Harris and Repatriation Commission
[2006] AATA 567
•29 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 567
ADMINISTRATIVE APPEALS TRIBUNAL № V2004/1401
№ V2004/1402VETERANS' AFFAIRS DIVISION
Re: LESLIE JOHN HARRIS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:29 June 2006
Place:Melbourne
Decision:The Tribunal varies the reviewable decisions as follows:
1.the applicant's osteoarthrosis of the right ankle is war‑caused with effect from 10 April 2002;
2.the conditions of chronic bronchitis, idiopathic haemoptysis and left lower lobectomy are war‑caused with effect from 9 July 2003;
3.as a consequence pension was payable at 100 per cent of the general rate from 10 April 2002;
3.the applicant qualifies for the intermediate rate of pension; and
4.the matter is remitted to the respondent for the assessment of the rate of pension payable to the applicant.
(sgd) E.A Shanahan
Member
VETERANS' AFFAIRS – diagnosis of post traumatic stress disorder and alcohol abuse accepted as war‑caused in 1998 – application for increase rate of pension in 2002 – the applicant ceased work June 2003 when his employer ceased the business – whether seeking work – alone test or substantial contribution – respondent conceded several disease processes as war‑caused.
Veterans' Entitlements Act 1986 ss 22, 23, 24
Banovich v Repatriation Commission (1986) 69 ALR 395
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Fox v Repatriation Commission (1997) 45 ALD 317
Gieson v Repatriation Commission [2005] FCA 846
Hall v Repatriation Commission (1994) 33 ALD 454
Leane v Repatriation Commission (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Peacock v Repatriation Commission (2004) 40 AAR 143
Fry v Repatriation Commission (1997) 47 ALD 776
Re Bishop and Repatriation Commission [2005] AATA 1117
Repatriation Commission v Boyle (1997) 47 ALD 637
Repatriation Commission v Buckingham (Ryan J, unreported, 7 February 1996, Federal Court of Australia)
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Sheehy v Repatriation Commission (1996) (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
29 June 2006 Miss E.A. Shanahan, Member
1. On 10 July 2002 Mr Leslie John Harris made a formal claim for increase in his disability pension which at that time had been assessed and paid at the rate of 90 per cent of the general rate. Mr Harris' rate of pension had been calculated on the basis that the Repatriation Commission accepted that he suffered from the following disabilities: tinea, post traumatic stress disorder (PTSD), bilateral sensorineural hearing loss with tinnitus, hypertension, alcohol abuse and irritable bowel syndrome. Mr Harris claimed to be suffering from a large number of additional disabilities but the Repatriation Commission did not accept liability for them; and there was considerable overlap between these nominated disabilities and his accepted abilities. However, the outstanding claims related essentially to asthma, anxiety, osteoarthrosis of the right ankle, obstructive bronchitis with asthmatic element and idiopathic haemoptysis.
2. On 18 September 2002 the Repatriation Commission affirmed Mr Harris' rate of pension at 90 per cent of the general rate. Mr Harris sought review of the decision by the Veterans’ Review Board (VRB). The VRB affirmed the primary decision‑maker's decision on 17 November 2004. Mr Harris applied for review to the Administrative Appeals Tribunal on 24 December 2004. In the interim, between his application and the date of hearing, the Repatriation Commission reviewed his non‑accepted disabilities again, in light of further medical evidence. The Repatriation Commission conceded that Mr Harris' chronic bronchitis, idiopathic haemoptysis, left lower lobectomy and osteoarthrosis of the right ankle were war‑caused, which resulted in the assessed pension being increased to 100 per cent of the general rate with effect from 14 September 2004; with the effect of the osteoarthrosis being back-dated thus Mr Harris was entitled to a pension at 100 per cent of the general rate from 10 April 2002.
3. As a result of these concessions by the respondent and the applicant's withdrawal of the claim for asthma, the only matter before the Tribunal is whether or not Mr Harris qualifies for the special rate or the intermediate rate of pension.
BACKGROUND TO THE APPLICATION
4. Following his return from operational service in Vietnam, Mr Harris had a chequered employment history for a period of two years. He was never dismissed from any form of employment, but he did experience difficulty settling down. On several occasions Mr Harris resigned from his job but had no difficulty either returning to the same employer or obtaining new employment some months later, as, in his own words [a] good tradesman would always get a job (trans p17).
5. On 8 September 1971 Mr Harris commenced work with the Geelong Cement Company (Geelong Cement) as a labourer. Over several years he obtained experience in the four major production areas of this company and became a central control operator on 7 October 1991. He was subsequently promoted to shift team co‑ordinator on 25 February 1993. On 3 March 1996 he was demoted to a central control operator because of interpersonal problems with colleagues and was further demoted to a control operator on 18 February 1999. He continued in the latter role until Geelong Cement ceased business on 1 July 2001, at which time Mr Harris was 56 years old.
6. In 1998 Mr Harris was diagnosed as suffering from PTSD and alcohol abuse; and these conditions were accepted as war‑caused on 18 September 1998. He was granted 20 per cent of the general rate pension. Upon retrenchment on 1 July 2001, Mr Harris received $150,000 less tax in a redundancy package and he used these moneys to offset mortgages on two investment properties he owned in Queensland. The investment properties were subsequently sold at a loss.
7. Geelong Cement arranged for Centrelink to provide advice to its retrenched employees (Exhibit R6, p110). Mr Harris identified this service as the Commonwealth Employment Service (CES) and this is a common mistake. It is Mr Harris' evidence that on revealing his existing Department of Veterans' Affairs' (DVA) entitlement and his diagnoses, Centrelink advised him that no one would employ him. In February 2002 he saw a Centrelink advisor again and was given the same advice. In late 2001 he sought part‑time employment with an auto‑electrical company for which he had worked in the early 1970s but was refused employment on the basis of his known alcohol abuse (Exhibit A2).
8. Mr Harris made it quite clear that had Geelong Cement continued in business, he would have continued to work for them, hopefully, for another three years; but he believed he may well have been sacked earlier than that because of his conflicts with co‑workers, which he attributed to his PTSD (T14, p121 N°V2004/1401).
9. It is not contested that Mr Harris ceased work because of the closure of Geelong Cement. However, any eligibility for the special rate must be determined in relation to the assessment period, which in this case is from 10 July 2002 until the date of this Tribunal’s decision: (s 19(5C) and s 19(9) of the Veterans' Entitlements Act 1986 (the Act).
10. Mr Harris claims he rapidly became bored after ceasing work and also realised that he was short of money. Hence, he made an oral application to North Geelong Auto‑electrics seeking employment on a part‑time basis as an auto‑electrician. His application failed. Following his failed application and the advice received on two occasions from Centrelink, Mr Harris did not make any further applications for employment.
