Gordon and Repatriation Commission

[2005] AATA 119

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 119

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/489

VETERANS' AFFAIRS DIVISION		)
Re		ROBERT JAMES GORDON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date8 February 2005

PlaceAdelaide

Decision The Tribunal sets aside the decision under review, and substitutes a decision that the applicant is qualified for payment of Disability Pension at the Special Rate, with effect from 4 April 2002.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements – Disability Pension – pension for war-caused conditions appropriately assessed at 80 percent of general rate – is applicant, by reasons of incapacity from war-caused conditions alone, prevented from continuing to undertake remunerative work – reasons other than incapacity from war-caused conditions – ameliorating provisions – applicant capable of working more than 8 hours per week – decision set aside

Veterans’ Entitlements Act 1986 s 24

REASONS FOR DECISION

8 February 2005   Senior Member WJF Purcell

1.      This is an application for review of a decision of the Repatriation Commission (the Commission) of 21 November 2002 which granted Disability Pension for “war-caused post-traumatic stress disorder” and “hearing loss of right ear” at 80 percent of the General Rate with effect from 4 April 2002.  The Veterans’ Review Board (VRB) affirmed the decision on 5 June 2003.

2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the Commission.  Mr Swan represented the applicant, who gave oral evidence.  Mr Doube appeared for the Commission.

3.      The applicant, who is 56 years of age, served as a conscript in the Australian Army (the Army) for two years.  He served in Vietnam with the Medical Corps at the Field Hospital, based at Vung Tau.  He has operational service from 17 September 1969 to 2 September 1970.

4. The applicant’s last employment was as a residential care worker at the Aboriginal Sobriety Group’s, Cyril Lindsay House, where he was employed on a part-time basis for 10 weeks – about 15 hrs per week. He has not worked for that organisation since about 27 September 2001. The applicant maintains that he is entitled to payment of Disability Pension at the Special Rate, and that he satisfies s 24 of the Veterans’ Entitlements Act 1986 (the Act), which as far as is relevant for the purposes of this review provides:

“(1)     This section applies to a veteran if:

(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab)the veteran had not yet turned 65 when the claim or application was made; and

(a)       either:

(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d)section 25 does not apply to the veteran.

(2)       For the purpose of paragraph (1) (c):

(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

…”

5. It is not in dispute that the applicant satisfies s 24(1)(a)(i) of the Act, in that he is in receipt of pension at a rate higher than 70 percent of the General Rate. The Commission maintains that he does not satisfy s 24(1)(b) of the Act, in that the incapacity from his war-caused conditions, is not of such a nature as of itself alone, to render him incapable of undertaking remunerative work for periods aggregating eight hours per week. The Commission maintains also that the applicant does not satisfy s 24(1)(c) of the Act, in that he ceased work for reasons other than his war-caused conditions, and by virtue of s 24(2)(a) of the Act cannot be taken to be suffering a loss of salary or wages, or of earnings.

6. The Commission maintains finally, that the applicant does not satisfy the ameliorating provisions of s 24(2)(b) of the Act, in that although he appears to have sought work since ceasing his last employment, his war-caused disabilities have not been the substantial cause of the inability to obtain remunerative work.

7.      The applicant was discharged from the Army shortly after his return from Vietnam in September 1970.  He was unemployed until he obtained work as a labourer in 1975.  He left that job in 1977, after a dispute about his pay.  In October/November 1977 he travelled overseas, overland through South East Asia to Europe, for about six months.  When he returned to Australia in 1978, he was 30 years of age, and returned to live with his parents, until about 1992.  He was unemployed for seven years, but did not apply for unemployment benefits until he injured his back while jogging.  He needed surgery, and had run out of money.  At the age of 37 in 1985, he commenced retraining courses with the WEA, which led to qualifications with TAFE.

8.      When the applicant commenced TAFE course in 1985 he was eligible for Austudy.  In 1988/89 he took a foundation course to get into Flinders University.  He was accepted, but deferred for a year.  He commenced his course then, but after three months withdrew, and went overseas.  When he returned, he enrolled in Skillshare Courses to get back into University.  He then took TAFE courses in Community Services.  In 1989 he commenced an Associate Diploma in Management Community Services, part-time.  During this time he did voluntary work as a Community Educator running English language courses at Morella Neighbourhood House.  In 1991, he was to undertake a 12 month project, a survey into migrants, but withdrew because of a disagreement with the co-ordinator.  There was a grant for the project, and he thought the co-ordinator was organising groups to maximise her income.  He left, and undertook a different project at Prospect Skillshare, regarding the relationship between management and staff. 

