Howden and Repatriation Commission
[2001] AATA 791
•18 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 791
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1325
VETERANS' APPEALS DIVISION )
Re Steven John Howden
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Dr J Campbell, Member
Date18 September 2001
PlaceSydney
Decision The decision under review is set aside and in substitution therefor, the Tribunal decides that Mr Howden is qualified for payment of pension at the Special Rate with effect from and including 20 October 1999.
..............................................
Ms SM Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - Assessment - Special Rate
LEGISLATION
Veterans' Entitlements Act 1986 (Cth): ss 24, 28
Authorities
Hall v Repatriation Commission (1994) 33 ALD 454
Cavell v Repatriation Commission (1988) 9 AAR 534
Tomlin v Repatriation Commission [1997] 705 FCA
Chambers v Repatriation Commission (1995) 55 FCR 9
Repatriation Commission v Smith (1987) 15 FCR 327
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
18 September 2001 Ms S M Bullock, Senior Member Dr J Campbell, Member
This is an application for review by Mr Steven John Howden of a decision made by the Repatriation Commission ("the Commission") on 8 November 1999 (T2), as affirmed by the Veterans' Review Board ("the Board") on 30 May 2000 (T16).
A hearing was held in Sydney before the Administrative Appeals Tribunal ("the Tribunal") on 4 July 2001. Mr Howden provided oral evidence to the Tribunal and was represented by Mr R Sherlock, Advocate with the Veterans' Advocacy Service of the Legal Aid Commission of New South Wales. The Respondent, the Commission, was represented by Ms G Pacey, Departmental Advocate. Taken into evidence were documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T29) in addition to the following exhibits:
Exhibit Number Description Date
A1 Report by Dr R J Butler, Consultant Physician 3 January 2001
A2 Applicant's Statement 20 November 2000
A3 Applicant's Further Statement 29 May 2001
R1 Report by Dr J W Shand, Psychiatrist 17 February 2001
R2 Supplementary report by Dr J W Shand, Psychiatrist 8 April 2001
R3 Supplementary report by D J W Shand, Psychiatrist 9 May 2001
R4 Report by Dr G Hall, Occupational Physician and Consultant Physician 22 January 2001
R5 Supplementary report by Dr G Hall, Occupational Physician and Consultant Physician. 20 February 2001
R6 Service documents and records, Department of Defence Various dates
issue
The issue to be determined in this matter is whether or not Mr Howden is qualified for payment of pension at the Special Rate, an earnings-related pension.
LegislationA determination in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act"). Qualifications for an earnings-related pension at the Special Rate is dealt with under the provisions of section 24 of the Act. Section 24 as relevant states:
"Special Rate of Pension(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
… "
Section 28 of the Act deals with the capacity to undertake work and as relevant states:
"Capacity to undertake remunerative work
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 skills, 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).
…"
Background
The following information is provided by way of background and the material contained within is not in dispute.
Mr Howden was born on 27 March 1939.
Mr Howden attended school until age approximately 15 years. He then undertook an apprenticeship as a sheet-metalworker and welder for approximately five years. Mr Howden worked for a number of companies until he joined the Royal Australian Navy.
Mr Howden enlisted in the Royal Australian Navy in 1965 and was discharged in 1981.
Mr Howden was married in 1967 and divorced in 1972. He remarried in about 1975.
In 1981, Mr Howden joined the Department of Defence in a civilian position. He was employed at Port Services Sydney, Department of Defence – Navy, Garden Island.
Mr Howden has the accepted war-caused conditions of post traumatic stress disorder, solar skin damage, gastritis and pleural plaques.
On 5 January 1998, Mr Howden ceased working with the Department of Defence (T10, p11).
On 20 October 1999, Mr Howden lodged an application for an increase in pension with the Department of Veterans' Affairs. He wrote:
"…I seek a Special Rate pension. My accepted disabilities prevent me from working. Without them, I would still be working (T10, p10).
On 8 November 1999, the Commission decided to allow Mr Howden's application for an increase in his Disability Pension and assessed pension at 100 per cent of the General rate (T2) with effect from 20 October 1999. The Commission decided that Mr Howden was not qualified to receive the Special Rate of pension. A delegate of the Commission noted that the evidence on Mr Howden's file indicated that the reasons for his cessation of employment were not solely attributable to the effects of his accepted disabilities. The delegate noted that it was apparent that had a position been offered to Mr Howden when new management took over his workplace, he would have elected to take it. Further, the delegate noted that factors associated with work-related stress were, in part, accountable for an overall deterioration in Mr Howden's sense of well being. It was also noted that Mr Howden had made a decision to accept voluntary redundancy. In such circumstances, the delegate determined that it was not Mr Howden's accepted conditions which were the sole reason for his not engaging in remunerative employment (T2, pD).
On 8 December 1999, Mr Howden lodged an application for review to the Board (T13).
On 30 May 2000, the Board affirmed the decision under review, concluding that:
"…On balance, the Board considered there were a number of factors for Mr Howden's leaving work and, in those circumstances he does not satisfy the requirements of the "alone" test in section 24 (1)(c) …" (T16 p36)
On 17 August 2000, Mr Howden lodged his application for review to the Tribunal (T1).
In relation to his psychiatric condition, Dr G Altman, Consultant Psychiatrist, first reported on Mr Howden on 31 May 1994. Mr Howden had been referred to Dr Altman by his General Practitioner, Dr M Purcell. Dr Altman diagnosed Mr Howden as suffering from chronic post traumatic stress disorder and major depression. At that time, Mr Howden was prescribed an anti-depressant and Dr Altman commenced treating him also through "supportive psychotherapy and cognitive-behavioural therapy" (T20, p49).
