Hillan and Repatriation Commission
[2008] AATA 435
•27 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 435
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200600803
VETERANS' APPEALS DIVISION ) Re BARRY HILLAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton, Member Date27 May 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Hillan is entitled to receive a pension at the intermediate rate.
..................[Sgd]......................
Regina Perton
Member
VETERANS’ AFFAIRS ‑ pension at special or intermediate rate – whether war‑caused conditions alone cause of inability to work – decision set aside – pension at intermediate rate
Veterans’ Entitlements Act 1986 ss 19(5C)(a), 19(9), 23(1)(a)(b)(c), 24(1)(c)
Repatriation Commission v Hendy (2002) 76 ALD 47
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
27 May 2008 Regina Perton, Member 1. Barry Hillan, who is now 56 years old, served in the Royal Australian Navy (the navy) from August 1968 to July 1981. He spent time in Vietnamese waters between 17 November 1969 and 5 December 1969, which constitutes operational service. His service from 7 December 1972 to 30 July 1981 constitutes eligible service. Mr Hillan is currently on a disability pension payable at 100 per cent of the general rate. Mr Hillan suffers from multiple medical conditions, several of which have been accepted by the Repatriation Commission (the Commission) as war‑caused. He has not been employed since August 2000.
2. Mr Hillan is seeking a special rate pension, which is a higher rate of pension paid to a working-age recipient who is unable to work due to his accepted disabilities alone. Alternatively, if he does not meet the criteria for a special rate pension, he seeks an intermediate rate pension.
3. Mr Hillan lodged the claim, which is the subject of this review, on 23 September 2004. A delegate of the Commission refused the claim on 31 March 2005. The Veterans Review Board affirmed the decision on 4 August 2006. Mr Hillan lodged an application for review with the Tribunal on 4 September 2006.
4. The issue before the Tribunal is whether Mr Hillan’s inability to work is due to his accepted defence‑caused disabilities alone and whether he is therefore eligible for pension at the special rate or intermediate rate.
Employment History
5. Mr Hillan joined the navy before his sixteenth birthday during Year 10 at school. He remained in the navy for 13 years, reaching the rank of Leading Seaman. Much of his work was in naval stores.
6. After his discharge in 1981, Mr Hillan worked in a variety of positions. In his oral evidence, Mr Hillan said that he worked as a security guard in Sydney for 12 months; then as a warehouse manager in Brisbane for three years; taught a bookkeeping course to Year 9 students at a TAFE college for about six months; and worked as a bookkeeper in 1989 for around 3 months. He said that he did one year of business accounting in 1987.
7. In April 1999 Mr Hillan started working for the Mercure Hotel in Brisbane as a night auditor. His duties were to check that hotel guests’ accounts were correct, prepare reports of incoming and outgoing guests and to generally run the hotel during his shift, which ran from 11 pm to 7 am. He was diagnosed with ischaemic heart disease in March 2000 and took leave, eventually resigning in August 2000. He cited his ill-health as the reason for his resignation. He has not worked since.
8. In his interviews with medical specialists in February 2007, Mr Hillan stated that he had been a night auditor for about three years in Coffs Harbour before moving to the position at the Mercure. He also indicated that he had been a short order cook at a takeaway shop for about 18 months.
Medical Conditions & Employment Assessments
9. The Commission has accepted that Mr Hillan’s medical conditions of bilateral sensorineural hearing loss with tinnitus, generalised anxiety disorder, hypertension, ischaemic heart disease, lumbar spondylosis, and solar keratosis of both hands, arms and legs, are war-caused. The Commission rejected Mr Hillan’s claim that his presbyopia, headaches, sprain of the left wrist, sprain of the right wrist, bilateral carpal tunnel syndrome, osteoarthrosis both wrists, post traumatic stress disorder (PTSD) and pains in shoulders were war-caused.
10. There has been some variation since August 2000, in the diagnosis of and the impact upon Mr Hillan of some of his medical conditions that have not been accepted by the Commission as compensable or have not been claimed as war-caused. These include differences between psychiatrists as to whether he suffered from PTSD and changes in impact upon him of sleep apnoea and pains in his shoulders.
