Gutteridge and Repatriation Commission
[2008] AATA 168
•28 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 168
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4323
VETERANS' APPEALS DIVISION ) Re GEOFFREY GUTTERIDGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott RFD Senior Member Date28 February 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution decides that Mr Gutteridge is entitled to be paid pension at the Intermediate rate under section 23 of the Veterans’ Entitlements Act 1986 with effect from 26 February 2003. ...................[Sgd]........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – application for special rate of pension – capacity to work – whether applicant’s war caused injury or disease the cause alone, of his being unable to work – decision under review aside, applicant granted pension at the intermediate rate.
Veterans’ Entitlements Act 1986 ss 19, 23, 24
Hall v Repatriation Commission (1994) 33 ALD 454
Cavell v Repatriation Commission (1988) 9 AAR 534
Jebb v Repatriation Commission (1988) 80 ALR 329REASONS FOR DECISION
28 February 2008 Dr P McDermott RFD Senior Member INTRODUCTION
1. Mr Geoffrey Gutteridge, a veteran, has sought the review of a decision made by the Repatriation Commission and affirmed by the Veterans’ Review Board, that he was not eligible to be paid a pension at the special rate. I am required to consider whether the veteran meets the eligibility criteria for the payment of an “earnings-related” rate of pension at the special rate under the Veterans’ Entitlements Act 1986 (the Act).
BACKGROUND
2. Mr Gutteridge served with the Royal Australian Navy from 1966 until 1974. He had operational service in Vietnam. He has a number of accepted disabilities including post traumatic stress disorder. Mr Gutteridge has been assessed as eligible for payment of pension at 100% of the general rate.
ASSESSMENT PERIOD
3. This is an instance where the administrative decision-making process is a “continuum”. The Tribunal’s function in considering this application is a part of that “continuum”. I am required to assess the entitlement of the applicant during the whole of the assessment period[1].
4. Section 19(5C) (a) of the Act requires that the rate of pension is to be determined during the “assessment period”. That term is defined in s19(9) of the Act to mean, in relation to a claim or application relating to a pension, the period starting on the application day and ending when the claim or application is determined.
5. The application day in this case was 26 May 2003 and the assessment period runs from that day.
MEDICAL WITNESSES
6. Two medical witnesses were called on behalf of the veteran who gave evidence on his medical conditions: Dr Ivan Holm, psychiatrist; and Dr Larry Gahan, his general practitioner. Mr Gutteridge and Mrs Rhonda Gutteridge also gave evidence on his medical conditions. The respondent did not call any medical witnesses.
7. Dr Ivan Holm in his report of 14 June 2006[2] has concluded that the veteran suffers from symptoms of chronic post traumatic stress disorder and alcohol abuse and dependence. Dr Holm also considered that a diagnosis of depressive disorder is inappropriate as a diagnosis additional to that of post traumatic stress disorder (PTSD). Dr Holm considers that the veteran’s symptoms are significant and disabling. Dr Holm in his report has expressed the opinion that the post traumatic stress disorder condition prevents the veteran from returning to any form of work for more than 8 hours per week. Dr Holm also considers that this is a permanent condition[3].
[2] ex. A, T19, fols 76-81
[3] T19, fols. 80-81
8. Dr Gahan, in his report of 28 March 2007, reported that Mr Gutteridge presented on a number of occasions with depressed mood, which he had provisionally diagnosed as PTSD. Dr Gahan reported that the “close perusal of my records indicate that I issued medical certificates to Mr Gutteridge for his ‘depression’ for a total of 10 weeks between the months of March and December of that years”[4]. In his evidence Dr Gahan remarked, after a review of his notes, that he had issued medical certificates to Mr Gutteridge for his depression which totalled 11 (and not 10) weeks.
