Forbes and Repatriation Commission - [2002] AATA 1116

DECISION AND REASONS FOR DECISION [2002] AATA 1116

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/459

VETERANS' APPEALS DIVISION       )
           Re      PETER JOHN FORBES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date29 October 2002
PlaceAdelaide

Decision      The Tribunal sets aside the decision under review, and substitutes a decision that the applicant is entitled to payment of pension at the special rate, with effect from 1 February 1997.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – post traumatic stress disorder – whether applicant is suffering loss of salary or earnings as a result of his disability
Veterans' Entitlements Act 1986 section 24
Counsel v Repatriation Commission [2001] FCA 1032
Hill v Repatriation Commission [2000] FCA 929

REASONS FOR DECISION

29 October 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Repatriation Commission (the Commission) of 27 February 1998, as varied by the Commission on 6 May 1999. The decision increased Disability Pension to 70% of the general rate, with effect from 1 February 1997, but determined that the applicant was not entitled to payment of pension at either the intermediate or special rates. The Veterans' Review Board (VRB) affirmed the decision on 16 August 1999.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Broderick represented the applicant, who gave oral evidence. Ms Maharaj, of Counsel, represented the Commission.
The applicant is 54 years of age, and served in the Australian Army (the Army) from 1969 until 1971. He rendered operational service, within the meaning of the Veterans' Entitlements Act 1986 (the Act), in South Vietnam from 15 February 1971 to 26 May 1971. His accepted disability is post traumatic stress disorder (PTSD), and his rejected disability is hypertension.
The applicant maintains that he is eligible for payment of pension at the special rate, in accordance with section 24 of 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.
…"
It is not in dispute that the applicant satisfies sub-sections 24(1)(aa), (aab)(a) and (aab)(b) of the Act; and further that he satisfies that part of section 24(aab)(c) of the Act, to which section 24(2)(a) of the Act applies, namely the "alone" test; but it is the Commission's submission that he does not satisfy the second limb of the sub-section, the "but for" test. The Commission maintains that it has to be established that but for the disability, the applicant would not be suffering loss of salary or earnings. It maintains, also that the applicant has not suffered a loss as a consequence of his war-caused disability.
The parties' submissions were carefully prepared and reasoned, and this brief reference to their submissions does not purport to be a summary of the arguments, all of which I have taken into account in my deliberations.
The applicant gave lengthy evidence. I consider that he did his best to outline the history accurately, and without embellishment. He is a confused and poor historian, but I consider that this is attributable to his psychiatric condition, rather than to any attempt to mislead the Tribunal. I accept him as a witness of truth.
The applicant said in evidence that after his discharge from the Army in 1971, he returned to work on his father's farm at Cudlee Creek. He worked later in an underground mine at Kanmantoo, which closed in 1976. He obtained employment then with Mayne Nickless. For the 10 years from 1981 until 1991 he held a senior executive position as the National Fleet Manager. This involved supervision of personnel, policy decision making, overseas travel and provided a very good remuneration package. The applicant said that during the last 5 years of his employment with Mayne Nickless, he increasingly suffered from aggressiveness, anger, rage, mood swings, and depression; finally a situation was reached where the National Manager gave him the alternative of either leaving, or having his employment terminated.
The applicant gave evidence that during 1989 to 1991, prior to leaving Mayne Nickless, and whilst on annual and long service leave, he undertook several attempts to establish design engineering outlets overseas. These were not successful. After resigning from Mayne Nickless, the applicant applied unsuccessfully for some 200 positions during the next 12 months. He also prepared a series of submissions to overseas countries regarding his designs for armoured vehicles. He travelled to Turkey, Egypt and South Africa, but the project did not meet with success.
The applicant used the balance of his severance package to open a restaurant/café in Prospect, and commenced to operate the business as the chef, having obtained appropriate qualifications some years previously. He attempted to ensure that he avoided public contact. He employed staff (mainly university students), to perform "front of house" tasks, but that business failed after some 18 months, principally, he says, due to his inability to deal with the public. He says that he simply could not cope with the demands of the public, and the business became financially non-viable.
