Freer and Repatriation Commission
[2005] AATA 1256
•15 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1256
ADMINISTRATIVE APPEALS TRIBUNAL № V2004/449
VETERANS' APPEALS DIVISION
Re: KEVIN NEIL FREER
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Dr P.D. Fricker, Member
Date:15 December 2005
Place:Melbourne
Decision:The Tribunal sets aside the decision under review.
(sgd) E. Fice
Member
VETERANS' AFFAIRS – disability pension – special rate
Veterans' Entitlements Act 1986
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
15 December 2005 Mr E. Fice, Member
Dr P.D. Fricker, Member
1. On 24 July 2002 Mr Kevin Neil Freer lodged a claim for disability pension for asthma on the grounds that it was a war‑caused disease. A delegate of the Repatriation Commission (the Commission) re‑named Mr Freer's condition as chronic obstructive airways disease (COAD). Although the Commission refused Mr Freer's claim, another delegate varied the decision on 4 December 2002, at which time his claim for COAD was accepted and his disability pension was granted at 100 per cent of the general rate, with effect from 24 April 2002. Mr Freer was dissatisfied with the decision of the Commission contending that he was entitled to a disability pension at the special rate. On 21 February 2003 he applied to the Veterans’ Review Board (the VRB) for review of that decision.
2. On 28 April 2003 he lodged a further claim for anxiety/depression and impotence, which he said were also war‑caused. A delegate of the Commission re‑named Mr Freer's claim for anxiety/depression as anxiety disorder with symptomatic alcohol abuse and depressive disorder. On 19 June 2003 a delegate of the Commission accepted Mr Freer's claim for impotence with effect from 28 January 2003; but rejected the claim for anxiety disorder with symptomatic alcohol abuse and depressive disorder. That decision was affirmed by the VRB on 18 February 2004 as was the decision to grant Mr Freer a disability pension at the general rate. Mr Freer sought review of both decisions.
3. Immediately prior to the matter coming on for hearing, and after a delegate of the Commission submitted that the appropriate diagnosis in Mr Freer's outstanding claim should be post traumatic stress disorder (PTSD) with symptomatic alcohol abuse and depressive disorder, the Tribunal was notified that the Commission conceded Mr Freer's claimed condition of PTSD as having been war‑caused in accordance with s 9 of the Veterans' Entitlements Act 1987 (the Act). Therefore, the only issue which the Tribunal is required to resolve is whether Mr Freer is entitled to receive a disability pension at the special rate.
BACKGROUND
4. Mr Freer was born on 5 October 1944, making him 57 years old at the time he made a claim for a disability pension under s 14 of the Act. He enlisted in the Australian Army (the Army) on 20 February 1964 and he was discharged on 21 February 1986. Mr Freer saw operational service in Brunei, Sabah and Sarawak between 23 April 1966 and 26 August 1966.
5. After leaving the Army, Mr Freer worked as a driver for Willis Bus Service at Vermont in Victoria for six to eight months. In 1986/1987 he worked for Coles Myer as a security guard at its distribution centres in the Melbourne CBD. In 1988 and 1989, after he and his wife moved to Sydney following his wife's employment there, he obtained employment at the Westpac Bank in Miller Street, North Sydney as a clerk. Mr Freer has not engaged in remunerative work since leaving the Westpac Bank, other than for some seasonal work as a fruit picker between 1989 and 1993. He also did some unpaid bookkeeping work to assist his brother‑in‑law who was a licensee of a hotel at Ballan.
6. According to Mr Freer, he started to experience breathing problems in 1989 when working for the Westpac Bank in North Sydney. At that time, he was not aware that he may have been eligible for a disability pension. According to Mr Freer, by 1993, his lung functioning had deteriorated to the point where physical labour was becoming most difficult and manoeuvring the caravan that he and his wife were living in while they toured around Australia between 1989 and 1993, was causing him stress. Mr Freer and his wife then settled in Mulwala, in New South Wales, where he sought employment in positions which were physically less demanding. He was unsuccessful in those attempts.
7. Mr Freer was diagnosed as suffering from COAD in 2002. The Commission accepted Mr Freer's claim as war‑caused on 29 September 2002. Although the Commission originally rejected Mr Freer's claim that his PTSD was war‑caused, in a letter dated 17 November 2005 addressed to the Tribunal, the Commission said that it had conceded Mr Freer's claim for PTSD.