[4] T30, fol. 161
9. It is important to mention these medical certificates because according to a report of Dr Livingstone, Mr Gutteridge had informed him that “in 1997 he had some 4 1/2 months off work because of back problems”[5]. Mr Gutteridge has no recollection of this conversation which would have occurred on 17 February 1998. I am satisfied that at this time Mr Gutteridge was taking anti-depressant medication: this is confirmed by Dr Gahan. Mrs Gutteridge has also mentioned the poor mental state that her husband was in at the time. It is accordingly reasonable to infer that any remarks that Mr Gutteridge made to Dr Livingstone at this time were not accurate. Mr Williams on behalf of the Commission has quite properly accepted this explanation.
[5] report dated 18 February 1998, T5, fol 23
10. I should also mention that I have examined a number of medical reports which are in evidence before me. I will later refer to some of those reports.
CONSIDERATION OF THE ISSUES
11. A veteran is entitled to an ‘earnings-related’ rate of pension provided that the applicant meets the requirements of s 24 of the Act. I will mention some relevant provisions from that section.
12. The veteran must be under sixty-five years of age at the date of the claim: s 23 (1) (aab); s 24(1)(a). This requirement is satisfied in this case.
13. The degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, must be determined under section 21A to be at least 70% or has been so determined by a determination that is in force: see s 24(1)(a)(i). This requirement is met as the veteran is now in receipt of a pension at 100% of the general rate.
14. There is also a requirement that the veteran must be totally and permanently incapacitated, that is to say, that 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: see s 24(1)(b).
15. In addition to satisfying these requirements, the veteran must also, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, be 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: see s 24(1)(c).
16. The respondent concedes that Mr Gutteridge meets the requirements of s 24(1)(a) of the Act. However, the respondent contends that Mr Gutteridge does not satisfy s 24(1)(b) of the Act.
17. In support of the contention that Mr Gutteridge satisfies s 24(1)(b) of the Act, the veteran has relied upon the report of Dr Holm who in his report of 14 June 2006, has expressed the opinion that the PTSD condition of the veteran prevents him from returning to any form of work for more than 8 hours per week.
18. In his report Dr Holm remarked: “With respect to work it is clear that Mr Gutteridge ceased work in 1998 due to the effect of what is now diagnosed as Post Traumatic Stress Disorder alone. Despite treatment he remains disabled and I am of the opinion that his Post Traumatic Stress Disorder prevents him from returning to any form of work for more than eight hours per week”[6].
[6] T19, fols. 80-81
19. In considering whether Mr Gutteridge satisfies s 24(1)(b) of the Act, I have examined the evidence relating to the activities of the veteran after he ceased work in 1998. In 2005, Mr Gutteridge was interviewed by Dr Greg Knight, consultant occupational physician. Dr Knight reported on his voluntary work:
Mr Gutteridge explained that since 1998 he has been working voluntarily in the … RSL sub-branch. He said that he was a secretary in 2000. He remains on the committee. He still continues with entirely voluntary work on pensions and as a Case Officer. He said that he intends completing a four-day Advocate’s course in November 2005 but doubts whether he will ever be confidant enough to represent claimant’s in the AAT. He said that he feels completely relaxed with his mates at the RSL club. He said that he generally works there from 09.00 to 13.00 on Tuesday and Thursdays[7].
[7] T13, fol 48-49
20. In a later statement dated 18 December 2007, Mr Gutteridge has made some remarks about his work at the RSL sub-branch. Mr Gutteridge stated:
I had trouble getting right mentally for the job and would forget things, which caused problems, some of which were requests for assistance by members or committee that I did not action. I fell ill in September 2000 and took about six months to fully recover. I had no further input into the Sub-branch as Secretary after becoming ill[8].
[8] ex. B, para. 16
21. These comments, in his later statement are different with what Mr Gutteridge had told Dr Knight in 2005. In particular, Mr Gutteridge had told Dr Knight that he was “completely relaxed with his mates at the RSL club”, whereas, in his statement that was admitted at the hearing, Mr Gutteridge remarked that he “had trouble getting right mentally for the job”. Another more significant inconsistency related to his duties at the club in 2005. Mr Gutteridge told Dr Knight in 2005 that he “continues with entirely voluntary work on pensions and as a Case Officer”. He also stated that he planned to complete an “advocacy course”. Those remarks are certainly at variance with the later statement that was admitted at the hearing in which he claims to have had “no further input into the Sub-branch” after 2001. I cannot give those comments in his later statement any great weight.