REPRESENTATION AND EXHIBITS
11. Mr Harris was represented by Mr A. Larkin of counsel, instructed by Williams Winter, solicitors, and the respondent was represented by Mr R. Douglass, an advocate with DVA. The Tribunal was provided with the documentation lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents) for application N°V2004/1401 and N°V2004/1402. The parties tendered the following exhibits:
Statement by Leslie John Harris dated 15 December 2004 Exhibit A1
Statement by Ian Aranyosi dated 24 January 2005 Exhibit A2
Report by Dr M. Epstein dated 16 March 2005 Exhibit A3
Report by Dr C. Thomas dated 7 April 2005 Exhibit A4
T‑documents for application V2004/1402 Exhibit R1
Report of Kynatjarra Medical Clinic Exhibit R2
Clinical notes of Dr M. Carroll Exhibit R3
VRB transcript dated 17 November 2004 Exhibit R4
Additional Department of Veterans' Affairs file documents Exhibit R5
Geelong Cement Company records Exhibit R6
Clinical notes of Dr J. Cronin and Dr I. Parkin Exhibit R7
Reports by Dr B. Kenny dated 4 October 2005 and Exhibit R8
13 October 2005
Report by Dr A. Sillcock dated 1 August 2005 Exhibit R9
12. The applicant, Dr Clayton Thomas, Mr Ian Aranyosi, Dr Michael Epstein, Dr Isabella Sillcock and Dr Barrie Kenny gave evidence before the Tribunal.
Mr Harris
13. Mr Harris' evidence was essentially as outlined under the heading of Background in this decision. He agreed that he first sought psychiatric advice in 1998 when he consulted a psychologist and then Dr Parkin in August 2000. Both practitioners diagnosed PTSD and alcohol abuse. Mr Harris continues to see his treating psychiatrist, Dr Cronin (who took over Dr Parkin's practice) every four to five months.
14. Mr Harris described his job at Geelong Cement as being protected in the year prior to it closing down on 1 July 2001. He used the term protected to describe three contributing factors. He stated that first he was a top operator and very good at my job. Secondly, I had been there 30 years, and thirdly, there is an Ex‑Servicemen's Act 1945 which the company was absolutely afraid of… (trans p31). While Mr Harris believed he should have been sacked in the late 1990s, he was not; and this he attributed to these three factors.
15. Mr Douglass asked Mr Harris if there were any similar control‑operated positions in the Geelong District. Mr Harris was aware of similar positions in the refineries in the Geelong area, but described these jobs also as protected and for union requirements, inaccessible to someone such as himself.
16. On several occasions Mr Harris reiterated his belief that had Geelong Cement not closed in July 2001, he would have continued with his so‑called protected position until the age of 59 or 60.
Dr Thomas
17. Dr Thomas had provided a report dated 7 April 2005, having seen Mr Harris on 4 April 2005. Dr Thomas had assessed Mr Harris on purely a physical basis and had not considered his psychiatric accepted condition of PTSD and alcohol abuse, as that was not his area of expertise. Based on purely physical health considerations, Dr Thomas found Mr Harris capable of sedentary type work which would not involve standing for excessive periods or walking for long distances. On this basis, he believed Mr Harris was capable of working for greater than eight hours per week. He stressed that he had not considered the war‑caused conditions of PTSD and alcohol abuse. In his evidence before the Tribunal Dr Thomas confirmed his opinion as outlined in his letter of 7 April 2005. During cross‑examination, Dr Thomas confirmed that the documentation with which he had been provided indicated that Mr Harris had behavioural problems while at work at Geelong Cement. While acknowledging Mr Harris suffered from severe respiratory ailments, Dr Thomas said that he was not in a position to assess these conditions. Dr Thomas confirmed that he believed that Mr Harris could work as a process control operator from a physical point of view, but that such work was essentially confined to control work of kilos and that such positions are extremely rare.
Mr Aranyosi
18. Mr Aranyosi is the owner of North Geelong Auto‑electrics. He provided a statement dated 24 January 2005 (Exhibit A2) regarding Mr Harris' oral application for part‑time work in late 2001. Mr Aranyosi had known Mr Harris since he was a child, particularly when Mr Harris had worked for his father prior to his operational service and on his return from Vietnam. Mr Harris was a qualified auto‑electrician. While Mr Aranyosi was aware that Mr Harris had been a very competent auto‑electrician in the early 1960s and early 1970s, he was also aware of Mr Harris' reputation of being a heavy drinker of alcohol. It was for the latter reason that Mr Aranyosi rejected Mr Harris' application. In his evidence before the Tribunal Mr Aranyosi confirmed the contents of his statement.
19. Mr Douglass asked what type of work North Geelong Auto‑electrics performed. Mr Aranyosi stated that the company carried out a wide range of auto‑electrical work from passenger cars of recent vintage down to cars and trucks that are 30 years old. The range of repairs carried out had been those that had been:
around for many years, removing, repair and refitting of starter motors, alternators and things like that and as time goes on there is also, which we tend to leave to the younger fellows that have just come out of school, the later model computer controlled stuff that takes a little bit more current knowledge to do but there is also plenty of the old … (trans pp44‑45)
Mr Aranyosi agreed that some of the work on the older model vehicles could be heavy and occasionally performed in confined spaces. Mr Aranyosi stated that he had never employed any one on a part‑time basis, but if he could not obtain full‑time employees, he would then consider a part‑time worker.
Dr Epstein
20. Dr Epstein had provided a medical report regarding Mr Harris on 16 March 2004 (Exhibit A3). It was Dr Epstein's opinion that Mr Harris suffered from PTSD, alcohol abuse and a variety of physical conditions. While Mr Harris had ceased work when retrenched in mid‑2001, Dr Epstein was of the opinion that Mr Harris had significant problems during his work and had been demoted because of his behaviour arising from the PTSD and alcohol abuse. He assessed Mr Harris' current work capacity as nil. This functional capacity of nil related to both the psychiatric status and Mr Harris' physical condition. In Dr Epstein's opinion the war‑caused injuries alone prevented Mr Harris from undertaking remunerative work for a period aggregating more than eight hours per week. At the time of Dr Epstein's report some of Mr Harris' physical conditions were not then accepted as war‑caused but in the intervening period the major physical complaints had been accepted.
21. In his evidence before the Tribunal Dr Epstein confirmed his written report. He was asked by Mr Larkins why he disagreed with the opinion of Dr Kenny, which had been provided some seven months after Dr Epstein saw Mr Harris. Dr Kenny had been reluctant to diagnose PTSD, but did diagnose alcohol abuse. Dr Epstein was surprised that Dr Kenny had not diagnosed PTSD, given Mr Harris' symptoms at the time. Essentially, he disagreed with Dr Kenny's opinion.
22. In response to Mr Douglass' question as to whether a person's difficulty in accepting responsibility was a symptom of PTSD as opposed to a personality problem, Dr Epstein stated that it was not; but that looking at Mr Harris' history overall, he had coped well prior to his operational service and on return to Australia his capacity for coping had declined as evidenced by his chequered work history and his subsequent demotions while working for Geelong Cement. The latter had been due, in Dr Epstein's opinion, to the symptoms of PTSD and alcohol abuse which reflected on his ability to cope. Dr Epstein did not regard Mr Harris' long term service with the Country Fire Authority, his indulgence in competitive squash and his membership of a bowling club as necessarily negating a difficulty in socialising; as persons with PTSD who have problems socialising will force themselves to socialise by joining such organisations (trans p52). Dr Epstein did agree with Mr Douglass that over a period of years Mr Harris's alcohol consumption had decreased.