On 25 May 2000, Dr Altman provided a report to the Board opining that Mr Howden continued to suffer from severe chronic post traumatic stress disorder with associated major depression and alcohol abuse. Dr Altman assessed Mr Howden's incapacity from "his war-related psychiatric conditions" using Chapter 4 of the "Guideto the Assessment of Rates of Veterans' Pensions" ("the Guide") as 48 points (T15, pp30, 31). Dr Altman opined that Mr Howden should be placed on a "TPI" pension. He reported:
"…The reason he stopped working is due to his Post-traumatic Stress Disorder alone. As you aware he took a voluntary redundancy from work. It is important to emphasize that he notified his work that he could not work any longer due to his war-related Post-traumatic Stress Disorder prior to his voluntary redundancy being offered to him. He stated that only once he had told his work that he had to stop working (as a result of his Post-traumatic Stress Disorder) that his work then outlined the various options and packages that were then open to him. He then took the voluntary redundancy as this was his best option. He was not offered a voluntary redundancy prior to him telling work that he had to stop work as a result of his Post-traumatic Stress Disorder…" (T15, p28).
Dr Altman further described the symptoms of Mr Howden's post traumatic stress disorder, including nightmares, recurrent, intrusive, distressing thoughts about his war experiences and his becoming distressed on exposure to any reminders of his war experience. Dr Altman noted that Mr Howden continues to be a loner, is generally detached from others, has difficulty showing affection towards his loved ones, suffers concentration impairment, is generally far more irritable and has an exaggerated startle reaction and is generally hypervigilant. Dr Altman noted that there has been some improvement in Mr Howden's marriage since he ceased work and he seems less stressed and less irritable. As at 25 May 2000, Mr Howden was continuing to take the medication "Lovan," 60mg each morning.
Evidence of Mr Howden
Mr Howden told the Tribunal that he left school when he was 15 years old. He undertook an apprenticeship as a sheet-metalworker, working in this capacity for approximately five years. Mr Howden then joined the Royal Australian Navy. He was not taken on as a metalworker but as a stoker. Mr Howden stated that he was 20 years in the Royal Australian Navy and worked his way up during this time to Chief Mechanical Engineer. Mr Howden then commenced work in the Department of Defence as a civilian. He supervised a civilian work force which he described as militant members of the Painters and Dockers Union and the Maritime Workers Union. Mr Howden was himself supervised by Officers from the Royal Australian Navy. Mr Howden told the Tribunal that the Naval Officers often did not recognise or work within the civilian chain of command. They would often give direct orders to the civilian workforce without checking with Mr Howden, who had the direct and only authority as the supervisor of the civilian workforce.
Mr Howden considered that on reflection, he was a poor supervisor for the last four or five years before he ceased work. The men he supervised knew he was stressed and used to "bait" him, for example, by refusing to undertake various work or by "going slow" in the work they were undertaking. Before his psychiatric problems started to manifest themselves about four or five years prior to his cessation of work, Mr Howden believed that he did not have a bad work record. As he began to feel increasingly unwell, he had consulted his general practitioner because he was not coping at work, was very stressed and would lose his temper frequently and easily. When Mr Howden was baited by his men, he would go into a "rage". At that point, he knew that he had lost control of the men he supervised. Mr Howden described being so stressed and agitated that he used to shake. Further, the workers would go out on strike because they did not like his making them work to what he considered to be acceptable and proper work standards.
Mr Howden described how the Naval Officers would undermine his authority with the civilian workforce. These officers were not authorised to give directions to the civilian workforce but they frequently did. Mr Howden had talked on many occasions to the officers about what amounted to their undermining his authority. He also attempted to explain their role to them on these occasions. Matters would then be alright for a while but the problem would re-occur. Mr Howden said he himself had a new Naval Officer supervisor every two years. He did not have performance reviews. Mr Howden told the Tribunal that he had never asked for a transfer to another job, though in hindsight, he thought he might have been able to do so.
Mrs Howden was frequently asking her husband to leave the job because of the stress it caused him and the problems it was creating within their marriage.
In the last two years prior to his cessation of work, Mr Howden had three major industrial disputes to deal with. It was also during this time that his supervisors spoke to him about controlling his temper. On one particular occasion earlier than this, Mr Howden had actually hit a Naval Officer in a fit of temper and had been charged. There were negotiations however and the charge was dropped.
Mr Howden told the Tribunal that he would build up such levels of stress that he would have to take sick leave, which was always certified by either Dr Altman or his General Practitioner, Dr Purcell. Mr Howden stated that he would take leave when he felt he could not cope any longer. On leave, he would try and think about his problems and how he was feeling and then try to work out ways of dealing with various stressful situations in a better and more constructive way.
Over the final two years of his work between 1995 and 1997, Mr Howden took nine months of sick leave. When he finally finished work, he still had over 12 months of sick leave owing to him. Mr Howden told the Tribunal that he had not taken this final period of sick leave merely to use up his entitlement before the cessation of work. Mr Howden stated that he took the sick leave because he was ill. Sick leave was mainly taken for his post traumatic stress disorder.
During the last few years at work, Mr Howden was also having marital problems, with many arguments between himself and his wife. He told the Tribunal that he yelled at his wife and was drinking a great deal. One of Mr Howden's daughters left home in 1991 because she could not stand the atmosphere at home any longer. Mr Howden told the Tribunal that constantly throughout this time he "was on edge".
Because Mr Howden felt he was not coping with work, he decided to take recreation leave to try and "sort myself out". Mr Howden explained that he felt at that time as if he was losing his sanity and his marriage. Mr and Mrs Howden talked about his situation when they were on leave together, including how he was feeling, issues concerning their marriage and his employment. Mr Howden told the Tribunal that while on leave he decided to "call it quits". Mr Howden subsequently returned to work on 6 October 1997 a view to resigning. However, on his return, he found that the previously mooted plans for privatisation of his part of the Department of Defence had advanced and there were discussions about the imminent takeover by a private company. Mr Howden then did not hand in his resignation on advice from a Union delegate and his Naval Officer supervisor. He was encouraged to put in an application for employment with the new contractor. He also understood that redundancies were to be offered and he decided to wait to submit his resignation. If he had put his resignation in, Mr Howden would have needed to give two weeks' notice. Mr Howden left work on 12 December 1997, but his last official day of employment was 5 January 1998.
