French and Repatriation Commission (Veterans' entitlements)
[2022] AATA 347
•2 March 2022
French and Repatriation Commission (Veterans' entitlements) [2022] AATA 347 (2 March 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2020/8504
Re:Simon French
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:2 March 2022
Place:Hobart
The decision under review is set aside and substituted for a decision that the applicant be entitled to receive his pension at the Intermediate Rate effective from 4 March 2019.
......................[sgd]..................................................
The Hon. Matthew Groom, Senior Member
Catchwords
VETERANS’ ENTITLEMENTS – eligibility for increase in pension rate – Intermediate Rate – Special Rate – whether remunerated work capacity is less than eight hours per week in aggregate – post-traumatic stress disorder – alcohol use disorder – combination of work categories – decision set aside and substituted
Legislation
Veterans Entitlements Act 1986
Safety, Rehabilitation and Compensation Act 1988Cases
Chambers v Repatriation Commission [1995] FCA 1144
Llewellyn and Repatriation Commission [2019] AATA 5290
Repatriation Commission v Alan George Buckingham [1996] FCA 1218Smith v Repatriation Commission [2014] FCAFC 53
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
2 March 2022
INTRODUCTION
This matter involves a review of a decision made by the Veterans Review Board ( “VRB”) on 28 October 2020 which in turn affirmed a decision made by a delegate of the respondent on 24 October 2019 to continue the applicant’s disability pension at his current rate being 70% of the General Rate.
BACKGROUND
The applicant is a 54-year-old veteran who served in the Australian Army from 26 May 1987 to 10 December 2006. During this period the applicant was engaged as a field engineer and explosives detection dog handler.
The applicant is married to Mrs French and has two adult children from a former marriage and three younger children with Mrs French.
The applicant has a number of accepted war-caused conditions under the Veterans Entitlements Act 1986 (“the Act”).
The accepted conditions include two psychological disorders namely:
(a)Post-Traumatic Stress Disorder (“PTSD”); and
(b)Alcohol Use Disorder.
The accepted conditions also include two back related conditions namely:
(a)Lumbar Spondylosis; and
(b)Intervertebral Prolapse at L5 – S1.
The accepted conditions also include a sensorineural hearing loss of the right ear.
In addition, the following back related conditions have also been accepted under the Safety Rehabilitation and Compensation Act 1988:
(a)Small Board Based Central Disc Protrusion at L5 – S1; and
(b)L5 – S1 Small Board Based Central Disc Protrusion, L4 – 5 Minimal Disc Bulge.
The applicant’s accepted conditions are not the subject of dispute in this matter.
In addition to his accepted conditions, there was also evidence before the Tribunal of the applicant suffering from dyslexia, which the Tribunal accepts.
On 4 March 2019, the applicant applied to have the rate of his disability pension increased. In his application, the applicant claimed that he is entitled to be paid at the Special Rate on the basis that he is totally and permanently incapacitated due to his remunerated work capacity being less than eight hours per week in aggregate.
Both the VRB decision made on 28 October 2020 and the original delegate’s decision made on 24 October 2019 rejected the applicant’s claim for an increase to his disability pension and determined that his pension should continue at his present rate being 70% of the General Rate.
RELEVANT LEGISLATIVE PROVISIONS
The legislative provisions relevant to the issues before the Tribunal are set out in the Act. More specifically they include sections 23, 24 and 28 of the Act.
Section 23 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’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part‑time basis or intermittently for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; 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.
(3A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) (as affected by subsection (2)) apply to the veteran; and
(d) the veteran is, because of incapacity from war‑caused injury or war‑caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 24 or 25 does not apply to the veteran.
(3B) For the purposes of paragraph (3A)(e), a veteran who is incapacitated from war‑caused injury or war‑caused disease or both, to the extent set out in paragraph (1)(b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or
(c) the veteran has been engaged in remunerative work on a part‑time basis or intermittently for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both.
(4) Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $619.80 per fortnight.
(5) Subject to subsection (6), the rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
General Rate – (14 x Reduced daily pension amount worked out under section 115D)
(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4) or (5) of this section, reduced in accordance with section 25A.
Section 24 of the Act is as follows:
(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.
(2A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war‑caused injury or war‑caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war‑caused injury or war‑caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3) This section also applies to a veteran who has been blinded in both eyes as a result of war‑caused injury or war‑caused disease, or both.
(4) Subject to subsections (5), (5A) and (6), the rate at which pension is payable to a veteran to whom this section applies is $919.40 per fortnight.