11. On 5 October 2000, Dr J N Gibson, Director of Psychiatry at Greenslopes Private Hospital (where Mr Hillan was an in-patient for several weeks in mid-2000 as well as an out-patient before and after his admission to hospital) diagnosed him as suffering from PTSD. The diagnosis was based on his symptoms and on stressors which included an assault, fear of the impact of extremely bad weather and a tidal wave whilst at sea and fear arising out of interception by Russian authorities of the ship, when Mr Hillan’s ship was instructed to return to international waters and remained on alert for several days. Dr Gibson was of the opinion that at the time of his report, Mr Hillan’s symptoms of PTSD impaired his ability to work more than eight hours per week. He reported that Mr Hillan’s ischaemic heart disease was also an aggravating factor in terms of his anxiety and stress level and was also impeding his ability to work.
12. On 16 March 2001, Dr Craig Hukins of the Sleep Disorder Centre of Princess Alexandra Hospital, requested a CPAP machine for Mr Hillan, who had been demonstrated to have moderately severe obstructive sleep apnoea on overnight investigation in December 2000. Dr Hukins reported that Mr Hillan has significant symptoms of obstructive sleep apnoea and in particular reports a high tendency of dozing when performing passive activities
13. In a report dated 7 November 2003, Dr Scott Jenkins, consultant psychiatrist, stated that Mr Hillan initially presented for assessment on 24 October 2002. Dr Jenkins gave the following opinion of Mr Hillan’s ability to work at that time:
… Given his mental state in October 2003 and the history which he provided, I believe that generalised anxiety disorder and his Ischemic heart disease are the sole reasons for his inability to work for more than 8 hours per week. They clearly were the reasons for him ceasing work in August 2000. In particular it had produced increasing cardiovascular symptoms and increased his frequency of panic attacks. He is now unable to resume any type due to these two disabilities and would not be able to work even for 8 hours per week because of them ...his prognosis is such that I do not believe he will work again.
14. On 4 December 2003, Dr Kim Gidall completed a Medical Examination Form in relation to Mr Hillan’s capacity to work. Dr Gidall was of the opinion that Mr Hillan could not work at all and that his generalised anxiety disorder and ischaemic heart disease were the reasons he gave up work. Dr Gidall indicated that Mr Hillan still suffered from a list of conditions nominated by DVA as well as additional conditions including hiatus hernia, gastritis, diabetes and hypercholesterolaemia but that those conditions had either no functional effect or a minor to moderate effect.
15. On 27 February 2004, Dr Giddal provided a further report stating that Mr Hillan had been a patient since 21 November 2002. Dr Gidall stated that although Mr Hillan suffered from other conditions, including lumbar spondylosis and PTSD, these had only recently been diagnosed and were not instrumental in him giving up work.
16. Dr Claire Thys provided a report to the Commission in November 2004 at its request on Mr Hillan’s medical conditions and their impact on him. Dr Thys also provided a report on 31 October 2005 in which she confirmed that she had been the medical practitioner looking after him for over a year. She also stated:
I can confirm that he does not have any reduction in his dexterity due to the carpal tunnel syndrome, or arthritis. He does suffer with osteoarthritis, in the shoulders, and in his spine, making it difficult, but not impossible, to lift heavy objects, although this should be avoided for anything about 15 kgs. He is quite able to do odd jobs around the home.
17. Dr Colin Seabridge, consultant psychiatrist, prepared a report dated 2 September 2005. Dr Seabridge determined that Mr Hillan did not meet the diagnostic requirements in the fourth edition of American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and the Statement of Principles for PTSD; and hence he disagreed with Dr Gibson’s diagnosis of PTSD. He stated that Mr Hillan’s anxiety disorder and other medical conditions rendered him incapable of working for eight hours or more in a structured work environment. Dr Seabridge also mentioned Mr Hillan’s alcohol abuse, for which he had been a detoxification inpatient earlier that year, as one of the factors adversely affecting his employability.
18. Dr Robin Hunter, Rehabilitation Physician, prepared a report dated 5 June 2006. Dr Hunter described in detail the impact on Mr Hillan of his accepted disabilities. In relation to Mr Hillan’s non-accepted disabilities and ability to work, Dr Hunter commented as follows:
1. Bilateral wrist sprain, Bilateral carpal tunnel repair, Osteoarthritis bilateral wrist
Mr Hillan does not have any ongoing symptoms in his wrists.
