Gibbs and Repatriation Commission
[2007] AATA 1899
•30 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1899
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600648
VETERANS’ APPEALS DIVISION ) Re BOB GIBBS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date30 October 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) E.A. Shanahan
Member
VETERANS’ AFFAIRS – applications for special or alternatively intermediate rates – service in Malayan Emergency – recipient of a disability pension as 100 per cent of the general rate since 1999 – PTSD dating from 1956/57 – ceased work in 1981 – alone test – s 28 - s 24(1)(c) – decision affirmed
Veterans’ Entitlement Act 1986
Byrne and Repatriation Commission (2000) 33 AAR 410
Flentjar v Repatriation Commission (1997) 26 AAR 93
Peacock v Repatriation Commission (2004) FCA 1449
Repatriation Commission v Hendy (2002) 76 ALD 47
Re Gibbs and Repatriation Commission [1999] AATA 223
Re Gibbs and Repatriation Commission [2005] AATA 516
REASONS FOR DECISION
30 October 2007 Miss E.A. Shanahan, Member 1. On 13 September 2005 the Repatriation Commission denied Mr Gibbs’ claim for the Special Rate or the Intermediate Rate of pension. This decision was affirmed by the Veterans’ Review Board on 26 June 2006, on the basis that Mr Gibbs did not satisfy s 24(1)(c) of the Veterans’ Entitlement Act 1986 (the Act). On 25 July 2006 Mr Gibbs sought review of the decision by the Tribunal. Thus the assessment period under consideration runs from 23 June 1999 until the time of this decision.
2. Mr Gibbs was represented by Mr A. Larkin of Counsel, instructed by Williams Winter Solicitors. The Repatriation Commission was represented by Mr G. Purcell of Counsel, instructed by the Department of Veterans’ Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
3.The parties tendered the following documents:
The Applicant:
·The statement of Mr Gibbs dated 18 October 2006 (Exhibit A1)
·The report of Dr A.J. Buchan dated 13 December 2006 (Exhibit A2)
·The report of Dr Michael Epstein dated 12 February 2007 (Exhibit A3)
·The report of Dr Clayton Thomas dated 14 February 2007 (Exhibit A4)
The Respondent:
·The T-documents (Exhibit R1)
·Transcript of VRB hearing dated 26 June 2006 (Exhibit R2)
·The report of Dr Amanda Sillcock dated 24 February 2004 (Exhibit R3)
·Reports of Dr Stephen Hall dated 30 May 2004 and 12 July 2004 (Exhibit R4)
·The Applicant’s statement of issues dated 9 August 2000 (Exhibit R5)
·Application by Mr Gibbs to the Repatriation Commission and submission (TSM2227) by Mr Gibbs criticising the reports of Writeway Research Services dated 18 September 2000 (Exhibit R6)
4. Mr Gibbs, Dr Epstein, Dr Thomas, Dr Buchan and Dr Sillcock gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
5. Mr Gibbs served in the Royal Australian Navy (the Navy) from 19 July 1954 until 18 April 1961 and was involved in the Malayan Emergency of 1956/57. After some 11 months in civilian employment as a television technician he enlisted in the Royal Australian Airforce (RAAF), serving from March 1962 until 7 June 1976. Mr Gibbs was a telegraphist while in the Navy and this had possibly assisted him in gaining employment with EMI as a TV tester in 1961/62. During his service in the RAAF Mr Gibbs availed himself of further educational opportunities and completed his HSC/Year 12 studies; following which he undertook a 12 month, RAAF-funded course in the Indonesian language. Thereafter, he worked in the area of Intelligence including providing interpreter services.
6. In early 1976 Mr Gibbs established a picture framing business. He performed picture framing activities in his home garage and his wife managed a gallery business from a rented retail shop that also included the sale of books and gift items. This business was established as Mr Gibbs intended to resign from the RAAF. His resignation was effective from 7 June 1976 when Mr Gibbs was 39 years old. Mr Gibbs stated the reason for his resignation in June of 1976 was that he had determined that he had no prospects of further advancements within the RAAF.
7. The business was financially successful allowing Mr Gibbs to send his two children to private schools and providing a comfortable lifestyle for the family. In 1980 he commenced part-time study at the Royal Melbourne Institute of Technology (RMIT) in Fine Arts. From childhood Mr Gibbs had been interested in and had a talent for sketching and painting. In early 1981 he ceased work as a picture framer because of symptoms of carpal tunnel syndrome in his right hand resulting in difficulty in cutting glass. In addition, he complained of back pain, left knee pain, headaches, depression and alcohol abuse (Exhibit A1). Having walked away from the business he enrolled on a full time basis in his Fine Arts (painting) Degree, which he completed in approximately 1983. Mr Gibbs stated he intended to embark on a career as painter. In the interim his wife worked full time and he was in receipt of Defence Force Retirement Benefit (DFRB) which he estimated to be $500 to $560 per fortnight. (Tribunal Note: The sum received was in fact in the order of $594 per fortnight).
