Farrugia and Repatriation Commission
[2005] AATA 234
•18 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 234
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/346
VETERANS' APPEALS DIVISION ) Re ALEXANDER FARRUGIA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J Campbell, Member Date18 March 2005
PlacePerth
Decision The decision under review is set aside and in substitution thereof the Tribunal determines that:
Mr Farrugia is entitled to payment of disability pension at the special rate from 27 November 2003........ (sgd J Campbell)........
Member
CATCHWORDS
Veterans' Entitlements - Disability Pension - Special Rate
Veterans Entitlement Act 1986 Sections 14,15, 23, 04, 28
Re Cavell and Repatriation Commission (1988) 9AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
18 March 2005 Dr J Campbell, Member 1. In this matter Mr Farrugia seeks a review of the decision of the Repatriation Commission (“the Respondent”) dated 29 January 2003 which determined that Mr Farrugia’s disability pension be continued at 70% of the General Rate. This decision was reviewed and affirmed by the Veterans’ Review Board (“VRB”) in a decision dated 3 July 2003.
2. In a further claim for disability pension lodged 27 February 2004 Mr Farrugia sought acceptance of restless leg syndrome and impotence as war caused injuries/diseases. These conditions were accepted as war caused by the Respondent on 30 June 2004, and disability pension increased to 100% of the general rate with the date of effect being 27 November 2003. This decision was reviewed and affirmed by the VRB in a decision dated 25 February 2005.
BACKGROUND
3. The Applicant’s circumstances are not in dispute. Mr Farrugia was born in Egypt on 20 December 1945, migrated to Perth, aged two. Mr Farrugia enlisted in the Navy in 1961 and served for 12 years, being discharged in 1973, having achieved the rank and position of Chief Petty Officer as a Chief Radio Supervisor. Mr Farrugia experienced operational service for defined periods in Borneo and Vietnam, together with a period of eligible service from 7 December 1972 to 11 July 1973.
4. Following his service with the Navy Mr Farrugia was employed as a computer operator for a period of 24 years with West Australian Petroleum (‘WAPET’). He accepted voluntary redundancy from that company in February 1997.
5. In December 1996 Mr Farrugia established a business “Pancho’s PC Systems” in which he worked as a self employed individual following the redundancy in February 1997. This business involved working from his home to supply, repair and upgrade personal computers, provide software solutions for networking and undertake virus protection and eradication activities. Mr Farrugia ceased work in this activity as of 1 May 2002.
ISSUES:
6.The relevant issues in this matter are:
(a)What was the relevant “remunerative work” that the veteran was undertaking within the meaning of section 24(1)(c) of the Act; and
(b)Was the veteran genuinely seeking to engage in remunerative work after cessation of work in May 2002; and
(c)Is the veteran, by reason of war-caused injury or war caused disease alone or both prevented from continuing to undertake that work?
(d)If the answer to question c is yes, is the war-caused injury or war caused disease or both, the only factors preventing the veteran from continuing to undertake that work?
(e)If the answers to questions c and d 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.
Decision
7. For the reasons nominated later in this decision I conclude that Mr Farrugia is entitled to payment of disability pension at the special rate from 27 November 2003, having concluded that from that date Mr Farrugia satisfied all the requirements of section 24 of the Act.
Mr Farrugia’s Evidence
8. Mr Farrugia detailed the following evidence in either his written statement or in oral evidence.
(a)With the advent of personal computers and larger file servers WAPET decided in 1995 to shift from Data General Mainframe to Sun Unix Systems. His speciality was with mainframe computers, and despite several courses on Unix Systems, he continued to experience difficulty with the programming side of the Unix System. From 1995 to 1997 Mr Farrugia continued to maintain the mainframe, despite offering to leave in 1995.
(b)During the period 1995 – 1997 he devoted much effort to learning about PC computers. He established a business “Pancho’s PC Systems” in December 1996 in the knowledge of a forthcoming voluntary redundancy in February 1997.
(c)He advertised his business locally by advertising in the Maltese Probus, the official newsletter for Maltese Professional and Business Association of Western Australia on a regular basis in 1997, 1998 and later years; in the Ray White local real estate letter, sponsorship of a local darts team with his business card imprinted on tee shirts and distribution by way of magnets of his business activities.
(d)That most of his work in his self employment venture came by way of word of mouth referrals. His work averaged two to three activities per week, with each activity occupying at least two hours.