The applicant gave evidence that in about 1992, he started a project to seek alternative medicines for war veterans, which eventually turned into a business, named "Quality of Life". He had a good friend, Dr Oon, who was a natural practitioner and he assisted the applicant and became his partner. After a couple of years Dr Oon pulled out of the business, and the applicant found it too stressful talking to people, and became more and more depressed. The business was failing under his management, so he transferred it to his brother and sister, who took over the stock and the liabilities of the business, which they have continued to pursue.
In about 1993/94 the applicant was approached by a Vietnam veteran friend in the United States. He suggested starting a business importing supplements for the horse and dog racing industry in Australia. These would come from his mill in the United States. A partnership was formed, named "Edge Nutrition", and manufacturing and marketing commenced respectively within America and Australia. However, the partner committed suicide in 1996, and after legal proceedings with the deceased partner's estranged wife, the applicant, with the assistance of his brother and sister, continued to operate the company in Australia. The applicant said in evidence that he was continuing to suffer from depression. The business began to flounder, and he handed the daily operation to his brother and sister around 1997. In 1999, both businesses were formally transferred to his brother and sister. The applicant however, had no effective role in the running of the company after 1997.
The applicant and his American partner had established also, a business which would import second hand Peterbilt Trucks, prime movers, and spare parts for sale in Australia. This enterprise ceased when the partner died. In or about 1996 the applicant commenced work as a sales assistant 2 to 3 nights per week, at the Adelaide Pie Cart. This position continued for only about 3 months, as the applicant says he was unable to deal with the stress involved in serving customers with rush orders, and the levels of aggression exhibited by some of these customers.
The applicant in around 1996/97, commenced to work in his own right, as a casual cleaner for Clark Petroleum at Mile End. He worked from approximately 4.30 am, 5 days per week, for around 1.5 hours each day, and received a monthly contract fee for those services. Later in 1999 he ceased to carry out the cleaning work on the advice from his then psychiatrist, Dr Peter Furze. He said that Dr Furze considered that the hours of work were having an adverse effect on his mental health. He continued to be the nominal contractor to Clark Petroleum, but sub-contractors performed the work. All moneys received from Clark Petroleum were paid to these parties, and the applicant received no continuing benefit from the contract.
Dr Furze had reported on 22 January 1999, in part, as follows:
"…
Mr Forbes continues to show core signs of PTSD (i.e. intrusive emotionally wracking memories, avoidance and disengagement and high levels of physiological arousal (sleep disorder, hypervigilance, irritability and easily facilitated startle reaction). In my opinion Mr Forbes immersion in his import business and projects is at least in part an avoidance technique that permits him to sidestep his problems through a type of workaholism. The business activities have not, from the information given to me, been in any measure financially successful and seem to serve the above function.
I consider Mr Forbes psychological state would be improved by leaving his business and dealing with his Vietnam issues directly in counselling rather than avoidance and I have encouraged him in his late move to hand the operation of them to his sister, Jan. He is a proud and independent man and I have little doubt that letting these go and no longer having their avoidance protection will be initially difficult for him. I consider it will be better for his long term health.
… His work as a cleaner is highly constrained by its nature (he works totally alone) and I doubt that he could realistically cope with any increase in hours. Given its timing (early hours of the morning), I doubt that it is a particularly health[y] activity due to sleep pattern disruption. It is however, the source of this man's major income over the last several years." [T17/63-64]
At Comcare's request, the applicant was seen by Professor AC McFarlane, Professor of Psychiatry, Adelaide University, on 20 March 2002. On 27 March 2002, Professor McFarlane reported that it was his view that the applicant continued to suffer from PTSD, and that because of the PTSD and related anxiety symptoms, he was unable to work for more than 8 hours per week. Professor McFarlane stated also, that because the applicant had difficulty answering specific questions about time during the interview, he was unable to make a precise statement as to the approximate date the applicant first would have become so incapacitated that the condition alone rendered him incapable of undertaking remunerative work [Exhibit R5].
