HELMUT LORSON and REPATRIATION COMMISSION
[2012] AATA 341
•6 June 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/1576
Veterans' Appeals Division )
Re: HELMUT LORSON
Applicant
And: REPATRIATION COMMISSION
Respondent
CORRIGENDUM
TRIBUNAL: Miss E A Shanahan, Member
DATE: 15 June 2012
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
Replace the words:
‘The Tribunal sets aside the decision of the Repatriation Commission dated 24 June 2010 as affirmed by the Veteran’s Review Board on 31 March 2011 and substitutes its decision that Mr Lorson meets the criteria for qualification for payment of the disability pension at Special Rate in accordance with the Veteran’s Entitlement Act 1986.’
With:
‘The Tribunal sets aside the decision of the Repatriation Commission dated 24 June 2010 as affirmed by the Veteran’s Review Board on 31 March 2011 and substitutes its decision that Mr Lorson meets the criteria for qualification for payment of the disability pension at Special Rate in accordance with the Veteran’s Entitlement Act 1986 with effect from 16 April 2010.’
.........................[sgd].........................
Member
[2012] AATA 341
| Division | Veterans' Appeals Division |
| File Number(s) | 2011/1576 |
| Re | HELMUT LORSON |
| APPLICANT | |
| And | REPATRIATION COMMISSION |
| RESPONDENT |
Decision
| Tribunal | Miss E A Shanahan |
| Date | 6 June 2012 |
| Place | Melbourne |
The Tribunal sets aside the decision of the Repatriation Commission dated 24 June 2010 as affirmed by the Veteran’s Review Board on 31 March 2011 and substitutes its decision that Mr Lorson meets the criteria for qualification for payment of the disability pension at special rate in accordance with the Veteran’s Entitlement Act 1986.
.......[sgd].................................................................
Miss E A Shanahan
Catchwords
Veteran’s Affairs – application for special rate – PTSD, alcohol dependence and emphysema accepted conditions – non war-cause medical conditions – full time employment to age 54 and part time thereafter to age 60 – Alone test of s 24(1)(b) satisfied – decision set aside.
Legislation
Veteran’s Entitlement Act 1986 sections 5Q, 14, 23, 24 and 120
Cases
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Hall v Repatriation Commission (1994) 33 ALD 454
Mcguire v Repatriation Commission (1987) 12 ALD 797
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Van Heteren (2003) 37 AAR 533
Repatriation Commission v Haskard [2002] FCA 1493
Starcevich v Repatriation Commission (1987) 14 ALD 160
REASONS FOR DECISION
Miss E A Shanahan
6 June 2012
Mr Lorson qualified for the Disability Pension at 100 per cent of the general rate on 4 January 2006 having been diagnosed with war-caused Post Traumatic Stress Disorder (PTSD) and alcohol dependence. In addition, the Repatriation Commission (the Respondent) has accepted that he suffers from Chronic Obstructive Pulmonary Disease (COPD) and several other medical conditions of lesser severity. The Respondent does not accept liability for his :
·Bilateral Tinnitus
·Tinea
·Lumbar Spondylosis
·Osteoarthrosis of the right foot
·Hypertension
·Ventricular Ectopic Beats
·Irritable Bowel Syndrome
·Chronic Sinusitis
·Haemorrhoids
·Pruritus Ani
·Anal Fissure
·Asthma
Mr Lorson ceased work on 6 August 2008. On 16 April 2010 he applied to the Department of Veteran’s Affairs (the Department) for an increase in pension to the special rate. His application was rejected by a delegate of the Department on 24 June 2010, on the grounds that his service-related disabilities alone were not entirely responsible for his inability to gain employment. Mr Lorson’s application for a review by the Veteran’s Review Board (VRB) was unsuccessful. The VRB determined that he failed the alone test in section 24(1)(b) of the Veteran’s Entitlement Act 1986 (the Act) as his non‑accepted asthma and Major Depressive Disorder diagnosed in 2006 also contributed to his inability to gain employment. Mr Lorson applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the VRB decision on 4 May 2011.
Mr Lorson was represented by Ms F Ryan who was instructed by Williams Winter Solicitors. The Respondent was represented by Mr G Purcell who was instructed by Ms R Casamento, a Departmental Advocate. The parties tendered several documents.
