Hockey and Repatriation Commission

[2005] AATA 316

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 316

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/14

VETERANS' APPEALS   DIVISION		)
Re		LESLIE CHARLES HOCKEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date8 April 2005

PlaceHobart

Decision The decision under review is set aside and in substitution thereof, the Tribunal has determined that the veteran, Leslie Charles Hockey be paid pension at the Special Rate with effect from 8 August 2002.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - general rate - special rate - bilateral sensorineural hearing loss - bruxism - post-traumatic stress disorder - employment - remunerative work - VRB - job suitability analysis.

Veterans’ Entitlements Act 1986 – ss24, 120(1),(3), 120A

Statements of Principles for particular medical conditions issued by the Repatriation Medical Authority.

Guide to the Assessment of Rates of Veterans’ Pension (GARP)

Easton v Repatriation Commission (1985) 12 ALD 777

Repatriation Commission v Deledio (1998) 391 FCA

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1997) 117 CLR 564

Flentjar v Repatriation Commission (1997) 48 ALD 1

Cavell and Repatriation Commission (1998) 9 AAR 534

Hendy v Repatriation Commission (2003) HCA Trans 358

REASONS FOR DECISION

8 April 2005 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1.      The decision under review is a decision made by a delegate of the Repatriation Commission on 7 March 2003, subsequently varied by a decision of the Veterans’ Review Board (VRB) on 27 November 2003, whereby the applicant’s disability pension was assessed as 90 per cent of the General Rate, following acceptance of bilateral sensorineural hearing loss, bruxism and post-traumatic stress disorder as war-caused conditions.

2.      The applicant seeks pension at the special rate.

Issues

3.      The three principal issues to be addressed are:

(a)did the applicant cease any form of employment because of accepted disabilities?

(b)is it the applicant’s disabilities alone which prevent him from continuing to undertake remunerative work?

(c)has the applicant genuinely been seeking remunerative work and/or have the accepted disabilities been the substantial cause of inability to obtain work?

Legislation

4.      The relevant legislation is the Veterans’ Entitlements Act 1986 (“the Act”) and amendments.   In respect of operational service, subsections 120(1) and 120(3) apply.    As the claim was lodged after 1 June 1994, s120A also applies.   In all other matters the standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

5. In respect of claims for a special rate of pension, s24 of the Act applies.

Background

6.      The veteran served in the Australian Army as a national serviceman for two years from 29 September 1965.    His eligible war service (which is also operational service) was from 4 June 1966 to 14 June 1967 in South Vietnam.

7.      Mr Hockey saw combat on foot patrols and was in an armoured personnel carrier which was damaged by a mine.   He was called upon to bury bodies and witnessed distressing events by some colleagues.   Being a religious man, those experiences affected him deeply.

8.      After leaving the Army, he sought employment as a maintenance painter with a large bakery chain, then became self-employed until he and his wife purchased and managed a caravan park on the Queensland coast north of Brisbane between 1970 and 1977.   They tried to upgrade the park, but found it too much work for two people, but too small to attract major developers.   They experienced difficulty in selling the property but eventually did so, living off investments and spending time on a voluntary basis working with youth organisations, involving a period in Papua-New Guinea as missionaries.

9.      Mr and Mrs Hockey dealt in property and shares during the mid 1980’s to 1990’s, but suffered a major loss from shares in 1994.    He was then placed on a Commonwealth benefit and again became involved in voluntary work with young people, spending some time in the United States and Ukraine, and a series of other situations on the mainland working with troubled youths, until returning to Tasmania in April 2002.

10.     Between June 2002 and August 2002, Mr and Mrs Hockey worked at the Missiondale Drug and Alcohol Recovery Centre in Evandale, Tasmania, in which accommodation was provided, but finding the work very stressful in dealing with very difficult substance abuse clients.

11.     Mr Hockey left the Recovery Centre after two months service, due to aggravation of symptoms of anxiety, as well as a number of other physical problems, including diabetes and a stroke.   He and his wife currently reside in Longford.