CONSIDERATIONS
8. The only issue remaining before the Tribunal in this matter is whether Mr Freer qualifies for a disability pension at the special rate. In order to succeed in this claim, Mr Freer must first meet each of the requirements set out under s 24(1) of the Act. At the hearing of this matter, the Commission conceded that Mr Freer met all of the requirements for a pension at the special rate set out in s 24(1) except for those in s 24(1)(c), which provides:
(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
…
9. Mr Freer did not seek to rely on s 24(2) of the Act, because he claimed that his accepted war‑caused diseases alone prevented him from continuing to undertake the remunerative work that he was undertaking prior to suffering from his accepted war‑caused diseases. However, Mr Freer did not entirely exclude reliance on s 24(2) in the event that the Tribunal were to find that he ceased to engage in remunerative work for reasons other than incapacity from his war‑caused diseases.
10. The Commission argued that Mr Freer resigned from the Westpac Bank for reasons other than his accepted conditions of PTSD and COAD. The Commission contended that Mr Freer ceased working because he was happy to retire in 1989, as he could manage on the pension he received from the Defence Forces Retirement and Death Benefits (DFRDB) fund and some rent from a house which Mr and Mrs Freer owned. The Commission also argued that, given the lengthy period of time which elapsed between Mr Freer ceasing to engage in remunerative work in 1989 and the commencement of the assessment period (which under s 19(9) of the Act is defined as commencing on the application day), some 13 years, the lack of recent work experience, time out of the workforce and his age have all contributed to preventing Mr Freer from continuing to undertake remunerative work.
11. Justice Branson, with whom Beaumont and Merkel JJ agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4‑5, set out four questions which are relevant to the consideration of s 24(1)(c) of the Act. They are:
…
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?
12. In answer to the first question, the parties agreed that the remunerative work which Mr Freer was undertaking, within the meaning of s 24(1)(c) of the Act, was that of a legal clerk.
13. The Commission disputed Mr Freer's claim that his war‑caused diseases prevented him from continuing to undertake work as a legal clerk. The Commission contended that, as Mr Freer was fit at the time of his discharge from the army in 1986, it is highly unlikely that some three years later he was so severely incapacitated that he could no longer work. The Commission submitted that Mr Freer elected not to continue working at the Westpac Bank because he was able to receive the DFRDB pension and that he found the work at the Westpac Bank as a law clerk demeaning after retiring as a Major in the Army. The Commission also contended that, if Mr Freer had indeed been suffering from his diseases to such an extent that he could no longer work, he would have obtained a certificate from a doctor indicating his incapacity for work. Mr Freer did not do so. Also, Mr Freer was receiving rent from a house that he and his wife owned and therefore, it was submitted, that he and his wife were content to pack up their belongings in a caravan and simply travel around Australia; rather than have Mr Freer continue his work at the Westpac Bank.
14. However, Mr Freer put forward different reasons for leaving his employment at the Westpac Bank. Foremost amongst his reasons was the fact that he was having difficulty breathing, even after minor exertion, such as walking up and down stairs. He said that he had a rasping cough in the office which was quite unsettling and made him feel embarrassed, as he believed it was affecting his fellow workers and clients. Mr Freer said that he would walk to work, a distance of some one and a half to two miles, but that he was short of breath when he got to the office and he needed to sit for a time to recover. He said that he believed his condition continued to deteriorate marginally over the time he was employed by Westpac Bank.
15. Although not diagnosed with PTSD or any other psychiatric condition at the time, Mr Freer said that he was having difficulty concentrating at work and, if he was given instructions by his supervisor, he had to go back to the supervisor, sometimes on more than one occasion, to have those instructions repeated. He said that he continuously had intrusive thoughts about his operational service which made it very difficult for him to concentrate. He said that, but for an understanding and compassionate supervisor, he believed that he would have been sacked. He also said that he could not relate to his peers at the bank and that he found all of his supervisors, save for his immediate supervisor, incompetent. Mr Freer said that at that time he had suicidal thoughts and could not cope. He felt he had to run away. He said that he tried to get away from people and he did not enjoy social contact. If he went to the pub for a drink, things would start to "close in" on him and he would prefer to drink on his own.
16. Although Mr Freer was not diagnosed with COAD until 2002, he said that he suffered from a bad bout of flu every year. He said that he did see a doctor in 1989, when living in Sydney, who performed a stress test and he believes he was told that he had asthma. He said that he was not treated specifically for asthma at that time. Mr Freer readily agreed that his decision to cease working was influenced by the fact that he had an income from the DFRDB fund. However, he was steadfast in his evidence that access to that pension was not the reason why he gave up his job with the Westpac Bank.