For the Applicant:
·Mr Lorson’s statement dated 20 April 2011 (amended) – Exhibit A1
·a statement by Ms Geraldine Lamont dated 25 January 2012 – Exhibit A2
·a medical report from Dr Clayton Thomas dated 8 July 2011 – Exhibit A3
·a medical report from Dr Albert Kaplan dated 25 July 2011 – Exhibit A4
·Mrs Judith Lorson’s statement dated 20 April 2011 – Exhibit A5
For the Respondent:
·Section 37 T-documents – Exhibit R1
·the transcript of the Veteran’s Review Board proceedings dated 31 March 2011 – Exhibit R2
·the clinical notes of Dr Greg Lindquist relating to Mr Lorson – Exhibit R3
·a medical report relating to Mr Lorson prepared by Dr R Horsley dated 1 September 2011 – Exhibit R4
·the Bunnings Corio employment file relating to Mr Lorson – Exhibit R5
·Mr Lorson’s income tax returns from 2002 – 2008 – Exhibit R6
·clinical notes of Lara Physiotherapy – Exhibit R7
·further income tax returns relating to Mr Lorson – Exhibit R8
·a medical report of Dr J Burdon dated 7 December 2011 – Exhibit R9
·a lifestyle questionnaire signed by Mr Lorson on 21 December 2001 – Exhibit R10
·the employer’s questionnaire completed by Victoria Police dated 8 May 2006 – Exhibit R11
·an Impairment Assessment relating to Mr Lorson’s thoraco-lumbar spine dated 2 February 2002 – Exhibit R12
·a medical report regarding Lumbar Spondylosis prepared by Dr Lindquist dated 5 February 2002 – Exhibit R13
·Documents lodged in response to a s 128 request – Exhibit R14
·a medical report from Dr N Strauss dated 12 October 2011 – Exhibit R15
·email and handwritten notes made by Ms Casamento on 11 and 12 August 2011 – Exhibit R16
Mr Lorson, Mrs Lorson, Mrs Geraldine Lamont, Dr A Kaplan and Dr C Thomas gave evidence before the Tribunal.
background to the application
Mr Lorson left school after completing Form 2 secondary level (the equivalent of year eight). He then worked for four years as a market gardener before enlisting in the Royal Australian Navy in 1968. On completion of five years’ service in 1973, he worked as a machinist briefly. He then obtained a position as pool attendant at the Geelong pool, rising to assistant manager in two years. In 1975 he joined Victoria Police, where he remained for 27 years. He served the majority of his 27 years in the Geelong area. While he achieved the rank of sergeant he did not seek further promotion, preferring to remain at the coalface. He retired from the Force on 14 December 2002 after six months of sick leave. The Police Surgeon, Dr R Black, recommended retirement on medical grounds namely, stress and anxiety.
Throughout his police service, Mr Lorson’s performance evaluation reports (Exhibit R5) were rated as satisfactory. He believes he coped well with his duties until 2002 when he says He couldn’t deal with the public and became aggressive. His aggression was predominantly verbal but on one or two occasions when arresting offenders, became physical. In 1983 Mr Lorson sustained a lower back injury while alighting in an awkward fashion from a police vehicle. He had a lumbar disc prolapse with sciatica and left foot drop. Over a period of three weeks all his symptoms and signs resolved.
On retirement, Mr Lorson accessed his superannuation pension payments. On 20 January 2003 he started working at Bunnings in Corio as a greeter. He resigned on 8 January 2006 for personal reasons. (Exhibit R6) Despite his title, he spent many of his working hours in the timber yard where his duties included checking shoppers’ purchase dockets. When shoppers refused to show their dockets Mr Lorson became verbally abusive. He said this occurred on an almost daily basis.
Mrs Lorson is a hairdresser. Mrs Geraldine Lamont, the then manager of Geelong Rural Transport was her client. In 2005, Mrs Lamont mentioned that her firm had a vacancy for a part-time driver/courier. Mr Lorson accepted the position, working 16 hours per week. Between October 2005 and January 2006 he worked for Bunnings two days a week and Geelong Rural Transport two days a week. Initially, the work at Geelong Rural Transport involved driving a utility delivery van, delivering letters and small parcels and occasionally boxes of wine. His duties were assigned to him daily by the company’s forklift driver. After a few weeks, he was required to drive a three-tonne truck delivering some larger items. These items were loaded by forklift and unloaded using the tailgate on the truck.
On one occasion, Mr Lorson was required to deliver a 100 kilogram treadmill. He found this difficult. He complained and was no longer required to deliver such weighty items. Mr Lorson coped with driving and delivering in more rural areas such as the Bellarine Peninsula but found it increasingly difficult to cope in urban areas. He experienced road rage and became verbally abusive towards clients who regarded him as just the delivery boy. Mr Lorson was unaware that his employer had received several (approximately six) complaints from clients regarding his aggressive behaviour. In April 2008 Mr Lorson reduced his hours of work at Geelong Rural Transport to eight hours per week. A few weeks later he reduced his hours to four hours per week and he ceased work entirely in August 2008.
Mr Lorson has experienced nightmares and relives a traumatic diving incident he experienced in Vietnamese waters during his naval service. His sleep has been poor. He wakes up two to four times per night. His alcohol intake has been excessive but usually fixed at two beers per day and 200mls of whisky daily after work. When not working, his intake increases to five to six beers per day plus 200mls of whisky and he commences drinking at 10:00am.