22. In view of the evidence that Mr Gutteridge was able to perform voluntary work for 8 hours a week, I cannot be reasonably satisfied that Mr Gutteridge meets the requirements of s 24(1)(b) of the Act. It is for this reason that I consider that Mr Gutteridge is not qualified to receive a pension at the special rate.
23. I now consider whether Mr Gutteridge qualifies for a pension at the intermediate rate.
24. I have taken the view that this veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently: see s 23(1)(b). I consider that the veteran meets the requirements of this provision as his duties at the RSL sub-branch classifies as work that he does “intermittently”.
25. I will next examine the requirements under s 23(1)(c) of the Act.
26. Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, (1997) 80 ALR 329 at 333 has identified the questions which must be determined in order to consider whether s 24(1)(c) of the Act applies in a particular instance. I consider that the questions are also of assistance in considering the application of s 23(1)(c) of the Act.
27. The first question that I will consider is what was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 23(1)(c) of the Act. I must consider what has been referred to as “the substantial remunerative work that the veteran has undertaken in the past”[9]. Having regard to the remarks of Finn J In Repatriation Commission v Van Heteran (2003) 75 ALD 703 at 708, I have focused on what His Honour has referred to as the “type of work which the veteran previously undertook, but which because of war-caused incapacity alone he or she can no longer undertake”. I am mindful that there is a statutory requirement in 23(1)(c) that I must consider the “remunerative work that the veteran was undertaking”.
[9] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
28. Mr Gutteridge has had a variety of work in the past. From 1977 to 1981 he worked as a fitter’s assistant. I mention that in the Royal Australian Navy Mr Gutteridge has experience as a leading hand engineering mechanic: in the service he attained the acting rank of petty officer. From 1981 to 1996 he worked as a boiler attendant at a hospital. He was then made redundant. The redundancy papers were not before me. Dr Holm in one report mentioned that he had a “medical redundancy”[10]. However, the respondent has accepted that the veteran ceased his boiler attendant work for reasons of a restructure and accepted an offer of a redundancy[11]. From 1996 until 1997, Mr Gutteridge was working in a retraining scheme in which he was undertaking clerical duties. He had placements at various Government Departments including a seven week placement at Queensland Health. Mr Gutteridge was offered employment by Queensland Health after this placement. I mention that Mr Gutteridge had some limited experience in clerical work before his enlistment in 1965. It is understandable for Mr Gutteridge to seek less physically demanding employment at this stage in life, particularly when that clerical employment was arranged as part of the redundancy process.
[10] T19, fol 79.
[11] Submissions, page 9.
29. The respondent has pointed out, that the clerical work that Mr Gutteridge performed in 1997, under the retraining scheme, was not gained through a competitive process. It was also submitted, that Mr Gutteridge was not directly paid by the organisations that granted him the placements. But these factors do not, in my view, detract from the fact that the veteran actually undertook remunerative work at this time. I agree with the conclusion of the Veterans Review Board that the retraining program, which incorporates the clerical placements, was the last remunerative work of the veteran.
30. I consider that the “remunerative work that the veteran was undertaking” within the meaning of s 23(1)(c) of the Act can be properly categorised as a boiler attendant and clerical work.
31. The second question that I must determine, is whether the veteran is by reason of his war-caused injury or war-caused disease prevented from continuing to undertake that remunerative work.
32. I have examined the evidence relating to the psychiatric condition of the veteran. The veteran has post traumatic stress disorder which is an accepted war-caused condition. There is evidence from Dr Holm that the change of environment after the retrenchment caused difficulties for Mr Gutteridge and prevented him from undertaking the remunerative work which he was completing. I have taken the view that the clerical work that was performed by the veteran was that remunerative work that is envisaged by s 24(1)(c) of the Act. My answer to the second question is accordingly: “Yes”.