23. When Dr Epstein had seen Mr Harris he gave a history of drinking 4-5 cans of beer per day and a bottle of vodka per week. This, Mr Harris had said, was a reduction from what he used to drink. Dr Epstein was of the opinion that Mr Harris had reduced his alcohol intake because of pressure from his wife and also the cost of the alcohol involved in such a level of drinking. Dr Epstein believed that while Mr Harris had said he would like to return to work, he could not cope with it (trans p55). Dr Epstein had regarded Mr Harris' work as a form of external discipline, giving him a structure within which to operate; and once his employment was terminated, Mr Harris felt totally lost. This was a common problem for many people. However, in the case of the usual retiree, free of psychiatric disorder, these symptoms resolved in six to nine months. Dr Epstein dated Mr Harris' incapacity for work as occurring within months of his cessation of employment.
24. Once more, Dr Epstein disagreed with Dr Kenny's opinions. However, he did agree that the level of severity of Mr Harris' PTSD was not high but in the moderate range. The Tribunal asked Dr Epstein what the normal history or progression of PTSD following retirement from employment would be. Dr Epstein stated there would usually be a short‑lived aggravation of the condition followed by a period of adjustment wherein the sufferers of PTSD learnt to live a more limited lifestyle, and as a result, do actually settle to some degree.
25. The Tribunal pointed out that Mr Harris had travelled extensively in Russia in early 2002 without any problems. The Tribunal also pointed out that in late 2002 he had suffered various medical conditions, including significant haemoptysis resulting in a left lower lobectomy which was complicated by the development of pneumothorax and an empyema and he required several weeks hospitalisation. Despite these events and later shoulder surgery, Mr Harris had coped extremely well and his treating doctors had stated that they had difficulty restraining his physical activity despite his severe medical conditions. Dr Epstein explained that patients with PTSD frequently dealt with external conditions remarkably well but do not cope with the internal conditions (trans p62).
Dr Sillcock
26. Dr Sillcock had seen Mr Harris at the request of the respondent, on 23 June 2005 and provided a report dated 1 August 2005 (Exhibit R9). Dr Sillcock obtained a detailed history from Mr Harris and performed a general physical examination. Her assessment was based primarily on Mr Harris' physical functional capacity to work. Dr Sillcock stated that she was not a psychiatrist and thus was not in a situation where she could assess his accepted PTSD and alcohol abuse. In terms of his physical conditions, Dr Sillcock assessed Mr Harris as capable of undertaking remunerative work for periods aggregating more than 8 hours per week but less than 20 hours per week. She stated that this decision was because she accepted that there was some affect of his PTSD on his ability to work, resulting in difficulty interacting with other people and accepting authority (Exhibit R9 p12). Dr Sillcock acknowledged that Mr Harris had been experiencing difficulties at work in relation to his psychiatric disabilities from 1996 to 1997 onwards. Dr Sillcock took into account Mr Harris' osteoarthritis of the right ankle and his respiratory symptoms, which at times had been labelled asthma and at other times chronic bronchitis, and his reduced lung capacity following left lower lobectomy. At the time she gave her opinion these physical conditions were not accepted as war‑caused.
27. Dr Sillcock opined that Mr Harris could obtain employment in the auto‑electrical field although he had not worked in this area for 30 years; and as she stated, motor vehicles have changed quite substantially during that period (Exhibit R9 p14). She suggested he would need retraining in auto‑electrical techniques. Dr Sillcock also regarded Mr Harris' age as a factor against him obtaining further employment and also nominated Mr Harris' time out of the workforce and other physical conditions which have now been accepted as being war‑caused as relevant factors. At the time of consultation Dr Sillcock assessed Mr Harris' inability to obtain work as being 50 per cent due to social factors, in particular being out of the workforce a year; and 50 per cent due to his accepted disabilities; and that this had been the situation since1 July 2001. She did, however, vary this opinion as of June 2005 as a result of Mr Harris' left lower lobectomy and worsening of his right ankle symptoms, although she noted that in her opinion his PTSD had improved. She considered that Mr Harris' ability to undertake remunerative work had diminished and that this was due to non‑accepted conditions assessed at 75 per cent and due to accepted conditions at 25 per cent.
28. Dr Sillcock concluded that:
I believe that the only reason that Mr Harris ceased engaging in remunerative work was because he was retrenched. I do not consider that any of his other disabilities either accepted or non‑accepted led to him stopping work. (Exhibit R9 p16)
Dr Sillcock's report included a table entitled Relative contributions of various factors as at July 2001 July 2002 Current, namely 23 June 2005. In her evidence before the Tribunal Dr Sillcock maintained her assessment that Mr Harris could work more than 8 hours but less than 20 hours per week, taking into account the improvement in his PTSD symptoms and the acceptance of several physical conditions as being war‑caused. She also maintained that Mr Harris would require retraining in order to qualify for a position as an auto‑electrician.
29. During cross‑examination, Dr Sillcock differentiated between the assessment of a functional capacity to work and employability, stating that functional capacity was a medical assessment whereas employability related to market potential and whether or not someone would employ an individual with various medical conditions. Dr Sillcock did not regard the presence of a psychiatric condition or alcohol abuse as preventing persons from working, except where legislation decreed so such as driving a heavy vehicle or flying an aeroplane. The latter were however questions of employability and not functional capacity. In addition, there was no evidence, in her opinion, that Mr Harris' excessive alcohol consumption had put his colleagues at risk or interfered with his work as a control room operator.
30. The Tribunal asked Dr Sillcock whether overall she believed that since Mr Harris had ceased work on 1 July 2001, his capacity in terms of his psychiatric status had improved. She agreed that this was her opinion. In response to Mr Larkin's follow up question, she agreed that the cessation of work may have been the major reason for Mr Harris' psychiatric improvement.
Dr Kenny
31. Dr Kenny had first seen Mr Harris in 1999 at the request of the Repatriation Commission, but unfortunately his report of that date was not before the Tribunal, although Dr Kenny referred to it subsequently. Dr Kenny also provided two further reports dated 4 October 2005 and 13 October 2005 (Exhibit R8). In 1999 Dr Kenny believed that Mr Harris satisfied the criterion A for PTSD but not the requirements of Criteria B to F relating to symptoms. Mr Harris stated that all his symptoms had settled. As a result the only diagnosis that Dr Kenny reached was that of alcohol abuse. In his report of 4 October 2005 Dr Kenny noted that Mr Harris had reduced his alcohol consumption, as he had in 1999 when he said he was drinking very little. Mr Harris in October 2005 stated he was drinking four to five cans of beer per day, plus a bottle of vodka a week. Mr Harris continued to see his treating psychiatrist Dr Cronin and was taking the antidepressant Efexor in a dose of 75mg twice daily. In addition, other medication had been prescribed for his hypertension and his arthritis.
