Hourigan Repatriation Commission
[2000] AATA 733
•21 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 733
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V98/709
VETERANS' APPEALS DIVISION)
Re: LESLIE MICHAEL HOURIGAN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mrs H. E. Hallowes, Senior Member
Mr I.L.G. Campbell, Member
Dr P. Fricker, Member
Date: 21 July 2000
Place: Melbourne
Decision:For reasons given orally after the hearing, the Tribunal varies the decision under review by deciding that the applicant is entitled to be paid pension at the intermediate rate under section 23 of the Veterans' Entitlements Act 1986, with effect from 1 November 1997.
(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS— rate — whether entitled to special rate — whether suffering ischaemic heart disease already accepted as war-caused — generalised anxiety disorder, gastro-oesophageal reflux disease, tinnitus, left bundle branch block, war-caused — whether capable of remunerative work for periods aggregating more than eight hours per week
Administrative Appeals Tribunal Act 1975 ss.37, 43(2A)
Veterans' Entitlements Act 1986 ss.9, 22, 23, 24, 28
Chambers v Repatriation Commission (1995) 36 ALD 207
Re Tinkler and Repatriation Commission (AAT 12018, 8 July 1997)
REASONS FOR DECISION
21 July 2000 Mrs H. E. Hallowes, Senior Member
Mr I.L.G. Campbell, Member
Dr P. Fricker, Member
At the conclusion of the hearing in this matter, the terms of the decision and the reasons therefor were stated orally. Before service upon the applicant's solicitor of a copy of the decision, the applicant's solicitor requested the Tribunal to furnish to him a statement in writing of the reasons of the Tribunal for its decision under subsection 43(2A) of the Administrative Appeals Tribunal Act 1975.
The oral reasons for decision were transcribed by Auscript, the Commonwealth Reporting Service. The transcript of the oral reasons is furnished to the applicant's solicitor and to the respondent as the statement in writing of the reasons for the Tribunal's decision.
This matter has had a protracted history. It was on 1 October 1996 that Mr Hourigan lodged a claim that his anxiety state be accepted as war-caused under section 9 of the Veterans' Entitlements Act 1986 ("the Act"). He provided a report from Dr E. Cole, psychiatrist, dated 2 August 1996, which was apparently obtained after he consulted a solicitor. Dr Cole observed:
He showed no evidence of emotional disorder and gave what appeared to be a straight-forward account of himself and his problems.
The only medication Mr Hourigan was taking was Losec for a gastro-intestinal complaint. Dr Cole expressed the opinion that Mr Hourigan is suffering from a chronic anxiety state of mild to moderate degree. On 17 April 1997, Mr Hourigan's general anxiety disorder was accepted as war-caused by the Repatriation Commission, which also determined that pension be paid to him at 50 per cent of the general rate under section 22 of the Act. The decision was affirmed by the Veteran's Review Board ("the VRB"). On 23 June 1998, Mr Hourigan's solicitor lodged an application for review of that decision with this Tribunal with respect to the rate of pension payable.
The matter first came on for hearing on 28 June 1999, before a differently constituted Tribunal. Mr Hourigan gave evidence at that time, as did Dr W. Stone, rehabilitation and occupational physician, and Professor R. Harper, cardiologist. The matter was then adjourned to allow the parties to provide the Tribunal with further medical evidence. During the adjournment, the presiding member of the Tribunal ceased to be a member and the Tribunal has therefore been reconstituted. When the matter resumed over 12 months later, it was agreed by the parties that the transcript of evidence of the first day of hearing would be relied on. Mr Hourigan and Dr Stone gave further oral evidence, and oral evidence was also given by Dr L. Walton, psychiatrist. His report dated 21 September 1999 was before the Tribunal, which took into evidence exhibits which had been taken into evidence by the earlier Tribunal in June 1999. The Tribunal also had before it two further reports from Dr Cole, dated 9 September 1999 and 2 February 2000, and sick leave records from the Public Correctional Enterprise ("CORE"), for which Mr Hourigan worked between November 1983 and October 1996. Mr Hourigan was retrenched by CORE when correctional services were privatised. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents").
The only issue for the Tribunal to consider is the rate of pension payable to Mr Hourigan which arises under subsections 23(1) and (2) and section 24(1), and section 28 of the Act, which provide, so far as relevant:
23(1) This section applies to a veteran if:
. . .