9.      When the applicant completed his Associate Diploma course, in 1994, he applied for jobs in this field, but was unsuccessful, and rarely obtained interviews.  He applied to Neighbourhood Houses, some of which are run by Councils and some by community groups.  He applied in writing, or by telephone.  He decided that he needed to obtain more qualifications, and in 1995/96 he enrolled in a Bachelor of Social Science course, at the University of South Australia.  He completed the course in early 1997, and undertook a field placement in Samar, Philippines, for six weeks, and qualified as a “Human Services Worker” in mid 1997.  He applied for more jobs unsuccessfully, and then enrolled in a Graduate Diploma in International Studies, the course work of which counted towards a Masters Degree.  He completed his Masters Degree, in International Studies, in early 2000, and thought he was now qualified to apply for jobs in the human services area across the board, in Australia and overseas.  He received responses from most of his job applications, but very few interviews and no job offers.  He challenged the process involved in a couple of his unsuccessful applications, but the standard employer response, was that there was “another person better qualified for the position”.

10.      The applicant said in evidence, that his last paid employment was with the Aboriginal Sobriety Group, at Cyril Lindsay House.  He says he met Leith Gould, a Caseworker at Cyril Lindsay House, at University, and she asked him if he would like to relieve for her, while she went on leave for two separate periods of two weeks each, in September 2000, and about March 2001.  Subsequently, his supervisor,  Noel, asked if he would like to be put on the roster as a residential care worker, a lesser paid position than that of a Caseworker.  He completed forms at the Head Office – the Aboriginal Health Service, on Wakefield Street.  He worked occasional weekends as a residential care worker, over a two month period until August 2001. 

11.     The applicant said in evidence that when Noel retired, and a Mr Austin became the new supervisor in August 2001, the roster was changed, and Mr Austin told him that he was no longer needed.  The applicant asked why, and was told it was a directive from Head Office.  The applicant said in evidence that in his view, Cyril Lindsay House was not well organised, and he was irritated by the inefficiencies.  It is a refuge for 4-12 males suffering from alcoholism and other dependencies.  They had procedures in place, for instance, which were not followed.  Everyone was supposed to be sober, but they turned a blind eye to drinking.  The applicant said that they were not assisting the residents with their needs as well as they could have.  When Noel was the manager, and there were 4-5 other care workers on the roster, the applicant’s duties included helping the residents, referring them to different organisations, and dealing with Court matters.  He had a problem with one of the care workers who he believed was part of a culture where people were holding positions for which they were not qualified.  The applicant said that he “pushed things hard” with the inmates, because they were not helping themselves. 

12.     The applicant said in evidence that he understood that Cyril Lindsay House was supposed to provide respite care, working towards independence; but the inmates used it like a hotel, coming and going when they felt like it.  The applicant said he told them they had to help themselves, and that they would not get away with it with him.  He thought he did the job well.  He heard one resident say he was pushing him too hard.  He felt that he gave real assistance to some people, such as a lady with five children, who was in the refuge for females at Torrensville.  He helped her to get a house.  He was accused by management of demanding more money, but he does not recall doing that.  He has tried to obtain copies of his employment records, but most of the staff have now left Cyril Lindsay House, and Noel has passed away.  He has not been in paid employment since August 2001.  He performed some volunteer work at Kura Yerlo Council, and in return had use of its gymnasium. He was in dispute with some of the staff and clients, and on 16 September 2003 the Chairperson, Ms Wanganeen, informed him by letter, that the Council had dismissed him for “misconduct detrimental to the interest and objectives of the Association”.

13.     It is clear on the evidence, that between 10 January 1998 and 16 July 2003 the applicant has applied for dozens of relevant vacancies advertised in the press.  In most cases he received only a letter of response.  On the few occasions that he received an interview, he was unsuccessful. The most often advised reasons for his lack of success was that they needed someone better qualified.  He said that as his PTSD was not diagnosed until he saw Dr Ewer on 30 September 2002, prospective employers were unaware of his condition.  After the diagnosis had been made, he did not disclose his condition to the next seven prospective employers; but there was only one subsequent interview, and that was by telephone.

