Godwin and Repatriation Commission
[2007] AATA 1701
•28 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1701
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/0592
VETERANS' APPEALS DIVISION ) Re JOHN ROBERT GODWIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr S H Toh, Member
Date28 August 2007
PlaceSydney
Decision
The Decision Under Review is SET ASIDE and the Tribunal in lieu thereof its decision namely THAT the Applicant is entitled to Pension at the special rate pursuant to section 24 of the Veterans' Entitlement Act 1986 as and from 5 May 2005.
................[sgd]...................
M D Allen
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS – application seeking review of decision by repatriation commission affirmed by veterans review board granting war caused disability support pension at 70% – whether veteran so incapacitated by incapacity occasioned by war-caused injury or disease so as to qualify for pension at special rate – whether veteran so incapacitated from war-caused injury incapable of undertaking remunerative work – civil standard of proof – decision under review set aside
LEGISLATION
Veterans Entitlement Act 1986 sections 24, 28, and 120(4)
Administrative Appeals Act section 37
CASE LAW
Chambers v Repatriation Commission (1995) 36 ALD 207
Repatriation Commission v Smith (1987) 15 FCR 327
Flentjar v Repatriation Commission (1997-1998) 48 ALD 1REASONS FOR DECISION
28 August 2007 Senior Member M D Allen
Dr S H Toh, Member
1. By application made 22 May 2006 the applicant sought review of a decision by the respondent and affirmed by the Veterans Review Board that granted pension at 70% of the general rate effective of 5 May 2005. In these proceedings the applicant contended that the pension should be granted at the special rate pursuant to section 24 Veterans Entitlement Act 1986.
2. So far as is relevant section 24 VEA reads:
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…
3. Also to be taken into account in considering the Applicant’s case for Pension to be paid at the special rate is section 28 VEA, 1986 which reads inter alia:
Capacity 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).
4. As was pointed out by Davies J in Chambers v Repatriation Commission (1995) 36 ALD 207 at 210:
“In paras (a) and (b), attention is directed to the skills, qualifications and experience of the veteran for the purpose of determining the kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake. That ambit of capacity for remunerative work is then the starting point from which the degree of reduction in work capacity by reason of the physical or mental impairment of the veteran is measured. As Moore and Sackville JJ point out, paras (a) and (b) should be applied not technically or restrictively but sensibly and fairly with a view to ascertaining the kinds of remunerative work which the veteran might reasonably undertake absent the war-caused injury or disease. Work experience is a guide but it does not delimit that ambit.
Necessarily, in the examination of the matters which arise under para (c), matters other than skills, qualifications and experience are taken into account. Every fact which bears upon the nature and extent of the physical and mental impairment of the veteran must be taken into account. And so also must every fact which bears upon the extent to which the physical or mental impairment has reduced the veteran's capacity to undertake remunerative work of the kind which the veteran might reasonably undertake.”
5. In considering the Applicant’s claim the standard of proof mandated by section 120(A) VEA is that of to the Tribunals “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15FCR327 the Full Court of the Federal Court equated that to the civil standard of proof namely proof on the balance of probabilities.
6. Currently the Applicant has the following disabilities accepted as being war-caused namely Post Traumatic Stress Disorder and Bilateral-Sensori neural hearing loss with tinnitus. There are no disabilities suffered by the Applicant apart from those accepted as war-caused which would impinge upon the Applicant’s ability to obtain and then retain employment.
7. During the course of these proceedings the Tribunal was made aware that the Respondent is taking steps to revoke the Applicant’s entitlement to have PTSD accepted as a war-caused disease. That action may or may not ultimately be successful but this Tribunal proceeded upon the basis that the Applicant has a war-caused PTSD. We note that the Applicant’s treating Psychiatrist Dr Hayes has adverted to a false history but has proceeded to make his diagnosis on the basis of accepting the history given to him by the Applicant, while stating any diagnosis may need to be reconsidered.
8. Various psychiatrists who have examined the Applicant have commented upon the difficulty in obtaining a coherent history from the Applicant. In the course of these proceeding he became at times quite emotional but we have doubts as to the extent of his genuine distress as opposed to histrionics.
9. After service in the RAN where he was trained as a Radio Operator the Applicant was employed for a brief period by the Reuters News Agency as a Telecommunications Officer. Following the cessation of this position, due to his own failings, the Applicant was unemployed for some time, the actual details are unclear. He then obtained a position as a Flight Steward with Qantas. He remained in this position for some years rising to the rank of Senior Steward.
10. Because he had been permitted to Credit Naval Service with Qantas, the Applicant was just short of 10 years service with Qantas when he became entitled to take Long Service Leave. Following this period of leave the Applicant did not return to Qantas. In a statement (Exhibit A2) he said that following Long Service Leave he “just couldn’t go back to it”.