(e)That he ceased doing such work in May 2002 because:
i.he was tending to have increasing conflict with clients;
ii.he was struggling to concentrate and experiencing increasing difficulty in remembering where he was up to if disturbed;
iii.he had no incentive or motivation to work;
iv.he had experienced increasing difficulty with handling of invoices and accounts with the commencement of GST, and found he was reliant on his partner to complete these tasks, - such tasks being performed when she returned from her daily full time job of work. Such imposition caused him some angst and some difficulty in their relationship;
v.he was experiencing increasing difficulty with using the telephone because of his hearing loss and tinnitus;
vi.That his physical and psychological impairment had been present during his last years at WAPET and increasing from 1995 onwards as evidenced by:
(1)increasing anxiety and stress, which has resulted in anger, short temper, difficult to get on with, problems in relationship with partner, dislike for demanding clients (refuses to accept work), likes to be alone, episode of disagreement with a demanding geologist at WAPET, dislike for conflict.
(2)increasing difficulty with sleep pattern – inability to get to sleep (back discomfort, restless leg syndrome); need to micturate once or twice a night causes him to be awakened and go through the same get to sleep process again – all of which leads to fatigue arising from what he believes to be a lack of sleep.
(3)limited social life (darts on Monday night); does not like to drive a car, divorced first wife in 1988 because she felt he tried to run the house like a warship; drinks alcohol daily – at least two whiskies.
(4)that his physical disabilities had increased since 1995 with the diagnosis of his diabetes, together with the difficulties experienced in stabilising the condition.
(5)feelings of worthlessness and loss of self esteem arising from his inability to cope and his impotence which has led to a lack of motivation, increasing stress, a worsening of his health condition, avoidance of crowds, increasing social withdrawal and avoidance of regular driving, stressful situations and responsibilities.
CONSIDERATIONS AND FINDINGS
9. Mr Farrugia presented his evidence in this matter in a low key and understated manner. I find that he has told his story in a way that his various disabilities best allow. I find no evidence to suggest embellishment or fabrication, and I accept his evidence as the best reflection of the circumstances that he has experienced, while noting that Mr Farrugia is more comfortable and explicit when dealing with his physical conditions.
10. I also note that Mr Farrugia has had accepted as having war caused the following diseases/injuries:
· Plantar wart right foot
· Bilateral sensorineural hearing loss
· Tinea
· Anxiety disorder
· Restless leg syndrome
· Impotence
· Diabetes Mellitos
11. I further note that the latter two diseases were accepted as war caused with a date of effect being 27 November 2003, and that the rate of disability pension was increased to 100% of the general rate from that date.
12. In relation to Mr Farrugia’s claim for a special rate, Mr Farrugia satisfies subsection 24(1)(aa), (aab) and (a)(i) in that he has made a claim, is under 65 years of age at the date of claim and that his degree of incapacity from war caused injuries or diseases or both is at least 70%.
Section 24(1)(b)
13. It is common ground between the parties, and I so find that the Applicant’s last paid employment was as a self employed person in which he conducted a business involved in the supply, repair and maintenance of personal computers together with the provision of anti virus technology solutions for such computer software. Further I conclude that he ceased conducting this business on 1 May 2002, and that since that date has not been involved in that activity or any other work related activity for which he has received remuneration. In this regard I note Mr Farrugia’s evidence, the letter from his accountant and Mr Farrugia’s many statements to various doctors over time.
14. In determining Mr Farrugia’s capacity to undertake remunerative work, I note his absence of formal qualifications in the electronics and computer industries, but recognise his long history of significant experience as a naval radio operator, a 24 year history of being a Mainframe Computer Operator with WAPET and his five year history of self employment servicing and maintaining personal computers. With such a history of employment, I conclude that the kinds of remunerative work which Mr Farrugia might reasonably undertake include activities as an information technologist, personal computer repair and maintenance, and as a supervisor in these activities.