The Union delegate and Mr Howden's supervisor had a number of discussions with him, encouraging him to put in an application for a position with the new contractor. He told them that he did not want to do this but felt strong pressure to do so. These men told him that he had nothing to lose by submitting an application. Mr Howden told the Tribunal that he assumed that the Union delegate and his supervisor were encouraging him to take this action because they were looking after his own interests. However Mr Howden then went to speak in person with a representative of the contractor. He told this gentleman about his health problems and that he had only put in an application because of the encouragement of the Union Delegate and his supervisor. Mr Howden explained to the Tribunal that he told the representative of the private contractor that he was not well enough to work. Mr Howden further explained to the Tribunal that he thought that that was the end of the matter. He did not think of formally withdrawing in writing his application. He was not offered a position. Mr Howden reiterated that he believed that the representative had accepted his decision and understood his reasons for not wishing to continue working.
If Mr Howden had been in better health with no post traumatic stress disorder, he would have continued to seek work and in fact would have asked for redeployment to another Government Department. This would have been better for him as he would have been able to retain his sick leave and superannuation benefits. Mr Howden told the Tribunal that he would have preferred to have continued working until the usual retirement age of 65 years as this would have been financially more advantageous for him.
Lieutenant Commander M J Spruce wrote a letter to the Department of Veterans' Affairs on 31 October 1997. Lieutenant Commander Spruce was the supervisor of Mr Howden's supervisor, Lieutenant Richards. Mr Howden had asked Lieutenant Spruce to write the letter to explain his situation. Lieutenant Spruce advised in his letter:
"…Mr Howden's health has suffered, and indeed deteriorated, significantly over the last twelve months as the stress related to the approaching redundancy has taken its toll. Already suffering from stress related illness from his prior military service, he has coped, though barely, with the pressure he has been placed under in the workplace, dealing as he does with a demanding management, and a very disgruntled labour force, all of whom will also be made redundant. While attempting at all times to provide support to management and supervision of the forty staff who work under him, the effects of the stress have become more pronounced. It has led to severe mood swings, pronounced physical signs including shaking, burst blood vessels under the skin and in the iris of the eyes, and general ill health.
His decision to take redundancy rather than redeployment is fully supported on health grounds. He will be a sad loss to my staff. …" (T26, p62).
Mr Howden explained to the Tribunal that during the last two years of his working life, he was feeling particularly depressed, despondent, stressed, drained and out of control.
Mr Howden's redundancy package was $28,000.00 and he would not have received this, he told the Tribunal, if he had resigned.
Mr Howden told the Tribunal as he had told Dr Hall, Occupational Physician and Consultant, that he did not believe he could continue to work because he had great difficulty keeping his temper with his supervisors and subordinates. During Dr Hall's examination on 22 January 2001, he had told Dr Hall that he was often screaming in his office "like a raving lunatic".
Mr Howden told the Tribunal that he had not looked for employment after ceasing work. He simply did not feel capable. While Dr Hall had suggested Mr Howden would be able to undertake employment as a driver, Mr Howden explained that his driving activities during his time at Garden Island involved driving distances of less than one kilometre, when he would drive someone or himself from one part of Garden Island to another. Mr Howden did not agree with Dr Hall that he could work 20 hours per week, including driving. When Mr and Mrs Howden go on holidays, he drives his car towing a caravan, but they deliberately set off on their journey very early in the morning, no later than 5am so as to avoid any traffic. Mr Howden becomes stressed and agitated in traffic; thus he ensures that he travels only on freeways and plans his return journey to ensure that he is out of any peak hour traffic.
In relation to recommencing employment in the field of sheet-metalworking, Mr Howden explained that because of his hearing, he would be a health hazard and a liability to an employer. Further, he would need to undertake a great deal of retraining to raise his knowledge of current developments and technological requirements. Mr Howden stated that the stress of having to retrain and the pressure of learning, let alone his difficulty in concentrating, would make training virtually impossible. Mr Howden stated that just contemplating such things made him agitated.
The Tribunal was informed that Mr Howden likes spending his time staying at home or going "bush" with his wife. Mr Howden just wants to have peace and quiet these days. In public places, he becomes nervous and "jumpy" and experiences the same feelings as he had when he was at work. He feels "boxed-in" and frequently unable to breathe when placed in such situations.
Since leaving work, Mr Howden acknowledged that he has felt better and that his demeanour has improved with his not feeling or acting as irrationally or being as agitated. Mr Howden also stated his marriage is better and he is no longer experiencing coming home from work so stressed. He and his wife have been able to talk more about situations and deal better with any stressful events which occur. Mr Howden indeed acknowledged that his wife has put up with a great deal and has helped him through "bad times". Mr Howden also believes that these days, he has a better relationship with his children.
Currently, Mr Howden consumes five to six alcoholic drinks per day but does not commence alcohol consumption before 3.00pm. Mr Howden does not like going out to drink and does not attend clubs. He sits at home in his garage. Mr Howden has drifted apart from his mates in the Services, although some mates still telephone him to try to encourage him to go to ANZAC Day Marches. Mr Howden spends his day "pottering around the yard or garage". He has contact with a neighbour on one side and helps Mrs Howden around the house if he can or by walking to the shops or driving her there.
Mrs Howden had a back operation in 1994; however she is recovered now. Mr Howden told the Tribunal that his decision to leave work was not in any way contributed to by concerns to look after his wife or related to any other health problems she may have.