(5) Subject to subsections (5A) and (6), the rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
General Rate – (14 x Reduced daily pension rate under section 115D)
(5A) If:
(a) section 115D applies to a veteran because of subsection 115D(1A); and
(b) the veteran is engaged in remunerative work of more than 8 hours, but less than 20 hours, per week as a result of undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme;
then, subject to subsection (6) of this section, the rate at which pension is payable to the veteran is the higher of the following amounts:
(c) the amount worked out under subsection (5) of this section;
(d) the amount under subsection 23(4).
(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4), (5) or (5A) of this section, reduced in accordance with section 25A.
Section 28 of the Act provides:
(1) In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
ISSUES
At the hearing the respondent’s representative conceded that the applicant satisfies the requirements for an increase in his disability pension to the Intermediate Rate in accordance with section 23 of the Act. The respondent’s representative also conceded that the sole residual issue in assessing whether the applicant satisfies the requirements for the Special Rate in accordance with section 24 of the Act is whether the requirements of section 24(1)(b) are made out. The Tribunal is satisfied that the concessions made in this respect are appropriate.
Consistent with these concessions, the Tribunal is satisfied that the applicant is entitled to be paid his disability pension at the Intermediate Rate from 4 March 2019. The residual question for determination by the Tribunal is whether the applicant is entitled to be paid his pension at the Special Rate. This involves a consideration as to whether the applicant is totally and permanently incapacitated in the sense of being incapable of undertaking remunerative work for periods aggregating more than eight hours per week, due to incapacity resulting from his accepted war caused conditions alone.
The Tribunal is satisfied that the relevant assessment period for determining the applicant’s eligibility for a rate increase commenced on the date of the applicant’s application for an increase, namely, 4 March 2019, and concludes on the date the application is finally determined.[1]
[1] See Smith v Repatriation Commission [2014] FCAFC 53.
CONTENTIONS, EVIDENCE AND CONSIDERATION
It was put on behalf of the applicant that, having regard to the whole of the evidence, the Tribunal should be satisfied that the applicant is not capable of undertaking remunerative work in aggregate of more than eight hours per week due to his accepted conditions alone.
The respondent contends that while the applicant’s capacity for remunerative work has been adversely impacted by his war-caused conditions including, in particular, his psychological conditions and to a lesser extent his back conditions, the applicant nonetheless maintains an ongoing capacity for remunerative work of more than eight hours per week.
The Tribunal heard from two expert witnesses, Dr Ratcliff who is a consultant psychiatrist and Dr Ernst who is musculoskeletal medicine physician. The Tribunal also heard from the applicant and Mrs French.
Dr Ratcliff examined the applicant on 22 June 2021 and had also examined the applicant on six prior occasions. Dr Ratcliff’s assessment was that the applicant continues to suffer from the accepted psychological conditions of PTSD and Alcohol Use Disorder. Dr Ratcliff noted that features of the applicant's psychological conditions include depression, insomnia, irritability and anger and in his view, there does not appear to have been any notable improvement.
In Dr Ratcliff’s opinion the most limiting aspects of the applicant's conditions are his anger and irritability and what he described as being a "very marked social withdrawal", all of which are features of his PTSD. Dr Ratcliff noted that the applicant had described becoming increasingly uncomfortable being exposed to guests and avoided interaction with them. Dr Ratcliff described the applicant as having an issue with his sleep patterns which he considered to also be a feature of the applicant’s PTSD condition and consistent with the applicant’s Alcohol Use Disorder. In addition, Dr Ratcliff’s evidence was that the applicant’s accepted back related conditions limited, to some degree, the applicant’s capacity to engage in more strenuous physical activity although the back pain had been very long-standing and the applicant had learned to tolerate it.
Dr Ratcliff stated that, in his view, the features of the applicant’s PTSD condition including his anger, irritability and social withdrawal had the effect of making employment involving contact with fellow workers, guests or customers extremely challenging. His view was that the applicant's current work capacity would generally be limited to more flexible work activities that can be undertaken in a solitary manner and carried out at the applicant’s own pace.
Dr Ratcliff accepted that despite his conditions the applicant retains some level of physical capacity and noted that the applicant described having engaged in craftwork, gardening and general handyman maintenance as well as swimming on a regular basis. Dr Ratcliff noted that the applicant appeared to enjoy vacuuming and was particularly thorough in undertaking that activity. Dr Ratcliff also noted that the applicant appeared to keep reasonably fit.