In late 2005 the Lorsons read an advertisement in a local newspaper for the PTSD Clinic in Geelong. Two days later they attended the clinic where Mr Lorson was seen by a psychiatrist, Dr McConnell (Exhibit R3, p 165). Dr McConnell diagnosed PTSD and alcohol dependence. Mr Lorson was accepted for a three-month PTSD course and ongoing counselling by a psychologist, Mr Romanic. He continues to see the psychologist every four to six weeks. In November 2007, Dr J Cronin, psychiatrist, confirmed the diagnosis of PTSD and diagnosed alcohol abuse. Dr Cronin also diagnosed a major depressive disorder secondary to the diagnosis of COPD (an accepted condition) made by Dr Malone, respiratory physician, in June of 2006.
Mr Lorson has since been seen by several psychiatrists for assessment with respect to his claim. Doctors Newlands, Strauss (Exhibit R15) and Kaplan (Exhibit A4) have all agreed that Mr Lorson’s psychiatric disorders are PTSD and alcohol dependence with the depressive symptoms being part of the PTSD. All three psychiatrists have found Mr Lorson’s psychiatric disorders to be the sole or primary cause of his inability to work for more than eight hours per week or alternatively unable to perform any work.
Since he stopped work in August 2008 on medical advice, Mr Lorson has not sought further employment. He performs household chores, devotes one to two hours per day to the care of his budgerigars which he shows in competitions and attends a gymnasium for one to one and a half hours per day up to five days per week. At the gymnasium he performs core exercises and lifts weights up to a maximum of 150 pounds (68 kilograms).
Mr Lorson has several medical conditions for which the Respondent does not accept liability. Those particularly relevant to his claim are lumbar spondylosis, questionable asthma, bilateral indirect inguinal hernia that have been repaired, irritable bowel syndrome, prostatic symptoms of frequency and nocturia, ectopic heart beats attributed to his excessive alcohol intake and short- lived episodes of dizziness. Mr Lorson denies that these have ever impacted on his ability to work. There is no evidence to support any such impact. In his evidence Dr Kaplan attributed the dizziness and the irritable bowel syndrome to Mr Lorson’s anxiety component of PTSD.
Dr Lindquist’s clinical records concerning Mr Lorson (Exhibit R3) reveal that Mr Lorson is vigilant in regard to his health. Mr Lorson reports any new symptoms to his general practitioner and all symptoms have been thoroughly investigated and, where appropriate, specialist opinion has been obtained. Mr Lorson’s bilateral inguinal hernias were noted by him as groin bulges but were asymptomatic. Having read on the internet of the possibility for the bowel contents of such hernias to strangulate, Mr Lorson sought surgical repair. The surgery took place in August 2008, a few days after Mr Lorson had ceased work. The right inguinal hernia recurred and further surgical repair was undertaken in May 2010. Mr Lorson is adamant that the hernias played no role in his ceasing work, despite his employer giving this as the reason for his resignation (Exhibit A2).
Mr Lorson states he has never sought income assistance from Centrelink. Exhibit A2 contains an undated Centrelink Employment Separation Certificate completed by Mrs Lamont and a medical report completed by Dr Lindquist in support of an application by Mrs Lorson for a carer’s allowance in relation to Mr Lorson. Mrs Lorson’s application for carer’s allowance was made in late 2011, just before she herself ceased work.
oral EVIDENCE BEFORE THE TRIBUNAL
MR LORSON
Mr Lorson’s evidence is summarised above under Background to the Application. In his cross‑examination of Mr Lorson, Mr Purcell explored in detail the nature and extent of Mr Lorson’s unaccepted medical conditions; his symptoms such as dizziness; other reasons Mr Lorson may have ceased work with Victoria Police, such as his superannuation payment eligibility; and Mr Lorson’s subsequent qualification for service pension at the age of 60. He also explored conflicting statements relating to Mr Lorson’s respiratory function in an earlier Lifestyle Questionnaire completed on 21 December 2001 (Exhibit R10). Mr Lorson’s recall of earlier events was at times poor but he accepted the content of the questionnaire; pointing out that none of the symptoms he then experienced interfered with his ability to perform his duties in the police force. He stated that apart from an occasional twinge of pain in his back, all his symptoms have resolved or were controlled. He denied feeling short of breath as his COPD was well controlled with Seretide and Airomir inhalers.
MRS LORSON
Mrs Lorson corroborated her husband’s evidence. She said his excessive drinking and his interrupted sleep pattern had been features of his behaviour throughout their 30 years of married life. She had been unaware of his Vietnam experiences and the diving incident until 2006. Prior to this, Mr Lorson had told her his broken sleep was due to a bad dream. While Mr Lorson did not drink to the point of being drunk, Mrs Lorson observed him to become aggressive. When his whisky intake exceeded 200mls per day, she and her daughter would leave the house in anticipation of his escalated aggression and short temper.
Mrs Lorson said that whenever she and her husband attended social events they took two cars so that he could leave early. Mrs Lorson had advised her husband to leave the police force given the stress he was experiencing and his inability to cope in 2002. Her husband complained constantly of the rudeness of people while at Bunnings and Geelong Rural Transport. Mrs Lamont had told Mrs Lorson of the complaints she received from clients concerning Mr Lorson and eventually Mrs Lorson told her husband.