32. On further questioning Mr Harris worked out his alcohol consumption to be 9 to 10 standard drinks of beer per day. Mr Harris acknowledged that he was overall happy but tended to be tearful on certain occasions, was using a self‑management programme to improve his sleep and in general was calmer and less angry. Mr Harris did not report any dreams or nightmares. Mr Harris described his relationship with his wife, the three children of his former marriage and his four grandchildren as being good. In the interview, Dr Kenny could find no overt significant psychiatric or psychological disturbance. However, Dr Kenny accepted that Mr Harris had been diagnosed as suffering from PTSD which, if present, he believed was mild and requiring relatively minimal treatment. Dr Kenny was aware that Mr Harris had been made redundant on 1 July 2001 and had looked for other work without success. Dr Kenny was also aware of other significant physical health problems which rendered Mr Harris an unlikely prospect for employment in the future.
33. Dr Kenny concluded that Mr Harris was as of 4 October 2005, permanently unemployable, but pointed out that this was not an assessment of his functional capacity but of his employability, which is not a medical or psychiatric construct. Dr Kenny did not criticise the diagnosis of PTSD by other psychiatrists as Mr Harris' workplace problems could be ascribable to a diagnosis of PTSD. However, the symptoms of PTSD had fluctuated from time to time and were now minimal. Dr Kenny concluded that while he did not believe that Mr Harris' PTSD per se would prevent him from working, he suspected that the acknowledged substance abuse of alcohol would render him unfit for any effective employment. Dr Kenny assessed Mr Harris in accordance with the Guide to the Assessment of Rates of Veterans’ Pensions (fifth edition) (GARP V) criteria at 28 points, of which 80 per cent was constituted by the alcohol abuse. He also stated that Mr Harris' psychiatric conditions did not contribute to his cessation of employment but they would render him unemployable now. In addition, he doubted Mr Harris' motivation to return to employment and/or his control of his drinking both of which impacted on his ability to find employment. While Dr Kenny did not believe that Mr Harris's substance abuse had a meaningful connection with his service in Vietnam, and he was still not convinced that Mr Harris had significant PTSD, given that these conditions had been accepted by the respondent, they are therefore critical matters that interfere with his employment (Exhibit R8 p11).
34. On 13 October 2005 Dr Kenny provided a further report (Exhibit R8) in response to questions raised by DVA. These queries were essentially raised on the basis of functional capacity, a medical question, versus employability, which may be classified as socio‑economic consideration. In particular, Dr Kenny was referred to the report of Dr Sillcock. Dr Kenny stated that Mr Harris, in terms of his psychiatric disabilities, would be perfectly capable of undertaking remunerative work for periods aggregating more than 20 hours per week. This opinion was maintained when Dr Kenny took into account Mr Harris' physical accepted disabilities, although they would preclude physically demanding work. Overall, Dr Kenny considered incapacity to undertake remunerative work and the inability to obtain remunerative work as too separate issues.
35. In his oral evidence before the Tribunal Dr Kenny confirmed his previous opinions as outlined above, his doubt as to the diagnosis of PTSD and advised that Mr Harris' apparent inability to cope with responsibility during his employment was not a specific symptom of PTSD. If Mr Harris did have PTSD, it was, in Dr Kenny's opinion, mild. This improvement in symptomology could be attributed to Mr Harris' retirement, although in the initial stages after his redundancy his levels of anxiety and depression may have been heightened. Dr Kenny confirmed that it was his opinion Mr Harris was capable of undertaking remunerative work for periods aggregating more than 20 hours per week. Dr Kenny did however believe that Mr Harris was unfit for employment because of his alcohol abuse, although the levels of this had fluctuated over the years. However, the question relating to his alcohol abuse went to employability rather than functional capacity. As there was nothing in Mr Harris' history to indicate that his alcohol abuse had interfered with his work performance at any time, this factor was of low impact in terms of functional capacity, although it may be a major factor in terms of employability.
36. Dr Kenny did qualify his opinion by saying that if he was treating Mr Harris, he would support him not working as he believed he would be better off from a psychiatric aspect not to be employed. Dr Kenny further expanded on this opinion to the extent that he would have, immediately after Mr Harris' retrenchment, supported him in the pursuit of finding further employment; but once Mr Harris had recognised that further employment was unlikely given the CES/Centrelink .advice and his failure to obtain employment as an auto‑electrician, Dr Kenny would have advised him to retire and not actively seek any further employment.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Documents of Geelong Cement now held by Adelaide Brighton Cement Ltd Exhibit R6)
37. This documentation includes Mr Harris' various worker's compensation claims and payments for minor injuries; his various positions and their responsibilities; and his progress throughout the company, from a labourer to the highest posting of shift team co‑ordinator - the latter appointment being effective from 2 March 1993. On 28 February 1996 Mr Harris was effectively demoted from a shift team co‑ordinator to a central control operator with a reduction in salary. The records include several episodes of counselling due to altercations from 12 June 1997to 18 February 1999 and also include the details of the redundancy package offered and accepted by Mr Harris effective 1 July 2001.
38. In his evidence to the Tribunal, Mr Harris stated that there had been further discussions regarding his performance between 1999 and 2001, on a discussion only basis, given that everyone was aware that Geelong Cement was to close.
39. The T‑documents for application N°V2004/1401 contain a memorandum from Mr Jeff Tucker dated 12 June 1997, indicating that Mr Harris would be demoted from the position of central control operator to a control operator. A further memorandum from Mr Phil Kayler‑Thomson dated 18 February 1999 confirms that a demotion would result in loss of income. On 16 February 2004 Mr Kayler‑Thompson provided a letter entitled To Whom It May Concern. Mr Kayler‑Thomson was the production supervisor for a period of five years until the plant closure in July 2001 and he was Mr Harris' direct supervisor. Mr Kayler‑Thomson states that during this five year period, and particularly in the two years when Mr Harris was the team leader, he had had to counsel Mr Harris on several occasions for inappropriate behaviour towards staff and other shift operators.
This behaviour was normally abuse and acting irrational which made him difficult to work with, in the extremely team oriented environment. Les could be approachable one minute and "explode" with abuse or anger on small and insignificant issues without notice.
After several warnings and many discussions, Mr Harris was removed from the position of team leader, but he continued to be irrational at work, the irrationality fluctuating with normal behaviour (T18 p121).
Clinical Notes of Dr Cronin
40. Dr Cronin’s clinical notes include the notes of his predecessor Dr Parkin and reports from Mr Marcus Romanic, psychologist.
41. Mr Romanic had seen Mr Harris since early 1998 and had made a diagnosis of PTSD of moderate severity, commencing immediately after Mr Harris' service in Vietnam. While remnants of the symptoms of PTSD remained in 1998, Mr Romanic believed that generalized anxiety disorder was a more appropriate diagnosis.