In his written proof of evidence, Dr Ratcliff stated that, in his view, the applicant was incapable of more than eight hours remunerative work a week as a consequence of his accepted conditions alone. He concluded that:
It is my opinion that by reason of his accepted conditions alone, namely Post Traumatic Stress Disorder, Alcohol Use Disorder, Hearing Loss, Lumbar Spondylosis and consequent Sciatica he [the applicant] is prevented from work exceeding eight hours per week. His decision to give up the majority of his self-employed work was entirely the result of his combined accepted disabilities, and if it had not been for these he would have been able to continue in remunerated activity. His condition effectively prevents him from seeking paid work for an employer.[2]
[2] Exhibit A1.
However, in cross-examination Dr Ratcliff conceded that he was not aware of the applicant’s recent work experience as a relief school bus driver. The Tribunal accepts the evidence before it, that through the course of 2021 the applicant had worked in such a position for typically between two hours and seven hours per week during school terms and more than four hours per week on average. When this was put to Dr Ratcliff, he conceded that the fact the applicant has engaged in such activity would suggest that he is capable of doing the work. However, Dr Ratcliff accepted on re-examination that there was likely to be a degree of unpredictability in the applicant’s capacity to do such work and therefore, there may be some difficulty with the applicant’s reliability where there is a requirement for the work to be booked in advance.
In addition, when it was put to Dr Ratcliff that the applicant may be capable of some level of self-employed work activity in connection with the applicant’s and Mrs French’s current holiday unit business, including by doing activities such as cleaning, gardening, maintenance or other simple menial tasks for approximately one hour and 15 minutes per day, Dr Ratcliff accepted that it was within the applicant’s capacity. Dr Ratcliff also accepted that the applicant appeared to have a capacity to undertake solitary truffle related work during truffle season or potentially to undertake some detection dog training work.
In his direct evidence to the Tribunal, Dr Ernst noted that he had assessed the applicant initially via telehealth on 10 May 2021 and then by a physical examination on 12 May 2021. Dr Ernst noted that the applicant did not appear to have engaged in any form of exaggeration or understatement with respect to his conditions.
Dr Ernst described the applicant's ongoing symptoms as follows:
(a) symptoms from post-traumatic stress disorder include mood swings, anxiety, depression, social isolation and others. He had the symptoms for many years.
(b) He still suffers from alcohol use disorder. He drinks alcohol on a regular basis with intermittent binges. These behavioural patterns have been in existence for many years.
(c) Sensorineural hearing loss has been present for many years. He needs to increase the TV volume. He described miscommunication. He has no hearing aids.
(d) Symptoms from lumbar spondylosis and intervertebral disc prolapse at L5–S1 include left-sided low back pain, left leg sciatica and left leg paraesthesia. Symptoms aggravated include prolonged sitting and lying down. Leg symptoms involve his posterior thigh down to his heel.[3]
[3] Exhibit A2, 4.
Dr Ernst noted that the applicant has been managing his accepted conditions through a number of treatments including regular counselling sessions, a sleep therapy course, formal alcohol and drug rehabilitation and also through the use of various medications.
Dr Ernst noted the applicant described some physical limitations associated with his accepted back conditions including when walking on uneven ground, engaging in frequent bending to dig up dirt or frequent kneeling to dig up dirt, engaging in prolonged walking, handling dogs on a long lead, engaging in heavy gardening, trimming large trees, stacking and carrying firewood, heavy lifting and carrying the children or playing with them on a trampoline.
Dr Ernst also noted that in relation to the applicant's back pain, he had not had any formal treatment and had self-managed the issue. He noted that the applicant described having acute flareups twice a year which confined the applicant to bed for a number of days after which the symptoms would improve. He noted that the applicant manages his flareups through rest and anti-inflammatory medication and painkillers. He noted that the applicant described outside the flareup periods having average pain levels of 4/10 and that with respect to those periods the applicant "just puts up with it".
Dr Ernst’s conclusions as set out in his written report include the following:
(a)The applicant's sensorineural hearing loss is not an impediment for work. He has a partial work incapacity as a result of lumbar spondylosis and intervertebral disc prolapse at L5 – S1;
(b)The applicant also has a work incapacity as a result of post-traumatic stress disorder and alcohol use disorder and employability is further impaired due to dyslexia;
(c)Whether the applicant is capable of working eight hours per week depends primarily on his mental health disability. Purely from the perspective of the applicant's low back pain the applicant could work with precautions and provided weight loadings are kept at mild levels.
(d)Guidelines for mild spinal loadings include that:
(i)prolonged and repetitive bending should be minimal;
(ii)lifting and carrying weight should be limited, depending on the nature of the task, to a maximum of 10 KG;
(iii)pushing and pulling forces should be limited, depending on the nature of the task, to a maximum of 10 KG;
(iv)postural change should be possible every 20 minutes;
(v)the object in relation to lifting, pushing, pulling and manual handling should be no more than 30 cm away from the body;
(vi)vibration or jolts should be minimal; and
(vii)workplace and task control should be at least moderate to high.[4]
[4] Exhibit A2, 7-8.
