FORSYTH and REPATRIATION COMMISSION
[2011] AATA 528
•29 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 528
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0401
VETERANS' APPEALS DIVISION ) Re DENIS FORSYTH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, RFD, Senior Member Date29 July 2011
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Forsyth is qualified for the special rate of pension under s 24 of the Veterans’ Entitlements Act 1986 (Cth).
.................[Sgd]....................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions, benefits and entitlements – Disability pension – Special rate – Operational service with Australian Army in Vietnam – Provisions of Veterans’ Entitlements Act 1986 for payment of pension at special rate satisfied – Decision under review set aside
Veterans’ Entitlements Act 1986 (Cth) s 5Q, 24, 28, 31
Banovich v Repatriation Commission (1986) 69 ALR 395
British American Tobacco Australia Services Limited v Laurie (2011) 273 ALR 429; [2011] HCA 2
Chambers v Repatriation Commission (1994) 33 ALD 473
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Flentjar and Repatriation Commission (1997) FCA 1200; (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman v Repatriation Commission [1997] FCA 564
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Livesey v NSW Bar Association (1983) 151 CLR 288; [1983] HCA 17
R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256
Re Carruthers v Connolly, Ryan & Attorney-General [1997] QSC 132
Repatriation Commission v Hendy [2002] FCAFC 424
Webb v R (1994) 181 CLR 41; [1994] HCA 30
REASONS FOR DECISION
29 July 2011 Dr K S Levy RFD, Senior Member INTRODUCTION
1. The applicant, Denis Forsyth, was a National Serviceman who served in the Australian Army from July 1968 until May 1970. He served as an infantryman with the 6th Battalion, Royal Australian Regiment and had operational service in Vietnam from May 1969 to May 1970. The applicant has accepted conditions of post traumatic stress disorder, bilateral sensorineural hearing loss and tinnitus, alcohol dependence, hepatic steatosis and erectile dysfunction. Relevant to the present review is that he sought a special rate of pension in an application to the Repatriation Commission dated 23 June 2009 and which was lodged on 18 August 2009. That application was rejected on 19 February 2010. Mr Forsyth then sought review of that decision to the Veterans’ Review Board, which affirmed the decision not to pay Mr Forsyth the special rate of pension on 13 December 2010. Mr Forsyth now appeals to this Tribunal in respect of that aspect of the Repatriation Commission’s original decision.
ISSUES
2. The applicant’s case is based on a contention that the Veterans’ Review Board “failed to properly address evidence before it”. The issues to be determined by this Tribunal are therefore:
(1)Is the applicant entitled to pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act); and
(2)If the answer to 1 is “no”, is the applicant’s pension properly assessed at 90% of the general rate (as previously determined)?
EVIDENCE
3. The previous history and decisions have been provided to this Tribunal. In addition, there is evidence of the applicant, his wife Mrs Susan Forsyth, Mr Paul Menadue, a former supervisor from the Department of Public Works and evidence of Dr Jonathan Hargreaves, Psychiatrist. Each of those parties had provided written statements or reports and also gave oral evidence.
Mr Forsyth
4. The applicant provided evidence in his statement made by statutory declaration dated 6 August 2009. Prior to National Service, he was employed as a Clerk in the Department of Public Works from 31 March 1964 until his period of National Service. He returned after National Service and worked in the same Department, undertaking a similar administrative role until his redundancy from that Department 20 September 2002. The applicant’s statement shows he saw active service. On his return to work in the Queensland Public Service, he developed a work preference for mostly working alone or at least not in groups or in a team. He states that his behavioural traits at work indicated some psychological dysfunction and that he drank alcohol regularly in his lunch hours and after hours.
5. Under cross-examination by Mr Kelly, Mr Forsyth stated he started work at 16 years of age in the Department of Public Works in 1964. He left school after completing Grade 10. After approximately four years service he was conscripted into National Service for two years. He resumed his position with the Department of Public Works until he accepted a voluntary redundancy in 2002, after approximately 39 years of service in the Queensland Public Sector.
6. He described his career as rising from a Junior Clerk and then through the administrative stream, where he processed work orders into the financial system of the Department. In the latter part of his service he was required to use computers which he did not adjust to easily.