8. Mr Gibbs said that in approximately 1985 he and his family moved to Mackay in Queensland where he had hoped to gain clerical employment with an Airforce friend who ran a crop-dusting business. This was not successful and he ceased work after a few weeks. He did however spend 1985 and 1986 in Mackay. His wife worked in Mackay on a full-time basis. The family returned to Melbourne in 1986/87 and then relocated to Tasmania in 1999 as Mr Gibbs could not tolerate the numerous Asian faces in Melbourne as these reminded him of his Malaysian experiences in 1956/57. In 1998 Mr Gibbs attempted to work again, first as a private investigator for a period of two months and then as a bus driver for a period of three months. Thereafter he read the job vacancies in the press but never applied for a position. In the late 1980’s (approximately 1988) Mr Gibbs commenced voluntary work for Legacy and Advocacy for Veterans claiming pensions. He continues to do this work for a half day per week as required. Examples of his excellent written arguments were presented (Exhibit R5 and R6).
9. Mr Gibbs ceased painting four years ago. Prior to that he sold an undeclared number of paintings; but he stated he had never declared these for income-tax purposes as they were unintentional earnings. He could not recall the amount of income received from his painting. Mr Gibbs could not explain his reasons for changing his name from Robert Owen Gibbs to Bob Gibbs in approximately 1979.
10.Mr Gibbs has a number of disabilities which the Respondent has accepted as being war-caused :
·Right carpal tunnel syndrome (accepted 31 October 1977)
·Solar Keratoses (accepted 13 May 1997
·Lumbar Spondylosis (accepted 19 December 1997)
·Cervical Spondylosis (accepted 1 January 1998)
·Headaches (accepted 1 January 1998)
·Chronic Sinusitis (accepted unknown date)
·Sensorineural Hearing Loss (accepted unknown date)
·Bilateral Tinnitus (accepted 23 June 1999)
·Osteoarthritis Left Knee (accepted 24 March 1999)
·Post-Traumatic Stress Disorder (PTSD) (back-dated to 23 June 1999) having been confirmed as war-caused by the Administrative Appeals Tribunal (AAT) IN 2005
·Alcohol Dependence and Abuse (accepted 23 June 1999)
·Gastro-Oesophageal Reflux Disease (accepted 6 April 2005)
Claims for several of these conditions were rejected at a later date. In particular:
·Osteoarthritis of the left knee rejected 3 February 2000
·Depressive Disorder rejected 18 July 2000
·Alcohol Dependence or Alcohol Abuse rejected 18 July 2000
·Post Traumatic Stress Disorder rejected 6 May 2003
·Depressive Disorder rejected 6 May 2003
·Emphysema was rejected on the basis that no incapacity was found on 17 January 2006
11. On 3 June 2005 the AAT found that Mr Gibbs suffered from war-caused Post Traumatic Stress Disorder and Alcohol Dependence and Abuse.
12. Mr Gibbs has been receiving a disability pension from the Department of Veterans’ Affairs since 31 October 1977. The amount reached 70 per cent of the general rate on the 9 November 1998, when the Veterans’ Entitlement Act 1986 (the Act) was amended to recognise the Malayan Emergency as operational service. Mr Gibbs had lobbied in support of this recognition for many years and received a Federation Medal in 2003 for service to Veterans’ nationally.
13. Mr Gibbs now seeks the special rate of pension or, in the alternative, the intermediate rate.
EVIDENCE BEFORE THE TRIBUNAL
Mr Bob Gibbs
14. Mr Gibbs’ evidence is summarised above, under Background to the Application. He was somewhat evasive in his answers to questions relating to his income after 1981, stating he could not recall as his memory was deficient secondary to his post traumatic stress disorder. He stated that he had not declared any income from the sale of paintings and agreed that he had told Dr Epstein in February of 2007 (Exhibit A3) that he had no income as he did not regard his Defence Force Retirement Benefit (DFRB) of $560 per fortnight as income. Nor could Mr Gibbs explain the reason for changing his name in 1979. Mr Gibbs became very angry during cross-examination by Mr Purcell and left the hearing room. After being counselled by Mr Larkin, he apologised to the Tribunal and Mr Purcell. Mr Gibbs expressed the view that in his opinion the Repatriation Commission considered his claims as fraudulent. (Tribunal Note: There was no evidence to support this view being held by the Repatriation Commission). Mr Gibbs acknowledged the excellent standard of his submissions (Exhibit R5 and R6) but said it took him two to three weeks to write each of these documents.
