Durbidge and Repatriation Commission
[2005] AATA 261
•29 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 261
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/73
VETERANS' APPEALS DIVISION ) Re TERRY DURBIDGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date29 March 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – pension appropriately assessed at 90 percent of the General Rate – applicant ceased work for reasons other than incapacity arising from war-caused conditions – loss of salary or wages – decision affirmed
Veterans’ Entitlements Act 1986 ss 24
REASONS FOR DECISION
29 March 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 18 March 2003, which increased the applicant’s Disability Pension to 90 percent of the General Rate. The Veterans’ Review Board (VRB) affirmed the decision on 3 February 2004.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the parties. Mr Swan represented the applicant, who gave oral evidence. Mr Crowe appeared for the Commission.
3. The applicant, who is 57 years of age, was born in Bordertown, South Australia. He completed his schooling to intermediate level at Goodwood Technical High School. Upon leaving school at the age of 16, he worked for two years at City Supplies, as a Spare Parts Interpreter in their Holden Spare Parts Department. He enlisted in the Australian Army (the Army) on 26 April 1966, and was discharged in December 1969. He served in Vietnam between October 1967 and October 1968 in Ordinance, supplying action groups in and around Nui Dat. He saw action in Vung Tau Province during the Tet Offensive in March 1968.
4. The applicant’s last employment was an assignment as a storeman at RED Australia Equipment Pty Ltd (RED). He has not worked at that Company since mid November 2002. He maintains that he is entitled to payment of Disability Pension at the Special Rate, and that he satisfies s 24 of the Veterans’ Entitlements Act 1986 (the Act), which as far as is relevant for the purposes of this review provides:
“(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.
…”
5. It is not in dispute that the applicant satisfies s 24(1)(a)(i) of the Act, in that he is in receipt of pension at a rate higher than 70 percent of the General Rate; and that he satisfies s 24(1)(b) of the Act, in that the incapacity from his war-caused conditions, is of such a nature as of itself alone, to render him incapable of undertaking remunerative work for periods aggregating eight hours per week. The Commission contends that the applicant does not satisfy s 24(1)(c) of the Act, in that he ceased the remunerative work he was undertaking as a Warehouse Manager at Mitsubishi, for reasons other than his war-caused conditions, and by virtue of s 24(2)(a) of the Act cannot be taken to be suffering a loss of salary or wages, or of earnings.
6. Following his discharge from the Army, the applicant gained employment with City Supplies in their spare parts section, until joining Chrysler Motors, Tonsley Park in 1970. He was involved in the scheduling of spare parts at Chrysler, and was soon promoted to Assistant Spare Parts Manager. When Chrysler became Mitsubishi in 1980, he was Assistant Spare Parts Warehouse Manager. He was promoted to the position of Spare Parts Warehouse Manager in 1988, and by the year 2000 he was responsible for 132 people, and a turnover of $12m a month. There was a Bulk Store at Woodville, a New Parts Warehouse in Sydney, and the Parts Accessory Division at Tonsley Park.
7. The applicant said in evidence that in the 3½ years immediately before he left Mitsubishi, on 19 May 2000, he found that he could not do what was supposed to be undertaken. He was “playing around, playing games”. He would go to the Bulk Store at Woodville every two days; and later on, his visits became every day. It is a 20 minute trip, but he would take 1½ hours to return to Tonsley Park. He would sit in the car at a beachside suburb for up to two hours, three times per week. He said that when he visited the Sydney Warehouse from time to time, he would leave the Warehouse, allegedly to meet a car dealer, but he would spend the next two hours working out where he would have his lunch. He said that in late 1999, and early 2000, he was struggling, some days he made a contribution, other days he did not. The Warehouse was a section that ran without intervention, but needed a firm hand. He considers, in retrospect, that he really was “not pulling his weight”.
