Garratt and Repatriation Commission
[2010] AATA 827
•26 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 827
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0983
VETERANS' APPEALS DIVISION ) Re MONICA LORRAIN GARRATT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean Date26 October 2010
PlaceAdelaide
Decision The decision under review is affirmed.
..............................................
K Bean
(Senior Member)
CATCHWORDS
VETERANS’ ENTITLEMENTS – Disability pension at the special rate – In addition to accepted conditions the veteran suffered from other significant conditions including MS – These conditions contributed to veteran’s inability to undertake remunerative work during the assessment period – Requirements for payment of pension at special rate not met – Decision under review affirmed.
Veterans Entitlements’ Act 1988 (Cth), s 24
Re Gibson and Repatriation Commission [2004] AATA 879
Repatriation Commission v Hendy (2002) 76 ALD 447
McDonald v Director General of Social Security (1984) 1 FCR 354REASONS FOR DECISION
26 October 2010 Senior Member K Bean introduction
1. Mr Bruce Gibson served in the Royal Australian Navy from 10 April 1965 to 23 April 1969. Sadly, he died suddenly of a heart attack on 10 March 2004. At that time he was engaged to be married to Ms Monica Garratt, who is the executor and beneficiary under Mr Gibson’s will, and the applicant in this matter.
2. At the time he died, Mr Gibson was in receipt of a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (the VEA) at 100 per cent of the general rate. However, he had applied for an increase in the rate of his pension, to the special rate, on 5 August 1999 and, as at the date of his death, that application had not been finally determined.
3. Ms Garratt has accordingly been pursuing that matter in Mr Gibson’s stead. She sought review of a decision of the Repatriation Commission not to increase the rate of Mr Gibson’s pension by the Veterans’ Review Board (the VRB). The VRB also decided not to increase the pension payable in the relevant period, and Ms Garratt has now sought review of that decision by this Tribunal.
legislation and issues
4. In order to establish that Mr Gibson was entitled to be paid disability pension at the special rate, Ms Garratt must establish that he satisfied all of the requirements of s 24 of the VEA at some point during the assessment period. For the purposes of this matter, the assessment period is the period between when Mr Gibson lodged his application, on 5 August 1999, and the date of his death on 10 March 2004[1].
[1] VEA, s 19(9)
5. Section 24 of the VEA provides as follows:
“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:
(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.”
6. The respondent does not dispute that Mr Gibson satisfied ss (1)(aa), (aab), (a), (b) and (d) of s 24, but contends that Mr Gibson did not satisfy the “alone” test laid down by s 24(1)(c) at any time in the assessment period.
7. Section 24(1)(c) must be applied in light of the provisions of s 24(2), and the respondent also contends that Mr Gibson was not suffering a loss of earnings by reason of his war-caused or accepted conditions, because he ceased remunerative work for reasons other than his accepted conditions pursuant to s 24(2)(a)(i), and was also prevented from engaging in remunerative work for reasons other than his accepted conditions pursuant to s 24(2)(a)(ii).
8. The issues for my determination therefore are:
(a) whether, during the assessment period, Mr Gibson was prevented by his accepted conditions, alone, from continuing to undertake the work he was undertaking within the meaning of s24(1)(c); and
(b) if so, whether he:
- ceased remunerative work for reasons other than his accepted conditions within the meaning of s 24(2)(a)(i); or
- was prevented from engaging in remunerative work for reasons other than his accepted conditions within the meaning of s 24(2)(a)(ii).
was Mr Gibson prevented by his accepted conditions alone from working during the assessment period?
9. There was no dispute between the parties that Mr Gibson last worked in 1983, and that his usual form of work, or the “remunerative work” he was undertaking for the purposes of s 24(1)(c), was as a long range truck driver and repairer of machinery[2].
[2] T 18/74
10. There was also no dispute that the conditions suffered by Mr Gibson which were accepted as being war-caused were:
-tinnitus;
-bilateral sensorineural hearing loss;
-hypertension;
-diabetes mellitus;
-post-traumatic stress disorder (PTSD) (with alcohol abuse in remission); and
-atherosclerotic peripheral vascular disease affecting both legs.
The parties also agreed that all of these conditions were relevant during the assessment period.