15. In addressing the issue of whether the veteran’s incapacity from war caused disease or war caused injury or both is of such a nature, alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week, I note the following:
a. The kinds of remunerative work that Mr Farrugia might reasonably undertake in view of his skills, qualifications and experience.
b. The medical opinion of Dr Sciberras, General Practitioner dated 25 October 2001 that the accepted disabilities alone would be sufficient to prevent the veteran from working more than eight hours per week. It is noted that no description was provided as to how such disabilities caused this incapacity and how they led to cessation of work.
c. The medical opinion of Dr Dare, Consultant Occupational Physician dated 11 December 2003 in which he concluded that the veteran’s disabilities and medical conditions as listed did not affect his ability to work, with the veteran being able to work more than 20 hours per week. Again no reasons for this conclusion were provided.
d. The medical opinion of Dr Harper, Consultant Occupational Physician dated 6 May 2004 in which he concluded that the veteran was totally incapacitated for work as an information technologist, principally because of his generalised anxiety disorder, and that such work incapacity is permanent.
e. The medical opinion of Dr Fellows-Smith, Consultant Psychiatrist, as expressed in his reports of 12 December 2001 and 21 January 2004 and in his oral evidence that the veteran is unable to work, primarily because of his generalised anxiety disorder, and with contributions from his maturely onset diabetes mellitus and secondary impotence.
16. I also note the VRB finding in their decision of 25 February 2005 and also that both parties at the hearing did not defer from that view. In the light of this evidentiary material, I conclude that Mr Farrugia satisfies section 24(1)(b) of the Act, in that his accepted disabilities alone prevent him from undertaking remunerative work for eight or more hours per week. In so finding I rely upon the opinion of Drs Harper and Fellows-Smith. In relation to Dr Dare I am unable to understand or infer as to how he arrived at his conclusion in the absence of any supportive reasoning.
Section 24(1)(c)
17. I note both the matters of Flentjar v Repatriation Commission (1997) 48 ALD1 and Forbes v Repatriation Commission (2000) 101 FCR 50 in which the questions to be asked and answered have been enumerated when dealing with this subsection, and subsections 24(2)(a) and (b).
18. The issue of what relevant remunerative work the veteran was prevented from continuing to undertake has earlier been discussed. I have already concluded that he ceased work as a self-employed information technologist on 1 May 2002 and that he has undertaken no remunerative work since that date.
19. I observe from the material in evidence that on 4 August 2003 that the Applicant despatched a letter to three organisations requesting work urgently. I note a further letter of a similar nature sent to Centrelink on 3 October 2003. I note the responses from the firms sent the letter on 4 August 2003. I note that there is no other evidence of the veteran seeking employment between 1 May 2003 and the date of this hearing.
20. While I acknowledge that the letters written sought employment, they were not written in response to a job advertisement. Such unsolicited enquiries were made on two separate days during a period of some 33 months and resulted on these occasions with responses which such a general enquiry would generally elicit. I do not consider and so find that such activity as described can be construed as an individual genuinely seeking to engage in remunerative work, both because of the limited nature and activity of the enquiries and when placed in the context of that individual asserting that he has no capacity to undertake remunerative work since he ceased work in May 2002. It follows that the substantial cause provision pursuant to section 24(2)(b) of the Act is not available to the veteran in this matter.
The ‘alone’ test
21. I have already referred to the various accepted disabilities, and in so doing have noted the acceptance as war caused disabilities, the diseases of restless leg syndrome and impotence, their acceptance dating from 27 November 2003. It is noted in both the veteran’s evidence and the reports of Drs Dare and Harper that the veteran has suffered from back discomfort for many years, and indeed dating back to his service in 1973. It would appear that such discomfort relates to a minor degenerative condition in the lumbar spine. It is also in evidence that this back discomfort together with stress from his anxiety disorder and the symptoms associated with his restless leg syndrome delay the veteran in getting to sleep. Further evidence from the veteran described his sleep as being broken by a need to micturate once or twice a night because of his diabetic condition and his restless leg syndrome on occasions with his amount of sleep averaging five hours a night.
22. In progressing the back discomfort issue further, I note the reports of Dr Dare in which he describes the veteran’s lower back discomfort as not resulting in any significant restrictions to his general activities. Dr Dare considered the veteran’s back symptoms as minimal and not resulting in any significant disability. I also note Dr Harper in his report as indicating that an examination of the veteran’s lower back demonstrated a normal range of movement, with the veteran being able to squat.