2. Diabetes
Mr Hillan is currently on Diaform in 500mg and his BSLs are well controlled.
3. Osteoarthritis of the Shoulders
Mr Hillan has intermittent pain in his shoulders, particularly at extremes of range of movement. This does not interfere with his function.
4. Alcohol abuse
Mr Hillan was drinking two to three casks of wine and two to three slabs of beer a week at his heaviest. He underwent alcoholic detoxification in March 2005. He is now drinking one cask of wine a fortnight.
5. Sleep Apnoea
Mr Hillan has been diagnosed as having moderate to severe sleep apnoea. He previously used CPAP but ceased this 12 months ago. He now sleeps with a pillow under his chin.
6. PTSD Depression
Mr Hillan has symptoms of PTSD as outlined under his accepted diagnosis of anxiety. He also has symptoms of depression with flat mood, social withdrawal and loss of interest in avocational activities.
… Mr Hillan is currently unable to work primarily due to his accepted disability of anxiety and non-accepted disabilities of post-traumatic stress disorder, depression and alcohol abuse. His accepted disability of ischaemic heart disease would have a lesser impact as his recent experience has been in clerical work.
Mr Hillan is currently unable to work greater than 8 hours per week.
19. Dr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine, examined Mr Hillan on 5 February 2007 and provided a report dated 8 February 2007. Dr Thomas stated that Mr Hillan’s diabetes, sleep apnoea and headaches would not be disabling from an employment perspective nor would reported pain in his neck and shoulder. Dr Thomas stated that Mr Hillan’s primary disabilities are those which are accepted as war-caused. Dr Thomas went on to state:
Within the disabilities that he suffers from, it would be my view that the…accepted war caused injuries do not prevent him from working for a period aggregating more than 8 hours per week, but do prevent him from working remunerative work for periods aggregating more than 20 hours per week. As such, within the physical disabilities from which he suffers, I believe he could work between 8 to 20 hours per week.
Clearly the work would need to be light sedentary. I note that he has previously worked as a night manager at a hotel. This would be reasonable. I noted that he has worked for a short period of time as a book keeper notwithstanding his feelings that he is not up to the task, this would equate to a clerical type position. The only difficulty with any form of position where he is in one position for any length of time, would be the requirement to move around and being any one position fro [sic] any length of time in view of his lumbar spondylosis. Nonetheless, I think he could work more than 8 hours and less than 20 hours all up.
I note however that his psychiatric condition was significant and if the psychiatrist believed that his psychological disability prevented him from working more than 8 hours per week, then I would accept their views on this aspect.
20. In oral evidence, Dr Thomas confirmed that it was still his view that despite Mr Hillan’s accepted physical disabilities, he could work between eight and 20 hours per week provided it was not heavy manual labour. Responding to a question as to what other barriers there may be to Mr Hillan working, Dr Thomas said that that there are a number of other barriers including his lack of education beyond secondary education and his age. Dr Thomas stated that if Mr Hillan had specific expertise in one area, his age may not be a barrier but as he does not, he is at an age that would not be attractive to employers. Dr Thomas confirmed that he believed that from a physical point of view, Mr Hillan could return to work in a job such as a night auditor in a hotel.
21. Dr Robin Horsley, Occupational Physician, provided a report dated 15 February 2007. She provided details about his various medical conditions and then responded as follows to specific questions:
1. Whether the Veteran is able to undertake remunerative work of 8 hours or more or 20 hours or more per week?
I note from my Psychiatrist colleagues, in particular Dr Gibson and correspondence from Dr Jenkins, dated 7th November 2003, that there is a general consensus that generalised anxiety disorder is the sole reason for his inability to work more than eight hours per week. I am not a Psychiatrist. I am an Occupational Physician. I leave assessment of capacity for work related to his generalised anxiety disorder to my Psychiatrist colleagues.
However, his ischaemic heart disease does not prevent him from working more than eight hours per week. It prevents him from working in moderate manual labour, but as an Auditor and in a clerical role, it has no specific impact upon capacity for work.
His generalised anxiety disorder would be at issue in a structured and moderately demanding work environment. His ability to interact with staff and clients would also be an issue.
2. Whether the Veterans rejected disabilities affect or continue to affect the Veterans capacity to undertake remunerative work and the extent to which they do so, if at all?