Dr M. Epstein
15. Dr Epstein saw Mr Gibbs on 7 February 2007 and diagnosed PTSD resulting from severe stressors experienced in the Malayan Emergency with a guestimate date of onset in 1956. He found Mr Gibbs decision to cease work in 1981 due partly to his PTSD; but determined that in 1981 Mr Gibbs was capable of part-time work. Dr Epstein found that in 2007 Mr Gibbs was unable to work for more than eight hours per week because of his PTSD. Dr Epstein agreed with Mr Purcell that he had relied on the history given by Mr Gibbs and had not pursued the possibilities of racism or why Mr Gibbs had not sought employment after 1981. He agreed that Mr Gibbs’ applications and submissions (Exhibit R5 and R6) where well constructed and argued.
16. The Tribunal asked Dr Epstein about the overall medical opinion (see below) that Mr Gibbs PTSD symptomatology and general psychiatric status was improving. Dr Epstein declared that the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition, 1994) (DSM IV), the current reference used by mental health professionals and physicians to diagnose mental disorders was a very inadequate measure of psychiatric disease and that if PTSD sufferers led a simple life and self-managed their condition they would have few symptoms. Such persons learn how to cope with not coping.
Dr Clayton Thomas, Occupational Health Physician
17. Dr Thomas had seen Mr Gibbs on 7 February 2007 (Exhibit A4). He obtained a detailed history and performed a full physical examination. Dr Thomas concluded that Mr Gibbs had significant lumbar spondylosis but had the capacity to work for eight to twenty hours per week. He did not assess Mr Gibbs from a psychiatric point of view, as this was not his specialty.
18. In his evidence before the Tribunal Dr Thomas suggested that Mr Gibbs could perform administrative work for up to 20 hours per week. Dr Thomas disagreed with some of Dr Sillcock’s findings (see below), particularly those relating to Mr Gibbs’ right hand grip, as Dr Thomas did not believe the dynamometer readings were reliable.
Dr A. Buchan, General Practitioner (Evidence by Telephone)
19. Dr Buchan is Mr Gibbs’ general practitioner and has been since 20 April 2000. Mr Gibbs relocated to Tasmania in late 1999. In his report dated 13 December 2006 (Exhibit A2) Dr Buchan documented the following conditions from which Mr Gibbs suffered:
·lumbar spondylosis causing back pain with a 50 per cent restriction of the range of movement and requiring physiotherapy, occasional non-steroidal anti-inflammatory drugs, use of a back brace and a TENS machine;
·cervical spondylosis with a 50 per cent reduction in the range of movement and associated headache;
·osteoarthritis of the left knee with a future possibility of total knee replacement;
·right carpal tunnel syndrome with residual paraesthesia in the right thumb and index finger with loss of manual dexterity and a decrease in the range of movement of 50 per cent in the right wrist;
·gastro oesophageal reflux controlled with Pariet;
·hearing impairment and tinnitus; and
·PTSD with alcohol abuse.
Dr Buchan advised that Mr Gibbs’ treatment by Dr W. Lopes, psychiatrist, until 2005 had been very beneficial; but since Dr Lopes’ death Mr Gibbs had received no psychiatric treatment. However, when he was stressed, Mr Gibbs engaged in mental conversation with Dr Lopes (Exhibit A2).
20. Dr Buchan confirmed the contents of his report and cross-examination did not add to the evidence except that Dr Buchan agreed that Mr Gibbs’ mental conversation with the deceased Dr Lopes was not standard psychiatric treatment. Dr Buchan confirmed Mr Gibbs did not need any psychiatric medication or ongoing treatment.
Dr Amanda Sillcock, Occupational Health Physician
21. Dr Sillcock saw Mr Gibbs on 21 January 2004 at the request of the Respondent, and provided a report dated 24 February 2004 (Exhibit R3). She affirmed her report at the hearing. Dr Sillcock was under the impression that Mr Gibbs ceased work in 1985 (as were many other medical experts). In his evidence Mr Gibbs had clarified his date of cessation of employment as 1981. He stated the dates he had given to the medical experts were incorrect and the error due to his impaired memory. Dr Sillcock obtained a thorough history and on examination found Mr Gibbs to be hypertensive; although she thought this may have been due to a faulty sphygmometer as Mr Gibbs said his blood pressure was always normal. Dr Sillcock detected slight tenderness at cervical vertebrae seven and a full range of movement of the cervical spine. She also noted the scars of left and right carpal tunnel surgery. Her examination revealed the shoulders, elbows, wrists and hands were normal, except for some thenar wasting on the right hand. Grip strength on the right measured 37kg and on the left 45kg. Mr Gibbs was found to be tender over the lower lumbar spine and the range of flexion reduced to 40o. Dr Sillcock detected no abnormalities in the lower limbs.
