Fleming and Repatriation Commission

[2004] AATA 1055

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1055

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/768

VETERANS' APPEALS  DIVISION		)
Re		KEVIN FLEMING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date12 October 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – pensions and benefits – applicant applied for pension at special rate – whether applicant’s service-related conditions alone make him unable to undertake remunerative work for periods totalling greater than 8 hours per week – whether applicant genuinely seeking to engage in remunerative work – whether service-related conditions have made a substantial contribution to his failure to obtain remunerative work –decision affirmed 

REASONS FOR DECISION

12 October 2004 Senior Member McCabe    

Introduction

1.This is an application for review of the decision of the Veterans’ Review Board (the VRB) dated 18 February 2003.  The VRB increased the applicant’s disability pension to 70 percent of the general rate, with effect from 19 May 2002.

2.The applicant says he is entitled to a pension at the special rate pursuant to s 24 of the Veterans’ Entitlements Act 1986 (the Act). The respondent says he is not entitled to the pension at the special rate because he does not satisfy s 24 of the Act.

3.The matter was heard in Townsville on 13 July 2004. The applicant was represented by Mr Honchin of counsel. The respondent was represented by Mr Stoner. The documents compiled pursuant to s37 Administrative Appeals Tribunal Act 1975 were before the Tribunal.  The parties also provided:

• A statement of the applicant dated February 2004;
• Two medical reports of Dr Rogers dated 20 April 2004 and 3 June 2004;
• A letter written from the applicant to his lawyers dated 14 June 2004;
• A bundle of documents submitted by Theiss Pty Ltd;
• A letter written by Mr T Wilkinson dated 3 February 2004;
• A letter written by the respondent’s representative to the applicant’s representatives dated 26 May 2004.

The Facts

4.Mr Fleming served in the Royal Australian Air Force from February 1967 to February 1973.  He served in Vietnam on two separate occasions during that period.  He now suffers post traumatic stress disorder (PTSD), alcohol abuse/dependence and bilateral sensori-neural hearing loss with tinnitus (hearing loss).  The respondent accepts those conditions are related to his operational service. 

5.Mr Fleming was employed as a manual labourer after he left the RAAF.  From 1986 to 1996 he was employed by Mount Isa Mines, working in the Collinsville coal mine.  Theiss took over operation of that mine in 1996.  The applicant worked for Theiss until 1999, when he accepted a voluntary redundancy package.

6.Mr Fleming says he searched for work after leaving the employ of Thiess.  He says he was unsuccessful because of his accepted conditions.

The Applicant’s Argument

7.Mr Fleming says he is entitled to pension at the special rate.  He says his service-related conditions alone have made him unable to undertake remunerative work for periods totalling greater than 8 hours per week.

8.In the alternative, he says he has been genuinely seeking to engage in remunerative work.  His service-related conditions have made a substantial contribution to his failure to successfully engage in remunerative work.

The Respondent’s Argument

9.The respondent says Mr Fleming chose a voluntary redundancy package.  He did not cease working because of his war-caused disabilities alone.  Rather he made the decision as he thought he would be made redundant in any event - because of the downturn in the coal industry, and his lack of skills. He did not leave because of his PTSD.

10.Additionally, the respondent says he has not been successful in his attempts to gain remunerative work because of factors other than his war-related conditions (e.g. labour market factors and Mr Fleming’s age).

The Law

11.The law governing the award of pension at the special rate is contained in Division 4 of the Act. Section 24 first requires the veteran’s degree of incapacity to be at least 70%. That is the case here. The section then has two further limbs. The first limb in s 24(1)(b) is known as the “8 hour test”. It requires the veteran to be

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

12.The second limb – s24(1)(c) – is known as the “alone” test. It requires that the veteran be:

…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

13.The question for the Tribunal is this: taken in isolation, do Mr Fleming’s service-related injuries render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week?  Section 28 of the Act sets out the three matters to which the decision-maker must have regard.  They are:

(a) the vocational, trade and professional skills, qualifications and experience of the veteran;

(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

14.The Full Federal Court in Chambers v Repatriation Commission (1995) 129 ALR 219 says the Tribunal must make a broad inquiry when deciding whether a veteran is incapable of performing remunerative work.