Medical Evidence
Dr R J Butler, Consultant PhysicianDr Butler provided a report dated 3 January 2001, having interviewed Mr Howden on 5 December 2000 (Exhibit A1). Dr Butler noted all of Mr Howden's accepted conditions, commenting specifically that Mr Howden's bilateral sensorineural deafness is a significant social disability for him. He suffers moderately frequent symptoms from gastro-oesophageal reflux and had a gastroscopy performed in 1999. From this time, Mr Howden has been on medication. He often wakes in pain and requires antacids. In relation to Mr Howden's condition of pleural plaques, Dr Butler noted that Mr Howden complains of dyspnoea on climbing stairs, which represents an exertion of 5-6 METS. In relation to Mr Howden's post traumatic stress disorder, Dr Butler noted that this condition is very disabling and associated with depression. Post traumatic stress disorder is also a major contributor to Mr Howden's alcohol abuse, Dr Butler noted. Dr Butler further noted that between 1995 and 1997, Mr Howden took approximately nine months of sick leave.
Dr Butler noted that Mr Howden's non service-related medical problems are mild intermittent arthritic pains in his ankles and knees in addition to mild prostatism which causes him the need to pass urine two or three times per night. This condition is possibly, but unlikely to be related to Mr Howden's anti-depressant therapy, Dr Butler commented. Dr Butler concluded:
"From Mr Howden's description of his symptoms, I do not believe that he would have been able to return to employment other than on an intermittent or casual basis since the 20th of October 1999. This is primarily due to his post-traumatic stress disorder with consequent depression and alcohol abuse. Interpersonal conflicts secondary to his emotional problems and the likelihood of prolonged absenteeism, should stressful circumstances arise, would make employment difficult, if not impossible. …"
(Exhibit A1).
Dr Butler further concluded that Mr Howden's bilateral sensorineural hearing loss and his difficulty with using a hearing aid would contribute significantly to problems in communication in the workforce. Dr Butler opined that Mr Howden's other accepted war-caused disabilities are not likely to present employment difficulties and this was also the case with his non-service related disabilities, as Dr Butler concluded that these other conditions were minor and have no significant employment implications.
In a supplementary report also of 3 January 2001, Dr Butler wrote that he wished to raise the question of whether or not Mr Howden may have been manipulated into accepting a voluntary redundancy rather than being offered retirement on medical grounds. Dr Butler noted that from Dr Altman's description of Mr Howden's problems and the prolonged periods of sick leave during the last two or three years of Mr Howden's employment, it must have been obvious that his chances of re-employment following privatisation were negligible. It may have been likely in these circumstances Dr Butler postulated, that Mr Howden may have been encouraged to apply for the position as a means of offering redundancy rather than medical retirement.
Dr J W Shand, PsychiatristDr Shand examined Mr Howden on 9 December 2000 and subsequently provided three reports dated: 17 February 2001 (Exhibit R1); 8 April 2001 (Exhibit R2); and 9 May 2001 (Exhibit R3).
In his first report, Dr Shand, while acknowledging that Mr Howden's symptoms if taken "at face value" were consistent with post traumatic stress disorder, expressed reservations about this diagnosis, noting that the stressors held responsible for the diagnosed condition fell into the "perceived category". Dr Shand agreed that Mr Howden's symptoms and circumstances did qualify him for a diagnosis of alcohol dependence/abuse. Dr Shand concluded on 17 February 2001 that:
"From my assessment and other information forwarded to me, including reports of Dr Altman which state that "The veteran's condition deteriorated in June 1997 to June 1998," I consider that the Applicant's Post-Traumatic Stress Disorder and Alcohol Dependence/Abuse would prevent him from undertaking remunerative work of more than 8 hours per week, or 20 hours per week. It is also clear that his motivation for work is zero. He wants only to retire to some quiet country town, suitably equipped with appropriate medical facilities. …" (Exhibit R1).
Dr Shand also opined that Mr Howden's personality, which he noted, is obsessional, contributed significantly to Mr Howden's continuing disorder.
In his second report of 8 April 2001, Dr Shand had the benefit of the perusal of a number of documents including: Mr Howden's personnel records from the Department of Defence; clinical notes from Dr Purcell, Mr Howden's General Practitioner; report from Dr Butler, Consultant Physician, dated 3 January 2001; Mr Howden's Statement; six reports prepared by Dr G Altman, Mr Howden's treating psychiatrist; and various reports relating to Mr Howden's physical complaints and disorders. Dr Shand criticised Dr Altman for reaching a diagnosis and opinion based only on Mr Howden's stated history without any apparent consideration of other possibilities or other material or evidence. Dr Shand further noted that from Dr Purcell's clinical notes for the period July 1993 to 12 January 2001, there is only one reference to Dr Altman and no mention of any complaints or symptoms which might relate to a psychiatric disorder. There is also no mention of such a disorder despite the large number of consultations which appear to confine themselves to physical disorders and their investigation and treatment. Dr Shand also noted various documents emanating from Mr Howden's employment, including Salary Increment Reports and Conduct Reports where Mr Howden's conduct is described as satisfactory. There is a further comment from Dr Shand following his perusal of Mr Howden's personnel documents that Mr Howden had the requisite level of written and oral expression required for his position with the Department of Defence. These reports seem to arise out of Mr Howden's employment in 1981. Dr Shand noted that the reports showed no evidence of post traumatic stress disorder.
In Dr Shand's final report of 9 May 2001, he explained that the further reports and documents which had been forwarded to him by the Department caused him to reconsider the previous history given to him by Mr Howden as there were contradictions between the histories. Dr Shand noted that in his first report he had meant to say:
"…The history from the veteran and other information forwarded to me, including reports of Dr Altman, if taken at face value, the veteran's psychiatric disorder would prevent him from undertaking remunerative work of more than eight hours per week, or 20 hours per week. It is also clear that his motivation for work is zero. He wants only to retire to some quiet country town, suitably equipped with appropriate medical facilities….". (Exhibit R3).
