Fletcher and Repatriation Commission

[2004] AATA 1157

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1157

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/1215

VETERANS'     APPEALS       DIVISION

Re:         BRUCE ARTHUR FLETCHER

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             5 November 2004

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 8 December 2000.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ post traumatic stress disorder ‑ alcohol dependence ‑ ability to work ‑ whether special rate applies

Veterans’ Entitlements Act 1986 ss 24, 120(4)

Cavell v Repatriation Commission (1988) 9 AAR 534

Flentjar v Repatriation Commission (1997) 48 ALD 1

REASONS FOR DECISION

5 November 2004  G.D. Friedman, Member

1.        This is an application by Bruce Arthur Fletcher (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 17 September 2002.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 31 October 2001 to increase the applicant’s disability pension to 90 per cent of the general rate.

2.        At the hearing of this matter on 5 December 2003 and 27 October 2004 Mr D. De Marchi, solicitor, represented the applicant, and Mr K. Herman, advocate with the Department of Veterans’ Affairs, represented the respondent. 

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T22) with six exhibits (Exhibits A1 to A6) lodged by the applicant and six exhibits (Exhibits R1 to R6) lodged by the respondent.

BACKGROUND

4.        The applicant was born on 28 August 1942.  With his four siblings, he worked on his parents’ orchard until leaving school to become an apprentice jockey.  He held a number of jobs before enlisting in the Australian Army (the army) on 29 March 1967.  He reached the rank of Warrant Officer Class 2 before his discharge on 7 September 1987.  His service in Vietnam, from 9 April 1967 to 28 February 1969, is operational service as defined in the Veterans’ Entitlements Act 1986 (the Act).  His service from 7 December 1972 to 7 September 1987 is eligible defence service.

5.        After his discharge he was employed by his brother for two years, fitting doors, windows and shop fronts.  He obtained a position as a storeperson in Cairns, Queensland and then worked as a petrol pump attendant in Melbourne.  In 1990 he moved to the Philippines where he married in 1994.  The applicant worked for short periods in various hotels and nightclubs in Angeles City and was employed by the Fiesta Gardens Hotel as bar manager from 5 February 2000 until 14 February 2001.  He has not worked since then.

6.        On 8 March 2001 the applicant lodged a claim to have post traumatic stress syndrome accepted as war-caused.  On 31 October 2001 a delegate of the respondent determined that post traumatic stress disorder (PTSD) was war-caused.  The other disabilities which the respondent accepts as war-caused are bilateral sensorineural hearing loss with tinnitus, and tinea.  Pension was increased to 90 per cent of the general rate with effect from 8 December 2000.  On 7 February 2002 the applicant applied to the VRB for review of that decision.  The VRB affirmed the decision and the applicant lodged an application with the Tribunal on 11 November 2002 for review of the VRB decision.

7.        The issue before the Tribunal is whether the applicant satisfies the criteria for the grant of disability support pension at the special rate. 

EVIDENCE

8.        The applicant outlined his employment history in a written statement dated 16 July 2003 (Exhibit A1).  He stated that several of the positions he held, after his discharge from the army, were terminated by employers because he made too many mistakes and became argumentative.  He said that he became unhappy and unsettled, and decided to move to the Philippines to commence a new life.  The applicant stated that after his marriage in 1994 he made various attempts to secure full-time employment, but his PTSD became worse and he was unable to perform his duties as he was restless and agitated.  He said that he took considerable time off while employed at the Fiesta Gardens Hotel because of ill-health, and this contributed to his inability to keep that job.

9.        In oral evidence, given by telephone, the applicant told the Tribunal that he is taking prescribed medication for PTSD.  He said that he did not realise until relatively recently that his poor concentration, forgetfulness and his inability to handle pressure were symptoms of PTSD.  He described his duties at the Fiesta Gardens Hotel and said that in addition to supervision of staff, he had a public relations role to entertain guests, which involved drinking alcohol regularly.  He said that this led to health problems, and he was referred to a psychiatrist, Dr R. Ramos, psychiatrist, of La Union Medical Diagnostic Centre, Inc.  He stated that eventually the hotel management terminated his employment because of his excessive time off work.  He noted that when he commenced with the hotel he was working full-time, but this became a casual arrangement because of his frequent absences.  He said that he applied to other hotels and organisations for jobs but was unsuccessful.

10.      The applicant stated that his treating doctor was Dr E. De Guzman Jnr, of Angeles City, whom he consulted once each month.  He emphasised that he would like to work but his PTSD has prevented him from competing for the few positions that are available to foreigners in the Philippines.