7. His work life involved going to drink at hotels in the lunch hour, sometimes alone and sometimes with work colleagues. He stated that it never got to the point where he was formally counselled at work because of drinking affecting his work output, although he did have some confrontations towards the end of his service with some staff members. Mr Forsyth also suffers from sleep apnoea (which is not an accepted condition of his war service), which occurred concurrently in the later part of his working life with the Department of Public Works, together with his drinking problems. Mr Forsyth told the Tribunal that he had been approached by his then supervisor Mr Paul Menadue in 2000 and offered a voluntary early redundancy. As he had been having some difficulties for a considerable time adjusting comfortably to his work situation, Mr Menadue had recommended that Mr Forsyth was a person who should be offered such a redundancy. He was 54 years old at the time and not quite of retirable age.
8. Mr Forsyth accepted a redundancy, which entitled him to one year’s salary on exit from the public sector. He also had considerable long service leave owing to him. He applied for and was granted a service pension in 2004. After taking his redundancy, he said he considered himself retired and did not look for work.
Mrs Susan Forsyth
9. Mrs Forsyth gave evidence and agreed that a letter that she had sent to the then Minister for Veterans’ Affairs dated 30 May 2006 was drafted by her and was a truthful statement. She described her husband’s life pattern from 12 months after he returned from Vietnam which was when she first met him. They subsequently married and had been so married for 36 years at the time of the statement was written five years ago. They remain married. Mrs Forsyth amplified her written evidence with a statutory declaration dated 30 March 2010 (folio 61) and also with oral evidence presented to the Tribunal.
10. Mrs Forsyth described her husband as a person who “hated change” and was always stressed on weekends about what his work environment would be like when he went back to work on the following Monday. This was so even though he had worked in the same environment for 33 years. She described him as “always stressed” and provided an example of how he had a panic attack when caught in heavy traffic on the South East Freeway on their way to work one morning. She also described him as having drunk too much in the lunch hours and at home in the evenings, where he drank and fell asleep by 8:30pm. He invariably had disturbed sleep and would awaken about 2:30am. The same pattern continued for years. Her evidence was that she regards him as drinking “to get relief then pass out”. She also described him having sleep apnoea which had been diagnosed more recently, but he now has a CPAP machine. The machine was described as providing better quality sleep, although the pattern and duration of sleep was not dissimilar to earlier years.
11. Mrs Forsyth also described that the applicant had progressively had concentration difficulties and that his career had allowed him to rise to an administrative officer Grade 4 only 12 years before his retirement. This was in the context of a person who worked in the same organisation for 38 or 39 years and where the administrative stream went from Administrative Officer Level 1 through to Administrative Officer Level 8 (with Senior Officer Levels above that range). She realised he had not been coping very well for some time; he had described his work situation as being one where he could not gain promotion, he could not cope with interviews and he did not effectively benefit from training in the workplace. She said that Mr Forsyth discussed with her that he then received an offer of redundancy.
12. Mrs Forsyth described her husband since finishing work as somebody who still seemed psychologically unsettled, and that retirement or ceasing work had not improved the dysfunction that she had observed for many years. In her letter to the Minister dated 30 May 2006 (folios 7 and 8) she revealed not only her own suffering living with such a person, but also that in the year prior she had met some of Mr Forsyth’s former army colleagues and learnt more about his army service from them than she had ever heard from her husband.
13. Under cross-examination, Mrs Forsyth stated that she had not noticed any change in her husband’s demeanour since ceasing work and had not suggested that he should look for another job. She regarded him as being totally and permanently incapacitated, even when he was working. In response to a question I asked her, she could not make a comparison between his personality prior to his military service as she did not know him then, nor did she have any knowledge of him from his family members as having any psychological difficulties prior to his military service.
Dr Hargreaves
14. Dr Hargreaves provided a report on the applicant dated 12 July 2004. He also provided a more recent report dated 29 January 2010.
15. In his first report, Dr Hargreaves’ clinical history of the applicant was gained of Mr Forsyth’s service in Vietnam and he made some observations of Mr Forsyth’s psychiatric state. He also gained informative collateral history from interviewing the applicant’s wife. He concluded, after interviews as well as conducting the Davidson structure interview for post traumatic stress disorder (PTSD), that the applicant had chronic PTSD which appeared attributable to his military service.
16. Dr Hargreaves’ subsequent report of 29 January 2010 found that Mr Forsyth had post traumatic stress disorder and alcohol dependency syndrome, and that the most likely cause of those conditions was his operational service in Vietnam. Dr Hargreaves reported the date of onset of each of the conditions as emanating from a period in his life which was contemporaneous with his return from Vietnam. He told Dr Hargreaves that he had been urged by his wife and his sister to seek help because of apparent stress at that time in his life. Dr Hargreaves also understood Mr Forsyth had intrusive thoughts and memories from that period in his life and that his psychological condition had worsened approximately 18 months before he initially saw the applicant in 2004.