In his written report Dr Ernst noted that there remains a possibility that the applicant is totally incapacitated but that he was unable to reach such a conclusion in the absence of further information and, in particular, having regard to the impact of the applicant’s mental health conditions. In his direct evidence Dr Ernst noted that while he is broadly qualified, his main area of expertise is musculoskeletal medicine and he was for that reason reluctant to express a conclusive view in relation to the impact of the applicant’s mental health conditions on his work capacity. Dr Ernst told the Tribunal that with respect to the applicant’s back conditions alone he was satisfied that the applicant is not totally incapacitated provided that appropriate precautions and weight loadings were respected.
Dr Ernst told the Tribunal that in his view domestic cleaning generally involves a moderate loading and that the applicant may have difficulty in undertaking such work. However, he noted that if appropriate precautions were adhered to the applicant may have some capacity for less strenuous forms of cleaning. Dr Ernst told the Tribunal “It depends on the work. I’m not saying he can’t work as a cleaner”. Dr Ernst told the Tribunal that if cleaning work was not rushed and was flexible then the applicant may have some capacity. Dr Ernst also accepted that the applicant may have capacity to undertake less strenuous physical activities provided that appropriate precautions were adhered to. For example, when asked whether the applicant was capable of handling firewood, Dr Ernst conceded that he may be able to do so but it would depend on the weight loading involved.
In cross-examination, Dr Ernst also conceded that he was not aware of the applicant’s work history driving a local school bus. Dr Ernst told the Tribunal that he would not necessarily propose such work as being suitable for the applicant but that in making an assessment as to the suitability of the work he would need to look at the specific conditions involved. He told the Tribunal such work is not necessarily outside the guidelines he would recommend for the applicant. Dr Ernst also conceded that the fact that the applicant had undertaken such work previously does tend to indicate that he has a capacity to do the work.
Dr Ernst reiterated the view that he had reached in his written report that he considered the applicant to have a partial incapacity as a consequence of his back conditions and continued to be reluctant to express a specific conclusion as to the impact of the applicant’s psychological conditions on his work capacity.
In his evidence before the Tribunal, the applicant described the impact of his accepted conditions in some detail. In his written statement the applicant described having experienced a significant and continual deterioration in his health and well-being mainly as a consequence of his PTSD. In his oral evidence, the applicant told the Tribunal that he considers himself to be generally healthy but that he feels his well-being is in decline primarily as a consequence of his PTSD. He told the Tribunal his PTSD continues to have a very significant impact on him and causes him to feel irritable and anxious, and that he has developed a preference for avoiding people and a dislike of making decisions. The applicant stated that he had not initially felt difficulty working with people but that a need to avoid people had developed over time and he had felt himself “shutting down”. The applicant’s evidence was that he has been unable to work with other people due to the fact that he avoids contact with people and can become aggressive. He told the Tribunal that his psychological conditions can result in him being “fine one day and then not the next”. He finds it very difficult to predict how he is likely to feel ahead of time and consequently it is difficult to plan ahead. He gave evidence that he has had several jobs which have ended because of the impact of his conditions which has in turn lead to further anxiety and further social withdrawal.
The applicant told the Tribunal that he has very limited social activity, he maintains contact with some people via Facebook but he does not like going out. He told the Tribunal that his sleep quality varies, “sometimes it can be good, sometimes it can be bad”. He swims for well-being and typically will eat one, sometimes two meals a day. He told the Tribunal that he uses alcohol to self-medicate and conceded that he drinks a substantial amount. On average he would drink approximately one bottle of red wine per day although occasionally he will drink substantially more, and he also uses cannabis one or two times a week.
The applicant also provided the Tribunal with a breakdown of his prior work history. Following his retirement from the Army the applicant worked for a couple of years as a corrections officer. He told the Tribunal that he and his wife had both become bored with their jobs and decided to move to Tasmania where they purchased the first of their holiday unit businesses. The couple had jointly run that business for approximately 13 to 14 years but over time the applicant started to withdraw and began removing himself from any exposure to guests. The applicant told the Tribunal he now feels that he is just “not good with people”. He described being involved in a number of incidents with guests where he had reacted in anger resulting in a cancellation of bookings. The couple then decided to sell the business because it had become “too much for both of us”. The couple then travelled around Australia for approximately eight months. When they returned to Tasmania they purchased a second holiday unit business which is now substantially run by Mrs French alone although the applicant helps out with the business in a minor way from time to time. The applicant’s evidence was that they chose to purchase a smaller business so that the applicant did not have to be involved in its operation.