33. I will next consider the third question which is whether the war-caused injury or war-caused disease is the only factor which prevents the veteran from continuing to undertake that work. This is the first limb of s 23(1)(c) of the Act. In my opinion, it was the accepted post traumatic stress disorder condition that prevented the veteran from continuing with the retraining program. Dr Holm considers that the change of work environment caused the symptoms of post traumatic stress disorder. Prior to his redundancy, the veteran worked by himself after hours; after the redundancy he did not have the same freedom and had to work with other people. This caused difficulties for the veteran who because of his condition could not cope with the job placements.
34. On behalf of the Commission, it was submitted that Mr Gutteridge has orthopaedic conditions which prevent him from undertaking remunerative employment. There is no dispute that Mr Gutteridge has orthopaedic conditions of his lower back and his knees. The question is whether these conditions prevent him from undertaking remunerative employment.
35. Dr Gahan, the treating general practitioner, has confirmed in a work report, that his lower back pain would cause difficulties with certain categories of employment. Dr Gahan opined that problems with lower back pain would interfere with “moderate/skilled” work. Dr Gahan, under cross-examination, confirmed that this category of work referred to tradeswork. I certainly accept that Mr Gutteridge experienced some back problems during his employment as a boiler operator. Mr Gutteridge in his evidence stated, that the lifting of 50kg (but not 25 kg) bags of salt caused difficulties for him. As a decision-maker I recognise that the lifting of 50kg bags would cause difficulties for many people. However, in assessing whether the orthopaedic conditions of Mr Gutteridge have caused difficulties, I have given more weight to specialist medical opinion on the orthopaedic conditions of Mr Gutteridge rather than the opinion of a general practitioner.
36. The uncontradicted specialist medical opinion, is that the orthopaedic conditions of Mr Gutteridge do not prevent him from undertaking work. On 6 October 2005 Dr G Knight, a consultant occupational physician, had regard to the “mild lumbar spondylosis and osteoarthrosis of both knees”. Dr Knight reported that Mr Gutteridge was apparently fit to participate in suitable work[12]. On 2 May 2006 Dr John Talbot, a consultant orthopaedic surgeon, reported: “There is no incapacity for work from the point of view of my field of expertise”. Dr Talbot also remarked: “In my opinion neither his back nor his knee condition is making any contribution to his inability to work”[13]. I should mention that both Drs Knight and Talbot were careful not to express any opinion from the psychiatric perspective, which was outside their field of expertise[14].
[12] T13, fol 50
[13] T15, fol 58
[14] T13, fol 50; T15, fol 58
37. I give a positive answer to the third question.
38. I will now turn to the fourth question, which is whether the veteran by reason of being prevented from continuing to undertake that work is 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. This fourth question is the second limb of s 24(1) (c) of the Act.
39. I give a positive answer to the fourth question. I consider that Mr Gutteridge, who had pressing responsibilities, would have continued to work if he had not been free of his incapacity caused by his post traumatic stress disorder. I accept his evidence that he had pressing domestic responsibilities, including two children at a private school, and that he only ceased work because of his post traumatic stress disorder condition.
40. It was urged upon me that a relevant factor is the absence of the veteran from the work force now for over ten years. However, I do not consider that this factor applies in this case where the veteran has been endeavouring to assist his mates with his voluntary work.
41. I set aside the decision under review and substitute a decision that Mr Gutteridge is entitled to receive a pension at the intermediate rate with effect from 26 February 2003.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD Senior Member
Signed: .........................[Sgd].......................................................
Research AssociateDate/s of Hearing 6 February 2008
Date of Decision 28 February 2008
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Mr T O’Connor
Respondent Mr B Williams, departmental advocate
1. See Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, cited by Downes J in Shi v Migration Agents Registration Authority [2007] FCAFC 59 at [37].
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