Hart and Repatriation Commission
[2005] AATA 1152
•21 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1152
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/589
VETERANS' APPEALS DIVISION ) Re LESLIE JOHN HART Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date21 November 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution determines that Leslie John Hart is entitled to be paid disability pension at the Special Rate, pursuant to section 24 of the Veterans’ Entitlements Act 1986, with effect from 1 March 2003.
..............SIGNED................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS - veteran genuinely seeking to engage in remunerative work – accepted disabilities substantial cause of his inability to obtain remunerative work – satisfies provisions relating to disability pension at Special Rate – decision set aside
Veterans’ Entitlements Act 1986: s24
REASONS FOR DECISION
18 November 2005 Deputy President Don Muller 1. Leslie John Hart (the Applicant) is currently receiving a disability pension at 100% of the General rate, with effect from 24 February 2001, pursuant to the provisions of the Veterans’ Entitlements Act 1986 (the VEA). He is also in receipt of the Service Pension (permanent incapacity for work) with effect from 13 April 2004.
2. On 1 May 2003, Mr. Hart applied to have the rate of his disability pension raised to the Special Rate provided for in section 24 of the VEA.
3. The Respondent refused Mr. Hart’s claim on 12 August 2003.
4. On 15 April 2004 the Veterans’ Review Board (the VRB) affirmed the Respondents’ decision.
5. By application dated 28 July 2004, Mr. Hart applied to the Tribunal for review of the VRB decision.
6. At the hearing Mr Hart was represented by Mr. D. Honchin of counsel, while the Respondent was represented by Mr. J. Stoner.
7. At the hearing the Tribunal had the following documents:
(a)The section 37 statement;
(b)Statement of Mr. Hart dated 17 January 2005;
(c)A statement by Dr. Likely (psychiatrist) dated 30 November 2004
(d)Mr. Hart’s tax returns from 2000 to 2004, including some profit and loss statements.
8. The relevant parts of section 24 of the VEA are:
24 Special rate of pension
(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)…, 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
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking”
9. The following matters are agreed between the parties:
· Mr. Hart was born on 3 April 1952 and is presently 53 years of age.
· He enlisted in the Australian Regular Army in September 1969 and took his discharge in April 1992, at the rank of WO1.
· Mr. Hart had operational service, during two tours of duty in South Vietnam, in 1971 and 1972.
· He has the following service-related disabilities:
(a) post traumatic stress disorder
(b) alcohol dependence or alcohol abuse
(c) lumbar spondylosis
(d) irritable bowel syndrome
(e) gastro-oesophageal reflux disease
(f) sensorineural hearing loss of the left ear
(g) bilateral tinnitus
(h) fracture of the right foot; and
(i) impotence
· He has no significant non-accepted disabilities. He did suffer from a possible internal hernia in the right groin in 2001, which has apparently resolved.
· His income tax returns for the tax years ending on 30 June for the past five years disclose that his sources of income were as follows:
2000: wages $126, pension and superannuation $18,054;
2001: wages $2,236, single parent payment and superannuation $19,096;
2002: wages $361, single parent payment and superannuation $16,723;
2003: wages $292, single parent payment and superannuation $20,061; and
2004: wages nil, single parent payment and superannuation $20,908.
· The “wages” component for his income for the past five years was from earnings derived from his casual work as a library shelving assistant, plus his work at the Currajong State School in 2000/01 when he provided a maintenance/repair service to the school.
· He made a large number of applications for employment in the period 1999 to 2004.
· He entered into a rehabilitation program in 2002.
· He satisfies the following subsections of section 24 of the VEA:
(1) (aa)
(1) (aab)
(1) (a)(i)
(1)(b)
· He is entitled to take advantage of the ameliorating benefit conferred by subsection 24(2)(b) of the VEA.
10. Mr. Hart gave evidence to the Tribunal to the following effect:
· Prior to his discharge in April 1992, he took three months long service leave. During his leave he took a job in Gympie in January 1992 as a caretaker/manager of a cattle station. He lived on the cattle station with his then wife and child.