The applicant described the couple’s current property as being approximately 2.4 hectares with a main house and two units. They also house six sheep and three goats although he told the Tribunal that they require little work. When asked what activities he does to help out with the current business the applicant told the Tribunal that it’s “our home” and that he occasionally does some gardening about once a month, mows the lawns with his son, helps with firewood and also vacuuming. When asked whether he could undertake other general tasks such as bed making, cleaning and washing he told the Tribunal “I can’t make the beds because I can’t bend over”. He conceded that he could do some level of general maintenance but that the units are “only two years old and don’t require much”. The applicant conceded that he had previously undertaken cleaning activities in the former business but that he had found that sometimes “I could do the work and sometimes I couldn’t”.
The applicant’s evidence was that he had also previously undertaken truffle related work including working as a truffle dog handler and trainer but that there was no longer any money to be made in the work as most of the farms involved in truffles have now transitioned towards a more tourism focussed experience. The applicant told the Tribunal that he could not cope with tour groups or working with other people. The applicant also told the Tribunal that he had found the truffle dog handling work relatively physically demanding because it involved working on uneven ground, walking for long distances and bending over.
The applicant had also previously worked in an alkaloid factory sweeping floors but he ceased working there because of a number of “run-ins” he had with other staff members at the factory.
The applicant told the Tribunal that he currently undertakes work as a relief school bus driver. The applicant’s description of the work arrangement for his relief school bus driving appeared to the Tribunal to involve a reasonable degree of flexibility. The applicant told the Tribunal that the bus service would contact him when a relief shift was coming up and that he would generally give them a call the day before to let them know whether or not he was able to do it.
When asked specifically whether he could do more than eight hours per week in general work in the couple’s current holiday unit business the applicant told the Tribunal “in a way yes and in a way no. It depends on how I am feeling”. When asked whether be believed he has the capacity for five hours per week on average as a relief bus driver the applicant replied “in advance, yes”. When asked whether he could do two hours per week truffle handling work he conceded that he probably could but that there is no demand for the work. When asked whether he could do some form of dog training work he conceded that he could and that he had the skill set for it but stated that he was a detection dog trainer, not a behaviouralist, and that currently there is no market demand for the work.
The applicant was also asked about the reference in the Tribunal materials to him being engaged in renovation work of up to 35 hours per week in connection with a renovation project previously undertaken on his property. The applicant told the Tribunal that he had been present during the renovation project as it was their house but that his activities were fairly limited and largely involved sweeping the floor, clearing rubbish away and some painting that was undertaken on trestle tables. The Tribunal accepts the applicant’s evidence in this respect.
In her evidence, Mrs French told the Tribunal that she first became aware of the applicant’s PTSD condition in around 2009 after they had moved to Tasmania. She described him as drinking too much and becoming quite abusive. Mrs French described the applicant’s health as having declined quite markedly initially as a consequence of his PTSD and that the decline has levelled out to some degree more recently but that the features of the applicant’s PTSD are still very present and that he seems generally to be becoming less capable focussing on and completing tasks. Mrs French described the applicant as not liking social situations and not liking being asked questions. She said that the applicant can become quite irritable and angry at short notice and that it was hard to predict when it might happen. She told the Tribunal that the applicant cannot control his outbursts.
Mrs French described a particular incident involving guests at the holiday unit business where the applicant had reacted angrily, and the booking had been lost as a result. Mrs French described the applicant withdrawing from social contact over time, and also that they had jointly taken deliberate steps to limit his contact with guests. Mrs French described various efforts they had both made to address the applicant’s behaviour including undertaking a counselling course and also the applicant undertaking an anger management course. However, Mrs French told the Tribunal that she did not believe their efforts had made much of a difference. Mrs French described being quite social herself but that because of the applicant’s condition they tended to not go out much. Mrs French told the Tribunal that the applicant engages well with the children but that he does not tend to engage in a physical way with them.
In her written statement Mrs French described the bus relief work undertaken by the applicant as equating to two hours per week maximum and further on in the statement stated that she believes the applicant is only capable of an occasional one hour shift. In her direct evidence Mrs French acknowledged that the applicant has in recent years undertaken relief school bus driving but told the Tribunal that the applicant’s capacity to do the work varies from day to day and that “sometimes he is up to it and sometimes he is not”. She told the Tribunal that generally speaking, when it comes to the applicant undertaking work it is very difficult to plan ahead as it is not possible to predict ahead of time what mood he will be in day to day. When pressed on who had done the driving during their trip around Australia in 2018, Mrs French acknowledged that the applicant had done the vast bulk of it but only with regular breaks to help provide some relief.