Disability Claims

12.     The veteran, Leslie Charles Hockey first submitted a claim for disability pension on 8 November 2002.   He was granted a pension at 90 percent of the general rate from 8 August 2002 for bilateral sensorineural hearing loss, bruxism and anxiety disorder, but his claim for pension at the special or intermediate rates was rejected, on grounds his anxiety disorder was recognised, but he had not been in paid employment since 1977 and had not sought employment, preferring to rely upon investments and voluntary work.   This decision was transmitted to the applicant by letter on 7 March 2003.

13.     Mr Hockey sought review by the VRB on 21 March 2003, his case being heard on 27 November 2003, following medical reports.   The Board varied the decision under review only in so far as the claim for “anxiety disorder” being amended to post-traumatic stress disorder, otherwise pension at 90 percent of the General Rate was affirmed.

14.     The veteran then applied for review by the Administrative Appeals Tribunal on 4 February 2004.

The AAT Hearing

15.     The AAT hearing was conducted in Launceston on 25 February 2005.   The applicant was represented by Mr R Benson of counsel and the respondent by Mr M Castle.   The applicant and his wife were present and gave evidence, there were tow medical witnesses, namely Dr Andreas Ernst, occupational physician and Dr Colm Moore, a consultant psychiatrist.

16. In opening submissions counsel for the applicant stated that the veteran would rely upon a claim of PTSD (Post-Traumatic Stress Disorder) arising from eligible service in South Vietnam. After leaving the Army the applicant had attempted self-sufficiency via business activities and voluntary work, thus he did not meet the normal test of paid employment. Counsel for the respondent said Mr Hockey had not ceased employment because of disabilities alone and had not been genuinely seeking remunerative work, hence his case did not meet the criteria specified for the Special Rate of pension in the Act.

17.     Mr Hockey was sworn and tendered a proof of evidence.   He described in detail the difficulties encountered by him and his wife in operating a caravan park in Queensland between 1970 and 1977.   He claimed to have tried to improve the amenities despite problems with some clients, “punch-ups” with the former owner and an incident when he pursued a young girl suspected of stealing, on a tractor, resulting in injury to her.

18.     He rejected a suggestion that disposal of the caravan park was to achieve a capital gain; he had tried to sell it for several years principally to seek some other field where the stress would be less.   He recounted details of business transactions during the 1980s and early 1990s, buying and selling property and shares in an endeavour to achieve self-sufficiency.   He had used borrowed funds at times, but made losses generally.   He blamed a downturn in the Australian economy for major losses in 1994.    He was in partnership with his wife, but he made all the investment decisions.

19.     His religious beliefs had resulted in periods of voluntary work, with he and his wife serving as missionaries and dealing with youth problems at several locations.   Accommodation and food had been provided at the last assignment at the Missiondale Rehabilitation Centre at Evandale, but he could not cope with the disturbed and deviant clientele and poor management regime.    Looking back he now recognised he had suffered from anger, anxiety and stress for much of the time since leaving the Army, but had taken a long while to recognise it.   He had really suffered health breakdowns in recent years and now was no longer fit for paid employment.

20.     Under cross-examination about the source and deployment of funds following sale of the caravan park in 1977, which yielded more than $350,000, he stated approximately $40,000 had gone to debt repayments, but he had then started trading in land and property and relying upon interest from bank deposits.   This had not proven as profitable as hoped.    After a period as missionary overseas he had returned to trade in shares, making considerable losses in a Family Trust until he ceased trading in 1994.   He admitted being a “boots and all investor”, who had not made wise choices.

21.     Mrs Heather Fay Hockey was then sworn as witness tendering a proof of evidence almost identical to that of her husband.    She confirmed that her husband had been under stress for many years and their joint venture in the caravan park and later share ventures and property dealings had not been fruitful.   She said there were many frustrations in trying to manage the caravan park, arising from the behaviour of some clients.    She was aware of her husband’s share and property dealings, but was not actively involved in any way.   She had earned her keep as a cook at Missiondale, but had not been paid any wages and considered there were unreal expectations by management.

