Griffiths and Repatriation Commission
[2005] AATA 1048
•21 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1048
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/1004
VETERANS' APPEALS DIVISION )
Re JOHN GRIFFITHS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date21 October 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ........[Sgd].......
M J Carstairs
Member
CATCHWORDS
VETERANS' AFFAIRS ‑ veterans’ entitlements –special rate of pension - remunerative work – whether prevented from continuing remunerative work
Veterans’ Entitlements Act 1986 s 19, 24, 120(4)
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1REASONS FOR DECISION
21 October 2005 Ms M J Carstairs, Member
1. John Griffiths has applied for an increase in the rate of his disability pension. He was assessed as eligible for payment at 100% general rate of pension and now seeks the higher, loss-of-earnings related payment, called special rate. Mr Griffiths was diagnosed with post traumatic stress disorder (PTSD) in 2003 and referred to counselling. Other medical conditions that the Repatriation Commission has accepted over time as due to his war service are non-melanotic malignant neoplasm of the skin, gastro-oesophageal reflux, impotence, irritable bowel syndrome, alcohol abuse or dependence, bilateral sensorineural hearing loss with tinnitus, ectopic heart beat, chronic bronchitis and emphysema, tinea and migraine headaches.
2. The delegate of the Repatriation Commission and the VRB consider that Mr Griffiths is not entitled to an increase in his disability pension from 100% of the general rate to the special rate because he was not prevented from continuing in remunerative work by reason of war caused disabilities alone.
BACKGROUND
3. Mr Griffiths was born on 8 November 1941. He left school after completing matriculation and initially worked for the Bank of New South Wales for two years and then obtained a sales position with a scrap metal company before joining the Department of Supply.
4. Mr Griffiths enlisted in the Australian Army at the age of twenty-two and served for twenty-one years. He was posted to the Royal Australian Ordinance Corps with the rank of 2nd Lieutenant after being selected for officer training at the Officer Cadet Training School at Portsea. He rendered operational service as defined in the Veterans’ Entitlements Act 1986 (the Act) when he served in Vietnam in 1967-1968. After his Vietnam service Mr Griffiths had a number of army postings in Supply as an ordinance officer including in Papua New Guinea and in Washington. At his discharge in 1985 he had reached the rank of Major.
5. From 1986 to 1992 he worked for the Australian National Railways (ANR) in Adelaide as a supply manager. From 1992 he worked at the City of Marion Council in Adelaide as their contracts and supply manager until he retired at the age of fifty-nine in 2001. Mr Griffiths has not worked since then. He moved from Adelaide and took up residence at the Gold Coast about mid 2001.
ISSUE
6. The procedure for determining claims for special rate of pension is set out in s19 of the Act. Section 19(5C)(a) of the Act requires the rate of a pension to be determined during the assessment period. That term is defined in s19(9) of the Act as meaning:
….the period starting on the application day and ending when the claim or application is determined.
7. The application day in this case was 16 October 2002 and the assessment period runs from that day. At the application day, Mr Griffiths was sixty years of age.
8. The criteria for special rate pension includes being unable to work more than eight hours per week by reason of accepted war-caused disabilities. The respondent was satisfied that Mr Griffiths passes that test. The main issue raised by the parties related to s24(1)(c) of the Act which requires, amongst other things, that Mr Griffiths be prevented by reason of war-caused incapacity, from continuing to undertake remunerative work that he was undertaking. The operation of s24(1)(c) is ameliorated for those aged under sixty-five by the provisions of s24(2)(b) of the Act which allows that a person might satisfy s24(1)(c) if he or she has genuinely sought to engage in remunerative work but the accepted disabilities have been the main reason why their quest for employment has failed.
EVIDENCE
9. Mr Griffiths said his specialisation in the army in Supply led to his later civilian employment. He said that the work at ANR was a suitable use of his army experience in warehouse management and procurement. He was responsible for forty five staff at ANR. He said that he left that position when ANR moved their operations to Sydney, and offered redundancies to the Adelaide staff who did not wish to move.