15.Section 24(2) is an ameliorative provision. It applies in situations where a veteran has ceased remunerative work for reasons other than that veteran’s war-caused injury. The section says if that veteran can satisfy the Commission he or she has been genuinely seeking to engage in remunerative work, and his or her war-caused injury is the substantial cause of his or her inability to engage in remunerative work, the veteran is treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

The Evidence

16.It is accepted by both sides that Mr Fleming’s voluntary redundancy was offered because of a downturn in the coal industry.  He says he accepted the redundancy package because his supervisor (Mr Wilkinson) had told him he was “walking a fine line” and would be best to accept the redundancy package.  Mr Fleming gathered from this he was likely to be made redundant so it was best to accept the voluntary redundancy.  Apparently Mr Fleming was walking a “fine line” because of the disagreements and arguments he would often have with his fellow employees.  It is also worth noting that Mr Fleming believed he would be one of the first to be retrenched in any event as he was an unskilled labourer.  This influenced his decision to accept the voluntary redundancy. 

Problems experienced at work

17.Mr Fleming recounted the problems he experienced at work in his oral evidence and in a statement (exhibit 2).  He says

I found that I would easily get upset.  I would have conflicts and run-ins with other co-workers.  These never resulted in any physical altercations…by early 1999…I was becoming very depressed at work and my run-ins with other staff were occurring more frequently.

18.In oral testimony he also recounted the circumstances of some of his disputes.  For example he would become upset when he perceived other men were being lax in performing their duties (e.g. for failing to pick up tools left on a bench).

Seeking employment

19.After accepting the redundancy Mr Fleming says he searched for work.  In particular he recalls approaching three employers, as recently as March 2003.  He says he approached a hardware store, a workers’ club and a chainsaw shop.  All three businesses rejected his application for employment.  Representatives of the three employers gave evidence at the hearing.

Application to the chainsaw shop

20.Mr McCallen (the owner of the chainsaw shop) gave evidence that Mr Fleming had approached him for employment twice.  When asked why he rejected Mr Fleming’s application, he said he had done so because Mr Fleming abused alcohol and had an unsatisfactory attitude.  He said customer service was an important part of his business and Mr Fleming’s “aggressive attitude” rendered him unsuitable for that sort of work.

21.In cross-examination Mr McCallen said he would hire (on average) one person per year, early in the year.

Application to the hardware/supermarket store

22.Mr Bosca (who occupied a managerial position in the store) gave evidence that Mr Fleming had approached him for work several times.  However he said his store had a very low turnover of staff: the last vacancy was in 1999.  He said the only reason he did not give Mr Fleming a job was because he had no vacancies available.

Application to the workers’ club

23.Mr Thomas (the secretary of the workers’ club) gave evidence that Mr Fleming had approached him for work many times.  He said Mr Fleming had asked him for work “about once every month or two”.  However he had never given any work to the applicant.  When asked why, Mr Thomas said there was simply no work available.  He said there was no other reason for not employing Mr Fleming.

Medical Evidence

24.The Tribunal had before it several medical reports.  In a report dated 20 April 2004 Dr Rogers said:

It remains my opinion that his accepted conditions of PTSD and alcoholism were the cause of the level and intensity of the…confrontations [with work colleagues]. 

25.In an earlier report of 11 April 2003 Dr Rogers said:

In his job there had been ongoing difficulties with respect to his irritability and arguments with his superiors as well as colleagues…The ongoing difficulties in my opinion were a direct consequence of his irritability and PTSD..I continue to be of the view that he is incapable of working on the grounds of his PTSD and alcoholism…It is also my view that the underlying reasons for him both losing his job and being unable to find employment in the aftermath are those of his underlying conditions.