22.     Under cross-examination she stated disposal of the caravan park was not an attempt to achieve a capital gain; it was essential if she and her husband were to achieve a less stressful life.    This did not really eventuate, since he could not work with people and his business dealings were risky and largely unproductive.   She did not know the details of any of these transactions, but the Family Trust had suffered heavy losses and her husband had decided to give up such ventures.

23.     In written closing submissions, counsel for the applicant indicated Mr Hockey would rely upon the evidence of Dr Colm Moore, which he considered could be summarised as follows:

·     The applicant had suffered from post-traumatic stress disorder (PTSD) since his Vietnam army service and arising from it.

·     The applicant has no current or future work capacity due to the chronic nature and severity of the PTSD.

24. Counsel also drew attention to evidence given by Dr Ernst, namely that the applicant suffers from a variety of other physical conditions (non-accepted disabilities), but nonetheless considered him capable of a variety of remunerative work for more than 8 hours per week, despite his physical conditions. Counsel noted that Mr Hockey’s attempts at self-employment via property investment and share trading, as well as voluntary work, did not really constitute “remunerative work” within the meaning of the Act, hence it had not been demonstrated he was capable of successfully undertaking remunerative work for more than 8 hours per week. This had not been contested by the respondent.

25.     In written final submissions by counsel for the respondent, it was argued that the last remunerative work undertaken by the applicant was in 1977 with no subsequent evidence of work being sought.   Dr Colm Moore had no convincing proof that the veteran had PTSD in 1997, it was in the realm of retrospective speculative analysis.   It could not be discounted that a caravan park purchased for $50,000 plus in 19709-71, subsequently sold for over $300,000 in 1977, could be regarded as a capital gain offering a strong inducement for the applicant to quit work.   Thus it was not necessarily war-caused disabilities alone, which led to remunerative work having ceased.

Analysis

26.     This is a de-novo investigation and the Tribunal is required to stand in the shoes of the original decision-maker, considering all evidence anew, noting statutory provisions and any relevant case determinations.

27. The relevant legislation is ss22, 23 and 24 of the Act. Section 22 sets out provisions for the general rate of pension and extreme disablement adjustment (EDA); s23 outlines criteria for the intermediate rate of pension; while s24 deals with the special rate.

28.     In order to qualify for the special rate the veteran must be less than 65 years old when the application or claim was made, with a degree of incapacity of at least 70 percent and incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, or suffering a loss of salary or wages that the veteran would earn if free of that incapacity.    The special rate is not payable if it can be demonstrated that the veteran ceased to engage in remunerative work for reasons other than incapacity of war-caused injury alone.

29. In more formal terms the Act specifies as follows( s24):

“(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.”

30.     In considering whether pension at the special rate should be granted, considerable emphasis is placed on the phrase “of itself alone” ; requiring clear demonstration that war-caused disabilities are the sole and principal cause of loss of employment or earning capacity.   See, for example Easton v Repatriation Commission (1985) 12 ALD 777, or more recent cases such as Hendy v Repatriation Commission (2003) HCA Trans 358 or Cavell v Repatriation Commission (1998) 9 AAR 534.

31.     As Deputy President Jarvis said in Graham and Repatriation Commission (2004) AATA 208, following analysis of Federal Court decisions such as Flentjar and Repatriation Commission (1997) 48 ALD 1; and Cavell earlier cited:

“The word "alone" as it appears in s 24(1)(c) requires a practical decision as to whether the veteran's loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran's inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran's case for pension at the special rate.”

32. Turning more directly to Mr Hockey’s situation, it is clear that after leaving the army and engaging in remunerative work as a maintenance painter for two years, he thereafter became self-employed in the sense of owning and managing a caravan park, engaging in speculative dealings about shares and property and pursuing voluntary work. This is hardly the kind of scenario the Act envisages; normally a situation where an individual is forced out of remunerative employment by his or her disabilities alone. In Mr Hockey’s case, at face value, it was his own choice, but a more exhaustive evaluation is required to assess the impact of operational service on his claimed disabilities and capacity to undertake remunerative work, before a decision can be made as to eligibility or not for pension at the special rate. In particular, the medical evidence should be noted.