17. Some of the facts which form the basis of Dr Hargreaves’ opinion, particularly the applicant’s drinking pattern, were based on information from Mrs Forsyth. However, Dr Hargreaves’ professional view was that Mr Forsyth had post traumatic stress disorder and alcohol dependence at a moderate level of severity, that he was unfit for work and that there were no factors predisposing the applicant to such conditions other than his army service. He noted that the incapacity for work was associated with problems with concentration and short term memory as well as loss of confidence. Dr Hargreaves noted that Mr Forsyth’s attitude in the workplace at the time of ceasing work was accompanied by feelings of dissatisfaction and even anger about younger persons in the workplace who had better qualifications but less experience.
CONSIDERATION
18. I have given consideration to all the evidence presented at the Tribunal hearing, including the documentary evidence.
19. I will deal first with a preliminary issue. At the conclusion of the evidence of the applicant’s wife, there was a brief adjournment. Upon resuming the hearing Counsel for the applicant, Mr Harding, made a submission that the applicant’s wife (who had just given evidence) made a comment in the adjournment that she recognised me as having previously worked in a government Department where she was the secretary to a senior officer who once worked for me. She recalled that her supervisor did not have a good working relationship with me at that time. There was a further adjournment for me to consider the law and whether I regarded that there was an apprehended bias on my part. Following the second adjournment, Mr Harding then said that Mrs Forsyth said that her supervisor had indicated that the relationship between the supervisor and myself was particularly bad and quite toxic. I considered the law and the submission as follows. Fundamentally, any claim of apprehended bias is an issue of procedural fairness and is affected by the hearing rule and the bias rule. As was said in R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256:
Those requirements of natural justice are not infringed by a mere of nicety but only when it is firmly established that a suspicion reasonably be gendered in the minds of those who come before the Tribunal or in the minds of the public the Tribunal or a member or members of it may not bring to the resolution of the questions arising before the Tribunal fair and unprejudiced minds.[1]
[1] Cited in British American Tobacco Australia Services Limited v Laurie (2011) 273 ALR 429; [2011] HCA 2.
20. Mr Harding referred me to Re Carruthers v Connolly, Ryan & A-G [1997] QSC 132 as an authority that I should disqualify myself. I have considered that decision and it is referred to again below.
21. “Bias” is defined in the Concise Oxford Dictionary as an “inclination, predisposition (towards); prejudice; influence”. It is clearly intended to indicate lack of integrity, particularly in decision-making or treatment and in the context of a Court or Tribunal connotes a lack of independence or prejudice (Livesey v NSW Bar Association (1983) 151 CLR 288).
22. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343, the High Court of Australia described the test for determining whether there was apprehended bias as being “… if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (at [6]).
23. The Court referred to two questions which arise:
(1)In relation to the lay observer – what apprehension he or she might reasonably have; and
(2) In relation to the judge or Tribunal member – whether he or she might not bring impartiality to the decision making required.
24. The High Court said these possibilities must be “real and not remote” (at [7]). It amplified this by stating two steps are required:
1)…the identification of what it is said might lead to a judge (or juror) to decide the case other than on its legal and factual merits.
2)…an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits…
25. The reasonableness of the claim or assertion cannot be assessed until those matters are specified (see at [8]).
26. In Webb v R (1994) 181 CLR 41, Deane J in the High Court of Australia identified four categories of bias to which may lead to disqualification:
1)Disqualification by interest;
2)Disqualification by conduct;
3)Disqualification by association; and
4)Disqualification by extraneous information.
27. For present purposes it seems to me it is the third of those categories which is relevant. The test for apprehended bias is the same for all of those categories. It was suggested by Counsel for the applicant, based on the statement by the applicant’s wife after she had given evidence and following the short adjournment (which was then unrelated to the applicant’s wife assertion), that she had raised an apprehended bias on my part. She stated that she recognised me as having been a senior officer in Government when she was secretary to another senior officer. That senior officer for whom she worked had commented that there was a poisonous working relationship between myself and her supervisor.