22. Dr Sillcock was not provided with any x-rays, merely the reports of the examinations between 1993 and 2003. Based on the reports she concluded there were degenerative changes in the cervical and lumbar spine consistent with Mr Gibbs age.
23. Dr Sillcock concluded that Mr Gibbs could work for up to 20 hours per week but not more than 20 hours per week given his diagnosis of PTSD and alcohol abuse. She was unable to identify any medical factors which would have caused him to stop working in 1981. Dr Sillcock acknowledged Mr Gibbs’ then difficulty with working with his hands; but given his other qualifications she was of the opinion that he would have been fit for clerical or administrative duties or work as an interpreter.
24. In her examination in chief Dr Sillcock addressed the reliability of the hand strength dynamometer, stating it did not provide an absolute level but was useful in assessing a patient’s progress. She did not regard the dynamometer reading in Mr Gibbs’ right hand as a significant weakness, given his age.
25. Under cross-examination Dr Sillcock said she would defer to a psychiatrist with respect to the diagnosis of PTSD, but had conducted a work capacity assessment taking into account this diagnosis. It was her clinical conclusion that neither Mr Gibbs’ PTSD or alcohol abuse/intake of six to eight beers per day, prevented him from working up to 20 hours per week. She regarded Mr Gibbs’ PTSD and alcohol abuse as being not very severe. In her opinion, eight beers per day was not a lot and given this intake had been stable for over 50 years it had obviously not effected his employment in the past. Dr Sillcock affirmed her opinion that Mr Gibbs could work as an Indonesian to English interpreter in areas such as foreign affairs and international trade; given his Fine Arts Degree he could work as a curator or teacher, and in light of his RAAF experience in general clerical or administrative areas.
26. The Tribunal informed Dr Sillcock that the evidence before it suggested that Mr Gibbs’ PTSD symptoms had improved and that Dr Epstein had voiced the opinion that Mr Gibbs had learnt to cope with his PTSD. Dr Sillcock in response stated that she believed he could also learn to cope with working up to 20 hours per week.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Dr R. Stark, physician (T4)
27. Dr Stark saw Mr Gibbs on 19 October 1998 and was of the opinion that Mr Gibbs’ headaches were secondary to cervical spondylosis.
Dr W. Hardy, General Practitioner (T11)
28. Dr Hardy examined Mr Gibbs on 8 November 1999 and assessed his impairment rating at 40 with a lifestyle rating of 3; resulting in his pension being paid at 70 per cent of the general rate.
Dr A. Sheehan, Psychiatrist (T14)
29. Dr Sheehan diagnosed Mr Gibbs’ psychiatric condition as PTSD with alcohol abuse and depression on 19 October 1999. Dr Sheehan did not institute any treatment as Mr Gibbs was about to leave Victoria to live in Tasmania.
Dr T.H. Gidley, Psychiatrist (T25)
30. In March 2002 Dr Gidley assessed Mr Gibbs’ psychiatric status and rejected the diagnosis of PTSD. In his opinion Mr Gibbs suffered from a recurrent major depressive disorder with onset in the mid-1980’s and believed this to be unrelated to his eligible service.
AAT DECISION OF 3 JUNE 2005 (T26)
31. On 3 June 2005 the AAT determined that Mr Gibbs suffered from war-caused PTSD with alcohol abuse.
32. While there are several other medical reports and capacity assessments included in the T-Documents, Mr Gibbs’ diagnoses are not in dispute. He receives the disability pension at 100 per cent of the general rate and his medical impairment rating of 17 January 2006 was 70 points with a lifestyle rating of 4.
EXHIBIT R5 and R6
33. These two documents were applications prepared by Mr Gibbs in relation to an appeal for review of the Repatriation Commission’s decision of 9 November 1998 and a critique of the Writeway Report directed to the Repatriation Commission and dated 18 September 2000. These documents were tendered by the Respondent to illustrate the high standard of Mr Gibbs’ advocacy, in these instances on his own behalf, arising from his many years of voluntary advocacy on the behalf of veterans and their widows.
RELEVANT LEGISLATION
34. The Act provides the criteria for special rate 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 …
(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.
28Capacity to undertake remunerative work
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).