10. Mr Griffiths said that he applied for his next job, at Marion Council, before he left ANR when the Council created a new position for a contracts manager dealing with the Council’s contracts and purchasing needs. Previously there was no such dedicated position at the Council and Mr Griffiths said he faced initial difficulties with the existing staff that were used to doing things their own way. Mr Griffiths said that he insisted that things were done his way, as non-compliance cost the Council money. He said he was not popular when he told non-complying staff that he would report them. He said that he experienced ill-will, especially when he successfully obtained promotions and had the support of the CEO.
11. In a written statement dated 8 April 2004 (Exhibit A2) Mr Griffiths said that prior to his service in Vietnam he had been happy-go-lucky but after the trauma of Vietnam he became prone to anger and irritability. Mr Griffiths said he becomes aggressive if he is displeased with someone and is prone to road rage when driving. However he said that he experienced increasing problems dealing with stress and tension at Marion Council and was increasingly prone to verbal outbursts, and anger. He said in his oral evidence that he did not understand the reasons for his behaviour until diagnosed with PTSD in November 2003. He said that his first marriage ended in divorce because of his temper. Mrs Griffiths’ statement (exhibit A1) confirmed that he was volatile and aggressive at home.
12. Mr Griffiths said he is now learning to obtain help for his anger and other symptoms of PTSD as he was concerned that his second marriage would suffer if he did not. He is able to work on a voluntary basis for one day a week at the RSL at Surfers Paradise but is exhausted when he returns home.
13. Mr Griffiths said that he worked well with one CEO but always felt frustrated that he was in a junior position. He was a member and later office bearer, of the Australian Institute of Purchasing Materials and Management and remained with the Institute until he retired from Marion Council.
14. In December 2002 Mr Griffiths filled out a Department of Veterans’ Affairs Employment Report (T4, p52-60) stating that he was working 9-10 hours per day (50-60 hours per week) at the time he left Marion Council and that he could not handle the stress/trauma of his work environment. He stated (exhibit A2) that he did not reveal his full reasons for leaving Marion Council to his work colleagues as he had difficulty discussing his problems with others. He also stated in the Employment Report that he had not sought other employment after leaving Marion Council, nor had he registered with any employment agency. However, he denied under cross-examination that in 2001 effectively he decided to retire from employment altogether.
15. Mr and Mrs Griffiths had purchased a unit on the Gold Coast in 1994, which they rented out until they moved from Adelaide in 2001. Mr Griffiths said that one reason that they had remained in Adelaide before then was that his wife’s mother was ill. They moved to the Gold Coast about eighteen months after she died in 2000. They used his lump sum superannuation from Marion Council to purchase a house on the Gold Coast.
16. In regard to his abilities now, Mr Griffiths said (exhibit A2) that he no longer had the capacity to work, though he had intended to work until the age 65. He said that if he had managed to continue at Marion Council to the age of 65 he would have received an additional $150,000 superannuation.
17. In regard to work efforts after he moved to the Gold Coast Mr Griffiths said that he looked in newspapers, but limited his search to supply and procurement positions. Mr Griffiths said that he had believed that the Gold Coast area would offer greater opportunities for employment than were available in Adelaide in areas of procurement and supply. He said that in about 2001 he applied for a position at the Gold Coast City Council and one in a policy area of State Supply however he was not offered interviews. About this time he also applied for a service pension, but he said that he reasoned that if he obtained employment he could cancel the service pension. He did not canvass potential employers nor did he distribute his resumé to potential employers, because he said this had been unsuccessful for him in the past in Adelaide. Mr Griffiths said his wife did not want him to return to work, as she was worried that employment would trigger his aggression.
18. The Department of Veterans’ Affairs contacted Marion Council to comment on the issues raised by Mr Griffiths about the stress/trauma of his working environment (T4). Ms T Roberts Human Relations Advisor with Marion Council replied to the request (T4 p85) stating that there were no claims or statements of that kind on Mr Griffiths’ employee records and when she spoke to his manager he told her that he was unaware of such issues. In a record of a telephone conversation with Ms Roberts on 12 June 2003 (T4 p90) the claims assessor recorded that Ms Roberts said that Mr Griffiths had given no indication at his retirement that he was having any problems and he was considered to get on well with others in the workplace. Mr Griffiths' letter of resignation (T4, p86) stated I have enjoyed the support of both elected members and administrative staff with whom I have worked.