(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;
. . .
(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.
. . .
24(1) This section applies to a veteran if:
. . .
(b)the veteran is totally an 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;
. . .
28 In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade, and professional skill, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
It was agreed that, if Mr Hourigan is entitled to be paid pension under either section 23 or section 24 of the Act, the date of effect of such decision is 1 November 1997. Since the decision of the Repatriation Commission was made, the Repatriation Commission has made further decisions increasing the rate of pension payable to Mr Hourigan under the Act to 100 per cent of the general rate, and his emphysema has been accepted as war-caused. The documents disclose that Mr Hourigan also has his gastro-oesophageal reflux disease, tinnitus, left-bundle branch block, generalised anxiety disorder and ischaemic heart disease accepted as war caused. He has no rejected disabilities.
Mr Hourigan was born on 2 August 1946. He served in the Royal Australian Navy, being discharged in March 1977. He served in Vietnamese waters on 27 December 1967, 3 February 1968, 9 April 1968, 1 June 1968, 20 November 1968, 15 February 1969, 19 May 1969, 5 April 1969, and from 2 May 1971 to 23 May 1971.
This application is unusual because Mr Hourigan's ischaemic heart disease has been accepted as war-caused, but tests have now disclosed, and three cardiologists have expressed the opinion, that Mr Hourigan does not suffer from ischaemic heart disease. The disease remains, however, an accepted disability under the Act. The Tribunal is satisfied that ischaemic heart disease does not render Mr Hourigan incapable of undertaking remunerative work.
Mr Hourigan was seen again by Dr Cole and reviewed on 18 August 1999. Dr Cole reported on 9 September 1999:
In reply to further questions he said that sometimes his mates said he was out of his tree as his mind wandered a bit. He had used up all his sick leave before he stopped work as he did not feel like working. He had known for three years that he was about to be retrenched.
Dr Cole observed:
Once again he showed no evidence of emotional disorder and gave what appeared to be a straightforward account of himself and his problems.
Dr Cole expressed the opinion:
. . . Mr Hourigan continues to suffer from what is essentially a generalised anxiety disorder of mild to moderate degree. His condition has stabilised . . .
And further in his report of 2 February 2000:
. . . I further note that he has worked for a total of only about six weeks since his retrenchment and has been in receipt of the Disability Support Pension since 1997. He had earlier looked for work, but without success and could no longer be bothered applying. I further note that he is still troubled by symptoms of a generalised anxiety disorder including impaired concentration and memory that would make it difficult for him to apply himself to work.
In the view of the above I think it reasonable to accept that his generalised anxiety disorder would prevent his working more than eight hours a week.
. . .
This further report was provided in response to a letter from Mr Hourigan's solicitor. Dr Cole's opinion with respect to the degree of Mr Hourigan's generalised anxiety disorder is in accord with the opinion expressed by Dr Walton and Dr Stone.
Dr Walton examined Mr Hourigan on 19 August 1999. He reported:
. . . I note that Mr Hourigan does have an accepted war-caused generalised anxiety disorder and, as far as a diagnostic component of that is concerned, it is certainly my view that he would qualify for a diagnosis of a generalised anxiety disorder.
. . . he may be a so-called somatiser; that is, subjective distress is given expression by way of seemingly physical symptoms.
. . . If he is suffering from those symptoms and the basis of ischaemic heart disease then his self-assessment is likely correct. However, if the symptoms are psychogenic in nature then he would not actually be placing himself at risk by attempting such work despite suffering from the problems. In relation to security work, Mr Hourigan is certainly well qualified to perform such duties because of his previous experience as a prison officer, however, I accept his contention that he remains of too volatile mood to safely carry out such work. I note that he has previous brief work experience as a sales clerk but he would likely be precluded from customer contact also because of his irritability. However, Mr Hourigan's psychological symptoms are not of great severity, as partly illustrated by the fact that he has never acquired any psychiatric treatment, and I am not convinced that he is totally precluded from employment. If a position could be identified for this man where contact with other persons was minimised and the duties were not excessively physically demanding, then I believe he would be capable of working for more than eight hours per week.
In my opinion this man's anxiety disorder would prevent Mr. Hourigan from working for more than 20 hours per week.