23 Intermediate 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’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 …
SUBMISSIONS
35. The parties agreed that Mr Gibbs satisfied s 24 and s 23 of the Act, in that he is receiving disability pension at 100 per cent of the general rate and at the time of his application was 62 years old.
THE APPLICANT
36. Mr Larkin first addressed the requirements of s 28 of the Act as they impact on s 23(1)(b) and s 24(1)(b), and identified the types of remunerative work Mr Gibbs could undertake as being administrative and middle management. Mr Gibbs was obviously intelligent and had a diverse background working in Defence Intelligence, interpreting in the Indonesian language and had a degree in Fine Arts with past skills as an abstract painter. Mr Larkin argued that in respect of s 24(1)(b), the opinions of Dr Buchan, Dr Epstein and Mr Aberdeen should be preferred of those of Dr Thomas and Dr Sillcock, both of whom had found Mr Gibbs’ work capacity to be eight to twenty hours per week. (Tribunal Note: Mr Aberdeen’s assessment took place in 1999 and was confined to the left knee and cervical spine (T7)).
37. Mr Larkin outlined the four questions relating to s 24(1)(c) posed by the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1, which the Tribunal was bound to follow.
38. In Flentjar the Full Federal Court stated that the correct approach to s 24(1)(c) was in the terms of posing four questions:
1What 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?
3If so, was the war-caused injury or war-caused disease, or both, the only factor or factors preventing [the veteran] from continuing to undertake that work?
4If so, [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?
39. Mr Larkin submitted that the answer to all four questions was yes. He quoted the decision in Byrne and Repatriation Commission (2000) 33 AAR 410 with respect to question 3; where the Court (at paragraph eight) addressed the effect of Mr Byrne moving to an area of high unemployment and his time out of the workforce. Gyles J considered that both of these decisions of Mr Byrne reflected the effect of Mr Byrne’s war-caused PTSD.
40. Mr Larkin submitted that Mr Gibbs had not voluntarily or deliberately taken himself out of the workforce when he ceased work in 1981, when he was 44 years old.
41. Mr Larkin also submitted that in the ameliorative provision of s 24(2)(a) the word has in the phrase has ceased work was of pre-eminence, in that Mr Gibbs had never made a conscious decision to cease work but was prevented from undertaking work by his war-caused injuries. Mr Larkin relied on the authority of Peacock v Repatriation Commission (2004) FCA 1449 at paragraph 35 where Dowsett J stated:
As I have said, the availability of superannuation benefits may have induced the applicant to retire in 2000, but such availability did not prevent him from performing work in 2004. Further, even if he was not incapacitated for work in 2000, he may well have been so incapacitated by 2004.
42. Mr Larkin finally submitted that should the Tribunal find that Mr Gibbs was capable of working up to 20 hours per week, s 23 was attracted and the submissions already made with respect to s 24 were equally pertinent to s 23.
THE RESPONDENT
43. Mr Purcell acknowledged that Mr Gibbs met the requirements of s 24 with respect to special rate, however, he submitted that the evidence of Doctors Sillcock and Thomas, the occupational health physicians, indicated that Mr Gibbs could work up to 20 hours per week; and that factors other than Mr Gibbs’ war-caused injuries had impacted on his decision to cease work in 1981 and his ongoing failure to seek further employment. These factors were related to his professed desire to pursue a career as a painter and his now 26 years out of the workforce.
44. The Respondent relied on the decision in Byrne with respect to 24(1)(c) and in particular paragraphs seven, eight and ten which state:
[7] By the close of argument the applicant's grounds of appeal had been amended and refined so that the grounds pressed were as follows:
"The Tribunal erred in law in para[115] to para[117] of its reasons, by misconceiving the effect of s24(2)(b) of the Veterans' Entitlements Act 1986 (Cth), in that:
(i) the Tribunal addressed whether the applicant's "war-caused disabilities", as distinct from his "incapacity from war-caused injury and disease", were "the substantial cause of his inability to obtain remunerative work".
(ii) the Tribunal weighed factors which were part of, or a consequence of, the applicant's incapacity from war-caused disease against, rather than in favour of, his satisfaction of that requirement - namely, his location in an area having a high level of unemployment and his time out of the workforce.
(iii) The Tribunal failed to address the hypothetical position that the applicant would have been in in [sic] relation to obtaining remunerative work if he had not been incapacitated by war-caused injury or disease."