Dr G Hall, Occupational Physician and Consultant Physician
Dr Hall provided two reports dated 22 January 2001 and 20 February 2001 (Exhibits R4 and R5).
Dr Hall commented on Mr Howden's accepted disabilities. In relation to deafness and tinnitus, Dr Hall noted that Mr Howden wears a hearing aid in his left ear which he finds a nuisance and irritating but which he requires in order to speak to people when in a group. The tinnitus he puts up with. In relation to solar skin damage, Dr Hall noted that Mr Howden has the visible effects of solar skin damage on his hands and face and requires a six-monthly check-up. He has had to have a number of lesions burnt off. In relation to his gastro-oesophageal reflux condition, Dr Hall noted the burning sensation coming up Mr Howden's oesophagus, the passing of wind and burping. Mr Howden was noted to have stomach aches. He takes "Losec" but does not regard his gastro-oesophageal reflux disease as a major problem and it does not cause him any great restrictions. In relation to Mr Howden's pleural plaques, Dr Hall noted that this condition was confirmed by X-ray and that Mr Howden must have an X-ray every twelve months. In relation to post traumatic stress disorder, Dr Hall noted there was no family history of any psychological problems. Mr Howden's problems stemmed from the "Voyager accident in 1964". Mr Howden was involved in the rescue of his injured friends, many of whom were covered in oil. A couple of days after this incident, Mr Howden became very affected, Dr Hall reported. Mr Howden had also seen service in Vietnam and Dr Hall noted an incident during which the ship Mr Howden was serving in ran over a fishing boat when it was travelling full steam ahead. At that time, Mr Howden had been below the waterline in the engine room when there was a knocking on the hull, causing Mr Howden to fear that the ship had hit a mine.
Dr Hall noted that despite these incidents, Mr Howden functioned well. He consumed alcohol socially before joining the Royal Australian Navy but drank more heavily during service, increasing to a consumption of one to two beers per day when at sea. He would also drink other sailors' beer rations. Dr Hall noted a history of Mr Howden on shore when he would "wipe himself out" through his alcohol consumption. Mr Howden had blamed his drinking after his Vietnam Service as causing the break-up of his first marriage when he became short tempered, abusive and explosive.
Dr Hall took a further history of Mr Howden in the later years of his employment. Dr Hall noted that during a nine-month period between 1995 and 1997, there was a build up of pressure and stress to the point where Mr Howden would scream in the office like a "ranting lunatic". Dr Hall noted that Mr Howden feels nervous, easily upset and jumps at the slightest provocation. He avoids crowds, does not trust people, dislikes public transport and stays at home. While Mr Howden is able to get to sleep easily, he wakes during the night. He did not mention any dreams or nightmares in this context. A typical day for Mr Howden involves arising at 7 or 7.30 am and then after breakfast, pottering in the garden or in the garage. Mr Howden has two daughters, one of whom is married with a two-year-old child. Mr Howden also has a caravan which he uses for holiday trips. When he is away, he tries to walk a lot. Mr Howden is able to mow a small lawn but does not engage in any other exertion which requires effort.
In relation to Mr Howden's ability to work, Dr Hall was told that Mr Howden would expect to feel tense if he were working. Dr Hall opined that the reason for Mr Howden's cessation of employment with the Department of Defence appeared to be that the offer of redundancy was preferable to the alternative of transferring to a new organisation. Dr Hall considered it clear that Mr Howden felt capable of continuing to work with the new organisation. It further appeared to Dr Hall that Mr Howden has not pursued any further remunerative work and this reflected his satisfaction with his financial situation, taking into account his redundancy package and any expectations of further pension from the Department. Dr Hall concluded that Mr Howden's accepted disabilities would not have prevented him from working more than 20 hours per week at 20 October 1999 or up to the present.
Dr Hall noted that Mr Howden would be able to drive for more than 20 hours per week. Dr Hall concluded:
"The history given to me by Mr Howden was that he did apply for an alternative job, but felt that his health had been affected and that the redundancy was the preferable option. I do not get the impression that he was of the opinion that he was manipulated into the redundancy rather than medical retirement as it does not appear that he would have considered retirement at that state (sic), had there not been a reorganisation, which opened the redundancy opportunity…" (Exhibit R4)
In his supplementary report of 20 February 2001, Dr Hall noted the documentation of Dr Purcell's clinical notes. This additional material did not cause Dr Hall to change his conclusions reached in his earlier report.
SubmissionsMr Sherlock submitted that as Mr Howden has pension assessed at 100 per cent of the General rate, he meets the requirements of subsection 24(1)(a) of the Act.
In relation to subsection 24(1)(b) of the Act, Mr Sherlock relied on the reports of the treating psychiatrist, Dr Altman, and particularly the report of 1 July 1994 and the most recent report to the Board (T5, T6, T7, T8, T15 and T20). Mr Sherlock noted that Mr Howden's post traumatic stress disorder has worsened, as is reflected in the assessments made by Dr Altman under Chapter 4 of the Guide which is 48 points on 25 May 2000 (T15). Dr Altman states on a number of occasions that Mr Howden ceased working because of his post traumatic stress disorder alone and that he is unable to work any longer because of that condition.
Referring to Dr Butler's reports, Mr Sherlock submitted that Dr Butler also agrees that Mr Howden is unable to return to work primarily because of his post traumatic stress disorder. On the other hand, referring to Dr Shand's reports, Mr Sherlock described these as "shoddy in the extreme". Not only was Dr Shand inconsistent, he had changed his mind in the report, was inaccurate in his reporting and his conclusions were therefore invalid, Mr Sherlock submitted. Mr Sherlock contended that Dr Shand's report is of no assistance to the Tribunal.
