Glenn Adamson and Repatriation Commission
[2014] AATA 756
•17 October 2014
[2014] AATA 756
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/7000
Re
Glenn Adamson
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 17 October 2014
Place Brisbane The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to pension at the intermediate rate with effect from 14 February 2012.
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Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS’ – Australian Army – war-caused diseases prevented remunerative work – post-traumatic stress disorder – PTSD – depression – anxiety – alcohol dependence – applicant entitled to pension – decision set aside – decision substituted for entitlement of pension at intermediate rate.
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 5Q, 14, 19, 23, 24, 29, 120
CASES
Smith v Repatriation Commission [2014] FCAFC 53
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
17 October 2014
INTRODUCTION
On 14 May 2012 Mr Glenn Adamson (“the applicant”) made a claim for a disability pension for conditions which are attributable to his service in the Australian Army (“Army”). On 15 April 2013 a delegate of the respondent determined that the applicant’s disability pension should be assessed at 100% of the General Rate with effect from
15 February 2012. On 4 December 2013, the Veterans’ Review Board (“VRB”) affirmed this decision. The applicant made an application to this Tribunal for review of that decision and has sought a special rate of pension.
BACKGROUND
The applicant, in his statement dated 16 February 2014 with annexures, has outlined the nature of his employment since he was discharged from the Army in July 1973. He states that he has “acted as a businessman come entrepreneur”.
The applicant stated that when he was discharged from the Army, he went into a family hairdressing business. Over a period of 25 years, he purchased and sold 18 hairdressing salons. His contribution was the organisation, establishment and re-selling of the businesses. Although he learned hair dressing, he remarked that other family members were responsible for the hairdressing of customers, training of staff as well as administration.
The applicant stated that his principal problem arises from what he refers to as his “psychological conditions”. He states that he becomes angry easily and finds it difficult to control his anger.
From 1996 until 2011 the applicant was involved in a number of different businesses including commercial fishing, fishing charter, seafood dining and “jetski [sic]” hire. There were some 11 commercial fishing vessels and two commercial fishing licences. The applicant held a commercial fishing licence so he could undertake both commercial fishing and fishing chartering. The applicant and his wife both testified that the fishing charter operations were dependent upon the state of the weather. When bookings had to be cancelled at short notice, presumably due to poor weather, the applicant’s wife would endeavour to rearrange bookings of the vessels. Two skippers and two deck hands were employed on a casual basis. Most of the income came from charter fishing with commercial fishing accounting for some 19% of the income of the businesses.
From 1996 until 2005 the applicant had invested in two management rights businesses of tourism properties. Most of the activities of the businesses were run by staff.
The applicant and his wife gave evidence of difficulties in their lease of a berth at a marina. The applicant had invested heavily in a marina berth. Despite the applicant being a member of the board of the marina, he had received threats of eviction due to the commercial nature of the business he was conducting even though the conditions of lease permitted commercial operations. Until 2004, the marina had been used solely for residential purposes and local residents did not think that it was appropriate for commercial boats to be using the marina. The applicant stated that he had been selling the assets of the business at the marina. One boat was sold as an ongoing business in 2011. Their last boat was sold in April 2012, but not as an ongoing business. The applicant still has one berth to sell.
The applicant also has remarked that the pain in his back limits his ability to undertake physical activities. He has difficulty in driving for any length of time.
MEDICAL WITNESSES
Dr Anderson
Dr Bob Anderson, psychiatrist, was called by the applicant. Dr Anderson, in his reports dated 25 July 2012 and 7 March 2013, verified that the applicant was his current patient who he saw “from time to time”. He agreed with the evidence of the applicant that, until recently, he saw Dr Anderson every six weeks. Dr Anderson confirmed that he prescribed medication for the depression and anxiety of the applicant.
Dr Anderson was informed that the applicant had given evidence that his principal problem was that he was easy to anger and unable to control his behaviour. The applicant also stated that he had depression and extreme anxiety, stress, difficulty in concentration and focus, and portrayed reclusive behaviour. He also commented on his alcohol consumption, such as drinking half a bottle of scotch in an afternoon, which he described as ‘alcohol abuse’. Dr Anderson confirmed that there was nothing in the representation of the applicant which contradicted this evidence given by the applicant.
Dr Anderson stated that he found the applicant was “a reactive man emotionally”, had a low threshold for tolerance, and would react and resort to being bad tempered when put under stress. Dr Anderson said that the applicant had posttraumatic stress disorder (“PTSD”), depression, anxiety and displayed traits of alcohol dependence.