Mr Hillan has cervical spondylosis, thoracic spondylosis, osteoporosis and degenerative changes in his bilateral wrists, with some secondary sequelae from a fracture of the right 4th and 5th metacarpals, all of which do impact upon capacity for work.
…
These rejected disabilities effect the type of work he can do. The nature of his work prior to resignation involved auditing work. These injuries do not specifically impact upon bookkeeping activities. He had no specific difficulty from these disabilities when he was working as a Night Auditor. He was self-managing appropriately.
3. Whether the Veterans accepted disabilities alone prevent him from undertaking remunerative work of 8 hours or more or 20 hours or more per week?
Mr Hillan’s primary disability appears to be his generalised anxiety disorder and alcohol abuse. His generalised anxiety disorder results in poor interaction with other staff and clients. It results in irritability and reduced concentration and attention span. It results in increased frequency of panic attacks. He ceased work whilst being hospitalised at Greenslopes for his generalised anxiety disorder.
His generalised anxiety disorder potentially increases his chance of chest pain. His ischaemic heart disease alone does not prevent him from working in a bookkeeping role for eight hours or 20 hours.
Overall, taking into account my Psychiatrist colleagues’ opinions, his generalised anxiety disorder prevents him from working eight hours or more or 20 hours or more per week. This is his primary disability.
22. In her oral evidence, Dr Horsley confirmed that from a physical point of view, Mr Hillan could work part-time in a clerical type position. She said that she was unable to comment on the psychiatric barriers. Dr Horsley said that the position would need some variety in terms of Mr Hillan’s sitting tolerance of 30 to 60 minutes, a walking tolerance of one kilometre, a standing tolerance of several hours and other limitations. She said that he needed to be able to change his posture. Dr Horsley was of the view that Mr Hillan’s general conditioning would probably improve if he worked. Mr Hillan had told Dr Horsley that he suffered from frequent headaches, four to five times a week, which last about half an hour. Dr Horsley said that he would need to have better control of the headaches if he returned to work. Dr Horsley commented that while Mr Hillan’s power was reduced on one side, he did not have physical barriers due to his previous conditions of carpal tunnel (for which he had had an operation) or shoulder pains. She stated that his osteoporosis would not prevent him from working. She commented that Mr Hillan’s alcohol consumption could impact upon his concentration and attention span but that it was difficult to separate his use of alcohol from his generalised anxiety disorder.
23. Under cross-examination, Dr Horsley indicated that she did not think Mr Hillan’s headaches, if they were controlled by appropriate pain killers, would prevent him from working.
24. Dr Nigel Strauss, Consultant and Occupational Psychiatrist, prepared an extensive report also dated 15 February 2007. Dr Strauss provided considerable information about Mr Hillan’s work history, his use of alcohol, his gambling habits and his relationships. He noted that Mr Hillan had mild short term memory impairment. He suspected that it was a consequence of his long term excessive alcohol consumption. Dr Strauss stated that Mr Hillan’s depression is significantly related to his heart problems which have greatly affected Mr Hillan in recent years. Dr Strauss summarised the situation as follows:
… In summary then it is possible that this man is suffering from a generalised anxiety disorder but I do not believe that there is any evidence to suggest that he has a post traumatic stress disorder. It is possible that his generalised anxiety disorder developed while he was in the Navy.
He certainly suffers from a substance abuse disorder involving alcohol which began while he was on the HMAS Sydney. Mr Hillan told me that he began drinking before he got to Vietnam and his alcohol consumption increased while he was on the HMAS Sydney and continued thereafter.
I also believe that he suffers from a depressive condition, a substance abuse disorder and pathological gambling.
This man’s psychiatric problems are not causing him a significant incapacity. Rather he cannot work because of his heart problem and I believe that probably if he could work his mental state might improve a little…
25. In oral evidence, Dr Strauss confirmed that Mr Hillan had told him that his long-term memory is fine but his short-term memory has deteriorated. Dr Strauss suspected that the memory loss has come about due to excess alcohol consumption. Dr Strauss also stated that Mr Hillan’s ability to concentrate was affected by how stressed, worried or depressed he was. When he felt better, his memory was better. In relation to Mr Hillan’s alcohol consumption, Dr Strauss stated that with an alcoholic, you can never be certain that the problem has gone away forever as was evidenced by Mr Hillan’s hospitalisation for detoxification in 2005. Dr Strauss also commented that with some people who have drunk heavily over the years, there is a decrease in consumption because of advancing years. Dr Strauss said that he was optimistic that Mr Hillan, whose alcohol consumption was reasonably steady apart from a short period in recent years, would be able to cope with a job that was not too demanding or stressful. Dr Strauss was of the opinion that Mr Hillan’s alcohol consumption would now not preclude a return to work.
