were required to work out of Southcorp’s Acacia Ridge warehouse. Mr Behan moved to Sydney in the meantime. Mr Armstead began an acrimonious relationship with one Southcorp manager in particular. Mr Armstead threatened to put the other man in hospital in the course of an altercation. Mr Armstead also ended up punching a senior Brimac manager in the course of an argument.  Mr Behan was instructed to return to Brisbane to sack

Mr Armstead. Mr Armstead left that workplace on 27 July 1997.

7.      Mr Armstead worked briefly for another company that fitted filters to engines. Mr Behan helped him to get the job. It did not work out. Mr Armstead did not get on with his new manager. He also did not think he was suited to the job. He said he thought he was only employed because the company wanted access to his contacts. He left shortly after.

8.      In his statement, Mr Armstead said he continued looking for employment for approximately 2½ years after he left his last job. He did some volunteer work during this period for the Meals on Wheels organisation, but he found it frustrating. It resulted in conflict. He also did some volunteer work with a surf lifesaving club, but he gave it up after conflict with other club members over their sloppy radio procedures, amongst other things.

9.      Mr Armstead was diagnosed with PTSD during this period. He said he did not realise he had a psychiatric condition until that point, although he said his family had asked him on many occasions to seek help.

10.     Mrs Carolyn Armstead also provided a statement. She is the applicant’s wife. She said her husband was continually in conflict with people. She demanded that he get help or she would move out. She said he continued trying to get jobs and had a number of interviews after he left Brimac and the firm that produced oil filters. She said he was confident he could get a job but had no luck. She said he tended to come across as a “know all” and had difficulty with personal relationships.

11.     I also saw a statement provided by the applicant’s daughter. She spoke about an unfortunate incident that occurred when she was 15 in the course of an argument with her father.

12.     

Mr Behan’s evidence was interesting. He spoke positively about

Mr Armstead’s skills and the quality of his work, although he acknowledged

Mr Armstead was a difficult individual. He also referred to a string of complaints from Southcorp management about Mr Armstead’s behaviour. Even so, he appeared to hold Mr Armstead in high regard. In his written statement, he said:

I found Duncan to be a very effective and loyal warehousing manager and I personally had no difficulties with him. I did observe him from time to time raise his voice to some of our employees but I did not take exception to his behaviour on any of those occasions.

13.     In his oral evidence, Mr Behan suggested Mr Armstead had poor political skills. That was a disadvantage in a workplace like Brimac’s Acacia Ridge facility that was highly politicised. Mr Behan spoke of a strong union, and it was obvious he did not have any regard for some of the managers with whom Mr Armstead was dealing. Mr Behan acknowledged he had high expectations of his own managers and said Mr Armstead was, to some extent, the “meat in the sandwich” between Brimac and Southcorp.

14.     Mr Behan has enjoyed a high-powered career in logistics. After he left Brimac, he was employed as the logistics manager for the Sydney Olympics. He continues to work in the field. Interestingly, he said he did not regard Mr Armstead’s age or time out of the workforce to be a barrier to him resuming employment. He pointed out he had recently employed a 57 year old man with health issues. He said he preferred to look at each individual’s track record, and consult referees. He also said the fundamentals of the business have not changed so it would be easy enough for someone with Mr Armstead’s skills to get work if he wanted it even though he had not worked for some time.

15.     

Mr Behan’s evidence left me with the impression of Mr Armstead as an abrasive but competent individual who was ultimately the victim of an unusually politicised workplace. Mr Behan clearly did not regard Mr Armstead as a lost cause when Mr Armstead was sacked from Brimac. Mr Behan would not have helped

Mr Armstead secure another job if he had thought Mr Armstead was incapable of working effectively.

The medical evidence

16.     I was provided with reports from several doctors. Mr Armstead’s treating general practitioner, Dr Paul Jenkins, said the applicant suffered from PTSD and had been unable to work since July 1997. His letter of 6 April 2009 suggested that inability to work was “due to his accepted war caused disability (primarily PTSD).”

17.     

The respondent commissioned Dr Andrew Nielsen to prepare a report dated 31 March 2009. Dr Nielsen is a consultant psychiatrist. He opined that Mr Armstead was capable of working more than eight hours each week. Dr Nielsen said

Mr Armstead engages in non-work activities for more than eight hours each week and appears to have the wherewithal to hold down a job on a part-time basis.