8. On 8 July 1999 the applicant lodged a claim for payment of Disability Pension in relation to six conditions including “emotional and behavioural problems”. He requested to see Dr Marty Ewer. On 13 December 1999 he lodged a further claim in relation to the conditions of diabetes and knee pain. On 26 January 2000 Dr Ewer reported that he interviewed the applicant on 25 January 2000, and diagnosed chronic post-traumatic stress disorder (PTSD), and alcohol abuse and dependence. He considered that the applicant could work more than 20 hours per week; but should his psychiatric state deteriorate, this would need to be reviewed.
9. The applicant gave evidence that he had looked to retire at age 55, or at the latest, at age 58. In early 2000, at the age of 52, he and his wife were holidaying in Western Australia when he heard a news service item that Mitsubishi wanted to shed 600 employees, and packages were being offered. He had more than 30 years service with the Company, and there were financial inducements to take a redundancy package at that time. As he said in evidence, it came along at just the right time. He left Mitsubishi on 19 May 2000.
10. On 30 May 2000, the applicant was seen by Dr Seith who noted:
“Not unhappy about redundancy after 25 or so years – a new enterprise bargaining was due “do more with less” and he is pleased to have avoided it. Wife still works so he does the cooking – best form of stress relief “banging into a steak, pots & pans”. Helps out at functions occasionally behind the bar, used to do this more often 20 yrs ago and likes it.” [T13/69]
11. On 7 June 2000, the Commission accepted PTSD, diabetes mellitus and alcohol dependence or alcohol abuse, as war-caused. Pension was granted at 60 percent of the General Rate with effect from 9 September 1999.
12. The applicant gave evidence that between December 2000 and the end of 2002, he applied for numerous positions. He produced applications, and replies from potential employers [Exhibit A1], which indicate that he applied, unsuccessfully, for predominantly managerial or supervisory full-time positions, such as “Industrial Workforce Co-ordinator”, “Manager, Wholesale Warehouse”, “Depot/Sales Manager”, “Stores Supervisor”, and “Warehouse/Spare Parts Person”. The acknowledgment from these employers were to the effect that the employer’s requirements did not match the applicant’s current skills and experience.
13. In late April 2001, the applicant obtained employment with Integrated Workforce, initially for a few hours per week. Although employed by Integrated Workforce, he was assigned to various companies on a casual basis, from a few hours up to 30 hours per week, at Myer, Coles and Woolworths Department Stores. In July 2002, he was selected to work at RED in the Spare Parts Department, as a Storeman, on a full-time (40 hours per week) basis.
14. The applicant said in evidence that this was a lot better than the work at Myer and Woolworths. He said that he soon developed the same problems as he had at Mitsubishi, but he was not in a position of power, and he could not “loaf”. In addition, he was earning $30,000 per annum less than he had at Mitsubishi. He was finding difficulty keeping up with the monthly timetable and the daily deadlines. He said that he started to “swan off”, and “loaf”, once or twice per week; and in the last weeks he found he could not cope. On 16 October 2002, the Commission assessed the applicant’s Disability Pension at 80 percent of the General Rate. The applicant resigned from RED in mid November 2002, because he said that he had been asked to co-ordinate the ordering of all truck and trailer components, and found that he could not cope with these extra responsibilities. Tracy Wallage, RED’s State Manager, stated in her letter of 31 May 2004, in part, as follows:
“…
I do note that during his time with us Terry was inclined to be unable to cope with basic duties. Our spare parts supervisor, Mr Barry Hautop, was reluctant to assign Terry tasks because all tasks would have to be double checked to ensure not only had they been completed but were also correct. Terry[’s] inability to cope seemed to manifest into panic attacks.
I note that it was with reluctance that Terry resigned from his assignment with Red Australia.
…” [Exhibit A2]
15. The applicant said in evidence that he has not applied for any other jobs since he left RED, as he did not want to become involved again in another job, and be unable to cope with it. When he worked at Mitsubishi he found himself in a position where he could get by without much effort, still be able to achieve results, and the Warehouse operated successfully. He said that he would love to be still at Mitsubishi; but he was not coping, although he did not show it.