14. Dr Ewer reported on 1 October 2002, that in his opinion, a number of the applicant’s symptoms were interfering with his ability to work. His lethargy and insomnia would make work difficult. His poor concentration would render him inefficient. He had difficulty relating to other people; and when considered together, these rendered the applicant unfit for paid employment. Dr Ewer concluded that the applicant’s overall impairment rating was 40; and that he could not work eight hours per week, because of his service related psychiatric problems. I accept Dr Ewer’s opinion, and am reasonably satisfied on the evidence that the applicant satisfies s 24(1)(b) of the Act.

15.     The applicant said in evidence that despite Dr Ewer’s views, he continued to apply for jobs, because he felt that he would be able to perform the job for which he had been trained.  He was willing to work, but when he did work he came into conflict with others.  He said that although he felt he would be able to work, he probably could not.  If he got a job he would take it; whether he would be capable of doing the work in the light of his problems, was unknown.  He said that since about late 2001, things were getting him down.  He was not successful in life, and he had a lot of problems with conflicts with neighbours, and slowly and surely things were starting to accumulate, and get on top of him.  When he worked at Cyril Lindsay House he became easily frustrated and irritated.  He was told that he was no longer needed; and although he asked the reasons why, he was never told, except that it was a direction from Head Office; and the job was given to someone else.

16.     On the evidence the applicant has been engaged in three periods of paid employment only, since his return from Vietnam in 1970 – two years as a labourer from 1975-1977, and two periods of two weeks, as a care worker in September 2000 and March 2001, and two days per fortnight part-time over a period of 10 weeks finishing in August 2001.  In his statement dated 17 September 2003 [Exhibit A1] he added a handwritten addendum “In summary, I probably have had no significant periods of paid employment, despite extensive (re)training and a concerted attempt to gain work.”

17.     The applicant gave lengthy oral evidence, and was subjected to careful, but fair, cross-examination.  He impressed me as intense, depressed and anxious. His presentation was “flat”, but there was no hint of exaggeration in his presentation – it is him, as he is.  He outlined clearly, and without embellishment, but with a certain resignation and acceptance, that in retrospect, no matter what he did to secure higher and higher qualifications, he was confronted with the comment that other applicants were better qualified.  He outlined the many years of study to overcome his academically poor record – and his achievement, finally, of a Masters Degree, in a matter of fact and detached manner.  I formed the view that although his PTSD was not diagnosed until 2002, the applicant’s inability to get on with others since Vietnam, in a domestic or workplace setting, his persistent pursuit of higher academic qualifications, combined with an unerring conviction that he would now obtain employment commensurate with his qualifications, is indicative of the psychiatric condition which has been accepted now, by the Commission as war-caused.

18.     In my view, the applicant did not cease employment as a care worker in August 2001 solely because of his war-caused condition, but I consider that his war-caused condition was a substantial contribution to other people’s inability to work with him – he was remote, difficult, and a “bit strange”.  He continues to persist in his belief that he could undertake the work for which he is trained, if the opportunity was available.  I think that any experienced interviewer would perceive quickly the applicant’s problems in communication, and his “difference”, and not be prepared to take on this person with high academic qualifications, but no employment record (apart from two months part-time in 2001) since a two year stint finished more than 27 years ago, in 1977.

19. I turn to the “ameliorating provisions”, s 24(2)(b) of the Act. The Commission contends that there are other factors affecting the applicant’s ability to obtain remunerative work. These include his time out of the work place, his little, if any, relevant experience in the fields in which he has been endeavouring to obtain employment. He has never, in his written applications, nor his interviews, mentioned his war-caused disabilities. The conclusion to be drawn is that it must have been other factors that influenced the potential employer. As mentioned earlier in these Reasons for Decision, I consider that the applicant’s “strange” presentation to any experienced interviewer, would signal the potential difficulties in employing him. Although it is clear that other factors, such as lack of relevant experience and time out of the workforce would be relevant considerations, I consider that the applicant’s PTSD is a substantial cause of his inability to obtain remunerative work, and I so find.

20. I am reasonably satisfied on the evidence that the applicant satisfies s 24 of the Act, and is qualified for payment of Disability Pension at the Special Rate.

21.     For these reasons the Tribunal sets aside the decision under review, and substitutes a decision that the applicant is qualified for payment of Disability Pension at the Special Rate, with effect from 4 April 2002.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:
           .....................................................................................
  Associate

Date of Hearing  19 July 2004
Date of Decision  8 February 2005
Counsel for the Applicant         Mr C Swan
Solicitor for the Applicant          Swan Lawyers
Counsel for the Respondent     Mr G Doube
Solicitor for the Respondent     DVA