42. Mr Harris was subsequently referred to Dr Parkin at the request of Mr Ted Richards, The Returned and Services League advocate. Dr Parkin provided a report dated 10 August 2000, in which he disagreed with Dr Kenny's report of 1999 and diagnosed PTSD attracting 23 points under the GARP V provisions. Dr Parkin noted that Mr Harris was continuing to work and that he was managing with some difficulties. Dr Parkin also diagnosed alcohol abuse.
43. Dr Cronin subsequently took over Mr Harris' care in September 2002. Dr Cronin agreed with the diagnosis of PTSD and alcohol abuse; and rated Mr Harris at 23 points according to the psychiatric impairment using GARP V. Dr Cronin found Mr Harris unable to work in any capacity on a purely psychiatric basis and indicated that his physical condition would also interfere with his capacity to work. Dr Cronin has continued to see Mr Harris to the present time and his diagnosis and opinion has not changed.
Kunatjarra Medical Clinic Clinical Notes
44. Mr Harris has attended this clinic from 6 January 1988 until the present. Mr Harris was seen on numerous occasions for bouts of acute bronchitis and is also said to have suffered from exertional asthma and chronic obstructive airways disease. He had his treated hypertension monitored on a regular basis.
45. On 28 September 2002 Mr Harris suffered a major haemoptysis (i.e. coughing up of blood) and was hospitalised in New South Wales and then transferred to a hospital in Geelong. Two bronchoscopies were performed in a period of one week after the bleeding had settled and these revealed no abnormality other than old clot in the left lower lobe bronchus. However, there was a high degree of suspicion on the part of his treating respiratory physician and thoracic surgeon and, as it was not possible to rule out a diagnosis of malignancy, Mr Harris underwent a left lower lobectomy on 25 October 2002. Histopathological examination of the resected lung did not reveal any abnormality. Mr Harris' initial recovery was uncomplicated but some three weeks after his discharge from hospital he presented with chest pain and shortness of breath and was found to have a left‑sided pneumothorax. This required re‑hospitalisation and the insertion of a chest drain tube, following which his lung was re‑expanded. He then developed a pleural effusion due to infection with staphylococcus and this bacterium was also grown from the blood stream. Mr Harris was given intravenous antibiotics for two weeks and then oral antibiotics for a month.
46. In December 2004 Mr Harris developed atrial fibrillation and was commenced on anti‑coagulates in the form of Warfarin and he continues that medication to this day. Cardioversion was undertaken on 3 February 2005. Mr Harris also had problems with his right shoulder and his right ankle. The former was treated by a right shoulder reconstruction and this condition is not considered to be war‑caused. His right ankle pathology was diagnosed as osteoarthrosis and the Repatriation Commission initially denied this as being war‑caused, but has subsequently accepted that it was war‑caused.
47. Mr Harris underwent lung function testing in 2003 and 2004. Not surprisingly his lung volumes were markedly reduced in January 2003, some two months after his recovery from left lower lobectomy complicated by a left empyema. There has however been progressive improvement since that time and the most recent tests of 19 September 2003, performed by Professor Michael Pain at the Royal Melbourne Hospital, showed lung volumes of approximately 73 per cent of predicted for his height and weight and age after the use of Salbutomol. The testing at the Royal Melbourne Hospital was reported as showing considerable airflow obstruction with marked improvement with bronchodilators.
RELEVANT LEGISLATION
48. As Mr Harris is in receipt of a disability pension at 100 per cent of the general rate, and at the time of application was in fact 57 years of age, s 24 of the Veterans' Entitlements Act 1986 (the Act) is attracted. Section 24 states:
24 (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
…
(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
…
Section 28 relates to the capacity to undertake remunerative work:
28 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).
While the Applicant did not raise the question of an intermediate rate of pension, the Tribunal has considered it and therefore s 23 of the Act is attracted:
23(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’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; and
(c)the veteran is, by reason of incapacity from 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 from that incapacity; and
(d)section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i)if 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;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.
(3A) …
(3B) For the purposes of paragraph (3A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1)(b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)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
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or
(c)the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.
…
SUBMISSIONS
49. Mr Larkin submitted that the Tribunal should direct its attention to s 24(1)(b) of the Act, but before doing so, the Tribunal should take account of the effect of s 28. Mr Larkin contended that the types of remunerative work that Mr Harris had done and his skills and qualifications were essentially quite narrow. Mr Harris had spent 30 years working for the Geelong Cement as a console operator in a specialised industry. Prior to his operational service and for a short period after his return from Vietnam, Mr Harris worked as an auto‑electrical engineer and these were the only two remunerative types of work that he had followed. It was suggested that he would require retraining to re‑enter the automotive electrical area and his ability to retrain would be severely limited by his war‑caused PTSD.
50. Mr Larkin submitted that in order to fulfil the requirements of s 24(1)(b) of the Act the veteran must be totally and permanently incapacitated from his war‑caused injury alone. That he was so incapacitated was supported by the opinion of Dr Cronin, his treating psychiatrist, who in September 2002 stated that Mr Harris was unlikely to ever return to work, and in particular, could not follow an occupation where he was required to learn new skills. Dr Cronin had declared Mr Harris to be unable to work in any capacity. Dr Cronin's report, it was submitted, was supported by Dr Parkin's earlier report of 1999, which stated that although Mr Harris was still working, he was barely coping, as further evidenced by the report of Mr Kayler‑Thomson that Mr Harris was, at times, extremely irrational and had been cautioned on various occasions and demoted on at least two occasions.
51. Mr Larkin submitted that Dr Epstein's opinion had been to the same effect, although he did not see Mr Harris until 2005. Dr Epstein was of the view that Mr Harris' PTSD and alcohol abuse resulted in his current work capacity to be nil; predominately, as a result of his psychiatric condition but also contributed to by his accepted physical conditions. Based on the evidence of Dr Cronin and Dr Epstein, Mr Larkin submitted that the criteria of s 24(1)(b) of the Act were met.
52. Mr Larkin argued that Dr Kenny's evidence and reports were conflicting in that initially in the report of 4 October 2005 Dr Kenny advised that Mr Harris was unfit for employment for no other reason than because of his substance abuse with some contribution from his aggressive behaviour, which has been accepted as related to his PTSD (trans p101). On 13 October 2005 Dr Kenny provided a second opinion stating that Mr Harris could work 20 or more hours per week. Mr Larkin stressed Dr Kenny's oral evidence wherein he stated that if he was the treating psychiatric, he would have encouraged Mr Harris not to seek further employment following his retrenchment and perhaps a few months of seeking other work. Dr Kenny implied that a lengthy pursuit of other jobs would be detrimental to Mr Harris' psychiatric status.
53. As a corollary to the psychiatric evidence, Mr Larkin submitted that given the psychiatrist had advised that he was incapable of undertaking further remunerative work, it followed that Mr Harris would be suffering a loss of salary or wages as delineated in s 24(1)(c) of the Act.