11. Periods of unemployment followed plus periods of attempting to start a small catering type business. He and his wife then moved to Airlie Beach in North Queensland where the Applicant not only ran a restaurant but involved himself in the local parachute clubs gaining an instructor’s qualification.
12. In 1989 the Applicant and his parents moved from Airlie Beach to Ocean Shores in Northern New South Wales. Various jobs followed and also periods of unemployment. The Applicant then applied for and was accepted as a trainee Prison Warden for New South Wales Prison Service.
13. After initial training the Applicant was posted to Long Bay Prison. This meant living apart from his family who he would see for six to eight days every four to five weeks, depending on how he was rostered for duty. Otherwise he lived in accommodation provided for prison officers.
14. During his period at Long Bay Gaol the Applicant accepted a position in the Special Care Unit. This led to an interest in counselling and in 1994 he commenced an undergraduate degree in Psychology at Southern Cross University. During the period the Applicant was studying the University changed the degree to one in Sociology in Counselling and Communication.
15. Having completed his degree the Applicant was unable to obtain employment in the counselling field. He therefore commenced an Honours course but after three months he applied for and was accepted for a temporary counsellor’s position at Rockhampton Prison. The Applicant and his wife together with their son moved to Rockhampton.
16. Originally the Rockhampton position was for six months but due to a mistake the Applicant was offered a contract for a 12 month position which he accepted. He stated this caused some friction when the original holder of the position returned from leave. Following the expiry of his 12 month contract the Applicant was engaged as a counsellor by the Prison on a month to month basis. (See doc T-20 p124).
17. The Applicant’s evidence is that he terminated his employment at Rockhampton Prison at Christmas 1999. He said that although he found the job stimulating he was having difficulties with other staff members.
18. There is no doubt that the Applicant was having difficulties while at Rockhampton. A report from Mr Acutt, Consultant Psychologist, dated 11 September 1998 reads inter alia:
“Mr Godwin appears to have had a very full life. He served in the Royal Australian Navy, worked as a flight attendant with Qantas, and currently works as a counsellor at the Rockhampton Correction Centre. He is also a qualified free-fall (parachute) instructor. Most sessions with Mr Godwin were quite full on, in that he appears to be suffering from moderate levels of anxiety and depression, with possible overlaid PTSD(DSM-IV).”
19. The Respondent has challenged the Applicant’s account of why he left his employment at Rockhampton Prison. The Applicant says that events became too much for him. He was not getting on with other staff and had a real fear of going back to work. As he said in cross-examination he had nothing left in him. He and his wife just packed their belongings in a trailer and left to go travelling. This was not planned and they had no plans. After a few months they returned to northern New South Wales to be with the Applicants’ father who was terminally ill.
20. Contrary to the above account of work related mental deterioration the Respondent submitted that the Applicant made a conscious decision to leave work and go travelling with his wife. This submission was based on the fact that the Applicant would not have had work at the Prison over the Christmas-New Year period and that his wife had just received a lump sum workers compensation payment.
21. Unfortunately the Rockhampton Prison documents obtained by the Respondent only state that the reason for the cessation of the Applicant’s employment was “resigned”. No details are available of the Applicant’s contract period except that he was engaged month to month. The records from Rockhampton Prison show that the Applicant’s last pay period was 17 January 1999. Likewise the wife’s then solicitors give the date of the Workers Compensation payment as 25 February 1999. As the Applicant’s contract was on a month to month basis and his last pay period was 17 January 1999 it would seem that he was employed over Christmas and there is no evidence as to when the wife became aware that she may possibly getting a payout pursuant to her Workers Compensation claim. We are satisfied that the Applicant’s account of how he came to terminate his employment at Rockhampton Prison is the more probable.
22. After the return of the Applicant and his wife to Northern NSW he remained unemployed. He states that at this time he was not feeling well, he was directionless and lost. He had however, after leaving Rockhampton, registered with the Department of Social Security in order to obtain Social Security Benefits.
23. During the year 2000 the Applicant began to consult a GP, Dr Cannon. Dr Cannon in turn referred him to the Psychiatrist, Dr Hayes. In 2000 with the assistance of an RSL Welfare Officer he also applied for a Service Pension on the basis of his invalidity.
24. Dr Cannon completed a report to accompany the Applicant’s claim for a SP. In that report he stated that currently the Applicant was very emotional with years of repressed feelings coming out. There were no other physical problems and the Applicant was at present unable to work eight hours per week. Dr Cannon added “It may be a long term problem”.
25. A report from Dr Hayes dated 8 March 2001 stated inter alia that the Applicant’s unemployment had led to him being quite demoralised, as he was unable to work. On the GARP scale he rated the Applicant at 42.