28. When Counsel brought this to my attention, I noted that the witness’ face had some familiarity but I had not previously identified her. I accept now that I had seen her in the past and that she did work for the same Department. I recall also the person to whom she referred. The allegation has not to my knowledge ever previously been put to me by the officer to whom she refers and certainly not in that context. The person to whom Mrs Forsyth refers was in a subordinate position to mine when I was a Deputy Chief Executive. If that person had described that relationship in that way to her secretary, she certainly had not described it that way to me. That perception was certainly not my understanding of that working relationship. In any event, I did not at the time of the applicant’s wife giving evidence recall her. It is now approximately 20 years since the working relationship with the supervisor to whom Mrs Forsyth refers. She was the secretary to this person and I undoubtedly saw her 20 years ago and said ‘good morning’ to her on occasions. To the best of my recollection that was the extent of my dealing with her.
29. As was stated by the High Court in British American Tobacco Australia Services Limited v Laurie, “…the rule is concerned with the appearance of bias and not the actuality, it is the perception of the hypothetical observer that provides the yardstick” (at [139]). I do not understand the assertion by the applicant’s wife to be that I had formed a preliminary view of her or the applicant’s matter in this case, but rather, it implies that because her supervisor over 20 years ago apparently said disparaging remarks about me (who was a subordinate of mine and not my superior), that there may be some prejudice on my part towards her husband’s matter. There has been no suggestion, however, that her supervisor from 20 years ago has any knowledge of or connection with her husband. As Thomas J said in Re Carruthers v Connolly, Ryan & A-G (supra) citing comments of the High Court of Australia in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100:
…what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.
30. To regard the assertion by the applicant’s wife about a comment made by her supervisor (the content of which for the present purposes is hearsay evidence of another person who was in a subordinate management position to myself 20 years ago) and the person to whom those comments are attributable is in no way connected with this application, seems to me to be too remote in relation to a lay observer’s reasonable apprehension of impartiality. In the context of myself as a Tribunal Member being able to bring impartiality to a determination of the issues in this case, it seems to me that the assertions made (which are unsupported and uncorroborated in any other way), could not objectively found a “reasonable fear” of prejudice. It appears to me an objective bystander would not form a view that there is any sufficient logical connection to the present matter and is therefore too remote. On the basis of considering the authorities above and the claim as articulated, I recuse to disqualify myself in this matter.
The Relevant Legislation
31. Eligibility for the special rate of pension is provided for in s 24 of the Act. That section relevantly provides:
SECTION 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 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:
…
32. The onus of proof in this matter is on the applicant. The standard of proof is that set out in s 120(4) of the Act, ie “reasonable satisfaction”.
33. The original decision which determined that the rate of pension should be remain at 90% of the general rate must be assessed in accordance with the assessment period specified in s 31 of the Act. It is accepted that Mr Forsyth satisfies s 24(1)(aa) and also s 24(1)(aab) of the Act, in that he is currently recognised for pension at the general rate and had not turned 65 years of age when the claim was made. The respondent also accepts that the applicant satisfies s 24(1)(a), in view of the fact that he is in receipt of a pension of at least 70% of the general rate. The respondent does not accept that the applicant satisfies ss 24(1)(b) and 24(1)(c).
34. In dealing with the remaining provisions of s 24, I have considered the evidence as a whole and also that the applicant clearly saw active service in Vietnam; there was no dispute about the fact that he was wounded. The Tribunal was provided with a copy of the publication “We Too Were ANZACS” by Lieutenant‑Colonel Brian Avery which describes the operations of 6RAR at the time Mr Forsyth served in Vietnam. The applicant stated that he was wounded by a grenade early in his tour and came face-to-face with Viet Cong immediately before the grenade was thrown. He was then the subject of a ‘casevac’ and airlifted to hospital where he remained for 12 days. He was then returned to active service and saw subsequent action. The fact that he was wounded is recorded as part of Operation Mundingburra (see page 131 of “We Too Were ANZACS”). The evidence is uncontradicted that he has had a withdrawn and detached personality since his return from Vietnam.
35. The diagnostic criteria for PTSD are set out in Statement of Principles No. 5 of 2008 and are extracted from DSM-IV-TR. In particular, the diagnostic criteria of being exposed to a traumatic event and that the person experienced or witnessed or was confronted with an event that involved actual threatened death or serious injury (criterion A) is not in question. There seems to be no dispute that he would have responded with some intense fear, helplessness or horror at that age and stage of his military service (criterion A). The evidence of Dr Hargreaves refers to the other criteria of PTSD, in particular, that he has persistently re-experienced some of the intense psychological distress caused by that experience (criterion B). There has also been persistent avoidance of a number of stimuli which could be associated with that traumatic period in his life. In particular, avoidance of activities and places; marked diminished interests in activities; feeling of detachment or estrangement from others (criterion C) and persistent symptoms of increased arousal including difficulty with sleep; irritability or anger and difficulty with concentration (criterion D). Dr Hargreaves also noted that the applicant has a clinically significant condition and that there are no identifiable pre-existing personality or other factors that could be attributable to the onset of Mr Forsyth’s present condition.