26. Dr Strauss said it appeared Mr Hillan’s heart problems led to the end of his working life. He believed that Mr Hillan’s psychiatric problems were secondary to his physical problems. Dr Strauss said that while Mr Hillan is prone to anxiety, given the right circumstances he could manage some sort of employment. He confirmed that he accepted the assessments of Dr Thomas and Dr Horsley on Mr Hillan’s physical incapacity.
27. Under cross-examination, Dr Strauss confirmed that Mr Hillan’s physical pain which leads to him feeling stressed could well be feeding into his anxiety disorder. Dr Strauss confirmed his opinion that Mr Hillan could initially work in a job for 10 or 20 hours per week that was not too demanding, not too stressful, close to where he lives. He said that if he coped with that, Mr Hillan could, from a psychiatric point of view, possibly increase his hours.
Mr Hillan’s oral evidence
28. Mr Hillan gave oral evidence that he started getting symptoms of anxiety and stress around mid-1999. He had chest pains and loss of memory. He said that he was getting cranky with the guests and suffering dizzy spells. He was referred to a cardiologist and stopped work in March 2000. He said that an angiogram had revealed blockages in his arteries but he did not have surgery because of the risk of blood clot. He said that by the time he was admitted to Greenslopes and saw Dr Gibson, he was very depressed because of his heart condition and the knowledge that it would not be operated on.
29. Mr Hillan said that he tendered his resignation from the Mercure Hotel in August 2000 after having been on unpaid leave since March 2000. He said that he has not worked since then. He said that he applied to be a night auditor at the Sheraton Hotel between August and December 2000. He said that he had been unsuccessful because he was required to provide information about his medical conditions and had done so.
30. Mr Hillan said that his diabetes, for which he takes medication, does not affect his work capacity. He said that he had surgery in 1998 to relieve his carpal tunnel syndrome and he no longer has any ongoing problems with his wrists or hands. Mr Hillan stated that his hernia does not affect his capacity to work.
31. Mr Hillan confirmed that he has a history of alcohol abuse dating back to his navy days. He stated that he had voluntarily undertaken detoxification treatment at the Austin & Repatriation Hospital in March 2005. He said that he did not drink during working hours at the Mercure Hotel, as alcohol on one’s breath could result in instant dismissal. He said that he only drank at weekends when working there. Mr Hillan said that he admitted himself for hospital treatment in March 2005 as he was under particular stresses at the time.
32. Mr Hillan indicated that his daily medication included an antidepressant; two types of tablets for blood pressure control; a spray for angina pain; a cholesterol lowering drug; another for diabetes; sleeping pills (every second night); daily heart medication and valium when needed, for stress. He said that three years earlier, he and his partner moved to a small town where they have a quiet life. He said he finds it difficult to cope with crowds. Mr Hillan stated that he does not do much physical work as he lives in a caravan near the river. He generally watches movies and avoids associating much with other people. He and his wife have travelled around part of Australia and may continue their travels in due course as he does not like staying in the same spot for more than a few years.
33. Mr Hillan said that the impact of his heart disease and anxiety disorder on him has remained much the same since 2000. Mr Hillan gave the opinion that he could probably do a job such as a night auditor for a couple of months but then due to stress and anxiety, he would probably get fired.
34. Under cross-examination, Mr Hillan was questioned about the medical records concerning his sleep apnoea. Mr Hillan confirmed the written comments by Dr Hukins in November 2000, which indicated that he woke with an early morning headache four to five times a week, for some years. Dr Hukins had attributed the headaches to carbon dioxide retention and hypersomnelence. He agreed that he had almost had some accidents when driving. He also conceded that his short term memory and concentration had been affected. Mr Hillan said that he had used a CPAP machine but had only used it for a month as it did not seem to affect him. Mr Hillan said that he now put a pillow under his chin and sleeps a lot better.