Dr Anderson was asked about the comment in his worksheet that the applicant “cannot work in the future”. Dr Anderson stated that the applicant would overreact in making a mistake, or to people challenging him. Dr Anderson was asked whether the applicant had a heighted perception. Dr Anderson stated that the applicant would have a “fight or flight” reaction in some situations. When Dr Anderson was asked about the applicant’s drinking, he stated that although it may “calm down” anxiety, it caused more disinhibition which would be more likely to cause a “fight or flight” response. The applicant’s temperament was described as ‘over extreme’ due to the PTSD and alcohol consumption. He has been warned for not being able to contain his temperament.
Dr Anderson said that where the applicant worked at the marina, the people would not tolerate his behaviour, and some people wanted him to go away. However, Dr Anderson said that “he did not see this first hand”.
In cross-examination, Dr Anderson was referred to a claim form dated 3 March 2012 signed by the applicant in which he listed his duties in the charter boat business and as a commercial fisherman:
Supplying bait, ice, fishing gear, cleaning and maintaining vessel, loading and unloading seafood from vessel to wholesalers, assisting charter clients off and on the vessel with their ice boxes and catch. Maintaining commercial and charter equipment.
Dr Anderson agreed that this information was consistent with what he had been told by the applicant. Dr Anderson said that the business was obviously a practical business requiring a “hands on” approach by him but “it may be, I think, that his wife did much of the activity relating to clients which he was not able to do as well as she was”.
Dr Anderson recognised that early in his life he was able to become an entrepreneur and as time went on, the applicant became more antisocial. Dr Anderson said the applicant “had a handicap which threatened his livelihood”.
Dr Anderson was asked about the evidence given by the applicant in which he stated that the applicant worked in January 2012, and had been working 40 hours a week up until that point. Dr Anderson confirmed that this had been the position. Dr Anderson was asked about the fact that the applicant was receiving benefits from Asteron Life Limited (“Asteron Life”) in respect of a shoulder injury. Dr Anderson confirmed that his first report referred to the ‘supraspinatus tendon tear of the right shoulder’ which would have been very painful and that the applicant would not have been able to do a lot of physical work. Dr Anderson also added that the PTSD was causing emotional and behavioural problems for the applicant who could not do a lot of the work requiring a stable temperament and emotional stability. Dr Anderson stated that the applicant would be handicapped emotionally.
On re-examination, Dr Anderson was advised that Mrs Adamson had stated that she took over the duties in respect of relating with clients because “in her view” her husband could not cope with interaction with customers. Dr Anderson remarked that the evidence of Mrs Adamson confirmed his view.
Dr Winstanley
Dr Peter Winstanley, orthopaedic surgeon, was called to give evidence on behalf of the respondent. His medical report of 5 May 2014 was admitted into evidence. Dr Winstanley stated that he had recently read his report and that there was not anything in the report that he would change.
Dr Winstanley was questioned about the conclusions in his report. Dr Winstanley confirmed his diagnosis of the orthopaedic conditions in the report, which limited the veteran’s capacity for remunerative work.[1] He also confirmed his opinion of the apportionment of the orthopaedic conditions which limited the capacity of the applicant for remuneration work.[2] Dr Winstanley was asked about his opinion[3] about the applicant being able to work in suitable activities greater than 20 hours per week. He explained that the applicant would not be fit for physical work or “labour type activities”. He also remarked that the lumbar spine condition and thoracic spine condition would prevent the applicant from undertaking some “labour type work” and that he would have trouble with his shoulders if he was to lift objects of any weight or perform repetitive tasks.
Dr Winstanley considered that the applicant could lift no more than three kilograms or he would develop fatigue with repetitive work. Dr Winstanley was asked about whether the applicant could undertake work associated with fishing. Dr Winstanley thought that the applicant might be able to moor a boat but would have difficulty in carrying heavy weights such as ice, loading and unloading and working with machinery. Dr Winstanley considered that the applicant was more suited for office work or administration work.
[1] Exhibit C, p 6, Question 1.
[2] Exhibit C, p 7, Question 3.
[3] Exhibit C, p 7, Question 4.
In cross-examination, Dr Winstanley agreed that the applicant was much better now than in 2011 as his shoulders have improved. There was no restriction on light duties but heavier work is what Dr Winstanley was concerned about. Dr Winstanley was aware that the applicant was operating a charter business and recognised that as his own boss he could delegate work to others.
ACCEPTED CONDITIONS
The applicant has a number of accepted conditions:
·PTSD;
·Lumbar spondylosis;
·Thoracic spondylosis;
·Sensorinerual hearing loss
·Tinnitus;
·Alcohol dependence; and
·Depressive disorder.