Dr Hall's report is also of little assistance to the Tribunal and Mr Sherlock noted that Dr Hall omitted to include the audiogram results in his assessment. Mr Sherlock submitted that the assessment by Dr Hall of Mr Howden's post traumatic stress disorder at 13 points is not in any way consistent with the other medical reports of the severe symptomatology experienced by Mr Howden. Mr Sherlock contended that clearly a higher rating is more appropriate. Mr Sherlock also noted that Dr Hall did not correctly apply the requirements of the Guide in his calculations of Mr Howden's combined impairments, noting that Dr Hall's calculations are in fact incorrect.
Considering Mr Howden's evidence, Mr Sherlock submitted that the Applicant is clearly a witness of truth. There is no credible evidence that Mr Howden could have continued working. He was too ill and receiving treatment from his psychiatrist. Mr Howden was taking medication and psychologically, simply would not have been able to cope if he had continued working, Mr Sherlock contended. Further, Mr Sherlock submitted that Mr Howden had little clerical experience. He had considered redeployment but realised that he could not do this as it would be placing himself in a similar situation in which he had already been. Accordingly, noting Mr Howden's evidence and the evidence from the expert opinions of Dr Altman and Dr Butler, Mr Sherlock submitted that it was Mr Howden's war-caused condition of post traumatic stress disorder alone which prevented him from working. Therefore, subsection 24(1)(b) of the Act is satisfied, Mr Sherlock concluded.
In relation to subsection 24(1)(c) of the Act, relying on Dr Butler's opinion, Mr Sherlock submitted that there are no other illnesses present which prevent Mr Howden from working. He had preferred to stay at work until aged 65 years but having discussed the matter with his wife, he had come to the conclusion when on his six weeks' leave that he should resign because of his continuing health problems. Mr Howden stayed longer at work because he learnt of his redundancy.
Mr Sherlock submitted that Mr Howden could not take any other course given the severity of his post traumatic stress disorder. He could not undertake any other type of work because he had difficulty dealing with people and the stress of working, with all that that entailed including responsibility, decision-making and dealing with people. Further, Mr Sherlock submitted that when the Tribunal refers to section 28 of the Act, Mr Howden's circumstances comply with this provision. In this regard, the Tribunal was referred to Hall v Repatriation Commission (1994) 33 ALD 454 in which Spender J noted at 461 that:
"…the question of capacity for remunerative work is not the same question as the obtaining of employment in fact, and it would be wrong to identify reasons for the latter as necessarily relevant or applicable to the former question. …"
Referring to the fact that Mr Howden had completed an application for employment with the private contractor, Mr Sherlock submitted that one has also to consider that Mr Howden actually went to speak directly with the contractor to inform him that in fact he was too sick to work. This is sufficient to indicate Mr Howden's own conclusions that he was unable to work.
Mr Sherlock submitted that if the Respondent is relying upon Cavell v Repatriation Commission (1988) 9 AAR 534, then Mr Howden's case was bound to succeed.
Mr Sherlock's principle submission is that Mr Howden's circumstances meet subsections 24(1)(b) and 24(1)(c) of the Act. If recourse was had to the ameliorating provisions contained within subsection 24(2) of the Act, Mr Sherlock submitted that Mr Howden also met the requirements of subsection 24(2)(b). Referring again to Spender J's conclusions in Hall v Repatriation Commission (supra), the terms "genuinely seeking to engage in remunerative work " were discussed and it was noted that such an expression:
"…has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade. …"
Mr Sherlock reiterated that having filled out the job application form with the private contractor or tenderer, Mr Howden subsequently spoke about this to the tenderer, indicating his inability to work because of illness. Mr Sherlock submitted that there is an important distinction which the Tribunal must understand. Mr Howden had made his mind up that he was unable to continue to work because of his health. If, however, the Tribunal considered that there were other factors impacting on Mr Howden's continuing inability to work, then he satisfied the provisions of subsection 24(2)(b) of the Act in that he ceased work primarily because of his war-caused health problems and he had tried and thought about working. Indeed, Mr Howden had put in a job application, but found that he could not face the prospect of continuing to work because of his post traumatic stress disorder. He was too ill.
Mr Sherlock also wished the Tribunal to consider the opinion of Dr Shand that Mr Howden had "zero" motivation to work. Such an attitude must be seen in the context of this being a very common and well-documented symptom of post traumatic stress disorder, Mr Sherlock submitted.
In all the circumstances, Mr Sherlock submitted that Mr Howden meets the requirements of section 24 of the Act and accordingly qualifies for payment of pension at the Special Rate.
Ms Pacey, for the Respondent, submitted that Mr Howden's circumstances did not satisfy subsection 24(1)(b) of the Act and she relied on the report of Dr Hall in support of this submission. Mr Howden's cessation of employment related to an offer of redundancy and in Dr Hall's opinion, Mr Howden was capable of continuing to work with the new organisation. His accepted war-caused disabilities therefore did not prevent him from working for more than 20 hours per week, Ms Pacey submitted.
In relation to Mr Howden's ability to continue to undertake remunerative work as dealt with in subsection 24(1)(c) of the Act, Ms Pacey submitted that Mr Howden could undertake other duties such as driving. He had been able to drive around Garden Island. He could also undertake clerical work, Ms Pacey submitted and could undertake part-time work or training for a new position.