36. I therefore make a finding of fact that Mr Forsyth has PTSD and that the date of onset is at least from the time of his return from Vietnam to Australia. In that context, the remaining provisions of s 24 must be examined.
37. In relation to s 24(1)(b), the veteran would be regarded as totally and permanently incapacitated from his war-caused injury alone if he is incapable of working more than eight hours per week. Accepting that he has a diagnosis of PTSD, Dr Hargreaves stated under cross-examination that Mr Forsyth could perhaps work for an hour a day every day but he would not reliable enough to be able to consistently work every day. He said that the applicant’s condition would escalate and his condition would deteriorate.
38. Dr Hargreaves noted in fact that after Mr Forsyth retired his condition actually got worse. He described being around people as not being conducive to Mr Forsyth’s good health and pointed to the fact that if it was only work-related stress, that he would have been expected to be getting better after he ceased work. That was not the case. Dr Hargreaves said that is indicative of the fact that he had not been treated and therefore the underlying permanent condition of PTSD remained. Therefore, the evidence points to Mr Forsyth satisfying s 24(1)(b) in that he is incapable of undertaking remunerative work for more than eight hours per week.
39. Section 28 of the Act refers to the test in s 24(1)(b), which requires determination of the vocational and professional skills, qualifications and experience of a veteran; the types of work the veteran might now be able to undertake; and the degree to which the veteran’s impairment prevents him undertaking the kind of remunerative work which a veteran is qualified and experienced to perform. This is interpreted broadly (Chambers v Repatriation Commission (1994) 33 ALD 473) and in this case refers to work of an administrative or clerical nature. The opinion of Dr Hargreaves, and his explanation of his conclusion above, shows that Mr Forsyth is not capable of working effectively for more than eight hours per week. I find the applicant satisfies s 24(1)(b) because of war-caused injury alone.
40. In relation to question 24(1)(c) the veteran must, by reason of the incapacity due to war-caused injury alone, be prevented from continuing to undertake remunerative work. Remunerative work is defined in s 5Q(1) as meaning “any remunerative activity”. It is also to be assessed by the four stage scheme set out in Flentjar and Repatriation Commission (1997) FCA 1200; (1997) 48 ALD 1. These are as follows:
(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 reasonable war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(3)If the answer to (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, be reason of being prevented from continuing to undertake that work, suffering a loss of salary or wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
41. At the outset, I note that the “assessment period” starts on 18 August 2009, the date Mr Forsyth lodged his original claim, and ends on the date of the Tribunal’s determination (s 19(9)).
42. In relation to question (1), this aspect of s 24(1)(c) is concerned the applicant’s inability to continue “remunerative work” appropriate to his skills and experience, and a consequential loss of salary or wages. This relates to the type of work which the applicant had previously undertaken. It is not concerned with the last occurrence of work, but rather with what is the predominant classification of work previously undertaken by Mr Forsyth (Banovich v Repatriation Commission (1986) 69 ALR 395). Mr Harding submitted that the relevant remunerative work was that of an administrative clerk. The respondent made similar submissions but qualified Mr Forsyth’s “remunerative work” as being a public servant or clerk in a “specialised area”. That was based on having only worked in one Department for 39 years. In a modern office, however, that would not be narrow in the sense of being able to perform administrative work more generally and the specialised industry group within which Mr Forsyth had actually worked would not necessarily be a limiting factor to being employable. I accept that the relevant remunerative work of the applicant for the purposes of this subsection is that of an administrative clerk.