ISSUES
To be eligible to be paid at pension at the special rate, the applicant must satisfy the requirements of s 24 of the Veterans Entitlement Act 1986 (Cth) (“the Act”).
There is no issue that the applicant satisfies ss 24(1)(aa) and (aab) of the Act.
I have to determine whether the applicant meets the requirements of ss 24(1)(b) and (c) of the Act which provide as follows:
(1) This section applies to a veteran if:
...
(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;
Section 19 of the Act provides that the rate of pension payable to the applicant has to be determined during the “assessment period”. This period commenced on 14 May 2012 when the applicant made his claim, and ends when the claim is determined.
I am required by ss 120(4) of the Act to determine any issues to my reasonable satisfaction. This provision has been held by the Federal Court of Australia to require that any issues are determined on the balance of probabilities.
CONSIDERATION
Special rate
I have to consider whether the applicant’s accepted disabilities by themselves render the applicant incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
The applicant in his statement dated 16 February 2014 sets out what he refers to as his “psychological conditions” as well as “problems in his back”.
I do not accept the contention of the applicant who, in his statement dated
16 February 2014, remarks that his back pain limits the “activities of daily living, let alone the physical requirements of business activities”. The various orthopaedic conditions of the applicant have been examined by Dr Winstanley who has expressed the opinion that the orthopaedic conditions (including the non-accepted conditions of the left and right shoulder and the right knee) do not limit the applicant to working less than
20 hours per week in aggregate. Dr Winstanley has given examples of the work that the applicant may be able to do such as office work or administration. In his report
Dr Winstanley has reported that the applicant “is able to perform light sedentary work activity and would be able to work in suitable activities greater than 20 hours per week.” Dr Winstanley recognised that the applicant, who has had surgery on his shoulders, should be restricted from performing heavier activities particularly with repetitive pulling or overhead work.
Dr Winstanley also recognises that the PTSD condition of the applicant would impact upon the capacity of the applicant to work. The applicant states that his PTSD condition is said to cause difficulties with the clients he would encounter during his work. In giving evidence, Dr Anderson opined “it may be, I think, that his wife did much of the activity relating to clients”. In the claim form that he lodged with Asteron Life, he stated that he interacted with clients in assisting charter clients off the boat. The PTSD of the applicant is an accepted condition, along with the depression and alcohol dependence conditions. Dr Anderson in his report dated 25 July 2012 has outlined how the most likely cause of the PTSD of the applicant was “severe stressors to which he was exposed while in Vietnam”. Dr Anderson has mentioned that “these stressors also contributed to his depression which may be considered to be a secondary contribution to his [PTSD]”. Dr Anderson has also mentioned that after the service of the applicant in Vietnam “his alcohol intake escalated”.
Even with the PTSD and associated conditions, the applicant was able to have a variety of work positions after his discharge from the Army. One reason why the applicant ceased work in January 2012 was his shoulder injury which was described as a “supraspinatus tendon tear” for which the applicant received incapacity payments from Asteron Life. In giving evidence before this Tribunal, the applicant stated that until that time he worked 40 hours a week. Prior to his claim for a disability pension, he informed Asteron Life of his duties which included dealing with clients as well as undertaking physical work. In his initial claim to Asteron Life he made a statement that he would work for 50 hours a week, 20% of that work was done from home.
I am required to consider the whole of the assessment period and, on the state of the evidence before me, I am unable to make a finding that the applicant satisfies s 24(1)(b) of the Act. I am not reasonably satisfied that at any time during the assessment period the applicant was incapable of undertaking remunerative work for periods aggregating more than eight hours per week. I cannot be reasonably satisfied on the state of the evidence why the work capacity of the applicant has dramatically declined. Therefore I do not consider that the applicant is entitled to a pension at special rate.
Intermediate rate
I am required by ss 19(5C) and (6) of the Act to consider whether the applicant is entitled to a pension at intermediate rate despite the fact that the applicant did not make submissions on this issue.
The case of the applicant is that he has difficulty in interacting with people. The applicant informed Asteron Life that he worked for 50 hours a week, 20% of that was from home. On that basis the applicant had capacity to work at least 10 hours a week from home. It would seem to be the case that the applicant might be suited to working in a home environment. The applicant has valuable administrative experience from his involvement in a number of businesses including two management rights businesses. Dr Winstanley has opined that the applicant would be able to do administrative work and his conclusion was not challenged.
