Hore and Repatriation Commission - [2000] AATA 1090

DECISION AND REASONS FOR DECISION [2000] AATA 1090

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1128

VETERANS' APPEALS DIVISION       )
           Re      ROBERT HENRY HORE
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen

Date12 December 2000
PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely: THAT the Applicant, Robert Henry Hore, is entitled to pension for incapacity occasioned by all war-caused injuries and diseases at the Special Rate as provided by s24 of the Veterans' Entitlements Act 1986 as and from 7 April 1997.

(Sgd)       M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Claim for Special Rate Pension. Veteran under 65. Whether genuinely seeking to engage in remunerative work.
Veterans' Entitlements Act 1986 - s24
Cavell v Repatriation Commission 9 AAR 534

REASONS FOR DECISION

12 December 2000 Senior Member M D Allen

By application lodged 27 July 1999 the Applicant sought review of a determination by a delegate of the Respondent, as affirmed by a Veterans' Review Board, continuing the rate of Disability Pension payable to him at 100% of the General Rate.
In these proceedings the Applicant maintains that pension should be payable to him at the Special or Totally and Permanently Incapacitated Rate as prescribed by s24 of the Veterans' Entitlements Act 1986 (the VEA). Section 24 of the VEA states inter alia:
"(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 Applicant, who was born on 26 October 1935, has the following disabilities accepted as being war-caused, namely sensorineural deafness, post traumatic stress disorder, hypertension, chronic bronchitis and gastro-oesophageal reflux. On 7 April 1997 he lodged his claim for increase in pension with the Respondent, therefore it is at this date that the Tribunal must consider whether the criteria for the grant of pension at the Special Rate have been met – see s21 of the VEA. This does not, however, prevent the Tribunal from finding that the Applicant was entitled to the said Special Rate pension at a later date – see Jebb v Repatriation Commission 8 AAR 285.
The Applicant served in the Australian Regular Army for 24 years, retiring in 1976 with the rank of Staff Sergeant. He then found employment at Singleton Army Camp as a dishwasher. After 12 months he was employed in the base printing shop for two years. He then obtained a position as a gatekeeper at the Saxonvale coal mine site.
After construction of the Saxonvale Mine was completed, the Applicant obtained another position within the mine as a tradesman's assistant and in the coal washer where he had to operate machinery. After an accident whilst operating machinery caused, the Applicant told Dr Baz, by his lack of concentration, the Applicant was reverted to cleaning duties including cleaning toilets. His treating psychiatrist, Dr Lambeth, recommended that he retire from the workforce in May 1995, however, he was able to continue to work, albeit with periods of sick and annual leave, until he was compulsorily retired at age 60.
In evidence to the Tribunal the Applicant stated that because of ill health in the last eight months of his working life, he had been absent from work for 66 days, being a combination of sick leave and recreation leave.
Contained within Exhibit R5, the clinical notes of Dr Lambeth, is a report to the Applicant's general practitioner, Dr Meredith, dated 18 June 1995. In that report Dr Lambeth opines (Exhibit R5 pp17-19):
"In my opinion, Mr. Hore is most definitely suffering from a severe degree of chronic Post Traumatic Stress Disorder. He meets all of the requirements found in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994), of the American Psychiatric Association for this diagnosis to be made.
…
… So far as the effects of this are concerned, he is simply not relaxed in any normal social environment, he has no confidence in his ability to carry out home duties, he avoids driving, he will not shop, and he avoids any involvement in family financial matters. He is frequently angry and frustrated. At work, he has major difficulties because he cannot be involved in anything which appears to be stressful. He cannot gain a heavy machinery licence, there is constant conflict and friction with fellow workers, and he does not attend any social activities related to work.
In addition to this he avoids almost all social contact, and cannot establish long term bonds. There are arguments within the home, and very limited family contact. This is because he is moody, aggressive, and generally considered difficult to get on with. He has no personal leisure or sporting activities."

In a later reported dated 9 December 1995 to Dr Meredith, Dr Lambeth states Exhibit R5 p22):
"I agree with Mr Hore leaving work. I do not believe that he is capable of dealing with a work situation. I have in fact recommended to Mr Hore that he apply for a TPI pension on this basis, and would quite categorically state that in my opinion he is not capable of working eight hours per week due to his Post Traumatic Stress Disorder. I note that he has other accepted disabilities such as high blood pressure and tinnitus as well as gastrointestinal symptoms and these may well contribute. Nevertheless, there is no doubt his Post Traumatic Stress Disorder is quite severe, and he would not be able to work because of this."