In relation to Dr Shand's report in which he noted that Mr Howden's motivation to work is zero, Ms Pacey submitted that this is a fundamental hurdle for Mr Howden in terms of qualifying for the Special Rate of pension. Thus, there are other factors besides Mr Howden's accepted disabilities alone which impacted on his decision to cease work. Specifically, Ms Pacey noted Mr Howden's expression of the stress of the takeover of his workplace by a private company leading up to the privatisation. Another factor which impacted on Mr Howden's inability to work included his having to deal with a militant workforce. Ms Pacey also submitted that contrary to Mr Howden's evidence that he could not work, the fact that he had put in a job application to the private company indicated his belief that he was capable of working. Ms Pacey further contended that had Mr Howden been offered work, he would clearly have accepted the position. Ms Pacey submitted that if a person applies for a job, then there is a clear intention that if the job were offered that one would take it. Further support for this proposition comes from Mr Howden's failure to withdraw his application. Such action is indicative of an intention to take the job if offered and is evidence that Mr Howden thought he could work.
Mr Howden could also have accepted redeployment to another government department but he chose not to do so, Ms Pacey submitted. Mr Howden's skills were very transferable. He was an experienced supervisor whose skills could readily be used in another position, as could his trade skills. Ms Pacey referred the Tribunal to Cavell v Repatriation Commission (supra) for guidance in relation to what has been frequently called the "alone test" arising out of subsection 24(1)(c) of the Act. In that case, Burchett J concluded that it was wrong to characterise the "alone test" as the sole, unique and absolute cause of the cessation of work because it has a tendency to:
"…distract the Tribunal from its true task - 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. …"
Further, Burchett J noted other reasons, in Mr Cavell's case, causing his inability to work, namely advancing age, deteriorating health and absence from the workforce. These also contributed to his inability to obtain employment.
Ms Pacey further referred the Tribunal to Tomlin v Repatriation Commission [1997] 705 FCA in which Whitlam J concluded that the Tribunal in that matter was required to engage in speculation as to what Mr Tomlin would have done at the date of application if he had none of his war-caused disabilities. In so doing the Tribunal was also required to have regard to all the evidence, particularly that Mr Tomlin had moved to Nambucca Heads and that it was not Mr Tomlin's war-caused disabilities alone which prevented his returning to work.
Ms Pacey submitted that Mr Howden had numerous other factors besides his war-caused post traumatic stress disorder which influenced his cessation of work and his decision not to continue to work.
Accordingly, Ms Pacey submitted that the decision under review should be affirmed as Mr Howden did not meet the legislative criteria contained in section 24 of the Act for payment of pension at the Special Rate.
FindingsThe Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, the legislation and case law.
The Tribunal finds that Mr Howden was a credible witness who it considered provided truthful evidence.
There is no dispute that the correct assessment of Mr Howden's war-caused disabilities is 100 per cent of the General rate. The Tribunal finds that this assessment according to the Guide is accurate.
Mr Howden claims that he is qualified for an earnings-related pension at the Special Rate which is dealt with under the provisions of section 24 of the Act.
As Mr Howden has been assessed at 100 per cent of the General rate, he satisfies subsection 24(1)(a) of the Act in that he has been assessed as having incapacity to at least 70 per cent.
The Tribunal turns to consider subsection 24(1)(b) of the Act which requires that it must be a veteran's injury or disease which of itself alone prevents his or her working for periods aggregating more than eight hours per week. The Tribunal must also consider the application of section 28 of the Act as it deals in more detail with the issue of what is encompassed by the terms "capable of undertaking remunerative work". In Chambers v Repatriation Commission (1995) 55 FCR 9, the Full Federal Court noted that all of an individual's skills and qualifications regardless of how achieved should be taken into account in determining opportunities for remunerative work. This would also include considering whether it is reasonable for an individual, with his or her abilities, to acquire new skills.
The Tribunal considers that subsection 24(1)(b) of the Act, when read with Section 28, require it to take into account the kind of work which Mr Howden's skills, background and experience have equipped him to undertake. A decision has then to be made whether his accepted conditions prevent him from working for eight hours or more.
The Tribunal finds that Mr Howden was having difficulties during at least the last two years before he ceased employment. While Dr Hall notes satisfactory work assessments in the 1980s, the Tribunal accepts that the period between 1995 and 1997 must be considered as more relevant, particularly noting that Mr Howden had aggregated nine months off work on sick leave because of post traumatic stress disorder during this later period.
Mr Howden's functioning at work was affected as indicated by his loss of temper and control to the point where he had on one occasion hit a person. Mr Howden was also having marital difficulties and family relationship problems as well as abusing alcohol. It was in this context that Mr Howden had taken six weeks' leave and during this time had discussed with his wife the cessation of work. He returned to work resolved to cease work because of his health condition. The Tribunal does not doubt that Mr Howden could not work. His treating psychiatrist, Dr Altman, has long stated that Mr Howden is unable to work because of post traumatic stress disorder. Dr Butler opined that Mr Howden could not work primarily because of post traumatic stress disorder. Dr Shand initially considered that Mr Howden could not work because of post traumatic stress disorder, but changed his mind after having read Defence Department documents. In the Tribunal's view however, Dr Shand seems to have used the Defence Department performance reports undertaken in the 1980s to reflect on the reasons for Mr Howden's decision to cease work because of his health problems in 1997. It is the period closer to Mr Howden's decision to cease work, which in the Tribunal's view is of greater relevance. In this regard, the Tribunal also relies on the letter of Lieutenant Commander Spruce who indicated Mr Howden's increasing difficulties at work because of his health.
Dr Hall opined that Mr Howden felt capable of continuing work but that he had not pursued further employment because of purely financial reasons. Dr Hall also felt that Mr Howden was able to drive a motor vehicle and could undertake such work for 20 hours per week. Dr Hall had also assessed Mr Howden's post traumatic stress disorder at 13 points which is a very low impairment rating when compared to that of the treating psychiatrist, Dr Altman, who had rated Mr Howden's post traumatic stress disorder at 48 points under Chapter 4 of the Guide. The Tribunal considers that Dr Hall's assessment has to be questioned when looking at the descriptions of symptoms contained in Chapter 4 of the Guide. Following the Tribunal's observation of Mr Howden during the hearing and noting all of the evidence, it finds that a rating of 13 points for post traumatic stress disorder does not reflect the significant severity of Mr Howden's symptomatology. Further, the Tribunal notes that Dr Hall is not a psychiatrist. Dr Hall also seemed unfamiliar with the Guide's requirements and the categories for a Lifestyle assessment from Chapter 22 of the Guide. As a Consultant Physician engaged to provide an overall assessment, Dr Hall omitted to include in this assessment the results of Mr Howden's audiogram and in the Tribunal's view, this further diminishes the value of his reports.