. . .In oral evidence to the Tribunal, Dr Walton affirmed that Mr Hourigan's generalised anxiety disorder was mild to moderate, not very severe. He noted Mr Hourigan had not sought any treatment. The indications for treatment were not very pressing. In his opinion, Mr Hourigan's work capacity is compromised, but he is capable of working more than eight hours each week. Once working, he may in fact be able to move towards half time work, but he should avoid argumentative and stressful work environments. In light of the decrease in his concentration, he should avoid prolonged periods of work. In Dr Walton's opinion, Mr Hourigan would have no difficulty with light bench work. He could also work as a driver, as long as the work was not physically demanding, or in stores if no intense interpersonal contact was involved.
Dr Stone saw Mr Hourigan twice, in late 1997 and again in October 1998. In his first report, Dr Stone noted that Mr Hourigan had not received any treatment at all for his anxiety condition. He stated that it was surprising that somebody could be off work for 12 months due to the effects of anxiety and not be provided with treatment, assuming "that is really the case". Dr Stone expressed the opinion:
In light of his past work experiences, and his education and training, it could reasonably be said that he could not cope with work greater than 20 hours per week.
In his oral evidence to the Tribunal, and on the second day of hearing, Dr Stone confirmed his evidence on the first day of hearing with respect to the work Mr Hourigan could perform:
. . .
Now, with the work, checking-in, checking-out visitors, checking on the computer, if we ally with that the work that you did at Glenroy RSL in paying accounts and checking the takings, he started to work on a budget which was obviously a complex task, would there be some clerical work at the lower levels of public service or private enterprise which he could do?---Yes, I think so.
Perhaps also not in an office environment but on the wharves or in a store, the type of work done by a tele-clerk, sort of making entries on the movement of stock or movement in and out of trucks and that type of work, entering things in books, could he do that type of work?---Yes, I think so.
I asked him about light industrial work like assembling small industrial items, I put the example of a small electrical motor that is used in common Kambrook Mistral fans, which is not skilled work but the type of work somebody with a short amount of instruction could probably do. It is not heavy manual work, which Dr Harper says he couldn't do but light physical work in an industrial environment. Do you think he could do that type of work?---Yes.
That would be for more than 20 hours per week?---Well, it could be for more than 20 hours a week but the - you'd have to take into account more than just the physical work for Mr Hourigan. It has to be a situation where, for whatever reason, it is not anxiety provoking, where they've got to meet quotas or whatever the pressure might be.
. . .
The thrust of Dr Stone's evidence was that Mr Hourigan should not be exposed to unreasonable or aggressive people and situations with productivity requirements, because of his generalised anxiety disorder.
Mr Rudge, an advocate with the Department of Veteran's Affairs, who appeared for the Repatriation Commission at the hearing, referred the Tribunal to what was said by the Full Federal Court in Chambers v Repatriation Commission (1995) 36 ALD 207, at pages 218 and 219, with respect to section 28 of the Act, and to what was said by the Tribunal in Re Tinkler and Repatriation Commission (AAT 12018, 8 July 1997). In Chambers, the Full Federal Court had this to say:
. . . The phrase "remunerative work" is defined in the widest terms, to mean "any remuneration activity". Thus the ultimate inquiry to which s 28 is directed is whether the veteran's war-caused capacity, of itself, has rendered that veteran incapable of undertaking any remunerative activity. It is in relation to this inquiry that s 28 specifies the matters — and the only matters — that are to be taken into account. The ultimate inquiry is not expressed to be whether the veteran's war-caused incapacity has rendered him or her incapable of undertaking employment of the kinds for which his previous work history provided training or relevant experience.
. . .
[T]he effect of s 28 is to exclude a number of matters which otherwise might have been relevant to the determination required by s 24(1)(b). Such matters as depressed labour market conditions are excluded from consideration for the purposes of s 24(1)(b).
. . .
Section 28(b) focuses attention upon a range of employment opportunities that a hypothetical person with the skills, qualifications and experience referred to in s 28(a), might reasonably undertake.
. . .
It should also be observed that the primary question posed by para (b) is not what an employer might do, nor even what the particular member might do, but what a hypothetical person with the relevant skills, qualifications and experience "might reasonably undertake". . . . The criterion is a broad one which relates to categories of employment and not to particular occupations. It is concerned with a range of occupations open to the person described, . . .