Mrs Lorson said the only time her husband complained of back pain was after heavy digging in the garden and after constructing a pergola. She had never observed him to be short of breath. In her opinion the temporal proximity of Mr Lorson’s resignation from Geelong Rural Transport and his hernia diagnosis and surgery was purely coincidental.
MRS GERALDINE LAMONT
Mrs Lamont was the manager of Geelong Rural Transport, the company being owned by her husband. She confirmed Mr Lorson’s duties and her relationship with Mrs Lorson that led to him being employed by the company (Exhibit A2). Mrs Lamont described Mr Lorson as angry and aggressive, with a poor concentration span. She said he became agitated if questioned about a delivery. She had received approximately six complaints from customers regarding deliveries to wrong addresses and Mr Lorson’s general rudeness. She had also received about five complaints from other drivers concerning Mr Lorson’s road rage. Mrs Lamont perceived Mr Lorson to be emotionally unstable and in April 2008 advised him to reduce his hours to eight per week and shortly thereafter to four hours per week.
Mrs Lamont acknowledged that she had completed the Centrelink separation employment form but said she could not remember when she completed it, other than it was some time after he had left Geelong Rural Transport. She had not known of his inguinal hernias at the time he left and only found out some weeks later when speaking with Mrs Lorson. She said she had attributed his cessation of employment to the hernias as she did not wish to reveal his mental issues.
The Respondent had asked Mrs Lamont to provide details of Mr Lorson’s employment, including his application for the position of driver. This document, notated D, had been annexed to her statement (Exhibit A2). Similarly, a Veteran’s Affairs Employer’s Questionnaire had been provided for her attention. As these forms had not been received by the Respondent, some three months after their request, Ms Casamento called Mrs Lorson to ask that she attend to these urgently. Under cross-examination, it was revealed that both of these forms had been filled out by Mrs Lamont in January 2012, relying purely on her memory.
In her evidence Mrs Lamont explained that her book-keeper had left the company in approximately April 2011. She also explained that she herself had undergone a hysterectomy in August 2011 and had never returned to work at the company headquarters and thus did not have access to the original documentation. Ms Casamento’s emails to Mrs Lamont and hand-written notes regarding their telephone conversation were provided to the Tribunal (Exhibit R16). In answer to a question posed by the Tribunal, Mrs Lamont agreed that she had suffered post-hysterectomy depression and any work she now did for the company she did from home.
DR CLAYTON THOMAS
Dr Thomas is a consultant in rehabilitation and pain management who assessed Mr Lorson on 29 June 2011 (Exhibit A3). In his evidence Dr Thomas confirmed the contents of his report. His report said that Mr Lorson’s lumbar spondylosis would preclude him from working in a full time position which involved lifting, twisting and bending but that he could work in a capacity such as that required by General Rural Transport for 16 hours per week. He concluded that as a result of Mr Lorson’s back condition, he would have the capacity to perform full time work of a light manual nature.
DR ALBERT KAPLAN
Dr Kaplan’s evidence is summarised above under Background to the Application. He confirmed his report of 25 July 2011.
DOCUMENTARY EVIDENCE
Mr Lorson’s employment history with Victoria Police, Bunnings and Geelong Rural Transport has been summarised above under the heading Background to the Application. Similarly, the relevant parts of Dr Lindquist’s medical records, the psychiatric reports of Doctors Newlands, Kaplan and Strauss are also addressed under Background to the Application. However, Dr Newlands considered other conditions and how they might impact on Mr Lorson’s capacity for work. The barriers identified were:
·his irritable bowel syndrome which would necessitate access to a toilet when required;
·his ongoing lung condition which would limit his carrying of heavy items;
·his prostate problems and urinary urgency which would necessitate the ability to find a toilet quickly; and
·his psychiatric problems which would limit his ability to have contact with other people.
Despite these identified barriers, Dr Newlands believed that he would have been able to work around the need for a toilet as a courier driver and that Mr Lorson was prevented from working solely because of his psychiatric condition.
Mr Lorson was also assessed by Dr Robyn Horsley, an occupational health physician. Dr Horsley considered that none of Mr Lorson’s physical conditions would prevent him from working more than eight hours or twenty hours per week; and that based on the psychiatric opinions, his inability to work was due to the diagnosed PTSD. She believed that her opinions applied throughout the assessment period commencing on 15 April 2010.
The Respondent referred Mr Lorson to Dr Jonathan Burdon, a respiratory physician, for assessment of the current status of Mr Lorson’s accepted condition of COPD. Dr Burdon in his report of 7 December 2011 (Exhibit R9) stated that in his opinion Mr Lorson did not suffer from asthma on the balance of probabilities. His opinion was based on the fact that Mr Lorson did not meet the diagnostic criteria for a diagnosis of bronchial asthma, as his lung function testing performed on 22 November 2011 showed only a very small increase in his forced expiratory volume in one second (FEV1) following inhalation of a bronchodilator. Dr Burdon found Mr Lorson capable of working full time taking into account pulmonary disease, provided such employment was in the area of light duties or sedentary.