I place particular emphasis upon these reports as they were furnished to Dr Meredith in 1995, that is to say well prior to the Applicant making any application for an increase in pension, and were forwarded to the Applicant's general practitioner for treatment purposes and not as medico-legal reports. I also note from the evidence that the Applicant did not seek a Special Rate pension in 1995 or 1996 but attempted to find employment.
Notwithstanding the reports and recommendations of Dr Lambeth, after a rest over the Christmas period after retiring in October 1995, the Applicant began to look for employment in the Singleton area. He is restricted to the Singleton area as his post traumatic stress disorder makes it difficult and stressful for him to drive over great distances. Amongst the jobs he applied for were those of a tyre changer, cleaner and bar useful. He had also contacted Centrelink but was simply advised to read the job vacancies posted up in that office.
Contained within the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975 are several letters from employers in the Singleton area evidencing the fact that the Applicant had approached them seeking work and that, because of his disabilities, they had been unable to offer him any work.
In its reasons for decision the Veterans' Review Board found that the Applicant had not been genuine in seeking work, without descending to particularity as to why it came to this conclusion. A conclusion for which there is not a scintilla of evidence.
Dr Lambeth, in his report quoted above, has pointed out that the Applicant was involved in conflict and friction with co-workers because of his post traumatic stress disorder, and that he was aggressive and generally considered difficult to get on with for the same reason. Obviously such a person is an employment risk as any action taken to be harassment or vilification can result in an employer being held vicariously liable and subjected to an award of damages. Apart from the fact that the Applicant's other disabilities made him a worker's compensation risk.
That the Applicant was genuine in his efforts to obtain work was brought home in his reply to a question in cross-examination. Obviously upset, he retorted "I wanted to work. I'd do anything", adding "they haven't walked the streets of Singleton".
That the Applicant was genuine in seeking to work is also borne out by the fact that having been a senior non-commissioned officer in the Army, he was content to clean toilets at the mine in order to preserve his employment. Likewise, one would have thought that Singleton Shire Council would have positions to offer him if it were not for his disabilities.
The Respondent, in seeking to make a case that the Applicant was not genuine in seeking work, served notices pursuant to s128 of the VEA on three prospective employers. Their replies became Exhibits A7, A8 and A9. These documents do not support the Respondent's arguments.
Similarly, although the Respondent pointed to the Applicant being acquainted with the persons from whom he sought work, I do not regard this as evidence of a sham. It is not a matter for adverse comment that a person looking for employment approaches employers of labour who are known to him. Indeed, as one of the persons concerned was the Works Manager of Singleton Shire Council, it would have been a ground for criticism if the Applicant had not, knowing this person, approached him. As I have stated earlier there is no evidence, as opposed to suspicion and conjecture, that the approaches were anything but genuine.
I would also add that, having seen and heard the Applicant give evidence and be cross-examined, I am totally satisfied as to his bona fides and that he was genuinely seeking to re-enter the workforce.
Dr Lambeth's latest report on the Applicant is dated 13 June 2000. That report, again to Dr Meredith, states inter alia (Exhibit A3):
"As you can see, his symptoms are still there, in addition to which he is very depressed. There are many symptoms of anxiety, … This shows the consistency of his symptoms, and the difficulty of really getting rid of the symptoms, despite being compliant with treatment.
I am making a number of recommendations. Firstly, that we change his Aurorix to Cipramil, as I think it may work a little better. Secondly, I will give him some relaxation and slow breathing to do. Thirdly, I would like to see him regularly for ongoing psychotherapy. Fourthly, I think that he should make a submission to the Department of Veterans' Affairs about the possibility of him not working. It is evident that due to his poor concentration, his depression, and his anxiety symptoms, all caused by his Post Traumatic Stress Disorder, that he is really unable to work for eight hours per week at present. I do not see this changing materially in the future."

Exhibit R2 is a report to the Respondent by Dr Vickery, Psychiatrist, dated 31 January 2000. It was Dr Vickery's opinion that the Applicant's post traumatic stress disorder would not preclude him from employment. As Dr Vickery only saw the Applicant for forensic purposes, I am more persuaded by the opinions of Dr Lambeth who has had ongoing contact with the Applicant since 1995.
Dr Graham, who is an occupational physician, also disagreed with Dr Lambeth's assessment of the severity of the Applicant's post traumatic stress disorder. As Dr Graham has no qualifications in psychiatry, I reject his views where they disagree with the opinions of Dr Lambeth. I do, however, accept Dr Graham's opinions as to the effects of other disabilities. In his report (Exhibit R3), Dr Graham states:
"In essence at this stage Mr. Hore presents as an obese man with well-controlled non-insulin dependent diabetes mellitus and no other significant physical disorders. The only material medical condition which might affect his work capacity is his post traumatic stress disorder which is a psychiatric condition."