[8] The general proposition reflected in ground (iii) is illustrated by the points made in ground (ii). As appears from para116 of its decision, the AAT regarded the high rate of unemployment in the Kempsey area as a factor in the applicant's inability to obtain work at the time of his application. So much may be accepted as a matter of fact. Counsel for the applicant submits that this begs the real question. He submits that the AAT had found that the applicant's PTSD had been a cause of his move to Kempsey. Counsel for the respondent does not accept that this finding was made. In my opinion, consideration of para69, para70, para71, para91, para93, para108, para109 and para110 of the AAT decision shows the submission for the applicant to be correct. I agree with the submission by counsel for the applicant that a consequence of incapacity resulting from the war-caused injury or disease can hardly be counted as a factor against the applicant under s24(2)(b) when considering the effect of that incapacity upon obtaining employment.
[10] In my opinion, the applicant has established that the AAT misdirected itself as to the proper application of s24(2)(b). The issue is not limited to the question as to why the incapacitated person is in fact unable to obtain employment in the particular place, although that may be relevant. In order to judge the effect of the relevant incapacity, it is necessary to compare the position of the applicant as he is with the position he would be in without the relevant incapacity. In the present case, that requires the formation of an assessment of the work prospects of the applicant as a fifty-one year old man with his characteristics and abilities, who had never suffered from PTSD, bilateral sensorineural hearing loss, osteoarthrosis of right and left knees or sleep apnoea and who is probably not living in Kempsey. That process enables the true effect of war-caused incapacity upon the ability of the applicant to obtain work to be assessed.
45. Mr Purcell also submitted that the determinant of the application centred on the four questions espoused by the Full Federal Court in Flentjar. He agreed that question one should be answered yes.
46. With respect to question two, Mr Purcell submitted that, in accordance with Repatriation Commission v Hendy (2002) 76 ALD 47 (paragraph 37), while the war-caused injuries may have contributed, consideration should be given to Mr Gibbs attitude to work, his relocation to Mackay for anticipated but not fulfilled work and his very short term employment in 1988.
47. Mr Purcell contended that Mr Gibbs did not meet the requirements of s 24(1)(c) or s 23(1)(c) because his decision to cease work in 1981 was not due solely to his war-caused disabilities. Mr Purcell also commented on Mr Gibbs exhibited selective memory defect with respect to his business profits, his expected employment on relocating to Mackay and his earlier statements to various doctors and the Veterans’ Review Board that he had ceased work in 1985, when in fact he ceased in 1981. Mr Purcell submitted that these memory defects raised doubts as to Mr Gibbs reliability as a witness.
TRIBUNAL’S DELIBERATIONS ON THE EVIDENCE AND LEGISLATION
48. Mr Gibbs meets the requirements of s 24 as he receives a disability pension at 100 per cent of the General Rate. The assessment period with respect to Special or Intermediate Rate commenced on 23 June 1999 when Mr Gibbs was 62 years of age and finishes on the date of this decision. Mr Gibbs did not become eligible for the disability pension under the Act until the 1997 legislative changes recognising service in the Malaysian Emergency as operational service. His psychiatric condition, found to be PTSD by the AAT in 2005 was not diagnosed until 1999. His PTSD was attributed to his having experienced severe stressors in 1956/1957.
49. Given the Repatriation Commissions acceptance of the AAT decision regarding PTSD with alcohol abuse, further evidence regarding this condition was restricted to the opinion of Dr Epstein. This Tribunal has accessed the decision of Senior Member Handley in Re Gibbs and Repatriation Commission [2005] AATA 516. It did so in order to obtain more information regarding Dr Lopes’ opinion of 21 July 2003. While the majority of the psychiatrists who provided opinions at the 2005 AAT hearing refuted a diagnosis of PTSD, Senior Member Handley afforded the greatest weight to the report of the treating psychiatrist, the late Dr W. Lopes. This Tribunal has also read the AAT decision Re Gibbs and Repatriation Commission [1999] AATA 223 relating to Mr Gibbs application for an aged service pension. In this hearing Mr Gibbs was self-represented and had provided a very detailed submission (Annexure L to the decision of Deputy President Graham McDonald dated 6 April 1999). In both of these hearings Mr Gibbs gave evidence that he ceased work in 1985. In the current hearing he corrected this to 1981.
50. Mr Gibbs ceased work as a picture framer in 1981 as a result of difficulties using his right hand to cut the sheet glass used in picture framing, back and neck pain aggravated by the physical positioning of this work and pain in his left knee aggravated by operating a pedal. Prior to ceasing work he had commenced a degree in Fine Arts (painting) on a part-time basis; and after cessation of work completed this degree as a full time student, while his wife worked as a stenographer.