26. Although no details are contained in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Act 1975, the Applicant said that he had been granted the SP on the basis of his inability to work with effect from 7 November 2000. As stated above the only disability nominated as preventing the Applicant from working was his PTSD.
27. Dr Hayes, who is the Applicant’s treating Psychiatrist, completed a report dated 23 August 2006. In that report he stated:
“While Mr Godwin has benefited from keeping himself reasonably active, I believe he is totally and permanently incapacitated from working more than eight hours per week. This is due to his fluctuating mood and concentration, and his periods of significant depression. When seen in May of this year, he was complaining of poor planning, poor organisational skills, forgetfulness and emotional labiality. He was in a self-destructive depressive phase which lasted for some weeks. I believe the severity and frequency of these episodes make him unsuitable for any sustained employment, although in any one particular week he may well be able to function well for several days at a time.
His emotional states are directly attributable to his PTSD, which is an accepted condition. His tinnitus and hearing loss probably also contributed a little to difficulties he would have in the workplace, and are also accepted conditions. I am aware that he has a medical history of a fractured left, which occurred when parachuting, and am unclear whether this or any other medical conditions have any further contribution to his inability to work. However I believe his accepted conditions alone prevents him from working more than [eight] hours a week.
It was nearly two years between the time Mr Godwin finished work and first saw me. When we first met he was far too disorganised to give any reasonable account of his reason for finishing work. More recently he has made it clear to me that he walked away from an open ended contract as a prison counsellor due to his (undiagnosed) psychiatric conditions. He tells me he was in counselling, both prior to and during his prison work at Rockhampton, and that his decision not to return to work, without any prior warning, was totally out of character. This does reflect a degree of disorganisation and avoidance that could be expected with his psychiatric condition. It would therefore seem reasonable to assume his condition led to his departure from the workplace, though I have no specific objective evidence of this. The information from his counsellor at that time may be of value here if such information is available.”
28. In evidence Dr Hayes explained that in his opinion the Applicant would have trouble with consistency (of employment) and responsibility. In his opinion the Applicant would love to work but an anxiety about a return to work would produce increased symptoms of his PTSD.
29. Associate Professor Quadrio, Psychiatrist, has examined the Applicant on two occasions. The first was in respect to his claim to have PTSD accepted as war-caused and the second occasion was with regard to the present proceedings. In her report of 9 October 2006 she deals with the Applicant ceasing work at Rockhampton Prison. She concluded her report stating:
“In my opinion Mr Godwin would not be able to work in any environment where he needs to relate to other people because of his level of irritability and mistrust. He would also have difficulty working alone because of his poor concentration and poor planning ability. These phenomena are typical of Chronic Post Traumatic Stress Disorder (PTSD). As time goes by this condition frequently becomes an entrenched pattern of adjustment and results in personality change so that ultimately the diagnosis becomes one of Personality Disorder (PD). There is a considerable literature about the overlap between these two conditions…. In my view this is occurring with Mr Godwin whose PTSD symptoms now are so entrenched that he has serious personality disorganisation and in my view would be unable to function in a work environment.”
30. When questioned regarding the severity of the Applicant’s symptoms of PTSD, A/Professor Quadrio replied that she would not describe his symptoms as minor. When asked if the Applicant could obtain and then retain employment A/Professor Quadrio replied that even if the Applicant could obtain employment, his symptoms were such that in her opinion he would be unable to retain it.
31. Dr Chase is an Occupational Physician. In a report to the Respondent dated 3 November 2006 he stated:
“After 10 years at Qantas he went on long service leave but found that he could not cope with the idea of going back. He felt lonely and isolated. … He requested leave of absence but this was refused so he resigned.”
32. Dr Chase added that the Applicant’s accepted conditions alone prevented him from undertaking remunerative work for more than eight hours per week. It was also Dr Chase’s opinion that he suspected any attempt to undertake rehabilitation or retraining would fail.
33. The Respondent did not seek to call Dr Chase.
34. In an addendum to his report, Dr Chase discussed the Applicant leaving his employment at Rockhampton Prison. He stated:
“He does not know if he resigned from the job at Rockhampton Correctional Centre. He does not remember resigning, indeed he cannot remember leaving. He remembers knocking off for work just before Christmas 1998 and apparently he simply did not go back to work. I questioned him closely about this and he alleges that he does not know if his wife knows or whether he has ever discussed any of these issues with his wife. He did not appear to be deliberately evasive he appeared to be genuinely confused. He has not worked since.”
35. On behalf of the Applicant, a report was tendered from Occupational Physician Dr Gibson. That report is dated 6 October 2006 and Dr Gibson concludes his report by stating under the heading “Fitness for Work”:
“I could not imagine it possible for Mr Godwin, in his current state, being able to undertake the normal work of a counsellor. He is currently not fit for any work in this occupation.