The Tribunal notes that results of the lung function testing performed in November 2011 are markedly different from the results of the testing at Dr Malone’s instruction on 8 May 2006. In 2006, severe pulmonary obstructive disease with a significant change post bronchodilator was diagnosed. In contrast, the tests of November 2011 revealed moderately severe airflow obstruction. The Tribunal notes that the predicted lung volumes in the 2006 testing are substantially larger than those in the more recent testing. These predicted values are based on the individual’s height and weight and the resultant basal metabolic rate (BMR). Mr Lorson’s height and weight as recorded in 2006 are significantly greater than they were when measured in 2011.
Mr W Huffam, an orthopaedic surgeon, saw Mr Lorson on 16 November 2010 in order to assess his lumbar spondylosis and its impact on Mr Lorson’s capacity for employment. He concluded that Mr Lorson’s back condition alone would not prevent him from working in sedentary type occupations but he was not fit to work as a market gardener or a courier driver if he was required to lift heavy weights. Mr Huffam, having been given access to the psychiatric reports, noted that the psychiatrists found Mr Lorson unfit for any form of work because of his psychiatric conditions.
Mr Lorson’s tax agent, from Lara Taxation and Management Services, provided the Respondent with Mr Lorson’s tax returns from 2002 to 2008. Tax returns were not lodged in 2009, 2010 and 2011 as Mr Lorson’s income was not taxable:
Year Taxable Income 2002 $58,622 2003 $55,736 2004 $37,442 2005 $39,053 2006 $46,934 2007 $45,958 2008 $32,058
relevant legislation
Section 24 of the Act provides for both intermediate rate and special rate of pension.
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 the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
The standard of proof to be applied is that of section 120(4) of the Act which states:
120 Standard of proof
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
For completeness the Tribunal must also consider the requirements of section 23 of the Act which states:
23 Intermediate 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) 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.
SUBMISSIONS
Ms Ryan submitted that the evidence in its entirety supported Mr Lorson’s claim for payment of the disability pension at the special rate. Mr Lorson had retired from the police force at the age of 54 years and 7 months due to ill-health, as certified by Dr Black, who had diagnosed stress and anxiety. On leaving the police force Mr Lorson almost immediately commenced part-time work with Bunnings but after a period of 3 years could not cope with his duties and in particular with dealing with the public. A similar pattern arose during his employment with Geelong Rural Transport from October 2005 until August 2008, where his continuing conflicts with customers and the public lead to complaints to his employer. His short fuse and inability to mix with co‑workers resulted in him having to reduce his hours of work from 16 hours per week to 8 hours per week in April of 2008, and shortly thereafter 4 hours per week, before he stopped working on 6 August 2008.
Mr Lorson was diagnosed with PTSD and alcohol dependence in July 2006 and has required ongoing psychological counselling. Despite this, he remains symptomatic.
Ms Ryan contended that all of the medical evidence was consistent. Doctors Lindquist, Strauss, Kaplan and Newlands agreed that it was Mr Lorson’s PTSD and alcohol dependence which alone prevented him from working the equivalent of or more than eight hours per week.
Ms Ryan contended that all of Mr Lorson’s non-accepted medical conditions had been the subject of expert opinion. The opinions of Doctors Thomas, Horsley and Huffam were all to the same effect, i.e. that the spinal spondylosis did not impact on Mr Lorson’s capacity for work, nor did his lesser complaints of irritable bowel syndrome, prostatomegaly or bilateral repaired hernias. While Mr Lorson’s COPD is an accepted condition, it was not considered to prevent him from working.
Ms Ryan contended there was no evidence to support the Respondent’s submission that either Mr Lorson’s hernia or superannuation considerations played any role in him ceasing work at Geelong Rural Transport or in the police force respectively.
RESPONDENT
Mr Purcell submitted that Mr Lorson satisfied the requirements of section 23 of the Act and qualified for the disability pension at the intermediate rate. In order to satisfy section 24 of the Act, Mr Purcell submitted that the Tribunal should accept that the remunerative work from which Mr Lorson was prevented from continuing was that of a police officer working full-time and not the part-time or casual employment he engaged in from 2003 until 2008. Mr Purcell conceded that for a two- month period from early October 2005 until 8 January 2006, Mr Lorson worked up to 20 hours per week at Bunnings and 16 hours per week at Geelong Rural Transport, which amounted to near full-time employment.
Mr Purcell contended that Mr Lorson left the police force for personal reasons and to maximise his superannuation payments but before doing so arranged to use up his sick leave. Having discussed this with Dr Lindquist in April 2002, he was referred to the police surgeon, who approved six months of sick leave and then Mr Lorson’s retirement on the grounds of ill health.
Mr Purcell submitted that Mrs Lamont was an unreliable witness who provided conflicting evidence and had reconstructed Mr Lorson’s application form for employment by Geelong Rural Transport in August 2011, as she could not find the original from October 2005. Mrs Lamont had given the reason for Mr Lorson ceasing work on 6 August 2008 as being the occurrence of hernias. She now resiled from that despite the official nature of the Centrelink Employment Separation Certificate she had completed.