The applicant said in evidence that in recent years he has become active in the Vietnam Veterans' Association, and is now the Australian representative of the Association and travels to the United States for three Joint Board Meetings per annum. He has formed a relationship with an American lady, who is involved with the United States Association, and with the Gulf War Veterans' Coalition. In the last 2 years he has spent up to 7-8 months per year in the United States.
Turning to the question as to whether the applicant satisfies section 24(1)(aab)(c) of the Act. This matter was addressed by Moore J of the Federal Court of Australia in Counsel v Repatriation Commission [2001] FCA 1032. His Honour said at paragraph 11:
"I deal with the first issue raised by the applicant. That is, whether the Tribunal erred by construing the expression "loss of earnings on his own account" as requiring a loss of net earnings, namely gross earnings less deduction of expenses. The meaning of the expression "earnings on his or her own account" in s 24(2A)(e) has to be ascertained having regard to the statutory context in which the expression appears. It is clear that both the reference to "earnings" in s 24(2A)(e) and "salary or wages" in the same paragraph concern the product of "remunerative work" in the preceding paragraph viz s 24(2A)(d). That is, one criterion that must be satisfied to secure a special rate of pension is that the veteran has been prevented from continuing in remunerative work because of the war-caused incapacity (flowing from war-caused injury or disease) and another criterion is that because the veteran has been prevented from working in this way, he or she is suffering a loss of salary, wages or earnings."
In the matter of Hill v Repatriation Commission [2000] FCA 929 Wilcox J observed at paragraph 11:
"There may be cases where an activity in which a veteran engaged failed to return a net profit to the veteran, but may nonetheless be regarded as "remunerative work" for the purposes of s24(1)(c). One example may be a case where the veteran attempted to establish himself or herself in a particular activity, being a continuation of remunerative work previously undertaken by the veteran, but was denied success by his or her war-caused disability. If the decision maker was satisfied that the attempt would have been successful, in the sense of providing "earnings on his or her own account" – that is, net earnings after deduction of expenses – but for the war-caused disability, I see no difficulty about concluding that the veteran has been prevented, by the war-caused disability, "from continuing to undertake remunerative work that the veteran was undertaking" and, by reason thereof, has suffered a loss of earnings on his or her own account.
…"
Dr Furze, in his report of 5 September 2000, described the applicant as "an intelligent, creative and charismatic man with a fertile imagination", who he was sure will come up with new projects and dreams in the future, but that it was doubtful that he has the ability to translate any of these "castles in the air" into reality [Exhibit A3]. The applicant impressed me as just such a man. He has made business and personal contacts, sometimes with fellow former servicemen, through his enthusiasm and imagination, and on occasions those persons have been involved financially with the applicant's projects. I consider however, that apart from the second hand prime mover business, which could not continue without the American partner, the other businesses could have continued to provide remunerative work, had it not been for the applicant's depression and inability to relate to others.
I am reasonably satisfied, on the evidence, that the applicant is, by reason of his incapacity from his war-caused condition, prevented from continuing to undertake the remunerative work that he was undertaking, and is by reason thereof, suffering a loss of earnings, that he would not be suffering if he were free of that incapacity. I am reasonably satisfied, on the evidence, that the applicant satisfies section 24 of the Act, and is eligible for payment of pension at the special rate.
For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision that the applicant is entitled to payment of pension at the special rate, with effect from 1 February 1997.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  11/12 April 2002
Date of Decision  29 October 2002
Counsel for the Applicant        Mr P Broderick
Solicitor for the Applicant         Lempriere Abbott McLeod
Counsel for the Respondent    Ms S Maharaj
Solicitor for the Respondent    AGS