Goodwin and Repatriation Commission

[2007] AATA 1619

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1619

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600747

VETERANS’ APPEALS DIVISION		)
Re		Michael Goodwin

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date2 August 2007

PlaceBrisbane (heard in Townsville)

Decision The decision under review is set aside. The Tribunal decides in substitution that the applicant is entitled to disability pension at the special rate with a date of effect of 13 April 2004.  

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SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – special rate – loss of wages, salary or earnings suffered because of war-caused conditions – whether applicant retired from Army and ceased being able to undertake any remunerative work at the same time – Tribunal satisfied applicant ceased work because of war-caused conditions – decision under review set aside

Thirkell and Repatriation Commission [2007] AATA 1552  

Veterans’ Entitlements Act 1986 s 24

REASONS FOR DECISION

2 August 2007 Senior Member B J McCabe         

1.      Mr Michael Goodwin suffers from a number of accepted war-caused conditions. He has not worked since leaving the Army in March 2004. He applied for a disability pension shortly after he was discharged and has since applied for a pension at the special rate. That application was refused and Mr Goodwin has asked the Tribunal to reconsider the matter.

2. The application for a pension at the special rate is assessed according to criteria set out in s 24 of the Veterans’ Entitlements Act 1986. The respondent concedes the applicant satisfies all of the relevant criteria but one: it disputes whether Mr Goodwin has suffered a loss of earnings within the meaning of s 24(1)(c). The respondent says Mr Goodwin retired from the workforce when he left the Army because that is what he always planned to do. It says his war-caused conditions were not the reason for the applicant’s cessation of work. Mr Goodwin disagrees.

3.      To resolve the dispute, I must ask when and why the applicant left the workforce. If his war-caused conditions are the sole explanation for him ceasing work, the decision must be set aside.

the facts

4.      The applicant is currently 58 years of age. He undertook national service in 1969-1971. He served in Vietnam during that period. He subsequently joined the regular Army in 1978. Most of his work was in logistics although he also served in East Timor. He was discharged when he reached the statutory retirement age of 55. He was a corporal at the time of his discharge.

5.      The applicant was diagnosed as suffering from post traumatic stress disorder, alcohol abuse or dependence and a number of other conditions that are service-related. He was receiving treatment for those conditions before his discharge from the Army. He said in his statement that the conditions were starting to make him wonder whether he would be able to continue doing his job and remain in the Army until he reached the mandatory retiring age. The psychological conditions had already come to the attention of Army medical personnel when the applicant was interviewed after returning from East Timor in 2003. A copy of the report from a psychologist commissioned to follow up on that interview is found at p 77 of the s 37 documents. The applicant agrees he told the interviewer that his conditions were not affecting his work.

6.      Mr Goodwin was medically examined on 10 March 2004 prior to his discharge. The report is exhibit 5. The applicant agreed in the course of cross-examination that he told the interviewing doctor his mental state was normal. The doctor was aware of the various conditions but noted in the report there was no evidence that they had interfered with the applicant’s work.

7.      Mr Goodwin says he was reluctant to talk about his psychiatric conditions in particular because he did not want to be discharged from the Army for health reasons. He says he wanted to be discharged in the ordinary way when his service was completed.

8.      The applicant says he had informal discussions before his discharge with the regimental quartermaster at one or more regular drink sessions after work. The quarter master is said to have observed the applicant was ‘drifting’. They also discussed the possibility of extending the applicant’s time in the Army after he reached the age of 55 notwithstanding the mandatory retirement rules. Mr Goodwin did not pursue the option of staying in the Army. He says he wanted to get out and find a job, although he did not take any steps to find a job before his discharge.

9.      I am satisfied the applicant was able to do his job before he left the Army. While he was clearly experiencing some difficulty towards the end of his service, the medical evidence suggests he was coping as the mandatory retiring age approached. Mr Honchin speculated that may have been because of a more sympathetic or supportive working environment. If that is so, he might have been able to continue working in the Army notwithstanding his war-caused conditions after his 55^th birthday. It is impossible to say for sure, because he did not stay.

10.     Things changed quickly after he left the Army. The applicant applied for an invalidity service pension within two weeks of his discharge. On 2 April 2004, his treating general practitioner, Dr Fraser, opined the applicant was incapable of working: p 20 of the s 37 documents. Mr Goodwin’s psychiatrist, Dr Likely, expressed a similar view shortly thereafter: p 21 of the s 37 documents. The applicant says he took his doctors’ advice: he did not seek work.

11.     Mr Goodwin’s disability pension was granted at the general rate. He wants a pension paid at the special rate. His application for a special rate pension was rejected by the respondent on 6 April 2005. Mr Goodwin apparently believed his application was unsuccessful because he had not been looking for work. He decided to look for a job, notwithstanding the advice from his doctors that he was incapable of working.

12.     The applicant’s first attempt at employment in May 2005 ended unhappily. He became aware his local grocery store was seeking a casual shop assistant. He asked about the job and was given a trial. He did not receive any wages during the course of the trial. He lasted a week before he had an argument with a customer. The customer complained to the store owner and Mr Goodwin was told he was no longer required. The applicant puts his difficulties down to his war-caused conditions. The store owner confirmed there was an altercation (document A21 in the s 37 documents) but there is no other evidence that would enable me to determine whether the conflict with the customer is properly attributable to the applicant’s condition.