17. Mrs Phyllis Freer gave evidence that Mr Freer's behaviour, after leaving the Army, deteriorated noticeably. She said that he was unable to hold onto a position for more than 12 months because of an inability to tolerate his workmates. She said that he started to display physical symptoms, including tingling feet, head pains and general restlessness. She said he became verbally violent with dramatic mood swings and began obsessing over small, insignificant things. At times, she said, Mr Freer would go to bed for two or three days on end with, what was described as, flu. She said his ability to do anything requiring any form of exertion was becoming very limited. Most importantly, Mrs Freer said that her husband was very reluctant to visit a doctor despite her attempting to persuade him to do so. She said that Mr Freer complained about being unable to concentrate and found that being in close proximity to other people made him extremely nervous. It was obvious to Mrs Freer that her husband was not coping. She said that although her husband regarded himself as being retired, it was not a normal retirement as he was far too young for that and she did not expect that to be the end of his working life. However, it was clear to her that her husband needed to escape from stressful situations.
18. In 1988, Mrs Freer was the national sales manager for Gestetner and she was required to relocate to Sydney. Upon returning from her regular business trips, she noticed that her husband was becoming less and less able to cope. He was unable to handle financial matters or to make basic, everyday decisions up to the point where she felt that she had no alternative but to resign her position and to commit herself to looking after him on a full‑time basis, which she did.
19. Dr Nicholas Manolitsas, a thoracic physician, who examined Mr Freer on 29 July 2003, said that Mr Freer had a severe physical disability and he struggled with normal activities of daily living. In Dr Manolitsas' opinion, Mr Freer was unable to work gainfully even for as little as eight hours per week in any form of employment. In a report dated 29 July 2003, Dr Manolitsas said that Mr Freer's lung function test results showed clearly that he had severe COAD. He said that Mr Freer was then unable to perform moderately strenuous physical exertion and would be unlikely to find suitable work. He also said that, after having read further evidence provided by Mrs Freer regarding Mr Freer's ceasing work in mid‑1989, it was likely that the symptoms described to him, and experienced by Mr Freer at that time, represented the earlier stages of his COAD.
20. Dr Barry Kenny, a consultant psychiatrist, examined Mr Freer on 3 August 2004. It was Dr Kenny's opinion that Mr Freer tends to understate and underplay his symptoms because he sees having a psychiatric condition as a weakness. Nevertheless, following additional information and evidence from Mrs Freer, Dr Kenny concluded that there was no alternative but to consider that Mr Freer suffered from PTSD. As for Mr Freer being able to work, Dr Kenny considered the impairment tables in Guide to the Assessment of Rates of Veterans’ Pensions, fifth edition (GARP) regarding occupation, and said that his understanding was that Mr Freer did not work because of his COAD and not because of his psychiatric problems. In a supplementary report dated 5 November 2004 Dr Kenny said that he was unable to define the clinical onset of PTSD. Nevertheless, Dr Kenny said that it was likely that Mr Freer had PTSD from the time of his experiences on operational service and certainly within two years of the onset of his depressive disorder, although he found it quite artificial to separate out PTSD from depressive disorder in this case. He gave no opinion about Mr Freer's ability to work due to his psychiatric condition.
21. Dr Amanda Sillcock, an occupational physician, examined Mr Freer on 9 December 2004. In her opinion, Mr Freer's main medical problems are COAD and a psychiatric disorder with features of anxiety and depression. She said that Mr Freer has suffered from a decrease in his work capacity over the last 15 years because of deteriorating lung function. She considered that his psychiatric disorder was better because he was now being treated. In her opinion, Mr Freer was not fit to undertake remunerative work of 8 hours per week. She was also of the view that Mr Freer's psychiatric disorder had a diminishing effect on his work capacity. Dr Sillcock was of the opinion that Mr Freer's incapacity to undertake remunerative work was permanent.
22. Dr Christopher Percival, a consultant psychiatrist, examined Mr Freer in the presence of his wife on 8 March 2005. Dr Percival said that although Mr Freer initially presented as an affable, apparently outgoing 60 year old man, as the assessment progressed, it became rapidly obvious to him that Mr Freer's affability and apparent comfort was a façade. He said it was covering a very high level of tension which clearly related to an increased apprehension as he was required to discuss in detail his symptomology since his operational service and his emotional responses to that service as well as his current emotional state. According to Dr Percival, Mr Freer generally showed a distinct reluctance to address those issues. He said that with persistent, direct, but not leading, questioning, a clear picture of a high level of continuing psychiatric morbidity since Mr Freer's operational service in Borneo progressively emerged.