51. Mr Gibbs has received a DFRB since leaving the RAAF in 1976. In his evidence he estimated he was paid about $500 to $550 a week. However, the T-documents state that on 24 November 2000 he was receiving DFRB of $688.72 per fortnight and $151.93 per fortnight from superannuation provided by the Victorian Government.
52. Mr Gibbs had planned to supplement this income by painting. He said painting was to be his career. The amount of any income from painting is unknown; although he did exhibit his work and did sell some of his paintings. These have not been declared for taxation purposes. With the passage of time Mr Gibbs came to regard his painting as a form of therapy.
53. Initially, Mr Gibbs said he could not give a reason for shifting his family to Mackay in Queensland in 1986. He stated I don’t know why I wanted to go to Queensland. The family’s return to Mooroolbark in Victoria in 1986/87 was attributed to Mr Gibbs’ wife being unhappy in Northern Queensland. It was only during cross-examination that Mr Gibbs revealed that he had gone to Mackay expecting to work in an administrative capacity with an ex-Airforce colleague who had established a crop dusting business in Mackay. Mr Gibbs did work in this capacity for a few weeks only. Thereafter, he was unemployed. His wife continued to work. Mr Gibbs concentrated on his painting as he expected to make a living from this pursuit. To his way of thinking, he had always continued to work; albeit not paid work. Mr Gibbs said he had not painted in four years.
54. In 1988 Mr Gibbs was employed for two short periods of time, first as a private investigator and secondly as a bus driver transporting disabled children. He said he did make enquiries via the Commonwealth Employment Service for jobs but was only offered positions delivering pamphlets. He continued to read the job vacancies listed in the papers but did not make any enquiries.
55. In late 1990 Mr Gibbs left Victoria to reside in Tasmania. He said the reason he chose Tasmania was because he perceived that state to have fewer Asian faces than Victoria. Since his shift to Tasmania he has been involved in voluntary advocacy for Legacy and the Returned and Services League (RSL). He occasionally gardens, cooks meals on Sundays and painted his three bedroom house over a prolonged period.
56. Since the death of Dr Lopes, his psychiatrist, Mr Gibbs has not received any special psychiatric treatment and is not on any psychiatric medication. When stressed, Mr Gibbs has a mental conversation with the late Dr Lopes.
57. From the evidence, it appeared to the Tribunal that with the passage of time Mr Gibbs’ PTSD symptoms had lessened. Dr Epstein attributed this apparent improvement to learning to cope with not coping. Dr Buchan confirmed Mr Gibbs was not receiving any medication for his PTSD, as none was required.
58. On his own evidence, there were several factors why Mr Gibbs ceased remunerative work in 1981. These included his later accepted war-caused conditions and his desire to pursue a career as a painter. While his physical injuries impacted directly on his ability to work as a picture framer in 1981 he still had vast experience in administrative duties and qualifications as an interpreter in the Indonesian language.
59. Having moved to Tasmania in 1999 Mr Gibbs became more actively involved in advocacy with the RSL and Legacy, his involvement with the RSL having commenced in the late 1980’s (Exhibit A1).
60. Mr Gibbs could not recall how much income he derived from his paintings. He had no Income Tax records and the Australian Tax Office had destroyed its records of the 1980’s and 1990’s. Nor could Mr Gibbs give a reason for changing his name from Robert Owen Gibbs to Bob Gibbs in 1979 (Exhibit A3). The Tribunal does note that in the AAT decision of 3 June 2005 he was called Robert Owen Gibbs and in the decision of 19 April 1999 he was called Robert O. Gibbs, but subsequently requested that the Tribunal change the text of the decision and alter his name on the decision page to read Bob Gibbs. The Tribunal does not know whether he changed his name by Deed Poll or common usage.
MEDICAL EVIDENCE
61. The diagnosis of Mr Gibbs’ accepted war-caused disabilities has been accepted by the Repatriation Commission despite considerable dissenting medical opinions. In the present application, the area of disagreement between the medical experts has been the functional impact of these medical conditions. Doctors Epstein and Buchan consider Mr Gibbs unfit to work eight hours per week. In contrast, Doctors Sillcock and Thomas find him capable of working eight to twenty hours per week but not more than twenty hours. No reports were provided from Mr Gibbs only treating psychiatrist, the late Dr Lopes. However, the Tribunal has accessed these from the AAT decision of 3 June 2005.
Application of the Legislative Requirements to the evidence
62. Mr Gibbs satisfies the requirements of s 24(1)(aa),(aab) and (a)(i).
63. The Tribunal finds, to its reasonable satisfaction, that Mr Gibbs did not meet the alone test of s 24(1)(b) or s 23(1)(b), at the time he ceased work in 1981 as he then believed his future career was to be that of a painter. The Tribunal acknowledges that at that time his accepted war-caused disabilities also contributed to his decision to cease work as a picture framer.