Mrs French told the Tribunal that she operates the current holiday unit business substantially on her own and that she gets very little help from the applicant. Mrs French stated that the applicant “potters around” the property and that he might occasionally bring in some firewood or do some vacuuming but that he cannot do any form of administrative work because he is dyslexic. She told the Tribunal that the applicant cannot change the beds and he generally cannot do small tasks as he struggles to focus. Mrs French told the Tribunal that while in theory the applicant could do some cleaning work in the business, she does not ask him to do it as she cannot rely on him doing it properly. She stated that there are also often guests around and she prefers to avoid exposing the applicant to guests. Mrs French told the Tribunal that vacuuming is the exception as the applicant seems to enjoy vacuuming and is quite fastidious about it. Mrs French conceded that it was possible that the applicant could also do some light gardening and general maintenance work but maintains that it is difficult to occupy the applicant in the business as there not a lot of suitable work to be done.
Mrs French accepted that the applicant could probably do two hours a week of truffle handling work through truffle season although she believed his capacity for the work might be limited to some extent by the applicant’s back condition noting that it can be quite physically demanding. Mrs French also noted that there appeared to be very little current demand for truffle work.
When asked whether the applicant could do more than eight hours of work a week Mrs French told the Tribunal “physically maybe, but he struggles mentally. He struggles with responsibility. I would not trust him”.
The Tribunal found each of the witnesses in this matter to be consistent and credible in the giving of their evidence. More specifically the Tribunal found both the applicant and Mrs French to be honest witnesses although the Tribunal does not necessarily accept every aspect of their evidence. The Tribunal certainly has no doubt that the applicant’s conditions have had a very real impact, not just on the applicant himself, but also on the whole of the family and Mrs French in particular.
The Tribunal is satisfied that through the course of his work experience over many years the applicant has acquired a broad range of practical skills that continue to be relevant to remunerated work. The applicant’s work experience includes having worked in the Army as a field engineer and explosives detection dog handler, as a corrections officer, as a detection dog trainer, as a truffle detection dog handler and farm hand and also as a relief school bus driver. In addition, the applicant has previously engaged in a broad range of practical work in connection with the couple’s holiday unit business including light cleaning, gardening and general property maintenance.
The Tribunal is satisfied that the applicant’s sensorineural condition does not adversely impact on the applicant’s work capacity. This is consistent with Dr Ernst’s evidence. The Tribunal also accepts the applicant’s capacity to undertake administrative type work would likely be impacted by his dyslexia, however, given the complete absence of any work experience of an administrative nature the Tribunal is satisfied that nothing of substance turns on this point.
The Tribunal is satisfied that the applicant’s accepted back conditions continue to cause the applicant a level of discomfort on a daily basis although the more severe episodes of discomfort that last for a few days and require more intensive treatment occur very infrequently. The Tribunal is satisfied that the applicant has only a partial incapacity in undertaking physical work as a consequence of his accepted back conditions. The Tribunal accepts the expert opinion of Dr Ernst that provided appropriate precautions are adhered to consistent with Dr Ernst’s recommendations the applicant’s accepted back conditions do not of themselves prevent the applicant from engaging in less strenuous physical work even on a full-time basis. Dr Ernst’s recommended guidelines include load limitations, regular breaks, the capacity to regularly change posture as well as to work at his own pace. In the Tribunal’s view this conclusion is also consistent with the expert opinion of Dr Ratcliff who made it clear that he believed the primary impact on the applicant’s work capacity was the applicant’s psychological conditions and not his back conditions. Dr Ratcliff noted in his evidence that the applicant’s back pain was long-standing and that he generally appeared to be able to self-manage the issue. The Tribunal is also satisfied that this conclusion is not inconsistent with the evidence of Mr and Mrs French themselves. While they both gave evidence of a level of constraint in the applicant’s work capacity due to his accepted back conditions they also accepted that he was physically capable of a limited level of practical work such as light cleaning, gardening and general maintenance work, truffle dog handling or dog detection training work and also relief school bus driving although they continued to express a concern in relation to the impact of the applicant’s psychological conditions on his work capacity.