18.     

There are several reports in the T-Documents prepared by Dr Jonathan Hargreaves, a psychiatrist who has been involved in the management of

Mr Armstead’s condition. Dr Hargreaves’ report of 12 March 1999 suggested Mr Armstead was not able to work more than about four hours per day. The report of 13 February 2007 said Mr Armstead cannot work at all. The report added that the inability to work was permanent and solely attributable to Mr Armstead’s accepted conditions. 

19.     In the course of cross-examination, Dr Hargreaves conceded he was difficult to be certain if Mr Armstead’s anger and irritability were attributable to the PTSD or whether they were just a feature of his personality.

The law

20. Mr Kelly, advocate for the respondent, conceded the only dispute in this case was in relation to s 24(1)(c) (and perhaps the application of the ameliorating provision, if that became relevant).

21. Section 24(1)(c) imposes what is known as the “alone test”. The leading authority in relation to the application of the alone test is the decision of the Full Federal Court in Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1. In that case, Branson J said (at 4-5) the correct approach was to ask four questions. I shall deal with each question in turn.

What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the act?

22.     There was no dispute on this point. Mr Armstead was, and potentially is, a warehouse logistics manager.

Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

23.     

Mr Kelly agreed Mr Armstead was no longer able to undertake remunerative work as a result of his service-related conditions. That concession is consistent with the evidence of Drs Hargreaves and Jenkins. It does not sit comfortably with the evidence of Dr Nielsen. I prefer the evidence of the treating doctors – particularly

Dr Hargreaves – given their ability to observe Mr Armstead over a long period. I was satisfied when I heard the cross-examination of Dr Hargreaves that he maintained his objectivity and was not merely acting as an advocate for his patient. I therefore accept the respondent’s concession.

If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

24.     I am satisfied from the evidence of Mr Behan that Mr Armstead’s age and time out of the workforce do not prevent him from working. Are there any other factors that might explain that inability to work – or is it solely due to his service-related conditions, as Dr Hargreaves suggested?

25.     Mr Harding, counsel for the applicant, pointed out Mr Armstead had a lengthy track record of acrimonious relationships in the workplaces. On a number of occasions, disputes spilled over into actual violence. Mr Harding argued his client could get a job but could not keep it because he was explosively irritable – and that was because of his PTSD. Mr Kelly offered a more benign view of the applicant’s behaviour. Mr Kelly argued the applicant was simply a difficult man who had trouble adjusting to civilian life. He referred to evidence given by Mr Armstead who had spoken of disputes in the Army workplace routinely being resolved through fisticuffs. Mr Kelly also noted the evidence of Mr Behan which did not depict a man who was out of control. Mr Kelly added Dr Hargreaves had some difficulty distinguishing being behaviour caused by PTSD and behaviour caused by other personality factors.

26.     The evidence of Mr Behan in particular has given me reason to pause. I have already observed that his evidence did not suggest Mr Armstead was a hopeless case at the time Mr Armstead left the employ of Brimac. But Mr Behan has not remained in close contact with Mr Armstead nor did he have many opportunities to observe Mr Armstead in the workplace after Mr Behan was posted away from Brisbane. The hesitation of Dr Hargreaves in cross-examination is also a matter of concern, although he did ultimately hold to the view expressed in his report. I am ultimately persuaded that Mr Armstead’s accepted conditions are the only explanations for his inability to obtain remunerative work. I am not persuaded his ornery personality or difficulties in coping with civilian life were a genuine obstacle.

If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

27.     There does not appear to be any dispute that Mr Armstead suffered a loss of salary that he would not be suffering if he were free of the incapacity caused by his accepted conditions.

Conclusion

28. I am satisfied Mr Armstead satisfies the “alone test” in s 24(1)(c) of the Act. The decision under review must therefore be set aside. I find in substitution that the applicant is entitled to be paid a pension at the special rate.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.................................[Sgd].............................................
  Michael Buckingham, Associate

Dates of Hearing  6 July 2009
  25 September 2009
Date of Decision  8 December 2009
Counsel for the applicant          Mr A Harding
Solicitor for the applicant          Terence O'Connor
Advocate for the respondent     Mr J Kelly, Department of Veterans’ Affairs