· Shortly after his discharge in April 1992 he bought a panel beating/painting business in Gympie.
· In April 1992 Mr. Hart travelled to Cambodia with CARE Australia. His brother and his wife ran the panel beating business while he was away.
· His duties in Cambodia included:
(a)Operation of the truck fleet in Pursat and Phnom Penh;
(b)Selecting and training Cambodian drivers;
(c)Safety training
(d)Overseeing operations in which refugees were received into camps, issued with food and temporary accommodation, and transported to their final destination.
· Whilst working in Cambodia for CARE during 1992/93, he returned to Australia from time to time. During that time his wife left him, and she also left the panel beating business. His brother was unable to carry on the business without assistance. Mr. Hart wound up the business and sold the remains to a local panel beater.
· He finished his contract with CARE in May 1993 and returned to Australia with his new wife to be, Lach Aunn. He tidied up his remaining Australian business affairs.
· In July 1993 he and Ms. Aunn returned to Cambodia. He had no job to go to in Cambodia. They went to live in an area called Battambang where Ms. Aunn’s family lived. Ms. Aunn gave birth to their son on 31 October 1993.
· From August 1993 he acted as a consultant to various organisations in Cambodia including the following:
(a) Danish Cambodia Consortium (DCC) – Cambodia
Consultant – Logistics/Security/Administration/Operationso Responsible for the heavy equipment rehabilitation project and the provision of logistic and operational support to other DCC projects
(b)Vietnam Veterans of America Foundation (VVAF) – Cambodia
Consultant – Logistics/Security/Administration/Operations
o Responsible for the vehicle repair workshop project and the provision of logistic and operational support to other VVAF projects.
(c) Handicap International (HI) – Cambodia
Consultanto Assist with construction and maintenance activities, and the conduct of staff training at the Paraplegic/Tetraplegic Centre in Battambang City.
·In May 1997 he formed a company called Maintenance Support Services (MSS) - Cambodia. MSS did work for the following organisations:
(a)United Nations High Commissioner for Refugees (UNHCR) – Cambodia
Logistics/Operations Officer (Northwest Cambodia)
o Assist with the UN repatriation operation after the political and military action in Jun/July 1997
(b)Provision of vehicle/equipment maintenance and repair support to the UN and other International Non-Government Organisations.
(c)Contracted to United Nations Development Program (UNDP) for the design and installation of septic tanks, building and roof security repairs, plumbing system installation, and road construction for the Provisional Hospital and the upgrading of the electrical system for the Provincial Government Office Complex.
·In the mid 1990s Mr. Hart began to suffer badly from irritable bowel syndrome. His evidence included some vividly descriptive examples of the problems that he had in attempting to do his work and travel throughout the Cambodian countryside, whilst coping with his bowel problems. (It is unnecessary to repeat the evidence here.)
·Mr. Hart also had problems associated with his consumption of excess alcohol.
·Eventually his supervisor in the UHNCR Program was asked by his boss in Phnom Penh to ask Mr. Hart to leave the Program.
·Mr. Hart was also suffering from psychological/psychiatric problems. He found that he was not tolerant, irritable, frustrated, upset at drivers and generally unreasonable.
·In 1997, Mr. Hart realised that he did not want to raise his son in Cambodia and he commenced the process by which Ms. Aunn could migrate to Australia. (His son had an Australian passport).
·In 1998 Ms. Aunn became seriously ill.
·Approval was given for Ms. Aunn to migrate to Australia in June/July 1998, but unfortunately she died in August 1998.
·In early 1999, Mr. Hart and his son moved to Townsville, Australia, where they remained for about ten days before travelling to Adelaide to live with Mr. Hart’s brother.
·Mr. Hart looked for jobs that he thought he would be able to manage, that is, jobs in which he would have the “freedom to act at his own pace”.
·He was in South Australia for about 12 months and returned to Townsville in January 2000.
·He did some handyman work and maintenance work but he had trouble with negotiating ladders, because of his back and ankle problems. He also had bowel problems and irritability problems.