Mr Purcell contended that other non-accepted medical conditions, namely irritable bowel syndrome, palpitations, dizziness and pruritus ani, contributed to Mr Lorson’s incapacity for work and that the Tribunal could not assume that there was no asthmatic component to his respiratory disease. He said the Tribunal should also take into account Mr Lorson’s age (63 years); that he had been out of the police force for 10 years; had not worked in any capacity for nearly four years, and was in receipt of a service pension, a disability pension at 100 per cent of the general rate, and a superannuation-based pension.
TRIBUNAL’S DELIBERATIONS AND DETERMINATION
The medical evidence before the Tribunal is substantially consistent. The exceptions are Dr Cronin’s diagnosis of major depressive disorder in addition to PTSD and alcohol dependence and Dr Malone’s diagnosis of asthma co-existing with chronic obstructive pulmonary disease. However, if there was sufficient clinical evidence to found a diagnosis of a distinct major depressive disorder in 2007, Dr Cronin attributed it causally to Mr Lorson having been diagnosed with chronic obstructive pulmonary disease, a condition accepted as being war-caused by the Department. All of the other psychiatrists, Doctors McConnell, Newlands, Kaplan and Strauss, attributed any symptoms of depression Mr Lorson may have to his PTSD; that is, as being part of the PTSD complex. All the psychiatrists have attributed Mr Lorson’s incapacity for work to his PTSD and alcohol dependence alone.
Dr Lindquist’s clinical records, which span the period from 1996 to 2011, make no mention of Mr Lorson suffering from wheeze, and on examination his chest has been noted as being clear at all times. There are occasional entries relating to mild shortness of breath on exertion and a short-lived dry cough. The latter was attributed by Dr Lindquist to Mr Lorson’s use of Seretide, a corticosteroid inhalation used to treat asthma and chronic obstructive pulmonary disease. The Tribunal has earlier referred to its concerns with respect to the lung function test results conducted at Geelong Hospital in May 2006 that led to the diagnoses of asthma. Dr Burdon has excluded a diagnosis of asthma, based on the lung function tests performed on 22 November 2011.
The Tribunal is more than reasonably satisfied that Mr Lorson does not suffer and has not suffered from asthma during the assessment period. The assessment period is defined as that the period between the lodgement of Mr Lorson’s claim for special rate on 16 April 2010 and the date of this decision.
Doctors Lindquist, Huffman, Horsley and Thomas and, by inference, Mr Crossley, have provided opinions regarding Mr Lorson’s non-accepted medical conditions, in particular his lumbar spondylosis and other joint and bone ailments. All of them consider these additional ailments to have little or no effect on Mr Lorson’s capacity to work, other than to exclude employment in a moderate to heavy manual occupation. Mr Lorson appears to be an exceptionally fit 63 year old, who attends a gymnasium up to five days per week, lifting weights up to 68 kilograms. Any symptoms he does have from these non-accepted conditions appear on the evidence to be mild, intermittent, responsive to treatment and able to be accommodated in the workplace. This cannot be said of his psychiatric disorders of PTSD and alcohol dependence.
The Tribunal accepts the overwhelming medical evidence, that it is his psychiatric disorders alone that have caused Mr Lorson to cease work and rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
Mr Lorson lodged a claim under section 14 of the Act for an increase in the rate of pension and did so at the age of 61. He has an impairment rating of 75 per cent. Based on the medical evidence, he is totally and permanently incapacitated for remunerative work for periods aggregating more than eight hours per week. This incapacity is due to his war‑caused diseases alone. Therefore, section 24(1)(aa)(a)(i) and section 24(1)(b) of the Act are satisfied.
The question remains as to whether he also satisfies section 24(1)(c) of the Act.
24 Special rate of pension
(1) ...
(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 ...
For the purposes of section 24(1)(c), the Tribunal must address the requirements of section 24(2)(a) and section 24(2)(b) of the Act.
Ms Ryan stated that Mr Lorson did not rely on the ameliorating provision of section 24(2)(b) that his incapacity was the substantial cause of his inability to continue in or obtain remunerative work.
While the Act is silent as to any assessment period, the Federal Court has often identified the assessment period as being the period from the date of the application to the date of the Tribunal’s decision (Banovich v Repatriation Commission (1986) 69 ALR 395, Hall v Repatriation Commission (1994) 33 ALD 45). In Banovich the Full Court of the Federal Court said:
The task of the Administrative Appeals Tribunal, in reviewing a decision relating to an application for a pension, is to make the decision which the primary decision-maker ought to have made, upon the basis of the evidence before the tribunal. ... the tribunal should put the applicant in the position in which he or she was entitled to be put at the time of the primary decision. It follows, we think, that the question whether a particular applicant complies with the criteria ... should be considered as at the time of his or her application to the primary decision-maker for the grant of a special rate pension. (p 404)
The meaning of the term remunerative work has also been considered by the Federal Court on several occasions. These were summarised by Finn J in Repatriation Commission v Van Heteren (2003) 37 AAR 533:
[18] First, the "remunerative work" to which the paragraph [section 24(1)(c)] refers is the remunerative work undertaken by the veteran before he or she was prevented from continuing to undertake that work. The term, though, does not refer simply to a particular job with a particular employer: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; nor merely to the last remunerative work undertaken before the veteran's inability to work became complete: Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225. It signifies the type of work which the veteran previously undertook but which because of war-caused incapacity alone he or she can no longer undertake: Banovich at 402. The Act requires identification of that type of work as part of the veteran's demonstration that he or she has suffered a real and substantial loss consequent alone upon war-caused incapacity: see Starcevich's case, at 225. It is that remunerative work and not remunerative work at large with which s24(1)(c) is concerned. ...