11.      Under cross-examination the applicant said that in 1990 he enjoyed the easygoing lifestyle in the Philippines.  In relation to evidence given to the VRB that he had ceased work in 1990, the applicant stated that in February 2000 he did not know whether the job with Fiesta Gardens Hotel would be permanent.  He said that he was referred to Dr De Guzman by a friend in the local Returned Services community, and that United States ex-service personnel had recommended Dr Ramos.

12.      In a written report dated 4 October 2003 (Exhibit A3) Dr De Guzman stated that the applicant has been his patient since 1997.  He said that the applicant’s PTSD is aggravated by severe and frequent bouts of depression for weeks at a time.  Dr De Guzman stated that the combined effect of PSTD and his other conditions makes it impossible for the applicant to do any productive work.  He said that the applicant is totally unemployable because he is incapacitated by the symptoms of the medical conditions.  In oral evidence, by telephone, Dr De Guzman said that the applicant does not socialise with other people, and that his PTSD and hearing condition cause concentration problems, and that there is no possibility of his working again.

13.      Under cross-examination Dr De Guzman stated that he was a qualified and experienced crisis manager and has worked with Australian and American veterans for many years.  He told the Tribunal that the applicant’s age and lack of knowledge of local dialects would be disadvantages in any attempt to seek employment in the Philippines.

14.      In a written statement dated 30 October 2003 (Exhibit R5) Mr A. Walsh, Assistant Director, National Fraud Control Unit, Department of Veterans’ Affairs, stated that he visited the Philippines in 2003 to investigate claims by a client of the Department who resides in that country.  He noted that there is a significant expatriate community in certain areas, comprising ex-servicemen from the United States, Australia and elsewhere.  He said that these communities are close-knit and provide support and services to their members, including employment at managerial levels in hospitality ventures.  Mr Walsh said:

To my observation one unfortunate corollary of the economic situation in the Philippines is that the provision and obtaining of medical services is entirely haphazard.  Further it is possible, and to my observation commonplace, to obtain a whole raft of documentation of questionable authenticity, if one has the money.

15.      Mr Walsh stated that he had had cause to investigate the authenticity of material lodged under the name of Dr Esmeraldo De Guzman Jnr in another matter.  He stated: From my own independent investigations, I am able to say that this person does not exist.

16.      Under cross-examination, Mr Walsh agreed that he relied on the assistance of an official of the Australian Embassy in Manila because he had no knowledge of the local language or area.  Mr Walsh conceded that the person he was investigating was called Dr Guzman or Dr De Guzman, not Dr De Guzman Jnr, and that his report was incorrect, because he now accepts that Dr De Guzman Jnr does exist.

17.      In a written report dated 24 April 2001 (T45) Dr Ramos, stated that he examined the applicant in March 2001 and diagnosed PTSD.  Dr Ramos stated:

The prognosis of Mr. Fletcher is poor.  He has had the condition for a long time (since 1970) and the course of the condition, when left untreated, tends to be a chronic one.  Because of the condition, though he may have worked after his Vietnam stint, these have been uncomplicated and simple.  He even has to resign from his most recent job since his symptoms have been getting in the way.  Because of PTSD and its antecedent depression, Bruce has had difficulty of thinking of earning a living.

18.      In a written report dated 22 January 2003 (Exhibit A2) Dr Ramos stated that the applicant‘s condition improved after he began to take prescribed antidepressant medication.  Dr Ramos said:

…He has continued the medication to this day.  However, in spite of the above medication, he has remained jobless, not owing to willingness not to but the inherent feature of the illness, PTSD… At this point, and from the course of his condition after April 2001, it is deemed that the patient will never be able to land any job owing to his PTSD.

In oral evidence, by telephone, Dr Ramos told the Tribunal that he assessed the level of the applicant’s PTSD at around 80 per cent, or at the severe end of the scale.

19.      Under cross-examination, Dr Ramos stated that he saw the applicant once at a hospital, but not at the applicant’s place of employment.  He acknowledged that the applicant had a longstanding alcohol problem, but said that the applicant’s inability to work was due to PTSD, and was not related to alcohol.  Dr Ramos expressed the view that if the applicant did not suffer from PTSD he would be able to find work in the Philippines.  He referred to the large expatriate and foreign population and said that the applicant’s lack of fluency in local dialects would not be an issue, as English is spoken widely in the area of the Philippines where the applicant lives.

CONSIDERATION OF THE ISSUES

20. Section 24 of the Act provides for a special rate of pension for a veteran who satisfies the criteria laid down in s 24:

24(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.