33.     In reports dated 28 July 2003, 5 and 11 May 2004 and 9 February 2005, Dr Andreas Ernst, Occupational Physician, noted the veteran claimed to be suffering a range of disabilities other than those already accepted as service-related.    Having considered these and all other available evidence he reached an opinion the veteran was still capable of working in some vocations 8 hours per week or more, although some task modifications and other limitations might apply.   He based this assessment on a Job Suitability Analysis considering 100 jobs used between 2001 and 2003 in Tasmania for redeployment purposes.   Allowing for back/shoulder/arm problems, as well as knee/leg disabilities, in each case more than 60 positions out of 100 were judged suitable, with some modification.

34.     Dr Ernst was emphatic that he was considering physical capability only and not mental health factors, since he did not possess appropriate qualifications in psychological or psychiatric specialisations and would defer to experts in such fields. His general impression was that if PTSD (post-traumatic stress disorder) existed, this would be a very significant factor in situations where physical disabilities existed as well.

35.     In a report dated 23 June 2003, Dr Colm Moore, reported an assessment of Mr Hockey’s mental condition at that time.   He noted the veteran had multiple intrusive recollections, disturbed dreams and nightmares, difficulties of concentration, yet hyper-vigilance.   The armed forces had not recognised PTSD in the late 1960’s, nonetheless many Vietnam veterans had been diagnosed since.   Mr Hockey made frequent reference to stress and anxiety at the time and subsequently, but because of his religious convictions, had not sought relief through alcohol and tobacco, as many others had done.

36.     Dr Moore stated an opinion, on the balance of probabilities, that Mr Hockey was suffering from PTSD in 1977 and this was the cause of him ceasing business at the time and not resuming paid employment other than periods of voluntary work later.   Mr Moore stated it was commonplace amongst Vietnam veterans he had treated, for them to prefer home-based self employment and paced work such as Mr Hockey had pursued after 1977.

37.     In telephone evidence at the AAT hearing on 25 February 2005, Dr Moore confirmed this assessment, indicating that although he could not prove Mr Hockey had PTSD in 1977, the Vietnam war was the only causative factor he could identify and the veteran’s behaviour between Army discharge and 1977 indicated stress and anxiety were already resulting in harmful incidents.   He concluded Mr Hocking had suffered PTSD ever since and it was highly unlikely any improvement in his situation would occur in the future, so there was no current or future work capacity.

38.     Although it has been contended Mr Hockey failed to pursue remunerative work from 1977 onwards, the Tribunal notes it could be argued that attempts to achieve financial independence by property and investment operations, could constitute a kind of de-facto personal employment, for an unknown number of hours per week at least until 1994.   Other periods were spent in voluntary youth work, arising from Mr Hockey’s religious beliefs.   Throughout, there is evidence of stress and anxiety, which did not lead to wise decisions by the veteran.

39.     The respondent has argued that diagnosis of PTSD in 1977 or earlier, is a speculative retrospective exercise, devoid of proof.    But the same might be said about claims that the veteran disposed of his caravan park in expectation of capital gains rather than to escape a stressful situation where various conflicts and clientele difficulties had made it difficult to cope.

40.     All available evidence suggests that Mr Hockey found difficulty in working with other people or operating under management supervision.   Dr Moore has concluded Mr Hockey’s mental situation is unlikely to improve and he has no current or future work capacity.   Dr Ernst believes some physical work capacity exists, albeit probably with work modification, but concedes that a combination of mental and physical disabilities would constitute a powerful barrier to work prospects.

41.     Having weighed all evidence before it, the Tribunal is of a view that on the balance of probabilities, Mr Hockey’s ongoing disabilities are such that remunerative employment for 8 hours per week or more is unlikely to prove achievable.   It is his war-caused disabilities which has created this situation.    The Tribunal has therefore decided to set aside the decision under review and in substitution thereof, determine that the applicant Leslie Charles Hockey should be paid pension at the special rate.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  k L Miller (Administrative Assistant)

Date/s of Hearing  25 February 2005
Date of Decision  8 April 2005
Counsel for the Applicant         Mr R Benson
Solicitor for the Applicant          Ogilvie Jennings
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent      Repatriation Commission