43. In relation to question (2), this is to be an assessment of whether the applicant is prevented from “continuing” to undertake the remunerative work identified in question 1. The respondent effectively relies on ss 24(2)(a) and (b), arguing that he ceased work for reasons other than his war-caused injury or disease, or that he is incapacitated for some other reason. Dr Hargreaves gave evidence that the applicant would sometimes not be capable of working every day and would at times not even be reliable enough to work every day. He pointed out that the applicant’s condition has worsened since he ceased work and the fact that stopping work has not cured his condition is indicative of PTSD. In relation to the sort of work which the applicant previously did, it seems that his degree of competence was adequate in a technical sense. However, what was debilitating for him appears to be the stress of social contact and working with other people. He was not a difficult employee, at least not most of the time, but Mr Menadue described him as ‘not coping’ at work. Mr Menadue said that the applicant was not comfortable in a team environment and was not coping well with change, particularly as client Departments became more responsible for work that Mr Forsyth had previously done working in the Department of Public Works. However, Mr Menadue emphasised that he had never had cause to report the applicant or have him charged for incompetence, being drunk at work or being absent from duty during official hours. It was his inability to adapt to change and he was obviously very uncomfortable in the environment in which he worked. The diagnosis of PTSD by Dr Hargreaves is accepted as there is no contradictory evidence of the symptoms. I therefore find that Mr Forsyth is prevented from continuing to undertake work as an administrative clerk similar to that which he had previously enjoyed.
44. In relation to question (3), I must consider whether his PTSD alone, prevents him from undertaking the work of an administrative officer. The applicant’s Counsel points to the fact that at the age of 63, it is not that Mr Forsyth might not be expected to work. Clearly, no other physical disability exists which might prevent the applicant from working. Mr Harding submitted that sleep apnoea may have played some part in his overall disability in 2004 but it was not a factor which stopped him from working. The respondent pointed to the factors that he was not sacked from work, nor was his work unsatisfactory. The respondent submitted that it was not the disabilities “alone” that were the factors in determining his reason to cease work. The respondent points to the fact that there was an offer of early retirement, some dissatisfaction with the organisation and/or the change in culture in the workplace and other factors. The respondent also claims that time out of the workforce since his retirement and lack of recent work experience were all contributing factors.
45. I accept that the factors listed by the respondent could play a role in aggravating an applicant’s continuing employment. However, this question is a pragmatic one and refers to whether the applicant’s incapacity for work is attributed to his service related injury (and consequential psychiatric incapacity) alone. In other words, if there is a non-service related factor which is determinative of an inability to work, or to continue to work, then that will be sufficient to disqualify the applicant from receiving pension at the special rate. If, as in this case, there is a substantial gap in time between an applicant’s cessation of work and subsequent application for recognition under s 24, that time out of the workforce and therefore lack of recent experience will be a relevant consideration for the Tribunal to take into account. (Repatriation Commission v Hendy [2002] FCAFC 424.)
46. It has been held not to be a test applied rigidly but there must be some degree of reasonableness guided by common sense and an “eye to reality” (Jackman v Repatriation Commission [1997] FCA 564). That “eye to reality” has been described subsequently by referring to non-war caused factors which would not prevent an applicant succeeding, provided it is apparent that the war-caused condition was “by far and away most dominant of the causes” (Forbes v Repatriation Commission (2000) 101 FCR 50 at 57 [paragraph 40]). That principle has been approved by the Full Court of the Federal Court in Repatriation Commission v Hendy (supra).
47. There appears to be no other factor which has prevented the applicant from continuing to work other than his PTSD. He may concurrently have had sleep apnoea but there is no evidence which points to that being critical in his decision to cease work. The inability to effectively work has been particularised with certain symptoms, all of which are diagnostic criteria for PTSD.
48. I think the most appropriate conceptualisation in this case is that while Mr Forsyth may have had sleep apnoea (which may have had some effect on his alertness at work), that is independent of his other behavioural patterns, all of which seem to be part of the indicia of PTSD. The pattern of withdrawal and discomfort with work and with others at work seems consistent with his PTSD symptoms, and an ‘eye to reality’ shows it is his operational duty and the impact and duration of that difficult service he performed as a soldier in Vietnam which has led to his incapacity at work. I accept Dr Hargreaves’ explanation and that Mr Forsyth’s inability to work satisfies the standard of proof on the balance of probabilities. I therefore conclude that Mr Forsyth satisfies s 24(1)(c) of the Act. It is therefore unnecessary to consider the fourth question of the Flentjar regime.
49. Mr Forsyth is therefore qualified for pension at the special rate.
DECISION
50. The decision of the Repatriation Commission is set aside and a decision is substituted in its place that Mr Forsyth is qualified for the special rate of pension under s 24 of the Act.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member
Signed: .........................[Sgd]........................................
Danielle Armstrong, Research AssociateDate/s of Hearing 9 June 2011
Date of Decision 29 July 2011
Counsel for the Applicant Mr Anthony Harding
Solicitor for the Applicant Mr John Cockburn
Solicitor for the Respondent Mr Jeff Kelly, departmental advocate
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