11. Mr Paget, who appeared as an advocate on behalf of Ms Garratt, submitted that of Mr Gibson’s accepted conditions, his PTSD was by far the most significant and incapacitating condition. He contended that Mr Gibson had suffered from this condition since his naval service and that the condition had had a profoundly disabling affect on him. He contended that in substantive terms it was his PTSD condition which had led to Mr Gibson ceasing work in 1983, and that it alone had prevented him from working from that time until his death in 2004.
12. He and Ms Garratt also gave evidence of their observations of Mr Gibson in support of that contention.
13. Mr Paget said that he held a Diploma in Professional Counselling which gave him added insight into Mr Gibson’s condition. He said he had seen and interacted with Mr Gibson frequently in the period 2000-2004 and from his observations, Mr Gibson found it difficult to interact with people and would get into conflicts with other people easily. He also described Mr Gibson as having a heightened sense of threat and fear, and said that using his own expertise he had deduced that Mr Gibson had ceased working in 1983 due to his PTSD. He also stated that in his opinion, Mr Gibson’s PTSD condition had magnified the effect upon him of an accident he suffered at work in 1983, following which he ceased work.
14. Ms Garratt gave evidence that she had known Mr Gibson since approximately 1998 and been in a close relationship with him from some time in 1999 until his death in 2004. She said that because of his volatility, Mr Gibson tended to avoid most social situations. For example, although Mr Gibson would drive her to the shops, he generally would not go in to shops with her because of the risk of getting into conflict situations with other people. She said that neither he, nor anyone else, could stop his violent outbursts. She also said that he was restless and had trouble concentrating.
15. Notwithstanding these observations however, there is a significant amount of evidence before me which weighs against a conclusion that Mr Gibson’s PTSD was the only thing preventing him from working in the period 1999 to 2004. This includes evidence recorded in a previous Tribunal decision, forms completed by Mr Gibson, and a number of medical reports and opinions relating to his various conditions.
Previous Tribunal decision
16. Although the proceedings related to a different issue from that before this Tribunal, relevantly for the purposes of this matter, in Re Gibson and Repatriation Commission [2004] AATA 870, the Tribunal received evidence relating to the circumstances of Mr Gibson ceasing employment, including evidence from Mr Gibson himself. It summarised that evidence as follows:
“46. Mr Gibson said that he was involved in an accident in 1983 when a truck he was jacking up fell off its jack. He said that he "came out as fast as a bullet" and was not physically hurt. He has not been under a truck since, though. In a report by his Medical Officer, Dr Farmer, dated 3 February, 2000, it was said that Mr Gibson ceased work in October, 1983 when he was "... trapped under a vehicle when jack collapsed. ..." (T documents, page 278). Mr Gibson was sacked and three weeks after the accident had a nervous breakdown caused by the loss of his job, marriage breakdown and loss of gear (T documents, page 278). Mr Gibson had not worked since 1983 and cited constant illness as the reason for his not working.
47. Mr Gibson said that he had a second truck accident when he blew a front tyre on a prime mover in the Tanami Desert. The prime mover was towing a half a house and it slipped forward. He was trapped in the cabin and he was left dehydrated and with damaged L4 and L5 discs in his back. (T documents, page 350) In cross-examination, Mr Gibson said that he was not trapped in the prime mover. He was dehydrated because he only had beer and no water.”
Forms completed by Mr Gibson
17. Consistently with that decision, in a claim form completed in 1991, Mr Gibson reported that he had last worked for “Foster’s Autos” in 1983, and that he had suffered a back injury while working for them for which he made a claim on 14 October 1983 and which settled out of court in 1989[3]. In a form completed in 1996 he also indicated that he was in receipt of a disability pension for “osteoarthritis and back pain”[4].
[3] T 2/3
[4] T 7/30
18. In a claim lodged in November 1997, Mr Gibson also complained of “inability to stand/walk long distance, poor concentration and memory, easy fatiguability”.[5] On 16 October 1999, he completed an employment report in which he stated:
“Can’t stand for long, bend over, walk. Heat! My joints and feet swell. Hands and fingers cramp and ‘multiple sclerosis’ and ‘diabetes’, ‘angina’ and ‘chronic fatigue’ etc etc hit me along with this PTSD. Wipe me out every damn time – I hate it!
…
I am totally unemployable, my head never stops throbbing, the medications help ease my pain and suffering but my body is always having a permanent fight with itself … I haven’t worked since 1984!”
[5] T 9/38
19.
In a claim form completed in December 1999, Mr Gibson also stated that he had not worked since 1984 due to “shakes and body pains, headaches, … depression took over!”[6].