19. In a written statement dated 28 July 2003 (T4, p121) Mr R O’Leary, senior contracts manager at City of Marion Council stated that he worked with Mr Griffiths from 1996 and recalled that Mr Griffiths complained about the lack of support from his manager and the unreasonable work hours. Mr O’Leary stated that when he commenced in the Contracts Unit where Mr Griffiths worked, it was evident that Mr Griffiths had been under-resourced for many years. He said that Mr Griffiths was perceived to be aggressive, prone to temper outbursts, unprepared to acknowledge the views of others, but was respected for his knowledge and experience. Mr O’Leary said that Mr Griffiths had confided to him that he was becoming increasingly stressed and could not wait to leave.
20. In a letter dated 5 August 2003 (T4, p123) Mr I Wilson, who was the CEO at Marion Council from 1997 to 1999, stated that he was conscious that there was resistance to Mr Griffiths’ expanding activities in his role at Marion and his frustrations at lack of compliance by others. He said:
I am sorry to hear that the attention to detail, your professional dedication and extreme hard-work…has taken a toll on your health.
21. In a written statement dated 8 August 2003 (T4 pp124-125) Mr G Haddad, purchasing co-ordinator with the company G6 Purchasing said that he had a twenty year working relationship with Mr Griffiths including at ANR and Marion Council. He stated that Mr Griffiths was a true professional who ensured the best results despite his workload. He also said that Mr Griffiths was well-respected and others sought him out for advice which he gave without hesitation despite his heavy workload. Mr Haddad said that Mr Griffiths had told him on more than one occasion that the stress and heavy workload at the City Council were becoming too much for him and forced him to retire permanently from the workforce.
22. In a report dated 3 October 2003 (T5, p169), Dr J Hurley stated he was Mr Griffiths’ general practitioner from 1988 to 2000. Dr Hurley stated that Mr Griffiths had a number of physical ailments, and stress at work and home led to periods of anxiety. In a report dated 20 November 2002 (T4, p61) Dr T Lotz, psychiatrist, stated that Mr Griffiths gave him a history of having become frustrated and irritable in his last years of work and he had noticed increased anxiety. Mr Griffiths told Dr Lotz that he had thought his symptoms would improve with retirement but had found that they worsened, because he had more time to think about the past.
23. In a report dated 12 August 2003, Dr M Katz, consultant psychiatrist, stated that Mr Griffiths told him that symptoms of reactivity and verbal aggression under pressure had led to difficulties in the workplace and this was the reason he had elected to retire at the age of fifty-nine. Dr Katz said that it was reasonable to conclude that Mr Griffiths’ service-related emotional disturbances were the reason he was no longer gainfully employed.
CONSIDERATION OF THE ISSUES
24. The Tribunal takes into account that in Cavell v Repatriation Commission (1988) 9 AAR 534 Burchett J stated that when considering the provisions of s24 of the Act a commonsense approach with an eye to reality should be maintained.
35. I took into account that the parties agreed that Mr Griffiths satisfies s24(1)(a) and s24(1)(b) of the Act. I had some difficulty with the second concession, which requires that I be satisfied that Mr Griffiths’ incapacity from war-caused injury alone renders him unable to undertake work for eight hours per week. I accept that Mr Griffiths has a number of diseases or injuries accepted as due to his service, some that would be more disabling in the workplace than others. However I note that there is no strong medical evidence pointing clearly to Mr Griffiths being unable to work eight hours per week. Accepting his evidence, as I do, that at the time Mr Griffiths retired from Marion Council in 2001 he was working between 9 and 10 hours per day, it was quite unclear to me, and was left unexplained by the medical evidence, what had changed within a little over a year to lead to the conclusion that he was unable to work at what amounts to about an hour-and-a-half per day. The only medical report directly dealing with work ability, is the report of Dr Katz stating
…in view of the history of John’s symptomatic disturbances …as well as his current age now of fifty nine it is reasonable to conclude that John is no longer able to be gainfully employed in the work force as a result of his service related emotional disturbances.