The Tribunal accepts that the applicant continues to suffer very significantly from features of his psychological conditions including a general irritability, anger, anxiety and difficulty in controlling his emotions. It is also clear that the applicant has adopted particular living patterns in response to these features including a high alcohol intake, inconsistent sleep and a high level of social withdrawal. The Tribunal is satisfied that the features of the applicant’s conditions are unlikely to improve. The Tribunal accepts that as a consequence of the applicant’s conditions, the applicant has difficulty engaging with people who do not know him and also that he can be prone to unpredictable outbursts which makes working with others extremely challenging. The Tribunal accepts that, as a consequence of the impact of his psychological conditions and his decline into social withdrawal, the applicant found his involvement in the couple’s first holiday unit business increasingly difficult over time and reduced his involvement in the business for that reason.
The Tribunal accepts that the applicant’s anxiety, mood swings and propensity for outbursts continue to make it extremely difficult for the applicant to work with other people or in a guest or customer facing business. The Tribunal accepts that, for this reason, the applicant is generally unsuited to formal employment with an external employer in work that involves exposure to other people. However, the Tribunal does not accept that the limitations on the applicant’s work capacity in this respect is absolute. For example, the applicant’s more recent work experience as a relief school bus driver involves casual work for an external employer with some level of engagement with schoolchildren although it does not involve a need to engage with co-workers nor, in any substantial way, with members of the general public. In addition, the casual nature of the work appears to provide sufficient flexibility for the applicant to be able to effectively manage the impact of his psychological conditions. In the Tribunal’s view the applicant continues to have the capacity for remunerative work provided that it is of a solitary nature and includes sufficient flexibility to provide the applicant with reasonable level of control over the days he works and the pace at which he works. Having considered the evidence before it, the Tribunal is satisfied that there remain viable remunerative work options open to someone with the applicant’s skills and experience that would reasonably include such conditions.
On the whole of the evidence, having regard to the impact of both the applicant’s accepted back conditions and his psychological conditions, the Tribunal is satisfied that the applicant retains a capacity for remunerative work of in excess of eight hours per week in aggregate.
More specifically, the Tribunal is satisfied that the applicant continues to be capable of one hour and 15 minutes per day of light cleaning, light gardening and general property maintenance work of a kind similar to the work he has undertaken previously. In addition, the Tribunal is satisfied that the applicant is capable of two hours per week of truffle detection dog handling work during the course of a truffle season. The Tribunal is also satisfied that the applicant is capable of undertaking detection dog training work of in excess of eight hours per week. Further, the Tribunal is satisfied that the applicant is capable of undertaking seven hours per week of relief school bus driving consistent with the kind of work he undertook through the course of 2021.
The Tribunal is satisfied that each of these categories of work are the types of work that someone with the applicant’s skills and experience might reasonably undertake and are manageable for the applicant having regard to the impact of both his accepted back and psychological conditions. The Tribunal is satisfied that each of the categories of work could reasonably be undertaken with appropriate precautions consistent with Dr Ernst’s guidelines. The Tribunal is also satisfied that, with the exception of the relief bus driving work, each of the categories of work are typically solitary by nature. In addition, in the Tribunal’s view each of the categories of work are of a kind that could reasonably be expected in involve a sufficient level of flexibility to enable the applicant to effectively manage the features of his psychological conditions.
Both the applicant and Mrs French acknowledged that light cleaning, light gardening and general property maintenance work continued to be within the applicant’s physical capacity. The applicant acknowledged that he currently undertakes a small amount of light gardening, lawn mowing, helping with firewood and light general maintenance of the property. He also agreed he could do some light cleaning, including vacuuming but not bed changing, which the Tribunal accepts. Mrs French also accepted that the applicant retained the physical capacity to do some cleaning including vacuuming but excluding bed changing, as well as some gardening, some collecting of firewood and some general maintenance work equal to about one hour and 15 minutes per day.
While the Tribunal acknowledges the concerns expressed by both the applicant and Mrs French regarding the applicant’s lack of reliability in undertaking work in their holiday unit business having regard to his mood swings and unpredictable outbursts, the Tribunal does not accept that the applicant is so impacted by these features of his accepted conditions as to be incapable of even one hour and 15 minutes of productive work per day of this kind. In the Tribunal’s view the fact that the applicant has demonstrated a capacity to undertake relief school bus driving work of the kind that he has through the course of 2021 for up to seven hours in a school week satisfies the Tribunal that the features of the applicant’s psychological conditions would not of themselves prevent the applicant from undertaking light cleaning, light gardening and general property maintenance work for approximately one hour and 15 minutes per day. Mrs French also expressed a concern regarding the applicant’s capacity to focus on tasks. While the Tribunal accepts that the applicant can find focusing on tasks somewhat challenging at times, the applicant’s own evidence regarding the types of activities he continues to engage in would strongly suggest that he nonetheless retains a reasonable level of capacity to complete practical tasks.