23. From the documents presented to Dr Percival and from his own assessment of Mr Freer, his opinion was that there are two major causes underlying Mr Freer's inability to continue working. They are Mr Freer's severe respiratory disease and his psychological state or his PTSD with its consequent irritability, intolerance, unpredictability, and difficulties with concentration. In Dr Percival's opinion, Mr Freer's psychiatric disability alone would result in him being unable to work eight hours per week and that this situation was permanent. He also opined that Mr Freer was not suited to any rehabilitation programme predicated on his eventual return to the workforce.
24. Dr Percival again saw and assessed Mr Freer, in the company of his wife, on 5 April 2005. Regarding Mr Freer's capacity for remunerative employment, Dr Percival said that Mr Freer was so handicapped by the combined impact of PTSD and a co‑morbid major depressive disorder that he had become almost completely asocial, and avoided, as far as he possibly could, any social contact, with his only real continuing connection to the rest of the human race being currently through his relationship with his wife. He continued that in those circumstances, it was his opinion that it was completely inappropriate to expect Mr Freer to be engaged in the workforce at this time and equally inappropriate to expect that he could ever effectively be expected to rehabilitate himself into that workforce, even if one took the best possible view of his ultimate prognosis. He confirmed that in his opinion, Mr Freer was not capable of working for eight hours a week and that that was a direct and unique consequence of his psychiatric disability. That situation, according to Dr Percival, was probably permanent and Mr Freer was not suited to any rehabilitation program predicated on his eventual return to the workforce.
25. The final medical report was provided by Dr Peter Warfe. He is a Director at the Preventive Medicine and Rehabilitation Centre in Canberra. Dr Warfe has known Mr Freer since they were army officers, serving together, on loan to the Papua New Guinea (PNG) Defence Force, in 1977‑1978. Dr Warfe was then the regimental medical officer, providing health support to the expatriate Australians and army‑based PNG population. Dr Warfe was responsible for attending to Mr Freer's medical condition during that time. He has also kept in touch with Mr Freer periodically and their wives are close acquaintances.
26. In an earlier report dated 24 September 2003, Dr Warfe said that he had not examined Mr Freer in a formal medical sense for more than 25 years, but was able to make some observations about Mr Freer's condition during the time that they both served in PNG. Dr Warfe said that when Mr Freer was confronted with memories of his operational service in Borneo, he would become sweaty, agitated and distressed. This commonly occurred under the influence of alcohol. According to Dr Warfe, on those occasions Mr Freer would complain of nightmares and frequent intrusive thoughts regarding a number of grisly events he had witnessed. According to Dr Warfe, in retrospect, he believes that Mr Freer may have been displaying characteristics of what is now called PTSD. Apparently, Mr Freer told Dr Warfe that he was considering leaving the army after returning to Australia, as he was afraid that he may be posted on operational service again, during which he believed he would be killed.
27. In Dr Warfe's opinion, Mr Freer possessed the leadership, management and communications skills to be an effective team member in a wide variety of employment situations. He said that in his own business Mr Freer would make an excellent practice manager in view of his experience in personnel management, general bookkeeping and physical security, if it were not for his poor mental and physical health. Having been informed that Mr Freer suffered from PTSD and COAD, Dr Warfe opined that those conditions rendered Mr Freer medically unsuitable for employment by him. He also said that, in his opinion, Mr Freer had been unemployed for the last 15 years because his mental and physical conditions render him unemployable. Dr Warfe said that if Mr Freer were referred to him for pre‑employment medical assessment, he would advise potential employers that Mr Freer was medically unsuitable for employment.
28. In our view, it is clear that, given Mr and Mrs Freer's evidence and all of the medical opinions which have been offered, Mr Freer's accepted diseases prevent him from continuing to undertake the remunerative work that he was performing in 1989.
29. Often, the most difficult question to deal with is the third question in Flentjar: Are Mr Freer's war‑caused diseases the only factors preventing Mr Freer from continuing to undertake the type of remunerative work that he was doing in 1989? The Full Court of the Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47 said (at 46‑47) that:
…The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period...
30. The principal issue in this case is whether Mr Freer's accepted war‑caused diseases are the only factors preventing him from continuing to undertake remunerative work. The Commission submitted that because Mr Freer had been out of the workforce for some 13 years prior to his application for the special rate of pension, his lack of recent work experience, time out of the workforce and age were all factors which prevented him from continuing to undertake remunerative work. However, the Commission did not put any evidence before the Tribunal to attempt to prove that any one of these factors played any part whatsoever in Mr Freer's inability to obtain remunerative work. According to the submissions of the Commission, lack of recent work experience, time out of the work force and age are the factors that the Tribunal should take into account although, clearly, it cannot do so unless there is some evidence upon which those submissions are based. In this case, there are none. In fact, there is evidence which points to the fact that the three factors relied on by the Commission did not play any part in, nor did they contribute to, Mr Freer being unable to continue to engage in remunerative work.