Consideration and Application

26.Can the applicant satisfy the “8 hour” test in s 24(1)(b)? On the basis of his oral testimony and the medical reports of Dr Rogers, and after having regard to the criteria in s 28, I am satisfied Mr Fleming is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.

27.However Mr Fleming does not satisfy the “alone” test in s 24(1)(c). I do not think his war-caused injuries alone made him incapable of performing the work he was undertaking. Rather, a combination of factors led to his quitting his employment. There was a downturn in the coal industry, which made redundancies necessary. He chose to accept the redundancy because he made a calculated decision that he would be made redundant in any event. His injuries did not force him to quit his job at that time. He thought he would be made redundant because of his (PTSD and alcohol abuse-related) irritability. But in oral evidence he also said another reason he thought he would be made redundant was his age and his lack of qualifications. Furthermore, even if I accept his irritability was largely caused by his accepted conditions, I do not think it can be wholly attributed to them.  Even Dr Rogers says his conditions were “the underlying reasons for him losing his job”.  They were not the sole reason for Mr Fleming’s redundancy.

28.The only other way Mr Fleming can satisfy s 24 is by taking advantage of the ameliorating provision in s 24(2).

29.Was he genuinely seeking to engage in remunerative work?  Much evidence was placed before the Tribunal to address this question.  In his lifestyle questionnaire (f46 T4 of the T-documents) he answered “No” to the question “Have you sought or do you intend to seek employment?”  However three employers gave evidence that Mr Fleming sought employment with them several times.  The last time he did so was in 2003.  Having considered the evidence before me I am satisfied Mr Fleming was genuinely seeking to engage in remunerative work.

30.Next the Tribunal must be satisfied the applicant’s service-related conditions were the substantial cause of his inability to obtain remunerative work.  In Fox v Repatriation Commission 45 ALD 317 Keiffel J shed some light on the operation of the provision. She said at 319:

The words “the substantial cause” require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it.

31.She explained that the use of the definite article – i.e. “the substantial cause” – required there to be a strong and direct causal connection between the incapacity and the inability to obtain work.  Also she approved the idea that a war-caused injury could be a significant cause of an inability to obtain remunerative work without being the substantial cause of the inability (at 319-320).

32.Was the war-caused incapacity the operative factor in preventing him from obtaining the remunerative work?  I do not think it was.  On the evidence before me I must conclude Mr Fleming failed to obtain work largely because there was no work available for him.  The representatives from the hardware store and the workers’ club both said the reason Mr Fleming was unsuccessful in his application for work was that they had no vacancies.  They both said quite specifically they could think of no other reason why they would not employ Mr Fleming.

33.The owner of the chainsaw shop said he would not employ Mr Fleming because he had an aggressive attitude.  I can accept Mr Fleming’s “aggressive attitude” is a symptom of (whether or not is wholly explained by) his service-related conditions.

34.I must also take into account that Mr Fleming was over 60 and unskilled when he was seeking work.  These must have also been significant factors in his failure to find employment.

35.The greatest factor in Mr Fleming’s failure to obtain remunerative employment was the lack of employment available, compounded by the fact of his age and his lack of vocational skills: in other words, labour market conditions.  (I note the Tribunal in Fox concluded the substantial cause of the applicant’s inability to obtain work there was also labour market conditions. That was approved on appeal by Keifel J: at 320.) It is true Mr Fleming’s service-related conditions caused him to fail in his application for work at the chainsaw shop. But this evidence alone is insufficient to convince me his service-related conditions were the substantial cause of his inability to obtain work.

Conclusion

36.It follows the decision under review must be affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         [Sgd]
  Associate: Thomas Ritchie

Date/s of Hearing: 13 July 2004
Date of Decision: 12 October 2004
The applicant was represented by Ms Wallace and Mr Honchin of counsel.
The respondent was represented by Mr Stoner, a departmental advocate.