[6] T 18/75
Medical assessments and opinions
20. Consistently with Mr Gibson’s statement in the employment report referred to above, in a medical report completed for disability pension purposes on 3 February 2000, a doctor recorded that Mr Gibson had said he had multiple sclerosis (MS). That doctor noted that Mr Gibson’s GP had stated that Mr Gibson’s MS was a “major disorder” expressed partly in “variable left hemiplegia and headaches”[7]. The doctor attributed the following symptoms to Mr Gibson’s MS:
“Poor memory, speech slurs, vision distorts, arms shake, poor coordination, legs wobbly – does not know where legs are.”
[7] T 19/81
The doctor also noted that Mr Gibson considered his foot and leg problems were important in his inability to work.
21. A diagnostic report in relation to MS was completed for the respondent by a Dr Jeffrey of the Department of General Medicine at the Lyell McEwin Hospital on 6 August 2000. In that report, Dr Jeffrey stated that MS had been diagnosed by an MRI head scan on 9 May 1998 and added, “scans reviewed independently by two radiologists who agreed no differential diagnosis considered likely including small vessel ischaemia – no other diagnostic tests performed”.[8] Mr Gibson’s death certificate also stated that the causes of his death included “multiple sclerosis (10 years)”.[9]
[8] T 23/102
[9] T 29/124
22. In relation to Mr Gibson’s psychiatric conditions, in a report dated 16 November 1999, Dr Marty Ewer, psychiatrist, expressed the opinion that he was suffering from chronic PTSD, alcohol abuse and dependence (in remission), nicotine abuse, attention deficit disorder (residual adult type with hyperactivity), and a major depressive illness. As to the effect of these conditions on Mr Gibson’s ability to work, Dr Ewer stated:
“Mr Gibson’s psychiatric problems contribute to his inability to work. His poor memory and concentration would see him make a number of mistakes in the workplace. His irritability and conflict would result in poor relationships with other people in the workplace. His insomnia and lethargy would result in a reduced pace and perseverance. His anxiety and lack of confidence would also make work difficult. I believe these problems have contributed to a restriction of his career opportunities and the loss of his job.”[10]
[10] T16/72
23. In this report, Dr Ewer did not attempt to quantify the respective impacts of Mr Gibson’s accepted and non-accepted conditions on his ability to work. However as to the symptoms potentially resulting from Mr Gibson’s non-accepted condition of attention deficit disorder, in a report dated 14 October 1999, Dr Lloyd, psychiatrist, recorded that the diagnosis of attention deficit disorder had been made on the basis of:
“…a history since childhood of poor attention span, irritability, hyperactivity, disciplinary problems, difficulty waiting turns in games, interrupting, danger seeking behaviour all of which appear to have extended into adulthood.[11]”
[11] T13/59
24. In relation to the affect of PTSD on his ability to work, in a medical report dated 3 February 2000, another doctor commented that “the PTSD is the critical disorder in ATW” with “ATW” apparently referring to “ability to work”.[12]
[12] T19/82
25. In a medical report dated 3 June 2010, Mr Gibson’s general practitioner, Dr Van Dissel also stated that Mr Gibson:
“Was unable to work due to a combination of illnesses (posttraumatic stress syndrome, hypertension, diabetes mellitus, peripheral vascular disease, tinnitus and bilateral sensorineural hearing loss). The rejected disabilities (ie osteoarthritis, migraine, headache, ischaemic heart disease, depression, encephalic mellitus and ? multiple sclerosis) did not prevent him from working. Multiple sclerosis was never proven and was most likely a peripheral neuropothy due to alcohol.”[13]
[13] Exhibit 2
Analysis
26. Relying on the report of Dr Van Dissel, Mr Paget contended that Mr Gibson’s non-accepted conditions did not prevent Mr Gibson from working during the assessment period, and further that it was not established that he actually suffered from MS.
27. In relation to the latter contention however, on balance, I am satisfied on the basis of the information referred to above that Mr Gibson had been diagnosed with that condition, that the diagnosis remained current at the time of his death[14] and that it should be accepted as correct. I am also satisfied that, in addition to his accepted conditions, during the assessment period Mr Gibson suffered from a significant back complaint originating in the 1980’s, and attention deficit disorder.