It is the Tribunal's finding that Mr Howden was very distressed and affected by his post traumatic stress disorder. This condition had been significantly impacting on his home and work life for years. The Tribunal determines that Mr Howden was prevented by his accepted condition of post traumatic stress disorder and to a lesser extent his hearing, from working more than eight hours per week. There were not other factors in the Tribunal's view which prevented him from working at this level. He could not do other work such as driving as this would be too stressful, noting his symptomatology. Other occupations such as in clerical work were not suited to Mr Howden given his condition. Mr Howden had difficulty concentrating, was stressed by responsibility and these symptoms would have impacted upon his ability to retrain and take on new skills or develop old skills. Had Mr Howden not had post traumatic stress disorder, then he may well have been able to take advantage of further training or redeployment. He does have post traumatic stress disorder and the reality of that is that the symptoms of this condition prevent him from working or retraining for other positions.
In terms of Mr Howden using his previous training as a sheet-metalworker, Mr Howden would, in the Tribunal's view, find it too difficult to update new skills in an industry which has advanced through technology and further, his hearing disability would make him a danger and a liability in such a working environment.
The Respondent submitted that the stress of working with a militant workforce and facing the privatisation of Mr Howden's work area were non-service related factors impacting on his cessation of employment. In the Tribunal's view, when the symptoms of post traumatic stress disorder are taken into account, Mr Howden's reaction to any stress or change in circumstances is entirely explainable by reference to this war-caused condition alone. Accordingly, the Tribunal finds that Mr Howden meets subsection 24(1)(b) of the Act in that it is his accepted disabilities alone which prevent him from undertaking remunerative work.
Subsection 24(1)(c) of the Act has its focus on whether there are other matters or reasons which have also contributed to the veteran's inability to work and which cause him to suffer a loss of earnings. Thus, to succeed, Mr Howden's war-caused conditions must not only lead him to not being able to work, but he has had to have suffered a loss of salary, wages or earnings. The Full Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 dealt with the general approach to be taken. Beaumont J noted:
"…the question posed by s24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities. The starting point is an examination of the prospect of employment, including self-employment, in southern Tasmania in early 1985 for a healthy sixty-nine year-old plumber.
Ms Pacey submitted that there were other factors preventing Mr Howden's continuing to work, including the fact that he had an intention to work because he submitted an application to the company taking over the Defence Department section. Ms Pacey submitted that the submission of an application indicated Mr Howden's view that he could work and further, that his action in not withdrawing the application indicated that had the position been offered Mr Howden would have accepted it.
The Tribunal finds that while Mr Howden did submit a job application, he did so on the advice of the Union delegate and his supervisor. He later went to speak to the private tenderer and told him of his health problems. The Tribunal accepts that Mr Howden genuinely did not think to withdraw the application. It seems perfectly reasonable for Mr Howden not to think of doing this when he had specifically spoken to the contractor about his health problems and that he was incapable of working. In these circumstances, the Tribunal does not take the view that Mr Howden's not formally withdrawing his application in writing is indicative that he would have taken the position if offered or that he had believed that he could work. The Tribunal considers that this inaction reflects merely that Mr Howden did not think he had to do anything further once he had spoken directly to the contractor. Further, the Tribunal does not consider that accepting the redundancy after he had made the decision to cease work because of his health is indicative of his ceasing work for reasons other than his health. It is the Tribunal's finding that Mr Howden had clearly made a decision based on his war-related disabilities alone that he could no longer work. Regardless of whether or not he was offered redundancy or redeployment, the Tribunal is firmly of the view that Mr Howden would have ceased work because of his war-caused conditions. Mr Howden's evidence, which the Tribunal accepts, was that had he not been suffering from post traumatic stress disorder, he would have liked to have continued work until retirement and certainly it would have been to his financial advantage if he had done so. As it was, Mr Howden left prematurely. While he received a redundancy payment he still suffered loss of earnings and continues to suffer a loss of earnings.
If Mr Howden had not had post traumatic stress disorder, the Tribunal finds that he would still have been working. He was clearly in the past highly regarded at work. Unfortunately for Mr Howden, he does have post traumatic stress disorder and this prevents him from continuing in remunerative work. That he has improved slightly is testament to his decision. Having considered Forbes v Repatriation Commission (2000) FCA 328, the Tribunal does not identify any factor or reason which played any part in Mr Howden's inability to work or obtain and hold remunerative employment other than his post traumatic stress disorder and hearing condition and hence the Tribunal does not consider there is any fact which displaces Mr Howden's claim for Special Rate. Therefore the Tribunal finds that Mr Howden satisfies subsection 24(1)(c) of the Act.
In all of the circumstances and for the reasons expressed above, the Tribunal decides that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, Mr Howden meets the relevant requirements of section 24 of the Act. Accordingly, the decision under review is set aside and in substitution therefor, the Tribunal decides that Mr Howden is qualified for payment of pension at the Special Rate with payment from and including 20 October 1999.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr J Campbell, Member.
Signed: .....................................................................................
Stella Vaughan, AssociateDate of Hearing 4 July 2001
Date of Decision 18 September 2001Representative for the Applicant Mr R Sherlock, Veterans' Advocacy Service, Legal Aid Commission of NSW
Representative for the Respondent Ms G Pacey, Departmental Advocate
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