·The medication for his PTSD gave him problems. “It knocked me out” – “caused irritable bowel, gastro”.
·In 2002 he had a trial employment with CRS (Aust), placed with Patrick Logistics. His job involved decanting acids and he had to wear a full chemical suit. He could not do the job and he encountered embarrassing toilet situations.
·He had some problems with his son because his son needed special attention. It has not been easy for him to organise suitable care for his son.
·On the advice of his psychiatrist, Dr. Likely, he gave up looking for work in May 1993.
11. Dr. Likely has been treating Mr. Hart since July 2001. Mr. Hart continues to attend Dr. Likely regularly for treatment. A report by Dr. Likely, dated 30 November 2004, contains the following observations:
“Mr Hart has found it however extremely difficult to hold down enduring full time ‘hands on’ employment secondary to his symptoms of irritability, dysphoria, poor concentration and inability to tolerate others. The stressors of his single parenting have undoubtedly caused Mr Hart some functional incapacity but it is my opinion that his symptoms of post traumatic stress disorder in particular those of hyperarousal listed immediately above are the prime reasons for his inability to hold down any permanent remunerative employment. To the best of my knowledge he has sought various other types of employment in addition to those listed immediately above.
Mr Hart’s current mental state is one of ongoing symptoms of post traumatic stress disorder including subjectively experienced symptoms of hyperarousal, re-experiencing phenomena, emotional numbing and avoidance. The objective findings on mental state examination include a dysphoric mood, anxious and agitated affect, ongoing preoccupation with traumata and cognitive distortions consistent with anxiety.
It is my opinion that Mr Hart is unable to undertake remunerative employment in the context of his past employment skills as a result of his symptoms of post traumatic stress disorder alone.
The death of Mr Hart’s fourth wife had a detrimental affect on his mental state both in the past and at present. Clearly the loss of a spouse is an extremely traumatic event for anyone but in Mr Hart’s case he had already had a pre-existing condition, this being one of post traumatic stress disorder, the symptoms of which were exacerbated not only by the tragedy of his wife’s death but also by his having to return then from Cambodia to Australia and attempt to raise his son David as a sole parent.”
12. There is no suggestion that Mr. Hart is overstating his case or exaggerating the effects of his service related disabilities.
13. Mr. Stoner has submitted that the reason why Mr. Hart has not been able to find remunerative work is that the jobs for which he has applied have been filled by better qualified or more able persons. That is, Mr. Stoner submitted, Mr. Hart’s inability to obtain work has been due to factors other than his service-related disabilities.
14. Whilst I accept that Mr. Hart was unsuccessful in obtaining most of the jobs for which he applied for reasons unconnected with his service related disabilities, I believe that the substantial, if not the sole, cause of his inability to obtain remunerative work in which to engage is his overall incapacity for work due to the total effect of his service-related disabilities.
15. I accept that when Mr. Hart lost his job in Cambodia he decided that life would be better for his wife and his son in Australia. However, he lost his job in Cambodia because of his bowel problems, his excessive alcohol intake and his irritability, not to mention his other physical disabilities.
16. I also accept that when Mr. Hart arrived in Australia with his son in 1999, he had to make sure that his son was properly cared for. However, he was keen to work, and he would have been able to do what many hundreds of sole parents do, that is, combine work with child care. He has been unable to get a toe-hold in the employment market because of his service-related disabilities. He could not cope with wearing the chemical suit but if he had been able to do so, it may have led to other better employment. He has been unable to expand his handyman work because of his service-related disabilities. He has not been able to get a start.
17. Consequently, I find that Mr. Hart does satisfy the provisions of section 24 of the VEA.
18. The decision under review is set aside and in substitution the Tribunal decides that Leslie John Hart is entitled to be paid disability pension at the Special Rate pursuant to section 24 of the VEA, with effect from 1 March 2003.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
B. Hitchcock, Personal AsstDate/s of Hearing 4 August 2005
Date of Decision 21 November 2005
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
Respondent Mr. J. Stoner, departmental advocate
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