25. Dr Katz offers no direct comment on the eight hour requirement. The report of Dr Thompson expressing his view that Mr Griffiths could not work at all, was of little assistance. Dr Thompson was merely completing a standard form, not providing any explanation or reasoning. He would have had little knowledge of Mr Griffiths who had been his patient only for a short time, and Dr Thompson was not treating Mr Griffiths during his working life.
26. However, the parties had prepared their case on the basis of their agreement that Mr Griffiths satisfied s24(1)(b), and so I will assume for present purposes that he satisfies the 8-hour test, and consider the issues that the parties say are pivotal in determining the case, that is the tests in s24(1)(c). This subsection of the Act requires that Mr Griffiths is prevented from continuing to undertake remunerative work, by his accepted disabilities alone. Section s24(2) of the Act also must be considered because Mr Griffiths was not engaged in remunerative work at the start of the assessment period and was under 65 years of age. That sub-section deals with a person’s genuine attempts to obtain remunerative work in the assessment period.
27. In Flentjarv Repatriation Commission (1997) 48 ALD 1 at 2 the Federal Court set out the issues that arise in s24(1)(c) as a series of questions:
1. What 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?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 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?
28. In respect of question 1, I was satisfied that the remunerative work for Mr Griffiths included his last work as purchasing and supply manager at Marion Council, but was also wider than this because his career in the army and in civilian employment has involved the management and supervision of others. Mr Griffiths provided the job description for his position at the Council (T5) which showed that the position entailed knowledge of computer based systems, knowledge of contract and administrative law, and extensive experience and formal training at a management or senior management level. The examples of his work-in-progress reports for Marion Council (T5, p144-146) demonstrated corporate management and strategic skills that would be applicable in a wide range of employment settings. From this evidence I concluded that description of remunerative work in relation to Mr Griffiths extends to a range of middle management and/or clerical positions in either the public or private sectors.
29. In respect of question 2, I must consider whether Mr Griffiths was prevented from continuing to undertake remunerative work by reason of his war-caused disabilities, including PTSD and the other disabilities set out in paragraph 1, alone.
30. One of the matters that Mr Griffiths has referred to repeatedly in his oral and written evidence was the stress and trauma of the work environment at Marion Council. Mr Griffiths stated that he was working in excess of fifty hours per week. Mr Griffiths’ long hours and lack of support from management were matters that Mr Wilson and Mr O’Leary referred to in their statements as well. So did Mr Haddad who referred to Mr Griffiths workload pressures and said that Mr Griffiths advised me on more than one occasion that…he felt he needed to resign from the City of Marion and permanently retire from the workforce.
31. I was satisfied that the excessive workload at Marion Council was a real problem for Mr Griffiths. However he could have looked for other less demanding work, and there is no explanation why he did not. I understand that Mr Griffiths’ diagnosis of PTSD in 2003 provides him with an explanation of what he describes as his short temper and demanding manner in the workplace. However it is not the only explanation. What he describes as his aggressive behaviour is not strongly reflected in the statements of Mr O’Leary, Mr Wilson and Mr Haddad. Mr Haddad and Mr O’Leary worked closely with Mr Griffiths and each of them comments on the long hours that Mr Griffiths put in and his willingness to support others. Those statements from people who were therefore well placed to know, spoke of the respect that others accorded him for his knowledge, professionalism and skills. Only Mr O’Leary referred to aggression and outbursts of temper, however this has not led to any reported incidents in personnel records or any recollections of this by the employer.
32. There was no evidence that Mr Griffiths’ behaviour was creating problems for management, and it seems that he left Marion Council with an unblemished record of hard work and commitment. The employer’s statement (T4, p89) was that Mr Griffiths retired voluntarily and his employment would not have been terminated in the foreseeable future by Marion Council. I note that Mr Griffiths was concerned that his employer’s responses in the statement (T4, p126-128) but they declined to change their views.
