Dyson and Repatriation Commission
[2008] AATA 1121
•16 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1121
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5486
VETERANS' APPEALS DIVISION ) Re DONALD DYSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier C. Ermert, Member
Dr K. Breen, Member
Date16 December 2008
PlaceMelbourne
Decision
The Tribunal sets aside the decision under review and substitutes the decision that Mr Dyson is entitled to the payment of his disability pension at the Special Rate from the effective date for his application.
(sgd)
Brigadier C. Ermert, Member
VETERANS’ AFFAIRS ‑ operational service – accepted war-caused disabilities of posttraumatic stress disorder, alcohol abuse, alcohol dependence, lumbar spondylosis – disability pension at 100% - four Flentjar questions – type of remunerative work – prevented from continuing work by war-caused conditions alone – the only factors preventing continuing work – loss of remuneration or earnings – eligible for disability pension at Special Rate – decision set aside
Veterans’ Entitlements Act 1986 ss 23, 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424
REASONS FOR DECISION
16 December 2008 Brigadier C. Ermert, Member
Dr K. Breen, Member
INTRODUCTION
1. Mr Donald Dyson, the applicant in this matter, served in the Australian Army from 15 November 1965 to 14 November 1968, with operational service in Vietnam as a member of A Squadron 3rd Cavalry Regiment.
2. Prior to his Army service Mr Dyson worked as a clerk. After service he worked in various occupations on oil rigs in the North Sea. He then worked in a number of jobs as a labourer in Queensland followed by work on oil rigs and other local jobs in Central Australia. He moved back to Victoria in 1988 and worked at a variety of jobs, including his last position as a fork-lift driver with the firm Thompsons, Kelly & Lewis Pty Ltd (Thompsons). Mr Dyson left most of his jobs after aggressive altercations with his co-workers, or he just walked out of them. In 1995 he quit his job with Thompsons and has not worked since. He has been offered work since then and has looked up some job advertisements but could not bring himself to accept the work.
3. Mr Dyson has been diagnosed with the condition of Posttraumatic Stress Disorder (PTSD). The Repatriation Commission (the Commission) accepted the PTSD as a war-caused condition. The Commission also accepted his Lumbar Spondylosis, Alcohol Dependence and Alcohol Abuse, Gastro-oesophageal Reflux Disorder, Bilateral Sensorineural Hearing Loss and Bilateral Tinnitus as war-caused conditions. The Commission did not accept that a number of his other conditions were war-caused; the condition of asthma being relevant to this matter. For his accepted disabilities Mr Dyson receives a disability pension at 100% of the General Rate.
4. On 14 May 2007 Mr Dyson applied for an increase in his disability pension. The Repatriation Commission refused the application and decided to continue Mr Dyson’s pension at 100% of the General Rate. On 25 October 2007 the Veterans’ Review Board (VRB) affirmed that decision. This matter is a review of the decision of the VRB.
THE HEARING
5. At the hearing Mr Dyson was represented by Mr Dino De Marchi, solicitor, and the respondent was represented by Ms Rosalinda Casamento, an advocate for the Department of Veterans’ Affairs. The Tribunal heard evidence from Mr Dyson, Dr Nigel Strauss, a consultant and occupational psychiatrist and Dr Robyn Horsley, an occupational physician. The Tribunal took into evidence statements by Mr and Mrs Dyson, reports by Dr Strauss and Dr Horsley, clinical notes of Associate Professor Michael Murphy and Dr Richard Hadkins, notes from Bendigo Base Hospital and employment records from Thompsons.
THE ISSUES
6. The issue to be determined is whether Mr Dyson is eligible for payment of the disability pension at a rate greater than 100% of the General Rate.
Higher Rates of Pension
7. The provisions for the payment of pension at rates greater than 100% of the General Rate are contained in section 23 of the Veterans’ Entitlements Act 1986 (the Act) in regard to the Intermediate Rate of pension, and section 24 of the Act in regard to the Special Rate of pension. The provisions for entitlement are the same for both rates, except for the capacity of the veteran to undertake remunerative work. For the Intermediate Rate, section 23 provides that a veteran must be not capable of working more than 20 hours per week, whereas for the Special Rate section 24 provides a limit of 8 hours per week. For simplicity, these reasons for decision will consider only the provisions of section 24 unless there is a particular need to consider section 23 of the Act.