16. On 29 January 2003, the applicant applied to the VRB for review of a decision of the Commission of 16 October 2002, which assessed his Disability Pension at 80 percent of the General Rate. As the application was lodged out of time, it was treated as an application for increase in pension. On 18 March 2003, the Commission assessed pension at 90 percent of the General Rate. On 3 February 2004 the VRB affirmed the decision, and in the course of its Reasons for Decision said:
“…
The veteran accepted a redundancy package from Mitsubishi Motors Australia in 1999 after more than 30 years of employment with the company. He was the Manager of Warehouse Operations at the time and received a termination payment of $255,000, including $90,000 for outstanding Long Service Leave. Although Mr Crittenden told the Board the veteran could have been “absorbed” in the workforce restructure, he chose to leave because he had “had enough.” The veteran said he was not coping at work and thought that his problems may have been associated with the environment at Mitsubishi.
…
Mr Crittenden went on to say that the veteran obtained a full time position as a spare parts manager with a forklift company, Red Australia, between September and November 2002. He contended that the veteran left his last paid work in November 2002 because of the symptoms of his post traumatic stress disorder alone.
Dr Ewer in his psychiatric report dated 27 September 2002 recorded in part:
“He ceased working on a regular basis in the year 2000 but he still works ten hours per month …
Mr Durbidge cannot work eight hours per week because of his psychiatric problems which are service related.”
Based on Mr Crittenden’s submission, the veteran was working full time with Red Australia at the time he was interviewed by Dr Ewer on 20 September 2002. On questioning, the veteran said he resigned from Red Australia in November 2002 because he had been given additional duties and would have had to work over Christmas to cover for an employee who planned to take holidays.
In conclusion, Mr Crittenden said he was not disputing the veteran’s 90% degree of incapacity, but sought payment at the Special rate.
…
The veteran took a favourable redundancy package from Mitsubishi in 1999 after over 30 years with the company and attempted to gain other employment in 2000-2001. Despite his considerable experience, he was not successful until he began working on a casual basis with the labour hire firm Integrated Workforce in (apparently) the latter half of 2001. During the hearing, the veteran attributed his lack of success to his age and the Board agrees. The Board is also of the opinion that time out of the workforce may have played a part.
According to Mr Crittenden, the veteran gained full time employment through Integrated Workforce with Red Australia, a forklift company, in September 2002. Although he told the Board he had been “hauled into the Manager’s office on a couple of occasions” for causing delays in loading trucks, he said he left of his own volition in November 2002 because he was given additional duties and would have had to work over Christmas. Given the above, the Board finds that the stringent provisions of the “alone test” are not met. He is therefore not entitled to the Special rate.
…” [T2/5-8]
17. The applicant does not maintain that he left his employment with Mitsubishi because of his war-caused conditions of PTSD and alcohol dependence alone, but that he left his last employment, as a storeman at RED, because of the PTSD alone. This was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act.
18. The applicant asserts that he is prevented from continuing to undertake remunerative work because of his PTSD alone, and that he is suffering a loss of earnings. If the Tribunal is not satisfied that he ceased to engage in remunerative work because of his war-caused disabilities alone, then the ameliorating provisions in s 24(2)(b) of the Act apply. The applicant maintains that he has been looking for work, through the labour hiring company, Integrated Workforce, and the substantial cause of his inability to obtain remunerative work has been his accepted disabilities of PTSD and alcohol dependence.
19. The Commission argues that the remunerative work that the applicant was undertaking was that of Warehouse Manager, and for 25 years before that, he had been doing clerical work. He had established a career as a clerical worker, and subsequently as a manager. For those last 25 years at Mitsubishi he had not been handling spare parts or moving around items in the store room. At RED he started sweeping, he was doing delivery work, keeping control of stock, a very different type of work, at a much lower level and status, and much lower paid. It was quite distinct from the remunerative work the applicant was undertaking at Mitsubishi.