54. Mr Larkin also queried the logic behind Dr Sillcock and Dr Kenny's opinions that Mr Harris could work up to 20 hours per week in light of the psychiatric evidence before the Tribunal that he had no capacity for any type of work. In particular, he questioned how working 8 hours or 20 hours per week would be appropriate and achievable, but 40 hours of work per week was not.
55. Mr Larkin addressed the requirements posed by the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 and contended that Mr Harris met these requirements. He cited Hall v Repatriation Commission (1994) 33 ALD 454 and Peacock v Repatriation Commission (2004) 40 AAR 143 in support of this submission. Mr Larkin said that while Mr Harris' employment came to an end because of the redundancy effected by the closure of his employer's business, that redundancy did not prevent him from working. What had prevented Mr Harris from working during the assessment period was his war‑caused injuries.
56. With respect to s 24(2)(b) of the Act, Mr Larkin submitted that Mr Harris had sought remunerative work after his redundancy in the form of contacting and applying for a job at North Geelong Auto‑electrics and had been advised by the CES/Centrelink on two occasions in 2001 and in early 2002 that given his diagnoses he was unemployable. His capacity to work had also been deemed as nil by his treating psychiatrist early in the assessment period and in 2005 by Dr Michael Epstein.
The Respondent
57. Mr Douglass agreed that s 24(1)(a) of the Act was satisfied and that the Tribunal was concerned with the alone test of s 24(1)(b) and the alone test of s 24(1)(c) as applied to loss of wages etc. He directed the Tribunal's attention in the first instance to s 24(1)(c) and relied on the four steps as outlined by the Full Federal Court in Flentjar. The steps were:
1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2.Was F, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If so, was the war-caused injury or war-caused disease, or both, the only factor or factors preventing F from continuing to undertake that work?
4.If so, was F 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?
58. Mr Douglass contended that the remunerative work that Mr Harris was undertaking, and as qualified by s 28, should not be interpreted in an unduly narrow manner (Chambers v Repatriation Commission (1995) 55 FCR 9) but the approach should not be too broad (Repatriation Commission v Buckingham (Ryan J, unreported, 7 February 1996, Federal Court of Australia).
59. Under s 28(a) of the Act, the work experience and the professional skills Mr Harris possesses are those of an auto‑electrician and for more than 30 years, as a cement mill worker, mill operator and process controller (trans p110) (Banovich v Repatriation Commission (1986) 69 ALR 395; Repatriation Commission v Van Heteren (2003) 75 ALD 703).
60. Mr Douglass submitted that there was no market for an auto‑electrician who had been out of the trade for over 30 years. Mr Aranyosi's evidence had indicated (Mr Douglass contended) that he would only employ an auto‑electrician with out‑of‑date skills if he was desperate. On this basis, the only relevant vocational ability possessed by Mr Harris was as an industrial process control operator (trans p111). Given the sedentary nature of this occupation, the only relevant war‑caused disabilities were those of PTSD and alcohol abuse. Dr Thomas and Dr Sillcock had been of the opinion that Mr Harris’ accepted war‑caused physical conditions had no impact on Mr Harris' capacity to work as a control operator. Dr Kenny had assessed Mr Harris' work capacity from a psychiatric perspective at being greater than 20 hours per week. Mr Douglass acknowledged that the psychiatrists, Drs Cronin and Epstein, had concluded that Mr Harris' work capacity was nil due to the impact of his accepted psychiatric conditions (trans p111). Mr Douglass submitted that Dr Kenny's opinion should be preferred as he had also addressed the difference between employability and work capacity. It was Mr Harris' evidence before the Tribunal on several occasions that had the Geelong Cement mill not closed, he would have continued to work.
61. Mr Douglass contended that having considered the four steps of Flentjar, it was then necessary to consider the effect of s 24(2) as outlined by Dowsett J in Peacock where, at para 37, he said:
Favourable answers to the four Flentjar questions would not necessarily result in a favourable outcome for the applicant. It was also necessary to address subpar 24(2)(a)(i). Clearly, the applicant ceased to engage in remunerative work in 2000. If he ceased work for some reason other than his incapacity, he would be ineligible for the special rate. In the present case, the operation of par 24(1)(c) and subpar 24(2)(a)(i) may overlap, both focusing upon the role of the applicant’s access to superannuation benefits in his decision to retire. …The latter sub-section seems to be directed at the situation in which a veteran has ceased to work in a particular area for reasons unconnected with his war-caused conditions and thereafter asserts that, but for such conditions, he would have again sought and obtained employment in the same area. Such a person might satisfy par 24(1)(c) but not satisfy subpar 24(2)(a). …
62. Mr Douglass argued that s 24(2)(a) impacts on s 24(1)(c) only in the second limb, relating to loss of salary or wages; and that s 24(2)(b), the ameliorating provision, goes to the ability or capacity of the veteran, that is, the first limb of s 24(1)(c) (Forbes v Repatriation Commission (2000) 101 FCR 50). Mr Douglass contended that s 24(1)(c) was not met in the first instance, as it was the limited availability of work as a cement mill control operator; the applicant's age; his long absence from the workforce and the existence of other conditions, and in particular, asthma which is not an accepted war‑caused disability that contributed to Mr Harris inability to work (trans p117).
63. Mr Douglass contended that the Tribunal should consider the reason Mr Harris ceased work, although his voluntary redundancy had occurred some 12 months before lodging his application for an increase in disability pension (Magill v Repatriation Commission [2002] FCA 744; Peacock v Repatriation Commission (2004) 40 AAR 143; and Forbes v Repatriation Commission (2000) 101 FCR 50).
64. Mr Douglass also argued that Mr Harris was not genuinely seeking to engage in remunerative work (trans p119) (Leane v Repatriation Commission (2004) 81 ALD 625) as he had only sought employment at the North Geelong Auto‑electrics on a part‑time basis and had received advice on only two occasions, namely June or July 2001 and February 2002 from Centrelink (identified as the Commonwealth Employment Service by Mr Harris). Mr Douglas argued that Hall did not apply, i.e. that Mr Harris' incapacity was such that seeking work would have been a charade (trans p120).
65. At the end of his submission Mr Douglass raised the question as to whether Mr Harris would satisfy the requirements of s 23 with respect to the intermediate rate of pension given that Drs Sillcock and Kenny had found him capable of working —in Dr Sillcock's case up to 20 hours per week and in the case of Dr Kenny (see later) for over 20 hours a week. Mr Douglass contended that the same arguments with respect to s 24(2)(a) and (b) apply to s 23 and that Mr Harris would not qualify for the intermediate rate.
TRIBUNAL DELIBERATIONS
66. In accordance with sections 19(5)(c) and 19(9) of the Act the period during which the Tribunal must assess Mr Harris’ functional capacity to work is from the 10 July 2002 until the time of decision. On the 10 July 2002 Mr Harris was 57 years of age.