In relation to the potential for the applicant to undertake truffle dog handling work or detection dog training work the primary concern expressed by both the applicant and Mrs French was the lack of market demand for the work. While acknowledging these concerns, the Tribunal accepts the respondent’s contention that the Tribunal’s task is to assess the applicant’s capacity for remunerative work having regard to his skills and experience and not the state of the employment market itself.[5] Both the applicant and Mrs French also expressed a similar concern regarding the amount of work available for the applicant to do in the couple’s holiday unit business. Again, the Tribunal’s task is not to assess the prospect of the applicant being employed in a specific job but rather to assess his capacity for remunerative work having regard to his skills and experience. The Tribunal is satisfied that the applicant’s practical skills in light cleaning, light gardening and general property maintenance work are not just relevant to the couple’s own holiday unit business but are readily transferable to other businesses of a similar nature. The Tribunal also acknowledges the concern expressed by both the applicant and Mrs French regarding the physical impact of truffle dog handling work as a consequence of walking on uneven ground, walking long distances and needing to bend over frequently. Nonetheless when the question was specifically put to Mrs French she did not contest that the applicant retained a physical capacity to undertake this kind of work for approximately two hours per week during truffle season. The applicant also accepted that he retained that level of capacity. On the whole of the evidence the Tribunal is satisfied that the applicant retains a capacity to do so.
[5] See for example Chambers v Repatriation Commission [1995] FCA 1144 and Repatriation Commission v Alan George Buckingham [1996] FCA 1218. For a more recent endorsement of this line of authority see Llewellyn and Repatriation Commission [2019] AATA 5290.
In relation to relief school bus driving work the Tribunal accepts that the nature of the work necessarily encompasses some features that may present as more challenging for the applicant in light of his conditions. For example, there would be less opportunity for the applicant to avoid some level of social interaction and he would have less capacity to determine the pace of his work. Notwithstanding these features the applicant has previously demonstrated a capacity to undertake the work and the Tribunal is satisfied that there is no reasonable basis for concluding that he does not retain that capacity. Mrs French stated in her written statement that the applicant’s relief bus driving had previously been limited to a maximum of two hours per week and that in her view his ongoing capacity was limited to the occasional one-hour shift. The Tribunal does not accept this evidence. The materials before the Tribunal included a payroll activity details print out for the period from 1 January 2018 through to 18 October 2021. On the basis of those materials the Tribunal is satisfied that the applicant worked consistently as a relief bus driver during the school terms in 2021. The fortnightly hours recorded for the 2021 year up until 18 October 2021 were as follows:
(a)16 February 2021 – eight hours
(b)2 March 2021 – 12 hours
(c)16 March 2021 – two hours
(d)30 March 2021 – 14 hours
(e)13 April 2021 – two hours
(f)27 April 2021 – eight hours
(g)11 May 2021 – 14 hours
(h)25 May 2021 – 10 hours
(i)8 June 2021 – 12 hours
(j)6 July 2021 – 28 hours
(k)3 August 2021 – two hours
(l)17 August 2021 – two hours
(m)31 August 2021 – eight hours
During this period the applicant was typically undertaking between two and seven hours per school week and averaging over four hours per week.
While the Tribunal accepts that the applicant would require some flexibility in undertaking relief bus driving work in order to take account of his unpredictable mood swings and days he might not feel up to it, the arrangement the applicant has had in place previously appears to allow such flexibility which strongly suggests they are reasonable arrangements for work of that kind. Again, the Tribunal can see no reason why the applicant would be incapable of securing work with such conditions in the future.
For these reasons the Tribunal is satisfied that, through a combination of each of the categories of work identified above, the applicant is capable of undertaking more than eight hours of remunerative work a week in aggregate notwithstanding the impact of his accepted conditions. Accordingly, the Tribunal is satisfied that the applicant is not totally and permanently incapacitated for the purpose of section 24 of the Act and therefore not eligible to be paid his pension at the Special Rate.
As stated above, the Tribunal does, however, accept that the applicant satisfies the criteria to be paid his pension at the Intermediate Rate in accordance with section 23 of the Act from 4 March 2019.
DECISION
The decision under review is set aside and substituted for a decision that the applicant be entitled to receive his pension at the Intermediate Rate effective from 4 March 2019.
I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member.
.....................[sgd]............................
Associate
Dated: 2 March 2022
Date of hearing: 1 February 2022 Solicitors for the Applicant: Ross Hart Law Solicitor for the Respondent: Mr Ken Rudge
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