35. Mr Hillan could not recall being diagnosed with PTSD. He said that while Dr Gibson had said that he may have PTSD, Dr Delafore and Dr Strauss had indicated that he did not meet the criteria for that condition.
36. Mr Hillan confirmed that Dr Thys is still his general practitioner. He said that her notes made in 2005 concerning PTSD related to the treatment he underwent at the Heidelberg Repatriation Hospital. He said that he is not taking specific medication for PTSD but has been taking an anti-depressant since about 1996.
37. Mr Hillan said that he has not been formally diagnosed as suffering from alcohol dependence. He agreed that at some stages of his life he had consumed alcohol heavily, particularly when he was still in the navy. He said that when he worked at the Mercure, he probably drank about two glasses of red wine a night. He conceded that at times in recent years when he was under particular stress, he did drink heavily but said that he was always able to bring his consumption back under control. When reminded of a consultation with Dr Thys in August 2004, for which her notes stated that he was seeking help in relation to his drinking, Mr Hillan said that this occurred just after he applied for an increase in his pension. Mr Hillan said that he now usually only has two to four glasses of red wine a day. When his attention was drawn to an entry in Dr Thys’ records, which stated that he had been in hospital for alcohol withdrawal but started having hallucinations while there and was given Naltrexone and Seroquel which did not help him so he stopped taking them, Mr Hillan said that he could not recall taking the medication, the hallucinations nor very much at all about his hospital admission. He said that at one point in time he was given a tablet to stop him from drinking but that was no longer the case. Mr Hillan said that it was beer that had made him aggressive in the past but he no longer drinks beer. Mr Hillan said that he had never taken time off from work because of alcohol consumption but that there had been times since he stopped working, when he over-consumed for a week or so due to a particularly stressful event.
Does Mr Hillan meet the criteria for a special or intermediate rate pension?
38. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
(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…
(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…
39. Section 19(5C)(a) of the Act requires the Tribunal to determine entitlement to a special rate of pension during the assessment period. That term is defined in s 19(9) of the Act as meaning:
....the period starting on the application day and ending when the claim or application is determined.
40. In this case, the application day was 23 September 2004 and the assessment period runs from that date. At that time, Mr Hillan had not been working for four years. While evidence pertaining to the four years prior to the claim is relevant as to why Mr Hillan stopped working, it is his medical conditions during the assessment period that the Tribunal must concentrate on.
41. Mr Hillan receives a pension at 100 per cent of the general rate. The Tribunal therefore finds that he meets s 24(1)(a).
42. The impact on Mr Hillan of a number of non-accepted disabilities has varied during the assessment period. In particular, the evidence concerning the impact on Mr Hillan of his sleep apnoea, headaches and alcohol consumption shows these conditions have now abated; unlike the situation at the time of the Commission’s and VRB’s decisions. Furthermore, the earlier diagnosis of PTSD, for which a claim was lodged with the Commission, is no longer upheld by recent psychiatric reports nor does Mr Hillan wish to pursue a claim that he suffers from that condition.
43. Dr Strauss, Dr Horsley and Dr Thomas have provided the most recent assessments of Mr Hillan’s ability to work. From a psychiatric viewpoint, Dr Strauss is of the view that Mr Hillan can work for more than eight hours per week. Dr Horsley’s opinion and Dr Thomas’ opinion was that Mr Hillan can work more than eight hours per week based on his physical disabilities. The Tribunal is satisfied that these doctors’ assessments should override the older medical reports. The Tribunal finds that Mr Hillan is able to work for periods aggregating more than eight hours per week. The Tribunal therefore finds that he does not meet the requirements of s 24(2)(b) of the Act.
44. Section 23 of the Act allows for an intermediate rate of pension where the veteran can work between eight hours and 20 hours per week. Mr Hillan meets the requirements of s 23(1)(a) which is worded the same as s 24(1)(a) of the Act. Other pertinent parts of s 23 are as follows:
(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…
45. The medical evidence before the Tribunal indicates that Mr Hillan’s accepted war-caused disabilities of generalised anxiety disorder and ischaemic heart disease, taken alone, are of such a nature as to render him incapable of undertaking work otherwise than on a part-time basis. He therefore meets s 23(1)(b) of the Act.