Special Rate of Pension
8. Entitlement to payment of a Special Rate of pension is provided for in section 24 of the Act. The relevant sections are:
24 Special rate of pension
(1)This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury … is determined under section 21A to be at least 70% … ; or
(ii)… ; 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
…
(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.
9. There is no dispute between the parties that sections 24(1)(aa) and 24(1)(aab) are satisfied. The Commission has already found that Mr Dyson’s degree of incapacity from war-caused injuries is 100%. Hence the Tribunal finds that sections 24(1)(aa), (aab) and (a) are satisfied.
10. In considering Mr Dyson’s capacity to undertake remunerative work the Tribunal notes the four questions to be determined, as set out in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4, 5:
1.What was the relevant “remunerative work that the veteran was undertaking” within … s24(1)(c) of the Act?
2.Is the veteran, by reason of the war-caused injury or … disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or … disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.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.
11. The first issue to be determined is the type of remunerative work that Mr Dyson was undertaking. Mr Dyson’s last employed position was as a fork-lift operator for Thompsons, in which position he worked for seven years. Mr De Marchi made no specific submission on the type of work being performed by Mr Dyson. Ms Casamento submitted that the type of Mr Dyson’s remunerative work was that of a fork-lift operator. The Tribunal accepts that a fork-lift operator is the type of work for consideration of Mr Dyson’s ability to undertake remunerative work.
12. The second issue is whether Mr Dyson is prevented by his war-caused disabilities from undertaking work as a fork-lift driver. In her report of 12 May 2008 (Exhibit A4) Dr Horsley noted that Mr Dyson’s physical condition would possibly restrict his working up to 20 hours per week; however, his primary barrier to a return to work was his psychiatric status. Dr D’Ortenzio stated in his report dated 29 January 2004 that Mr Dyson’s conditions of PTSD and alcohol dependence rendered him totally incapacitated for any form of work. In his report dated 9 May 2008 (Exhibit A2) Dr Strauss stated … because his symptoms are so significant I believe that this man has to be considered to be totally and permanently incapacitated for work. He is not fit for any work and his conditions alone prevent him from working more than 8 hours per week. Ms Casamento also submitted for the respondent that, on the evidence of Dr Strauss, the answer to this second question is yes.
13. Based on the evidence of the psychiatrists and noting the submission of the respondent, the Tribunal finds that Mr Dyson is prevented by his war-caused psychiatric conditions from continuing to undertake remunerative work.
14. The third Flentjar issue is whether Mr Dyson’s war-caused injuries are the only factors preventing him from continuing to undertake that work. Ms Casamento submits that there are other issues which contribute to preventing Mr Dyson continuing to undertake remunerative work; namely his 13 years out of the workforce, his lack of recent work experience and that he is 63 years old. On the other hand, Mr De Marchi submits that there are no other factors involved in Mr Dyson’s cessation of employment and relies on the evidence of Dr Horsley on this issue.
15. In her oral evidence Dr Horsley stated that the main barriers to Mr Dyson’s returning to work are his psychiatric conditions of PTSD, alcohol dependence and alcohol abuse. She said his fork-lift driver’s licence and his light truck driver’s licence were valuable in the workplace and that employment would be relatively easy for someone with those qualifications. Dr Horsley said that Mr Dyson’s age made him less attractive for employment but did not form a complete barrier. She also said that his 13 years out of the workforce was a significant but not a complete barrier to his further employment. Dr Horsley then qualified those statements by saying that, although Mr Dyson’s age and time out of the workforce made him unattractive for permanent positions, this was not so for casual positions; and that casual positions for forklift drivers were available through agencies. In regard to Mr Dyson’s back problems, Dr Horsley’s evidence was that Mr Dyson was treated with analgesics, anti-inflammatory agents and physiotherapy and his pain settled back to a stable level. This affected only the hours Mr Dyson could work. The Tribunal notes in any case that Mr Dyson’s lumbar spondylosis is an accepted condition. In her report dated 6 March 2008 (Exhibit A3) Dr Horsley also reported on Mr Dyson’s occasional asthma, which is a non-accepted condition. Dr Horsley stated that Mr Dyson self-managed the condition with inhalers and does not require other medication. There was no evidence before the Tribunal that asthma prevented Mr Dyson from undertaking remunerative work.