33. The evidence from those in management positions at the Council, including the evidence of Mr O’Leary and Mr Wilson, indicates that Mr Griffiths was valued for his skills, and for the support that he gave to others, even if he might have been insufficiently appreciated and was over-worked.
34. I do not accept that Mr Griffiths’ PTSD on its own or in combination with his other war-caused disabilities prevented Mr Griffiths from continuing at Marion Council or prevented him looking for less taxing hours in other remunerative work elsewhere. What seems more likely than not is that Mr and Mrs Griffiths had long term plans to live in Queensland, which commenced during the 1990s when they purchased real estate on the Gold Coast and with future plans for retirement there. Until Mrs Griffiths’ mother’s death they were needed in Adelaide, but after that they could make other choices. I was satisfied that this remained the case at the start of the assessment period in October 2002. Mr Griffiths was not prevented from continuing to undertake remunerative work; he had simply decided to retire.
35. Bearing in mind that Mr Griffiths had an entitlement to Defence Force pension from his army service, and that he applied for service pension when he turned sixty at the end of 2001, it seems more likely than not that he took the opportunity of retiring to the Gold Coast as he and Mrs Griffiths had planned, because the pressures of the onerous demands of his job at Marion Council became too much for him. It seems to me more plausible when all the evidence is taken into account that, faced with the heavy workload and excessive work pressures, and given his age and the change in family circumstance with his mother-in-law’s death, Mr Griffiths made the decision to retire from the workforce, as described by Mr Haddad.
36. For these reasons, I conclude that the answer to question 2 of the Flentjar questions is No.
37. Turning to the matters raised by s24(2)(b) I consider it unlikely that Mr Griffiths ever intended to work once he moved to the Gold Coast from Adelaide. If Mr Griffiths were intending to seek further remunerative work when he moved to the Gold Coast, he would have alerted others to his intentions and obtained references from the Council or others with whom he had worked over the previous nine years. There was no evidence that he did so. Mr Wilson, Mr Haddad and Mr O’Leary made no mention in their statements that Mr Griffiths had told them that he had any intention other than retirement. Mr Griffiths said in his oral evidence that he told Mr O’Leary that he was leaving the Council with a view to finding employment on the Gold Coast with better people, but Mr O’Leary’s letters stated only that Mr Griffiths retired from work, was desperate to get away and just wanted to live in peace as he had had enough. I do not accept that Mr Griffiths would have neglected to tell others who were close to him professionally if he truly had future plans for work, especially as he was moving inter-state.
38. There was no reason for me not to accept that Mr Griffiths was telling the truth in November 2002 when he wrote No to the question Since ceasing your last employment have you been seeking other employment? Taking aIl the evidence into account I do not accept that Mr Griffiths made genuine attempts at employment after he moved to the Gold Coast. He gave only the most general answers about his job hunting activities. He said on the one hand that he had believed that the Gold Coast offered many more opportunities in procurement and supply jobs than were available to him in Adelaide, yet he applied for only two positions. He appears to have undertaken only limited searches in newspapers, and did not canvass employers, as would be expected of someone seriously engaged in job hunting. The case law indicates that the word genuinely in s24(2)(b) requires that there be objective signs of active pursuit of employment. This is not evident here.
39. I do not accept that Mr Griffiths was genuinely seeking to engage in remunerative work. It does not seem that the then undiagnosed condition of PTSD played a part in preventing Mr Griffiths making efforts to find work in 2001/2002 which was the period when Mr Griffiths says he applied for the two positions. I do not accept that this is a case in which Mr Griffiths can call upon s24(2)(b) and rely on war-caused disability as a substantial cause, in order to satisfy the test in s24(1)(c) of the Act. I was satisfied that Mr Griffiths was not prevented from continuing to undertake remunerative work at any time in the assessment period and for this reason he does not qualify for special rate of pension.
DECISION
44. The Tribunal affirms the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 25 July 2005 and 7 September 2005
Date of Decision 21 October 2005
Solicitor for the Applicant Mr G Mylne – Mylne Lawyers
For the Respondent Mr J Stoner, Departmental Advocate
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