20. The Commission submits finally, that the applicant did not cease employment with RED because of his PTSD alone, but because he did not have the freedom, authority, status and level of income he had achieved at Mitsubishi. He did not enjoy his lowly paid work at RED. In addition, he does not satisfy s 24(2)(b) of the Act, as after leaving Mitsubishi, for reasons other than his accepted conditions, he was able to obtain remunerative work in which to engage, namely the employment at RED, and he is not totally and permanently incapacitated for remunerative work because of his war-caused disabilities alone.
21. Turning to the question of whether the applicant’s employment at Mitsubishi or RED was the “remunerative work that the veteran was undertaking”, it is clear on the evidence, that soon after his discharge from the Army, he commenced work with Chrysler Motors, scheduling spare parts. From about 1973 onwards, he became involved in clerical work, eventually rising to the position of Spare Parts Warehouse Manager in 1988. He continued in that position until he took his voluntary retirement package on 19 May 2000. I accept his evidence that as the Manager he had the status and freedom to “loaf” and “swan off” when things got too much for him; and that the voluntary retirement package came at the right time, at the age of 52. I am satisfied, on the whole of the evidence, that the applicant’s work at Mitsubishi was the “remunerative work” he was undertaking for the purposes of s 24(1)(c) of the Act. I am satisfied on the whole of the evidence also, that the applicant was not prevented from continuing to undertake that work because of his war-caused disabilities alone. In my view, he does not satisfy s 24(1)(c) of the Act.
22. The applicant subsequently applied for other employment. Although he maintained in his evidence that it was, in effect, the responsibilities of this position as Warehouse Manager, that caused him the most stress, and rendered him unable to cope, most of the positions for which he applied subsequently were indeed managerial positions which would carry a workload and responsibility, not dissimilar from his position at Mitsubishi. In any event, he received virtually nil response to his many applications for employment, and obtained casual employment through Integrated Workforce in April 2001. In July 2002 he was assigned to RED, in the Spare Parts Department, as a storeman, on a full-time basis.
23. Had I been satisfied that the applicant’s employment with RED was the “remunerative work” he was undertaking for the purposes of s 24(1)(c) of the Act, I would have turned to the question as to why the applicant left that employment. In my view, he did not leave RED because of his PTSD and alcohol dependence alone. I consider that after many years in a managerial position, the applicant found it difficult to enjoy the role of storeman, on about half the income he received at Mitsubishi, and also without the status and authority to “swan off” and “loaf”. He maintained in evidence that although he wished that he was still at Mitsubishi, and that his superannuation would by now be so much more valuable, job dissatisfaction was not the reason he left RED. It was in effect, that he was asked to take on more responsibility, and he felt, as he did in his last few years at Mitsubishi, that he could not cope. That may well be so; or it might well have been, as he is recorded as telling the VRB, that he left because he was given additional duties, and would have had to work over Christmas. In any event, I would have been satisfied on the evidence, that he did not cease employment with RED because of his war-caused disabilities alone. He would not have satisfied s 24(1)(c) of the Act.
24. In relation to the ameliorating provisions of s 24(2)(b) of the Act, the applicant sought remunerative work after leaving Mitsubishi. He obtained remunerative work through Integrated Workforce at RED. It cannot be said that his incapacity is the substantial cause of his inability to obtain work. In my view, he does not satisfy s 24(2)(b) of the Act.
25. Had I been satisfied that his employment with RED was the “remunerative work” that he was undertaking, it would have been necessary to be satisfied that he was genuinely seeking to engage in remunerative work. On his own evidence, the applicant has not applied for any remunerative work since he left RED in November 2002. In those circumstances, he would not satisfy s 24(2)(b) of the Act.
26. I am reasonably satisfied, on the evidence, that the applicant does not satisfy s 24 of the Veterans’ Entitlements Act 1986, and is not qualified for payment of Disability Pension at the Special Rate.
27. For these reasons, the Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .................(Signed)...............................................
AssociateDate of Hearing 2 September 2004
Date of Decision 29 March 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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