23. Of further significance to such considerations was the oral evidence of Dr Fellows‑Smith in which he described the veteran as suffering an anxiety disorder superimposed on a pre-existing personality trait of perfection during the early years of his navy service. Dr Fellows-Smith was of the opinion that within the structured environment of his naval service the veteran was able to prosper and compensate for the anxiety disorder. Similarly, during most of his employment with WAPET, the veteran was able to live with his underlying anxiety disorder, although I note the alleged comments of his first wife, in which it could be inferred that the veteran wished to retain a structured domestic environment. Dr Fellows-Smith stated that the veteran started to decompensate in 1995 when he was diagnosed with diabetes and his job security was threatened. Dr Fellows-Smith concluded that from then the anxiety disorder had worsened significantly causing the veteran increasing symptomatology over time and with the veteran trying to cope by doing what he has done but with his ability to cope being lessened by every new stress resulting in increasing frustration and loss of self-esteem. Dr Fellows-Smith also noted that the veteran much preferred to view his symptomatology in the light of physical as opposed to psychological disabilities. In such a context Dr Fellows-Smith concluded that the veteran’s symptom of fatigue was primarily a psychological sequelae, while the veteran may ascribe it to arising from a physical source. Further, Dr Fellow‑Smith concluded that the veteran’s anxiety disorder would tend to worsen the physical symptomatology experienced by the veteran.
24. In addressing whether the back discomfort and the restless leg syndrome are factors which prevent the veteran from continuing to undertake remunerative work I am reminded that this question has to be considered in a commonsense way with an eye to reality (Re Cavell and Repatriation Commission (1988) 9AAR 534). I have earlier noted the opinions of the two occupational physicians, namely Drs Dare and Harper, that the veteran’s low back problem was not significant, was a long standing discomfort which had not interfered with the veteran’s capacity to work and did not result in any significant disability. I further note the explanation and opinion given by Dr Fellows-Smith in which he emphasised that the veteran’s fatigue arose primarily from his anxiety disorder, and that the veteran preferred to relate symptoms that he experienced to physical rather than psychological disabilities.
25. In such circumstances I find that the veteran’s low back discomfort is not a factor preventing the veteran from continuing to undertake remunerative work. In so finding I am mindful that any low back discomfort which the veteran may have experienced on retiring to bed may have been magnified by both his anxiety disorder and his desire to explain symptoms by way of physical disability. More so I recognise that his low back discomfort was not the cause of him waking at night, and this waking from his diabetic induced need to micturate which gave rein to the distorted sleep pattern, as well as on occasions did his restless leg syndrome.
26. Finally I note that his restless leg syndrome was a factor in the veteran’s sleep disturbance, in that on occasions it led to him being awakened. It is also in evidence that on occasions symptoms arising from this condition were of significance and played a part in his sleep deprivation, which in turn made some contribution to his overall feeling of tiredness and fatigue. This in turn made a contribution to the veteran being prevented from continuing to undertake remunerative work up to the time at which it was accepted as a war caused disease on 27 November 2003. I therefore conclude that up to 26 November 2003 the restless leg syndrome was a factor which prevented the veteran from continuing to undertake remunerative work. By so finding, the veteran fails to satisfy section 24(1)(c) of the Act up to that date because his war caused disabilities did not alone prevent him from continuing to undertake remunerative work.
27. From 27 November 2003, the veteran does satisfy the ‘alone’ test as his restless leg syndrome was accepted as war caused from that date.
28. In addressing the final issue, namely is the veteran by reason of being prevented from continuing to undertake such remunerative work, suffering a loss of salary, wages or earnings on his own account, that he would not be suffering if he was free of that incapacity, I conclude that the veteran has suffered a loss of earnings in such circumstances. In so finding I note the evidence of earnings from remunerative work in the three financial years prior to his cessation in May 2002 and the absence of earnings from such remunerative work in subsequent years.
29. In summary I conclude that with the assessment period commencing with lodgement of the Applicant’s claim on 29 July 2002 and ending with the decision of the Tribunal, the veteran did not satisfy all the requirements for a special rate pension until 27 November 2003.
DETERMINATION
30. The decision under review is set aside and in substitution thereof the Tribunal determines that:
Mr Farrugia is entitled to payment of disability pension at the special rate from 27 November 2003.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member
Signed: ......................(sgd N Wee)..............................
AssociateDate/s of Hearing 10 March 2005
Date of Decision 18 March 2005
Solicitor for the Applicant Mr Ross Harrison
Dwyer Durack Lawyers
Advocate for the Respondent Mr Carl Ponnuthurai
Department of Veterans’ Affairs
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