While the work estimate of Dr Winstanley of more than 20 hours per week was based upon the orthopaedic conditions of the applicant, his work capacity would certainly be affected by the PTSD and associated conditions. It is, of course, not possible to give a precise estimation of work capacity. The applicant informed Asteron Life that he was able to work some 10 hours a week from home. This would be an environment in which he would not have to personally interact with clients. On the basis of the previous work that he did at home, I am prepared to conclude that the applicant has a capacity to work in excess of eight hours per week. I do not consider that the psychiatric conditions of the applicant allow him to work for more than 20 hours per week. The applicant therefore satisfies s 23(1)(b) of the Act in that the veteran is capable of undertaking remunerative work on a part time or intermittent basis, which is one is one of the requirements for pension at the intermediate rate.
There are other provisions of s 23 of the Act that need to be satisfied before the applicant can be regarded as eligible for pension at the intermediate rate. The applicant satisfies
s 23(1)(aa) as he has made a claim under s 14 of the Act for a pension. The applicant satisfies s 23(1)(aab) as he had not turned 65 years of age when he made his application, as well as s 23(1)(a) of the Act as the degree of his incapacity has been assessed as at least 70%. I have already mentioned that in my view the applicant has satisfied s 23(1)(b) of the Act. The applicant also satisfies s 23(1)(d), as I consider that s 24 does not apply to the applicant. The remaining provision in s 23(1) that has to be considered is s 23(1)(c) of the Act.
I am required to determine whether the applicant’s war-caused injury or disease, of itself alone, was of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently and as a consequence is suffering a loss of salary or wages that he would not otherwise be suffering if he was free from that incapacity. The applicant would come within the terms of s 23(1)(c) of the Act as his war-caused diseases have prevented from continuing to undertake remunerative work other than on a part-time basis or intermittently. I have born in mind that “remunerative work” is defined in s 5Q(1) of the Act as including “any remunerative activity”: this expression would include administration work that is done from home. The applicant has worked from home in the past.
The applicant has given evidence that his psychiatric conditions have prevented him from continuing some of the remunerative activities that he had been undertaking. A beneficial provision such as s 23(1)(c) (which is in similar terms to s 24(1)(c)) must be construed in a realistic and practical way, and a fact situation which does not satisfy s 24(1)(c) might nevertheless satisfy s 23(1)(c).[4] At the time when the applicant ceased full-time work, he had notified Asteron Life that he would be investigating his right to make a claim with the Department of Veterans’ Affairs. I regard this contemporaneous evidence as being cogent evidence of the fact that the accepted psychiatric conditions played a big part in his decision to stop work. I accordingly find that his accepted psychiatric conditions caused him to cease his remunerative employment. I have come to this conclusion because I do not regard the right shoulder tear as being the reason why he ceased his work as this condition would improve with surgery (as it has done) and after having surgery he would be able to resume his business. The applicant had the right shoulder tear in 2009 and yet was able to continue work until 2011 before he ceased work. In these circumstances it is not fair and realistic to make any finding that the right shoulder tear is the reason why the applicant ceased work: the state of the medical evidence does not enable me to make such a finding. The accepted psychiatric conditions would have, in my view, caused the applicant to call it “a day”.
[4] Smith v Repatriation Commission [2014] FCAFC 53 per Rares J at [17] in relation to s 24(1)(c); per Buchanan J at [57].
I am required to consider s 23(2) of the Act. The applicant does not come within the terms of s 23(2) because I have previous found that he is not capable of working for
20 hours or more a week.
I am next required to consider the operation of s 23(3) of the Act and the reason why the applicant ceased remunerative employment. The applicant was injured by a right shoulder tear in 2009. It was, however, not until 2011 that he ceased employment. I have already found that the right shoulder tear was not the reason why the applicant ceased employment because he continued work after that injury. I consider that, at the time when he ceased employment, the accepted psychiatric conditions caused his decision to cease employment. In my view, this means that the applicant does not come within the disentitling provision of s 23(3)(i) of the Act.
CONCLUSION
In my opinion, the applicant meets the requirements for the payment of pension at the intermediate rate.
DECISION
The Tribunal sets aside the decision under review and instead decides that the applicant is entitled to pension at the intermediate rate with effect from 14 February 2012.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of
Dr P McDermott RFD, Senior Member..............................[Sgd]..........................................
Associate
Dated 17 October 2014
Date of hearing 21 August 2014 Counsel for the Applicant John Cockburn, Cockburn Legal Solicitors for the Applicant Anthony Harding, Cockburn Legal Solicitors for the Respondent Bruce Williams, Department of Veterans' Affairs
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