64. In accordance with the requirements of s 28, Mr Gibbs’ possible areas of remunerative work have been identified as administrative, middle management, clerical, interpreting in the Indonesian language and, by virtue of his Fine Arts degree, work as a curator or in teaching (decisions in Fox v Repatriation Commission (1997) 24 AAR 527, Chambers V Repatriation Commission (1995) 55 FCR 9, Banovich v Repatriation Commission (1986) 69 ALR and Starcevich v Repatriation Commission (1987) 18 FRC 221 noted). While Mr Gibbs’ experience in intelligence work has been vast, and his efforts in this field were highly praised up until the time he resigned from the RAAF in 1976, the Tribunal does not consider this to be appropriate work for a man aged 62 at the time of his application and now 70 years old.
65. In the assessment period, from 23 June 1999 until the time of this decision, the initial reasons for Mr Gibbs ceasing work have not changed. Mr Gibbs continued to paint until 2003 and his income from this pursuit is unknown and undeclared for taxation purposes. The reason for Mr Gibbs changing his name in 1979 is unexplained. They are presumably of some importance to Mr Gibbs but the Tribunal has not been enlightened as to that importance.
66. Should the Tribunal be wrong in finding that Mr Gibbs does not meet the requirements of s 24(1)(b) or 23(1)(b) it has proceeded to consider the application with respect to the requirements of s 24(1)(c). In doing so, the Tribunal is required to follow the steps outlined in the Full Federal Court decision in Flentjar.
·Question one asks; what was the relevant remunerative work that the Veteran was undertaking within the meaning of s 24(1)(c) of the Act?
This has been previously outlined in the decision (para 64). At the time that Mr Gibbs ceased work he was a picture framer but retained qualifications in other areas. Work as a picture framer was precluded by his physical injuries/diseases relating to his right carpal tunnel syndrome, his lumbar spondylosis and his left knee osteoarthritis.
·Question two; was Mr Gibbs by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
Of the evidence provided Mr Gibbs could not continue working as a picture framer.
·Question three; if so, was the war-caused injury or war-caused disease, or both, the only factor or factors preventing Mr Gibbs continuing to undertake that work?
The Tribunal determines the answer to this question to be no. Mr Gibbs exercised his prerogative in 1981 to cease work on several bases, including his desire to follow a career as a painter. His success in this endeavour is unmeasured as is the income derived from this pursuit. The Tribunal accepts that he ceased painting in 2003.
·Question four, if so, was Mr Gibbs, 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?
According to Mr Gibbs’ evidence, his income since 1981 has been from his DFRB pension and the Victorian Government Superannuation payments and this has remained unchanged or indexed during the assessment period. Thus, in the assessment period from June 1999 until the time of this decision he has not suffered any loss of salary, wages or earnings on his own account compared with his status in 1981. In fact his income has increased since 1999 in accordance with his multiple applications for Department of Veterans’ Affairs pension entitlements. His earnings from the sale of his paintings remain undeclared and thus unknown. Certainly, on the evidence, Mr Gibbs income post 1981 was less than that pre 1981 although he had anticipated an income from the sale of his paintings.
67. In Repatriation Commission v Hendy (2002) 76 ALD 47 the Full Federal Court held:
… 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. …
68. Mr Gibbs ceased remunerative work in 1981, at the age of 44. At the time of his application in June 1999 he had been out of the workforce for 18 years and has now been out of the workforce for 26 years. At the time of his application he was 62 years of age and is now 70 years old and this also impacts substantially on his likelihood of obtaining remunerative work. On the other hand, he has shown an ability in the area of advocacy work and in the preparation of submissions on behalf of Veterans’ claiming entitlements under the Act. The latter have been done on a voluntary basis but could be done for remuneration.
69. Taking all of the above into account, the Tribunal finds that Mr Gibbs does not meet the requirements of s 24(1)(b) or s 23(1)(b), nor the requirements of s 21(4)(c) or s 23(1)(c).
70. The decision of the Repatriation Commission dated 13 September 2005 is affirmed.
I certify that the seventy [70] preceding paragraphs are a true copy of the reasons for the decision herein of Miss E.A. Shanahan, Member
Signed: Ursula Noyé
Clerk
Dates of Hearing: 6 and 7 August 2007
Date of Decision: 30 October 2007
Counsel for the Applicant: Mr A Larkin
Solicitor for the Applicant: Williams Winter Solicitors
Counsel for the Respondent: Mr G Purcell
Solicitor for the Respondent: Department of Veterans’ Affairs
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