13.     Mr Goodwin’s decision to apply for a job in a customer service position is surprising given his accepted conditions. He made it clear during the course of his evidence that he does not like dealing with people. Some of his subsequent choices make more sense. The s 37 documents include evidence of approaches to AA Sands, a landscaping company in August 2005 and Rawnsley Autos, a parts dealer, in November 2005. Neither of the firms had advertised positions. The material in the s 37 documents suggests Rawnsley declined to offer Mr Goodwin a job because it did not have any positions available. It is unclear why Mr Goodwin’s approach to AA Sands was unsuccessful. There is no evidence that would enable me to conclude he was unsuccessful because of his accepted conditions. Mr Goodwin’s enquiries about work at Sunshine Bouquets – a flower wholesaler and packager – were also unsuccessful because there was no work available. The note in the s 37 documents does not explain when this approach was made, although I understand from Mr Goodwin it occurred in the latter part of 2005.

14.     The applicant also approached Jobfind, a recruitment firm. He said he provided them with his details. He also told them about his medical history. He says he was told he was unlikely to be placed in the circumstances. He has since given up trying to find work.

the legislation

15.     The application of 24(1)(c) is all that remains in contention as between the parties. The sub-section has two limbs. The first limb requires that the applicant’s war-caused condition on its own prevented the applicant from continuing to undertake the remunerative work he or she was previously undertaking. If the veteran is unable to satisfy that requirement, he or she may be able to take advantage of the ameliorating provision in s 24(2)(b). The respondent concedes Mr Goodwin satisfies the first limb of s 24(1)(c), so there is no need to consider the operation of the ameliorating provision in this case.

16. The problem arises in relation to the second limb of s 24(1)(c) which requires that the veteran suffer a loss of salary, wages or earnings that he or she would not suffer but for that war-caused incapacity. Section 24(2)(a) says a veteran cannot be said to suffer a loss of…earnings if the veteran ceased to engage in (any) remunerative work (as opposed to the remunerative work he had been undertaking) for reasons other than his war-caused incapacity. If other (ie, not war-related) factors contributed to the decision to cease work, the applicant must fail.

17.     I note in passing that I am required to decide these matters to my reasonable satisfaction: s 120(4).

why did mr goodwin cease work?

18.     Mr Goodwin left the Army in 2004 because he reached mandatory retirement age. But he insists he did not intend leaving the workforce at that point. He says he intended finding a new job. I note he did not take any steps towards finding a job before or after he was discharged, and he applied for an invalidity pension within weeks of leaving the Army. There are also a number of references in the s 37 documents to the applicant speaking of looking forward to his retirement in Townsville when he left the Army. He was also obviously aware (either at the time of his discharge or soon after) that his doctors said he should not work again. It seems to me he must have left the workforce at about the time he left the Army.

19.     That is certainly the view Mr Honchin (for the applicant) urged me to take with respect to the timing of the applicant’s cessation of remunerative work. Mr Honchin says there was no point looking for work after that date because the applicant was no longer able to hold down a job because of his war-caused conditions. The fact Mr Goodwin subsequently attempted to find employment against his doctors’ advice is irrelevant, Mr Honchin explained, because the applicant had long since lost the capacity to undertake remunerative work.

20.     I think Mr Honchin is right. The evidence establishes the applicant was able to function up until he left the Army, but the medical evidence in particular makes it clear he was unable to work again after that point. Dr Likely says the applicant’s war-caused conditions are to blame. Mr Goodwin knew that was the advice of his doctors. I do not accept the evidence establishes he stopped working because he wished to retire; he stopped work because his conditions had become too much of a burden. The possibility he may have foreseen that occurring before his discharge from the military does not change my view. I am persuaded the medical advice about his condition explains his departure from the workforce.

21.     The fact Mr Goodwin may have unsuccessfully sought work at a later date in order to substantiate his claim for a special rate pension does not mean he did not satisfy the criteria at an earlier point. I am satisfied he was merely acting on a mistaken view of what he needed to establish in order to receive a pension he may already have been entitled to receive.

22.     The result in this case may be contrasted with what occurred in Thirkell and Repatriation Commission [2007] AATA 1552. That decision was handed down a matter of days before this case was heard in Townsville. The Tribunal adjourned to allow the parties the opportunity to make submissions given the factual similarities between the two cases. Mr Thirkell was unsuccessful in his application for review because the Tribunal concluded there were other explanations for him ceasing work so soon after he left the Army in 2005. I am satisfied Mr Goodwin’s position is different – most obviously because he ceased work when he did on medical advice.

conclusion

23. I am satisfied the applicant is able to met the criteria in s 24 of the Veterans Entitlements Act 1986 governing the award of special rate pensions. The decision under review is therefore set aside. The date of effect of my decision is 13 April 2004.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Associate:     Stephen O’Grady

Date of Hearing  17 & 19 July 2007
Date of Decision  2 August 2007
The applicant was represented by Mr Honchin of counsel.

The respondent was represented by Mr Stoner, a departmental advocate.