46. While there is no dispute between the parties that Mr Hillan meets s 23(1)(a) and s 23(1)(b) of the Act, there is disagreement in relation to s 23(1)(c).
47. In respect of s 23(1)(c) of the Act, the Tribunal notes that in Repatriation Commission v Hendy (2002) 76 ALD 47, the Full Federal Court, discussing s 24(1)(c) said (at para 37):
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24 (1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. 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 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. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war‑caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the Tribunal is determining whether the veteran's war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.
48. In Flentjar v Repatriation Commission (1997) 48 ALD 1, Branson J set out the issues posed by s 24(1)(c) (and therefore s 23(1)(c) in a series of questions:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
49. In respect of question 1, Mr Hillan’s work history is set out earlier in these Reasons for Decision. The Tribunal finds that the remunerative work undertaken by Mr Hillan was primarily clerical and administrative in the last few years of his working life. Prior to that he was employed as a warehouse manager and security guard. While he did some book-keeping work, he has not completed a qualification in that field.
50. In respect of question 2, the Tribunal accepts the medical evidence that Mr Hillan is now prevented from working more than 20 hours per week due to his accepted war-caused disabilities, including ischaemic heart disease and generalised anxiety disorder. Early in the assessment period, he was unable to work at all but that has now changed. So the answer to question 2 is yes.
51. In respect of question 3, Mr Hillan asserts that it is the accepted conditions alone that prevent him from working. When Mr Hillan stopped working, it was his heart condition that was his primary reason for stopping work. His anxiety disorder also contributed. He had been working full time at night when the heart problem was first diagnosed. During the seven plus years since Mr Hillan stopped working, there have been other medical conditions he and his doctors have cited as preventing him from working at various times. These included his sleep apnoea, carpal tunnel syndrome, his excessive consumption of alcohol and the consequent facts of that consumption. However, things have now changed. Evidence from Mr Hillan and the medical practitioners in the last two years indicates that his sleep apnoea no longer poses a problem. Other conditions such as diabetes and the like are managed through medication and the medical evidence is that they would not affect his ability to work part-time. The Tribunal is satisfied that Mr Hillan’s accepted war- caused disabilities are the only physical and psychological factors preventing him from working for more than 20 hours per week in the latter part of the assessment period.
52. However, there are also other factors to be taken into account in relation to Mr Hillan’s employability. The Tribunal notes the comments of Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50:
39….The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition.
40…it is possible that the war-caused condition may well be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
53. Dr Thomas, in his report, suggested that there were other barriers to Mr Hillan working more than 20 hours per week apart from his accepted physical disabilities. He cited Mr Hillan’s limited education and his age, although he stated that his age might not be a barrier if he had specific expertise in a particular area. Dr Strauss believed that Mr Hillan’s short term memory problems might affect his employability but believed that he could work on a part-time basis and that in fact, it would be beneficial for him to do so. Mr Hillan is now 56 years old, still many years before the age of 65, at which a male becomes eligible for the age pension. He has shown that he is quite versatile in the type of work he can do. The Tribunal does not accept that Mr Hillan’s age would prevent him from obtaining work.
54. The Tribunal is satisfied that it is Mr Hillan’s accepted disabilities alone that prevent him from working more than 20 hours per week. The Tribunal does not accept that Mr Hillan’s age will prevent him from working nor would his use of alcohol and its side effects. The answer to the third Flentjar question is therefore yes.
55. In relation to the fourth Flentjar question, the Tribunal is satisfied that Mr Hillan is suffering a loss of salary, wages or earnings on his own account, that he would earn if he were free from his accepted disabilities, by being prevented from working full-time. The Tribunal finds that Mr Hillan meets the criteria in s 23(1)(c) of the Act, taking into account the specific requirements set out in s 23(3)(a).
DECISION
56. The Tribunal sets aside the decision under review and substitutes a decision that Mr Hillan is entitled to receive a pension at the intermediate rate.
I certify that the fifty-six [56] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd)
Clerk
Dates of hearing: 17 October 2007, 4 December 2007
Date of decision: 27 May 2008
Counsel for applicant: Ms F Ryan
Solicitor for applicant: Williams Winter
Counsel for respondent: Mr R Douglass & Mr K HermanSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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