21.      Mr De Marchi submitted that the medical evidence was clear, that as a consequence of PTSD the applicant was unable to continue to work at Fiesta Gardens, or in any similar position.  He noted that any suggestions by the respondent that the applicant had in some way been involved in making false claims or providing inaccurate information to the Department had been disproved following the evidence from Mr Walsh.  Mr De Marchi referred to the applicant’s evidence and the evidence from Dr De Guzman and Dr Ramos, and submitted that the Tribunal should accept the applicant as a truthful and credible witness who had made a genuine effort to support his family by attempting to find suitable employment, but that this was no longer possible because of the war‑caused conditions.

22. Mr De Marchi submitted that the applicant had genuinely sought to engage in remunerative work that would be suited to his qualifications and experience. Mr De Marchi said that the applicant would continue to seek to engage in remunerative work but for the incapacity caused by PTSD and his other war-caused condition. He submitted that taking into account all the material before the Tribunal, the applicant satisfies all relevant provisions of s 24 of the Act.

23. Mr Herman submitted that, in relation to s 24(1)(c) of the Act, as affected by s 24(2)(b), the Tribunal must consider whether the applicant suffered a loss of salary or wages as a result of his war-caused conditions. He said that other factors need to be taken into account, and referred to Dr De Guzman’s evidence that the applicant’s inability to speak the local dialect would affect his ability to earn income. He also noted the evidence concerning the impact of the applicant’s alcohol problem on his ability to find employment.

24.      Mr Herman submitted that the Tribunal should take into account that the applicant visited the Philippines and decided to stay because he enjoyed the lifestyle.  He referred to the applicant’s evidence that he was able to manage on his superannuation from the army, and that he had looked for work as a means of finding something to occupy his time.  Mr Herman said that the Tribunal should consider the overall circumstances of the case, with a view to arriving at a commonsense decision (Cavell v Repatriation Commission (1988) 9 AAR 534). Mr Herman described the applicant’s evidence as uncertain and confused, with a number of inconsistencies, and submitted that whatever work was performed at Fiesta Gardens paid only about $US500, and was not remunerative for the purposes of the Act. He stated that the applicant had effectively retired at the time of taking up residence in the Philippines, and had made no serious attempt to find work.

25. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing. There was no dispute that the applicant satisfies s 24(1)(a) and s 24 (1)(b) of the Act.

26. In respect of s 24(1)(c) of the Act, the Tribunal notes that in Flentjarv Repatriation Commission (1997) 48 ALD 1 the Federal Court set out the issues in a series of questions:

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

2. Is the veteran, by reason of war-caused injury or war-caused 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 war-caused 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?

27.      The Tribunal accepts Mr Walsh’s concession that his report was incorrect, and the Tribunal gives no weight to any suggestion that his investigations in the Philippines cast doubt on the truthfulness of the applicant’s evidence or the authenticity of documents obtained by the applicant.  The Tribunal finds the applicant to be a credible witness, who has made every effort to support his family by attempting to find employment.  The Tribunal accepts the applicant’s explanation for minor inconsistencies in aspects of his evidence.

28.      The Tribunal finds that the applicant satisfies the first three questions outlined in Flentjar.  The relevant remunerative work he was undertaking was the work at Fiesta Gardens Hotel and he was unable to continue because of PTSD.  After considering the medical evidence from Dr De Guzman and Dr Ramos, the Tribunal is satisfied that the applicant’s PTSD is the only reason the applicant is incapacitated to the extent that he is unemployable.  Although the applicant does not speak the local dialects, the Tribunal accepts the evidence from Dr Ramos that English is spoken widely in the area of the Philippines where the applicant lives.  For this reason the Tribunal does not accept Mr Herman’s submission, that the applicant’s language skills are a factor in his inability to work.  

29.      In relation to question 4 from Flentjar, the Tribunal finds that the applicant’s inability to work has resulted in a loss of salary, wages or earnings that was caused by his PTSD, and not by other factors.

30. For these reasons the Tribunal finds that the applicant, by reason of being prevented from continuing the work he was doing, suffered a loss of salary, wages or earnings on his own account that he would not have suffered if he were free of PTSD. He therefore satisfies s 24(1)(c) of the Act and there is no requirement for the Tribunal to consider the ameliorative provisions of s 24(2)(b) of the Act. Under s 120(4) of the Act, the Tribunal is reasonably satisfied that the applicant meets the requirements for eligibility for special rate of pension.

DECISION

31.      The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 8 December 2000.

I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Dates of hearing:                  5 December 2003, 27 October 2004

Date of decision:                   5 November 2004

Advocate for applicant:         Mr D. De Marchi

Solicitor for applicant:           De Marchi & Associates

Advocate for respondent:      Mr K. Herman

Solicitor for respondent:        Advocacy Section, Department of Veterans’ Affairs