The decision-maker, in this case the Tribunal, is also required to take into account other non-medical factors that may contribute to a veteran being prevented from continuing to be engaged in such remunerative work. In Repatriation Commission v Hendy [2002] FCAFC 42, Whitlam, Emmett and Stone JJ said:
... 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 s24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. ...
In 1997 the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 held that the relevant questions to be considered with respect to section 24(1)(c) of the Act 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. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
Mr Lorson has not worked since 6 August 2008 and has not sought further employment since that date. Between 1975 and August 2008, he worked full-time as a policeman in Victoria Police. Of his 27 years of service, he spent the last 6 months on sick leave before retiring on grounds of ill-health. Some five weeks later he commenced working part time as a Greeter at Bunnings were he continued to work for three years. He then worked as a casual driver/courier for Geelong Rural Transport for 2 years. Mr Purcell submitted that the Tribunal should find that the remunerative work that the veteran was undertaking was his full-time employment in Victoria Police. Mr Purcell’s submission is supported by the statement of Fox J in Starcevich v Repatriation Commission (1987) 76 ALD 449 said at page 454
... In my opinion, a veteran's entitlement to a pension under s 24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether. ...
In Repatriation Commission v Haskard [2002] FCA 1493, Hill J noted, in relation to Mr Haskard’s reduction in his land valuation hours of work from full-time to the occasional, that being, six valuations per annum, that:
... All that has happened is that the quantity of work has declined but that does not mean that the work itself has ceased. ...
Obviously in Haskard the type of work was the same but the hours were greatly reduced. There appears to be little precedent in relation to part-time work. The Act itself defines remunerative work in section 5Q(1) of the Act as any remunerative activity.
The facts in this matter suggest a different approach is required or, to quote the Full Court in Cavell v Repatriation Commission (1988) 9 AAR 534, a common sense approach with an eye to reality should be maintained when considering the provisions of s 24.
Mr Lorson’s psychiatric disorders of PTSD and alcohol dependence were not diagnosed until late 2005, three years after his retirement from the police force. Mr Lorson’s evidence was that throughout his last year in the police force (2002) he realised he was not coping with his duties and had become more verbally and, on occasions, physically aggressive in his reactions to offenders. He was unable to fathom the reasons for this change in his attitude and his inability to cope with work situations. His evidence was corroborated by his wife. To his knowledge the police surgeon had diagnosed stress and anxiety and he accepted retirement on these medical grounds. By accepting and commencing part-time employment five and a half weeks later with Bunnings, it appears that he did not accept that his working life was over and he believed he retained a capacity for work; albeit in a part-time capacity in what could be considered a less demanding workplace. In fact, he spent much of his time at Bunnings in a policing role checking that customers had paid for the goods they were departing with. His level of aggressiveness and other symptoms did not abate.
When the opportunity, engineered by his wife, to work as a driver/courier arose, he accepted the position with Geelong Rural Transport. Whether he consciously saw this as a less stressful part-time occupation as it involved less contact with the public is unknown. This change in employment appears to have occurred at the same time as he was diagnosed as suffering from PTSD and alcohol dependence by Dr McConnell, as the acceptance of these conditions by the Department as being war-caused was backdated to 4 January 2006.
Mr Lorson’s work performance at Geelong Rural Transport followed the same pattern as that in the last years of his service in the Force and employment at Bunnings and resulted in a sliding reduction of hours work from 16 hours per week to 8 hours and then to 4 hours per week before cessation on 6 August 2008.
Based on these findings of fact, the Tribunal considers that these periods of employment attracted substantial remunerative work despite being part-time. Therefore, they should be considered as remunerative work that the veteran was undertaking (question 1 of Flentjar).
The medical evidence is that Mr Lorson’s PTSD and alcohol dependence prevent him from undertaking any remunerative work aggregating to more than 8 hours per week. As a result, question 2 of Flentjar is answered in the affirmative.
The Respondent has contended that several other factors have contributed to or prevented Mr Lorson from continuing to undertake work. These are:
·that he engineered his retirement from the police force in order to access his superannuation pension;
·that he became eligible for the service pension in 2008, lessening his need to work;
·that the non-accepted medical conditions contributed to his cessation of work;
·that his age was a detrimental factor in obtaining work; and
·that his absence from the workforce for nearly 10 years in terms of his police service, or three years since his complete retirement, resulted in a lack of recent work experience.