67. The Tribunal is directed to consider the application of s 24(1)(c) in accordance with the decision of the Full Federal Court in Flentjar The first question raised in this decision relates to the relevant remunerative work that the veteran was undertaking. Banovich directs the Tribunal to look at the previous work in general terms and not to a particular occupation. Mr Harris is a qualified auto electrician who last worked in that occupation in late 1971. For 30 years prior to his redundancy on 1 July 2001 he worked in the Geelong Cement mill initially as a general labourer, in the kilns and, with onsite training, became a control operator. He held this latter position for 10 years at varying levels of seniority. He was demoted in 1996 and counselled regarding his work performance in 1997 and 1999.
68. The Tribunal finds That Mr Harris’ remunerative work is in the area of auto-electrician, labourer and control operator in the specialised field of cement milling production. The second question posed by the Federal Court in Flentjar asks, is whether the veteran, by reason of war-caused injury or war‑caused disease, or both, was prevented from continuing to undertake that work?
IS MR HARRIS PREVENTED FROM WORKING AS A LABOURER BY HIS WAR‑CAUSED CONDITIONS?
69. Mr Harris’ accepted war‑caused conditions of chronic bronchitis, idiopathic haemoptysis necessitating left lower lobectomy and right ankle osteoarthrosis are the ‘only’ factors precluding him from performing labouring work.
IS MR HARRIS PREVENTED FROM EMPLOYMENT AS AN AUTO-ELECTRICIAN BY HIS WAR-CAUSED CONDITIONS?
70. Likewise the accepted respiratory conditions and alcohol abuse would ’alone’ preclude Mr Harris working as an auto-electrician servicing equipment with which he has expertise i.e. namely heavy quarry equipment and trucks of more than thirty years vintage. Whether Mr Harris suffers from asthma has not been determined to the Tribunal’s reasonable satisfaction. Dr Sillcock’s evidence was to the effect that the differentiation between asthma and chronic bronchitis with left lower lobectomy was unclear. Mr Harris’ lung function tests do show chronic obstructive pulmonary disease with a good response to bronchodilators and his lung volumes were measured at 70 to 75 per cent normal (after bronchodilators) and these would be expected after a left lower lobectomy.
DOES MR HARRIS HAVE THE FUNCTIONAL CAPACITY TO WORK AS A CONSOLE OPERATOR GIVEN HIS ACCEPTED DISABILITIES?
71. There remains for consideration Mr Harris’ functional capacity for work as a control operator for more than eight hours per week. The expert medical opinion is conflicting. Dr Thomas and Dr Sillcock, occupational health physicians, assessed Mr Harris as having a capacity for work as a control operator. Dr Thomas did not determine how many hours Mr Harris could work, as positions in specialized control operator areas were so limited as to be non‑existent. Dr Thomas obviously took into account employability as well as functional capacity. Dr Sillcock clearly differentiated between functional capacity and employability and believed that Mr Harris could work for up to 20 hours per week as a control operator. Dr Parkin saw Mr Harris before his redundancy and noted that Mr Harris was working 36 hours per week plus overtime, but was experiencing difficulties coping with this workload. Dr Epstein and Dr Cronin have seen Mr Harris within the assessment period and both have declared him unfit for any work due to his PTSD and alcohol abuse alone. They have both either noted or agreed that Mr Harris’ PTSD symptoms have improved since he ceased work and that his symptoms are mild to moderate.
72. Dr Kenny saw Mr Harris before his redundancy and during the assessment period. He regarded Mr Harris’ PTSD symptoms to be mild and on the 4 October 2005 assessed Mr Harris as having nil work capacity due to his PTSD and alcohol abuse alone. On the 13 October 2005 in response to specific questions posed by the respondent differentiating between employability and functional capacity, Dr Kenny revised his opinion and found Mr Harris capable of working more than 20 hours per week. Dr Kenny confirmed this later opinion when giving evidence before the Tribunal, but qualified his opinion by stating that if he was Mr Harris’ treating psychiatrist he would be supporting him in not working because he is better off not working (trans p92) and that the effort of trying to obtain another job could be deleterious at his age, in light of his PTSD and alcohol abuse.
73. In terms of Mr Harris’ purely functional capacity, the expert medical evidence favours a retained capacity for work, although Dr Kenny’s comments regarding the exercise at this capacity are noted. Having so decided, the Tribunal is not required to proceed to question 3 of Flentjar as the legislative requirements for special rate are not met.
74. Mr Harris did not raise the question of his eligibility for intermediate rate of pension although the respondent did refer to the s 23 provisions of the Act in its submission.
75. The Tribunal does not regard Mr Harris’ age (57 when his application was lodged), the suggested contribution of asthma to his reduced capacity for work or his time out of the workforce (1 year and 3 weeks at the time the assessment period commenced) as being other factors which might impact on the alone test in s 24 and s 23 of the Act. On the evidence before it, the Tribunal believes that the diagnosis of asthma has not been medically proven beyond doubt and its clinical separation from the accepted war-caused conditions of chronic bronchitis idiopathic haemoptysis and left lower lobectomy is not at all clear.
76. It is acknowledged that Mr Harris ceased work when his employer ceased trading and that he benefited from an involuntary redundancy package. Having ceased work for reasons beyond his control, it was open to Mr Harris to obtain other remunerative work.
77. In light of the medical evidence, the Tribunal has proceeded to consider Mr Harris’ eligibility for the intermediate rate of pension. The criteria relevant to the intermediate rate provided in s 23 of the Act in particular s 23(1)(b) and s 23(1)(c).
78. Section 28 of the Act sets out the three factors which much be considered in determining whether a veteran is incapable of undertaking remunerative work as provided in section 23(1)(b).
79. In Chambers, Moore and Sackville JJ stated that section 28 requires the Commission (or the Tribunal) “to have regard to three specified matters only” in determining whether an incapacitated veteran is incapable of undertaking remunerative work. These words mean that the Tribunal must give weight to each of the matters as a fundamental element in making a determination on that issue. The Tribunal is also required to exclude all other considerations in making its determination.
80. Section 23 of the Act has not been the subject of judicial consideration and decision to the extent of s 24; but given the similarity of the wording of the two sections the parties submitted that s 23 should be approached in the same manner as s 24 has been in numerous Federal Court decisions.
81. Section 28 of the Act sets out the three factors which the decision maker must consider with respect to s 23 (1)(b) of the Act as follows:
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).
Section 28 also states that these are the only matters to which regard may be had as to whether or not s 23(1)(b) is satisfied.