In evidence Dr Graham stated that the main impediment to work is the Applicant's post traumatic stress disorder.

This later opinion by Dr Graham is consistent with the opinion of Dr Baz, Occupational Physician, who saw the Applicant at the request of his solicitors. Her report dated 5 May 2000 is Exhibit A2.
In that report Dr Baz opines, after taking a full history from the Applicant and examining him:
"In my opinion the post-traumatic stress disorder has significantly impacted on Mr Hore's work fitness over a number of years. It was the basis for his change of duties and his unacceptably high accident risk in the mine washery and as a truck driver working for the mines. He was able to physically perform his cleaning duties over the last 12 months of his employment but took frequent leave apparently on the basis of anxiety and depression related to the post-traumatic stress disorder. I consider Mr Hore's ability to lose weight and control multiple medical conditions in the absence of work related stressors, after leaving work, is indicative of the difficulty he was experiencing in the workplace.
In my opinion his ability to obtain alternative work after leaving the mine would have been significantly limited by his anxiety and depression. His ability to present confidently to a potential employer and, even if awarded a position, to attend regularly and deal appropriately with co-workers and clients would have been markedly limited by the post-traumatic stress disorder.
The high level of unemployment in his local area for persons of his age and restricted work skills would be an additional factor limiting his work ability, in addition to the post traumatic stress disorder, however he was physically fit to undertake a wide range of occupations, including that of garage console operator or trades assistant. I consider he would not have been able to attend regularly or deal appropriately with co-workers and clients because of the effects of the post-traumatic stress disorder, and hence could not do this physically suitable work.
It is my conclusion that of the factors which have restricted his work capacity the post-traumatic stress disorder is the most significant.
CONCLUSIONS
In my opinion Mr Hore is unfit for work of 8 or more hours duration weekly.
In my opinion the substantial reason for his inability to obtain employment is related to his accepted condition of post-traumatic stress disorder.
I do not consider his obesity has prevented him from obtaining work. I find no evidence of orthopaedic problems which would impact significantly on his work fitness. In my opinion his other identified medical conditions would not preclude him from full-time work."

As, at the application day, the Applicant was in receipt of pension at 100% of the General Rate, the real consideration in this matter is his ability to engage in remunerative work. Having regard to the reports of Drs Lambeth and Baz, together with the report and evidence of Dr Graham regarding physical impediments to work, I am satisfied that as at the application day and thereafter it was incapacity from war-caused disease, alone, which rendered the Applicant incapable of undertaking remunerative work for more than eight hours a week.
As to the "alone" test, Burchett J in Cavell v Repatriation Commission 9 AAR 534 at 539 said that the true task of the Tribunal was:
"… - to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."

Again, having regard to the evidence before me I am satisfied that it was war-caused incapacity alone that prevented the Applicant obtaining remunerative work. The Applicant was compulsorily retired from the Saxonvale Coal Mine but at age 60 was still, all things being equal, capable of unskilled employment. I am satisfied on the material before me that after ceasing work at Saxonvale Mine, the Applicant made genuine attempts to re-enter the workforce but was prevented from doing so by incapacity from his war-caused diseases alone.
The situation facing the Applicant upon attaining age 60 was not an uncommon one. He was able to cope with employment by reason of a sympathetic employer. Once removed from that situation his war-caused incapacities made it impossible for him to sell his labour on the open market. This is precisely the sort of situation that paragraph 24(1)(2)(b) is designed to cover and I find that the Applicant, as at the application day, brought himself within the provisions of that ameliorating provision.
The decision under review will therefore be set aside and the Tribunal substitutes in lieu thereof its decision, namely that the Applicant is entitled to pension at the Special Rate as and from 7 April 1997.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed:       Kwai-Ling Wong           .....................................................................................
  Associate
Date of Hearing  21 November 2000
Date of Decision  12 December 2000
Counsel for the Applicant        Mr C A Vindin
Solicitor for the Applicant         Mr I Taylor, Crisp & Associates
Solicitor for the Respondent    Mr S Modder, Department of Veterans' Affairs

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Hore and Repatriation Commission [2000] AATA 1090

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