Mr and Mrs Lorson have given evidence that they gave no thought to or discussed any superannuation implications or benefits that might arise from his retirement from the police force at the age of 54 years and 7 months. They have denied that his eligibility for a service pension in 2008 had impacted on his decision to retire in August of that year. The Tribunal accepts their evidence.
Whether the non-accepted medical conditions impact on Mr Lorson’s capacity to work has been the subject of numerous medical reports and opinions, all of which answer in the negative. While Mrs Lamont (in completing the Centrelink Employment Separation Certificate) stated the reason for separation as being had a hernia, she gave evidence before the Tribunal that she did not know of the existence of any hernia until well after Mr Lorson had ceased work and that she made the entry as she did not want to disclose Mr Lorson’s mental issues.
The Tribunal is perplexed by several aspects of the Centrelink Employment Separation Certificate, which impact on its significance. While it has been signed by Mrs Lamont it is not dated except for the day – 15. The copy provided to the Tribunal is headed with the words fax sent by 61 3 9281 9257 Centrelink 08\02\07 10.25. The certificate is also stamped by DVA, New South Wales, as being released pursuant to FOI on 4 August 2010. If the date and time the fax was sent is correct, Centrelink had it in their possession 18 months before Mr Lorson ceased work on 6 August 2008 and well before he first became aware of any hernia.
Mr Lorson was 60 years old when he ceased work and apart from his psychiatric disorders would be expected to continue in employment until 65, the then accepted age of retirement. The current Australian Bureau of Statistics figures indicate approximately 13 per cent of persons over the age of 65 remain in the workforce and this figure is steadily rising. The Tribunal does not consider the age of 60 as being adverse to further employment.
A list of potentially suitable alternative employment opportunities had been provided to Mr Huffam, who assessed Mr Lorson on 18 November 2010. These included roles as a private investigator, court writer, legal aid clerk, security instructor and as a gymnasium instructor. While it is ten years since Mr Lorson ceased working as a police officer, the Tribunal considers his 27 years in the police force would obviate any recent lack of experience in the first four nominated occupations. Also, his regular gymnasium attendance of up to 5 days per week should have kept him abreast of the tasks of a gymnasium instructor. The work that he did at Bunnings and Geelong Rural Transport does not demand experience above that which he gained from 2003 to 2008. Mr Lorson holds a driver’s licence and a heavy vehicle licence. While he has been advised not to lift weights above 5-10 kilograms, he regularly lifts weights up to 50 kilograms in his gymnasium training. His capacity for work is not limited by physical factors. Mr Lorson, on the medical evidence, could continue in positions such as those previously undertaken at Geelong Rural Transport and Bunnings but for his psychiatric disorders. Bunnings has a well-known policy of employing senior workers. Therefore, question 3 of Flentjar is answered in the affirmative.
The Tribunal has been provided with Mr Lorson’s income tax returns from 2002 to 2008. None have been lodged for the years 2009, 2010 and 2011 as Mr Lorson’s income did not reach a taxable level. Mr Lorson’s taxable income in 2002, when he worked full-time in the police force, was $58,622. In 2004, when he was working at Bunnings, his income fell to $37,442. Mr Lorson’s income fluctuated in 2005, 2006 and 2007 and was $32,058 in 2008, during which he was working part-time for Bunnings for 6 months and Geelong Rural Transport for a similar time. These returns indicate loss of wages or earnings in the six years after he left the police force. Mr Lorson’s income further decreased to non-taxable levels after he ceased all work in August 2008. Mr Lorson would not have suffered any reduction in income if he was free of the incapacity imposed by his war-caused PTSD and alcohol dependence. Therefore, the answer to question 4 posed by the Federal Court in Flentjar is yes.
Counsel did not address the Tribunal on the application of section 28 of the Act to this matter, although Mr Purcell mentioned section 28 in relation to the concession on behalf of the Commission that Mr Lorson would qualify for intermediate rate of pension. As there are no medical opinions or reports that find Mr Lorson has the capacity to work for more than 8 but less than 22 hours per week as a result of his war-caused PTSD and alcohol dependence, section 28 appears not to be attracted. Should the Tribunal be wrong in so finding, the matters described in sections 28(a), (b) and (c) have been tangentially addressed above.
For the reasons given above, the Tribunal sets aside the decision under review and substitutes its decision that Mr Lorson qualifies for disability pension payable at the Special Rate.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan.
........[sgd]................................................................
Associate
Dated 6 June 2012
Dates of hearing 17,18 & 19 April 2012 Date final submissions received 27 April 2012 Counsel for the Applicant Ms Fiona Ryan Advocate for the Applicant Ms Jess Ransley Solicitors for the Applicant Williams Winter Solicitors Counsel for the Respondent Mr Gerald Purcell Advocate for the Respondent Ms Rosalinda Casamento Solicitors for the Respondent Department of Veterans' Affairs, Advocacy Section
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