31. Dr Warfe's evidence was that Mr Freer's skills, gained while an army officer, were highly valuable and could be used, even by him in his own practice, at the present time. Mr Freer obtained letters from business people in the Yarrawonga/Mulwala area and, in essence, they echoed the opinions of Dr Warfe. In particular, they expressed a great deal of respect for Mr Freer as an honest and capable person and despite his long absence from the workforce, they would be prepared to provide him with work if he were physically and mentally capable of doing that work. Mr Freer also obtained a letter from Mr Ronald Ferguson, who was the officer in charge of the legal department of the Westpac Bank in the late 1980s. In that letter, Mr Ferguson said Mr Freer was diligent in his endeavours at work and was eager to take on new tasks that were allotted to him. He found that he was able to place Mr Freer in positions with greater responsibilities with very minimal training and supervision. In his view, this was due to his military background and training. He also said that he was able to allocate to Mr Freer more complex matters; that he was a quick learner; that his standard of work was more than acceptable; and that he could be trusted to produce results without supervision. He also said that, but for Mr Freer's physical and mental problems, he would employ him without hesitation.
32. In light of the above evidence regarding Mr Freer's employability, despite his lack of recent work experience, time out of the workforce and age, the answer to the third question in Flentjar must be in the affirmative. We are of the opinion that those factors play no part whatsoever in Mr Freer's inability to gain remunerative work at this time.
33. The Commission also submitted that the evidence pointed to Mr Freer retiring to live off his DFRDB and income from his rental property rather than continuing to work. However, the evidence is against that submission. Mr Freer said that he was embarrassed about not being able to do any meaningful work and he did not like explaining to people that he was too ill to work. He said that he felt guilty about not being able to work and that he had been brought up to value work. The Commission attempted to make something out of the fact that Mr Freer regarded himself as "retired". However, it is understandable that Mr Freer would use such an expression given his attitude towards work. He was not proud of having ceased work and, in the circumstances, we do not believe that anything much swings from Mr Freer's use of that word. Furthermore, we have no reason to doubt Mrs Freer's evidence that she gave up her job as national sales manager for Gestetner in 1988 only because she found that Mr Freer was unable to cope with work and normal day‑to‑day chores around the house. In our opinion, she would not have given up that position to look after Mr Freer on a full‑time basis were Mr Freer capable of working. We also accept her evidence that she considered Mr Freer to be too young to retire at that time and that she stopped work to look after him, to allow him to escape, and she was satisfied that, despite making that decision, they could both survive and live modestly on the DFRDB pension. Necessarily, we do not accept the Commission's submission that Mr Freer's access to a pension was one of the reasons why he decided to cease to engage in remunerative work.
34. The fourth question raised in Flentjar, which we are required to address, is whether Mr Freer, by reason of being prevented from continuing to undertake remunerative work, has suffered or is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of the incapacities. It seems to us that the answer to this question must also be in the affirmative. Dr Warfe and the businessmen in Yarrawonga/Mulwala have made it clear that they would, except for Mr Freer's accepted disabilities, employ him. It necessarily follows that Mr Freer is suffering a loss of salary, wages or earnings on his own account that he would not suffer were he able to take up any other employment.
CONCLUSION
35. As we have found that, on balance, the evidence supports Mr Freer's claim that he is prevented from continuing to undertake remunerative work that he was undertaking by reason of incapacity from his war‑caused diseases alone, there is no reason for us to consider s 24(2) of the Act.
36. In our opinion, the decision of the VRB dated 18 February 2004 regarding the rate of pension which should be paid to Mr Freer should be set aside; and Mr Freer should be paid the special rate of pension in accordance with s 24(4) of the Act.
I certify that the thirty‑six [36] preceding paragraphs are a true copy of the reasons for the decision of:
E. Fice, Member and P.D. Fricker, Member
(sgd) Catherine Lake
Clerk
Date of hearing: 23 November 2005
Date of decision: 15 December 2005
Counsel for applicant: Mr G. Moore
Solicitor for applicant: Peter J LiefmanAdvocate for respondent: Mr E. Nyhof
Solicitor for respondent: Department of Veterans’ Affairs
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