[14] T29/124
28. As to the effect of Mr Gibson’s various conditions on his ability to work during the assessment period, there is no doubt on the evidence that Mr Gibson’s PTSD condition had a significant impact on him, and a significant effect on his ability to work. Indeed, the respondent conceded in its Statement of Facts, Issues and Contentions that “the effects of PTSD of itself alone were sufficiently severe to cause him to continue to be unable to work”.
29. However, as the respondent also correctly pointed out, the critical question for the purposes of applying s 24(1)(c) is whether there was any significant contribution to Mr Gibson’s inability to work from any factor other than his accepted conditions. As the Full Court of the Federal Court stated in Repatriation Commission v Hendy (2002) 76 ALD 447, at [54]:
“the decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work.”
30. Whilst Mr Gibson’s PTSD appears to have been sufficiently severe to prevent him from working, on the evidence, it appears that during the assessment period Mr Gibson’s MS also had a significantly incapacitating effect on him. The effects of his MS appear to have included slurred speech, distortions in his vision, poor co-ordination, shaking arms and ‘wobbly’ legs, as well as difficulty sensing where his legs were. The evidence also suggests that he himself saw his MS condition as having a significantly incapacitating effect, and being relevant to his inability to work.
31. In light of this evidence, in my view, it would have been difficult for Mr Gibson to have engaged in the work he had previously undertaken, as a long range truck driver and repairer of machinery, with the symptoms which apparently resulted from his MS. I am therefore satisfied that that condition made a substantial contribution to his inability to carry out that work during the assessment period.
32. I also consider it likely that Mr Gibson’s back condition made some contribution to his inability to work during the assessment period. It is difficult to assess the precise degree of that contribution on the available evidence, however it is significant in my view that, whilst he injured his back in 1983, he apparently had back pain sufficient to attract payment of disability support pension in 1996. In light of that evidence, I am satisfied that his back condition had become chronic and is likely to have continued to trouble him during the assessment period. I am therefore also satisfied that it made a contribution to his not resuming work during that period.
33. In addition, I consider that, by the beginning of the assessment period in 1999, the fact that Mr Gibson had been unemployed for the previous 16 years made a significant contribution to his inability to work during the assessment period.
34. Having regard to the symptoms which gave rise to the diagnosis of the condition, I also consider that Mr Gibson’s attention deficit disorder made some contribution to his inability to work. However, that contribution is likely to have been less significant than the factors referred to above, given that Mr Gibson had apparently suffered from this condition since childhood and had been able to work with the condition for many years.
35. In summary therefore, whilst Mr Gibson’s PTSD condition was sufficient to prevent him from working, I consider that his inability to work during the assessment period was also contributed to by (in order of decreasing importance) his MS, his back condition, the length of time he had been out of the work force, and his attention deficit disorder. I consider that each of these factors played a part in his inability to work during the assessment period, and, in the case of his MS condition, this made a substantial contribution to Mr Gibson’s inability to undertake the work he had been undertaking during the assessment period.
36. For completeness, I should also note that Mr Paget submitted that the respondent had not discharged its “onus of proof” and had not established that Mr Gibson’s non-accepted conditions contributed to his inability to work during the assessment period.
37. In relation to that issue, I accept the submission of Mr Crowe for the respondent that there is no strict onus of proof in Tribunal proceedings, or under the VEA[15], although a practical onus often falls on a party asserting the existence of a particular fact to establish that fact.[16] Ultimately, however, in a matter such as this, the question for the Tribunal is whether, on the material before it, it is satisfied that the requirements of the statute are met. As I have indicated above, on the material before me in this matter, I am not satisfied that Mr Gibson’s PTSD condition, alone, was the reason he was not able to work during the assessment period.
[15] See s 120(6)
[16] See McDonald v Director General of Social Security (1984) 1 FCR 354 at 358.
38. It follows that I am not satisfied that Mr Gibson satisfied the “alone” test set out in s 24(1)(c) of the VEA Act at any time during the assessment period.
39. In light of that conclusion, it is unnecessary for me to consider whether he satisfied the second limb of s 24(1)(c) relating to loss, as elaborated by s 24(2)(a).
conclusion
40. I have accordingly concluded that Mr Gibson did not satisfy the test prescribed by s 24 of the VEA, with the result that he did not qualify for the payment of disability pension at the special rate.
Decision
41. The decision under review is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: .....................................................................................
AssociateDate/s of Hearing 19 August 2010
Date of Decision 26 October 2010
Advocate for the Applicant Mr T J Paget
Advocate for the Respondent Mr A Crowe
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