Mr Godwin is fit to perform a job that did not require a high level of responsibility or interpersonal interaction.
Even if he was working in a menial job such as washing dishes, it is likely that he would have difficulty with interpersonal interactions and this would most likely be problematic in the workplace.
Mr Godwin would be likely to have an unreliable attendance record if in employment.”
36. Dr Gibson then summarised his report by stating that in his opinion the Applicant is totally and permanently incapacitated from working more than eight hours per week as a counsellor as a result of his accepted conditions alone. He also accepted that the Applicant was unable to continue to seek paid work due to his accepted conditions.
37. The Respondent did not seek to cross-examine Dr Gibson.
38. The Respondent put much weight on the report and evidence of Psychiatrist Dr Roberts. Dr Roberts’ evidence can be summed up by stating that in his opinion the Applicant does not have PTSD but if he does, it is mild. Dr Roberts had regard to the activities carried out by the Applicant which include parachute jumping (which involves packing his own parachute), writing articles for parachuting magazines and attending conferences plus his reading on intellectual subjects such as anthropology. Given these factors Dr Roberts opined that the ability to engage in these activities demonstrated an ability to engage in remunerative activity.
39. Our opinion is that there is a degree of logic in Dr Roberts’ opinion but that it conflicts entirely with all the other medical opinions in this matter. We accept that at times the Applicant is able to participate in activities that require foresight and planning (e.g. parachute jumping) and that at other times he can engage in intellectual activities. These should not be overemphasised for as Dr Hayes said of the Applicant’s reading habits, “well he is an intelligent man”. What Dr Roberts has not explained is whether the Applicant could sustain the activity in a regular working environment.
40. Dr Hayes is the Applicant’s treating Psychiatrist who sees him on a regular basis. It is the opinion of Dr Hayes that the Applicant is not capable of retaining employment and in this opinion is supported by all other medical practitioners who have examined the Applicant, except of course Dr Roberts. Where the opinions conflict with the evidence of Dr Roberts, we prefer the evidence of Dr Hayes, supported by that of A//Professor Quadrio.
41. Dr Roberts also carried out an assessment of the degree of incapacity experienced by the Applicant as per the Guide to the Assessment of Veterans Pensions. We consider that this assessment is flawed as Dr Roberts was of the primary opinion that the Applicant did not suffer from PTSD and we consider this has affected his assessment. Again, where his views differ from Dr Hayes, we prefer Dr Hayes, the treating Psychiatrist.
42. Exhibit R6 purports to be a Combined Impairment Assessment carried out by a medical practitioner employed by the Respondent. That Assessment simply adopts the assessment postulated by Dr Roberts so far as the Applicant’s Psychiatric impairment is concerned so is of little use in these proceedings.
43. The test for whether a Veteran is so incapacitated by incapacity occasioned by war-caused injury or disease alone so as to qualify for a pension at the special rate was set out by the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997-1998) 48ALD1 at pp4-5:
What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
Is the Veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
If 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?
If the answers to questions two and three are in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
44. In this matter, the questions postulated by the Court in Flentjar (supra), having regard to Chambers v Repatriation Commission (supra) can be answered as follows:
1.The remunerative work the Applicant was undertaking was that of a counsellor.
2.The Applicant is, by reason of his war-caused PTSD, prevented from continuing to undertake that work.
3.The only factors that prevent the Applicant from continuing to undertake that work is incapacity from his war-caused PTSD.
The Applicant has been out of the workforce since January 1999. We are satisfied that the reason he left his employment at that time was the effect his PTSD was having upon his ability to undertake his employment. In 2000 the Respondent accepted that he was unemployable by reason of his PTSD and Bilateral-Sensori neural hearing loss with tinnitus both war-caused diseases.
In our view it defies logic for the Respondent to say that the Applicant’s PTSD and hearing loss with tinnitus prevent him from engaging in employment yet to say that he is not entitled to a Special Rate Pension because of his time out of the workforce when that time out of the workforce was a result of incapacity due to diseases now recognised as being war-caused.
4.Were the Applicant free of incapacity from his war-caused injury or disease alone he would be in employment hence he is now suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free from that incapacity.
45. For the reasons above the Decision Under Review is set aside and the Tribunal substitutes in lieu thereof its decision namely that the Applicant is entitled to pension at the Special Rate as and from 5 May 2005.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr S H Toh.
Signed: ..........[sgd]...........
Mwela Kapapa, AssociateDate of Hearing: 12 - 13 July 2007
Date of Decision: 28 August 2007
Solicitor for the Applicant: Legal Aid Commission
Counsel for the Applicant: Ms Elizabeth WoodSolicitor for the Respondent: Department of Veterans’ Affairs, Melbourne
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