In Re Tinkler, the Tribunal said, at paragraph 79:
79. As to whether Mr. Tinkler might reasonably undertake such work, it was his view that he would become frustrated working at such a low level. However, that is not to the point. The point is whether, having regard for the matters referred to in subsection 28(1)(a), the undertaking of employment by Mr. Tinkler as a clerk or book-keeper would be reasonable.
The Tribunal is satisfied that Mr Hourigan had a good work history until 1996. He has undertaken some further work which proved to be unsuitable for him because of its heavy nature and the chest pain he experienced. He gave evidence that when he applied for work with Skilled Engineering, along with 1200 other applicants, after various testing procedures, he was one of the remaining 12 applicants to be selected to undertake a physical test, by swimming a hundred metres fully clothed in the Yarra River. He chose not to undertake this test, in light of his chest pain and breathing difficulties. On the first day of hearing, in response to the question:
The job you applied for with Skilled Engineering on the wharf, you mentioned a moment ago - I think my understanding was it required you to have a number of skills?---That's right.
The questions continued:
Was it eight types of skills that you had to have?---Yes, I think it was eight. Eight or nine, something like that.
You, I believe, have licences for all those skills?---That's correct, yes.
. . .
The licences are issued by someone like the Department of Labour?---And Victorian Government, I presume.
. . .
Do you believe you could do that type of work now, this type of security work where you check your visitors in and out like we see around city buildings, security men at the doors?---No, I don't think so.
Mr Hourigan gave evidence with respect to the work he carried out as a committee-man and treasurer of his Returned Servicemen's League branch and as president of that branch's golf club. He plays golf regularly, approximately each fortnight, off a handicap of 18. When he was treasurer, he attended at the RSL branch from approximately 9:00 till 9:30 each morning till lunch time six days a week. He walks the perimeter of a golf course exercising his dogs. On 28 June 1999, he told the Tribunal:
Well, I walk about 4.2 ks every morning so - I just - I think I eat a lot and drink a lot but so I'm fit enough for my age, I think.
The Tribunal accepts the contentions of Mr Rudge on behalf of the Repatriation Commission that Mr Hourigan has considerable skill and experience following his 11½ years in the Navy, which included time as a quarter-master gunner, and his later work driving vehicles, security work with CORE, and his committee responsibilities with the branch of the RSL. A person with his skill and experience and the licences he holds might reasonably undertake remunerative work in the security industry, either in prisons or protecting premises or approving the passage of people in and out of entertainment or sporting venues. He is also qualified as an industrial painter and as a truck-driver or courier, or in stores work, packing shelves and recording goods on a computer.
The reports of the cardiologists point to Mr Hourigan's chest pain as not being ischaemic in origin. That accepted condition does not reduce his capacity for any of the above work. His generalised anxiety disorder does however affect his work capacity and his work options, both physically and mentally. His irritability reduces his concentration and his intermittent chest pain reduces the type of work he can undertake and limits the number of hours he can work, as described by Dr Walton, as does his breathlessness.
However, Mr Hourigan is not rendered incapable of undertaking remunerative work by his war-caused diseases. Dr Walton and Dr Stone are in agreement that he could work for periods aggregating more than eight hours per week. His anxiety is mild. Mr Hourigan does not think his tinnitus impacts on his ability to concentrate. His gastro-oesophageal reflux disease is assisted by medication. His generalised anxiety disorder limits the type of work he can do, but enables him to work in non-confronting environments. Work through the Corp Commissionaires in suitable locations, or stores work in a non-hostile environment would be suitable for him.
His evidence with respect to his weekly routine points to him being able to work for a few hours five days each week. The Repatriation Commission has conceded that the intermediate rate under section 23 of the Act is payable to Mr Hourigan from 1 November 1997, and the evidence before the Tribunal supports such a decision.
The Tribunal will therefore vary the decision under review.
I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
Mr I.L.G. Campbell, Member
Dr P. Fricker, Member
(sgd) Catherine Thomas
Personal AssistantDates of Hearing: 28.06.99, 18.07.00
Date of Decision 21.07.200
Solicitor for the Applicant: Mr D. De Marchi, De Marchi & Associates
Solicitor for the Respondent: Mr K. Rudge, Departmental Advocate
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