82. The Tribunal has already delineated Mr Harris’ occupations and skills: work as a labourer, an auto-electrician or a specialised console operator and has excluded work as a labourer or auto-electrician, because of Mr Harris’ war‑caused conditions of osteoarthrosis of the right ankle and his impaired respiratory function; and in the case of auto‑electrical work the added condition of alcohol abuse. The only remaining trade or professional skill which allows him to work in terms of physical capacity is in the area of specialised console operator (s 28(a)). Mr Harris’ skills and particularly his experience as a specialised console operator in the area of cement milling and production are such that combined with the sedentary nature of the occupation, that he could reasonably undertake such remunerative work. In addition, similar work is performed in oil refineries, although Mr Harris has indicated that this area is a ‘closed shop’. The only available work, as a console operator in his past employer’s field, is with a cement producing company in Geelong. Mr Harris states that their procedures are different to those of Geelong Cement, but there is no evidence before the Tribunal that he could not acquire the skills necessary to work with Adelaide Brighton Cement Limited (s 28(b)). Medical evidence before the Tribunal is to the effect that Mr Harris could not work on a full‑time basis as a specialist console operator but could work 8 to 20 hours. Dr Kenny did however say that he could work more that 20 hours but not 38 or 40 hours. Mr Harris’ evidence was that for the 12 months, leading up to his retrenchment, he was working on average 60 hours per week.
83. As s 28 (a),(b) and (c) are the only matters to be taken into account in deciding whether a veteran is incapable of undertaking remunerative work (Chambers) the Tribunal finds that Mr Harris satisfies the requirement of s 23 (1)(b) of the Act.
84. As with s 24 (1)(c), s 23 (1)(c) of the Act has two limbs. The first limb of s 23 (1)(c) is what is commonly termed the alone test and attracts s 23 (2)(b) with the exception that s 23 (b) imposes a time limit less than 20 or more hours per week. In Magill, Drummond J (at paragraph 7) interpreted s 24 (2)(b) in relation to the special rate which is obviously applicable to s 23 (2)(b) as follows:
…
Where a veteran who is not engaged in remunerative work satisfies the Commission –
·that he or she has been genuinely seeking to engage in remunerative work, and
·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.
Section 23 (2)(b) (like s 24 (2)(b)) is accepted as ‘an ameliorative provision’.
85. The second limb of s 23 (1)(c) relates to the suffering of lost earnings by the veteran due to their war‑caused incapacity. In Banovich the Full Court of the Federal Court at 402 said [w]e accept that the loss referred to in para [1](b)(iii) may be caused either by a loss of existing employment or by an inability obtain new employment…
86. In Magill, at paragraph 11, Drummond J said:
…
Unlike s24(2)(b), which ameliorates the operation of the first limb of s24(1)(c), s24(2)(a) only explicates the second limb of s24(1)(c) by emphasising that a veteran will not be able to satisfy that limb if, though suffering a loss of earnings that may be causally related to a war-related injury or disease, there are other reasons that are also causally related to the veteran's having ceased to engage in work or related to the veteran's being prevented from engaging in work.
…
HAS MR HARRIS BE GENUINELY SEEKING TO ENGAGE IN REMUNERATIVE WORK?
87. The respondent submitted that Mr Harris had not genuinely sought to engage in remunerative work after his redundancy on the 1 July 2001. The Tribunal does not agree with this submission. Mr Harris twice sought advice from Centrelink although he identified the agency as the CES and on both occasions was advised that he would not get another job because of his existing medical conditions and his receipt of a DVA pension. Mr Aranyosi had refused Mr Harris’ request for part‑time work as an auto‑electrician primarily because he was aware of Mr Harris’ alcohol abuse and secondly because he preferred to employ full‑time workers.
88. The Tribunal finds that what is required is that the claimant honestly be trying to engage in remunerative work (paragraph 28) is met.
89. While Mr Harris’ efforts to obtain employment do not fall into the category of a charade as addressed by Beaumont J in Hall, the Tribunal is of the opinion that it was realistic for him to rely on the opinions given to him by Centrelink officers on two occasions, albeit that Centrelink is no longer an employment advisory agent as was its forebear, the CES. Centrelink does however retain the ability to obtain vocational assessments and functional assessments.
ARE THERE OTHER REASONS CAUSALLY RELATED TO THE VETERAN HAVING CEASED TO ENGAGE IN WORK OR BEING PREVENTED FROM ENGAGING IN WORK OTHER THAN THE ACCEPTED WAR-CAUSED INCAPACITIES?
90. The respondent has submitted that there are other factors impacting on Mr Harris’ ability to obtain remunerative work and nominated these as being the unavailability or limited access to work as a console operator in the oil refinery industry; Mr Harris’ age; the possible diagnosis of asthma (which is not accepted as a war‑caused disability); the time out of the workforce and the lack of up-to-date qualifications and experience as an auto electrician. The respondent cited the decisions in Fry v Repatriation Commission (1997) 47 ALD 776 and Repatriation Commission v Hendy (2002) 76 ALD 47. In Fry, Spender J addressed this question in general terms on a factual basis wherein the veteran had ceased work because of his incarceration following a criminal conviction. The respondent also relied on the decision of the Full Court of the Federal Court in Hendy where, at p 37, the Court said:
…The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act…
The Tribunal has already addressed Mr Harris’ age, time out of the work force and the question of whether or not he suffers from asthma in relation to its decision regarding the application for special rate.
91. Mr Harris gave evidence that the positions of console operator at the Geelong oil refineries was very similar if not identical to the job he had performed at Geelong Cement. He stated that it was difficult to obtain employment in the Geelong oil refineries as this was a closed shop. The Tribunal takes this to be a reference to union matters and does not believe such workplace relation/union matters should be considered in terms of a veteran’s capacity to perform such work. The Tribunal perceives the concept of a closed workshop to be similar to the effect such as a depressed labour market as excluded by Chambers, in its consideration of the application of s 28 to s 23 (1)(b)( at p208).
92. The Tribunal finds that Mr Harris did genuinely seek to engage in remunerative work but was prevented from obtaining such work by his accepted war‑caused conditions.
CONCLUSION
93. Mr Harris’ incapacity is a substantial cause of his inability to obtain remunerative work in which to engage. Mr Harris meets the requirement of s 23 of the Act and is entitled to be paid at the intermediate rate. The Tribunal also affirms the more recent decisions of the Repatriation Commission that:
(a)osteoarthrosis of the right ankle is war-caused with effect on 10 April 2002;
(b)the diagnoses for the disability claimed as lung condition are chronic bronchitis, idiopathic haemoptysis with left lower lobectomy and are war-caused with effect form the 9 July 2003; and
(c)pension is payable at a 100 per cent of the general rate with effect from the 10 April 2002.
94. The matter is remitted to the respondent to determine the date of effect of Mr Harris’ qualification for the intermediate rate. The Tribunal is of the opinion that following the performance of left lower lobectomy in October 2002 in combination with the right ankle osteoarthrosis effective from 10 April 2002, Mr Harris’ capacity for physical work was greatly diminished resulting in an inability to work for more than 50 per cent of the time he usually worked on a full‑time basis prior to his retrenchment.
I certify that the ninety‑four [94] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Olympia Sarrinikolaou
ClerkDates of Hearing: 29‑30 March 2006
Date of Decision: 29 June 2006
Counsel for the applicant: Mr A. Larkin
Solicitor for the applicant: Williams Winter SolicitorsAdvocate for the respondent: Mr R. Douglass
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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