16. The Tribunal has already noted the statements from Drs Strauss and D’Ortenzio that Mr Dyson’s PTSD and alcohol dependence rendered him totally unfit for work.
17. In considering this issue the Tribunal had regard to the judgement of the Full Court of the Federal Court in the matter of Repatriation Commission v Hendy [2002] FCAFC 424 in which the Court said at paragraph 37:
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran’s incapacity, the Tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work…
18. In this matter the assessment period commenced on 14 May 2007, the date on which Mr Dyson applied for an increase to his disability pension. He ceased his last work in 1995. There is, therefore, a period of 12 years between his cessation of work and the commencement of the assessment period. The judgment in Hendy requires the Tribunal to consider whether the factors of time out of the workforce, lack of recent work experience and increasing age contributed to the prevention of his continuing to undertake his remunerative work as a fork-lift driver.
19. In her evidence on these factors Dr Horsley said that they were significant, but not complete, barriers to Mr Dyson finding permanent work, but were not barriers to his finding casual work. Her evidence was that casual work was available for fork-lift drivers through agencies. The effect of this evidence is that these factors do not prevent Mr Dyson from undertaking remunerative work, only that they affect his ability to finding a permanent position. Even with the affect of his time out of work and his age, casual work as a fork-lift driver would still be available to Mr Dyson. From the available evidence the Tribunal is satisfied that Mr Dyson’s time out of work, lack of recent work experience and increasing age do not prevent him undertaking remunerative work and the Tribunal finds accordingly. The Tribunal is also satisfied that there is work available for Mr Dyson.
20. The only other factors possibly preventing Mr Dyson from working that were raised during the hearing were his back problems and his asthma. The Tribunal has already accepted that neither Mr Dyson’s back problems nor his asthma prevent his undertaking remunerative work.
21. In considering this issue the Tribunal notes that the relevant period is that following Mr Dyson’s application for an increase in his pension payments, 14 May 2007. Relevant to that period is Dr D’Ortenzio’s original report dated 29 January 2004 (T3), in which he diagnosed Mr Dyson’s PTSD and his permanent incapacity for any form of work. Although Dr D’Ortenzio did not offer a date of onset of the condition he reported eight years of increasing PTSD and chronic alcohol abuse and dependence. In his report of 9 May 2008 (Exhibit A2) Dr Strauss stated that Mr Dyson’s alcoholism and PTSD have been with him since his time in Vietnam. The Tribunal notes also the further letter by Dr D’Ortenzio, dated 21 November 2007 (Exhibit R3, page 110), in which he reported a significant relapse of Mr Dyson’s condition following his hearing at the VRB. The Tribunal notes this relapse in the context of Dr Strauss’ opinion that Mr Dyson’s PTSD is incurable.
22. From the evidence the Tribunal is satisfied that Mr Dyson’s PTSD and alcohol abuse and dependence were present as at 14 May 2007. The Tribunal also accepts the evidence of Drs Strauss and D’Ortenzio that the conditions prevented Mr Dyson undertaking any remunerative work. This is the only evidence available to the Tribunal of conditions that prevent Mr Dyson from undertaking remunerative work. Accordingly, the Tribunal finds that PTSD and alcohol dependence and alcohol abuse are the only conditions that prevent Mr Dyson from undertaking remunerative work.
23. The fourth Flentjar issue to be determined is whether Mr Dyson is suffering a loss of earnings that he would not be suffering if he were free of his war-caused incapacity.
24. Section 24(2)(a)(i) provides that a veteran shall not be taken to be suffering a loss of earnings if the veteran ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or disease. In the respondent’s statements of facts and contentions Ms Casamento submitted that there is an absence of medical evidence from 1995 to indicate that Mr Dyson ceased work due to the effects of his accepted disabilities alone. The respondent noted the exit medical report of Mr Dyson’s employer, which records the conditions of asthma, sore lumbar area and raised blood pressure. The question regarding nervous disorders is answered No. In her final submissions to the Tribunal, Ms Casamento referred to the evidence of Dr Strauss who saw Mr Dyson on 9 May 2008 and who, in his oral evidence, agreed on the difficulty of making retrospective diagnoses of PTSD. In her cross-examination of Dr Strauss, Ms Casamento referred to a letter by Dr D’Ortenzio to Dr Hadkins, dated 16 August 2006 (Page 105 of Exhibit R3), in which Dr D’Ortenzio refers to Mr Dyson’s being well since the beginning of that year, 2006. However, the Tribunal notes Dr Strauss’ response that although that period of wellness is a positive development, Mr Dyson’s condition remains incurable, his prognosis is not good and that he cannot work again. The Tribunal has already referred to Dr Strauss’ statement that Mr Dyson’s alcoholism and PTSD have been with him since his time in Vietnam. In his report dated 29 January 2004 Dr D’Ortenzio reported that Mr Dyson has not been able to work over the last 8 years and withdrew from work because of his psychiatric symptoms.
25. The Tribunal also notes the undisputed statement prepared by Mrs Dyson (attachment to VRB decision, T2) in which she described in considerable detail the difficulties wrought on their lives by Mr Dyson’s psychiatric problems. She describes in particular Mr Dyson’s behaviour from 1991 up to the time he ceased work in 1995 using the terms:
moody and withdrawn … shouting and verbal abuse … throwing of things including furniture … suggested … counselling and this made him furious … argumentative about some unrelated issue … he refused counselling … any encouragement from me resulted in a violent row … very restless at work … he took a lot of time off work … he had a couple of run-ins with co-workers … his behaviour was very erratic … having trouble sleeping and socially reclusive … he eventually announced he was going to quit … it was very difficult watching someone you love disintegrate and your family fall apart … this helped me clarify that Don needed to accept that he had a problem and agree to seek help.
26. In considering this issue the Tribunal took note of Mr Dyson’s own accounts of his struggles to cope at work, the opinions of both psychiatrists and the account of his wife, which is remarkable for its insights and the intense support she was offering her ill husband. The Tribunal is satisfied that Mr Dyson gave up work in 1995 because of the culmination of the effects of his long-standing undiagnosed and untreated PTSD and alcohol dependence. The Tribunal finds that Mr Dyson ceased work in 1995 for no reason other than his war-caused disabilities. Accordingly, the provisions of section 24(2)(a)(i) of the Act do not apply to Mr Dyson’s situation. The Tribunal has already found that Mr Dyson is not prevented from engaging in remunerative work for some reason other than his war-caused disability, so the provisions of section 24(2)(a)(ii) also do not apply. As section 24(2)(b) is connected to section 24(2)(a) by and, it follows that the whole of section 24(2) does not apply to Mr Dyson’s situation and the Tribunal finds accordingly.
27. Sections 24(2A) and (2B) do not apply in this case.
28. As a consequence of the Tribunals findings, Mr Dyson’s situation meets all the relevant provisions of section 24 of the Act; and as a result he is entitled to payment of his disability pension at the Special Rate from the date of his application.
29. As the Tribunal has found that Mr Dyson meets the provisions of section 24 of the Act relating to special rate payments there is no need for the Tribunal to consider the applicability of section 23 for the Intermediate Rate of pension.
CONCLUSION
30. After considering all the evidence the Tribunal has found that Mr Dyson ceased work as a result of his war-caused disabilities of PTSD, alcohol dependence and alcohol abuse. The Tribunal has also found that Mr Dyson is prevented from undertaking remunerative work by his war-caused disabilities alone and as a result is suffering a loss of earnings that he would not be suffering if he were free of those war-caused disabilities. The Tribunal has further found that the provisions of section 24(2) of the Act do not apply in Mr Dyson’s situation.
DECISION
31. The Tribunal sets aside the decision under review and substitutes the decision that Mr Dyson is entitled to the payment of his disability pension at the Special Rate from the effective date for his application.
I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision herein of
Brigadier C. Ermert, Member and Dr K. Breen, Member
(sgd) Mara Putnis
Clerk
Date of Hearing: 19 September 2008
Date of Decision: 16 December 2008
Solicitor for the applicant: Mr D De Marchi, De Marchi & Associates
Counsel for the respondent: Ms R Casamento, Advocacy Section, Department of Veteran’s Affairs
Solicitor for the respondent: Department of Veterans’ Affairs
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