Jackman and Repatriation Commission

[2001] AATA 295

DECISION AND REASONS FOR DECISION [2001] AATA 295

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2000/1012

VETERANS' APPEALS   DIVISION     )        
           Re      ROSS  JACKMAN           
  Applicant

And    REPATRIATION  COMMISSION          
  Respondent

DECISION

Tribunal       Senior Member M D Allen Dr M E C Thorpe, Member

Date11 April 2001

PlaceSydney

Decision      The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely: THAT the Applicant, Ross Jackman, is entitled to pension at 70% of the General Rate as and from 18 August 1998 up to and including 21 October 1999; and as and from 22 October 1999 at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986.

(Sgd)                  M D ALLEN
  ..............................................
  Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS  -  Whether Applicant's post traumatic stress disorder sole cause of his ceasing work.  Did the Applicant still have a residual ability to engage in special employments of a restricted nature.  Respondent Repatriation Commission unable to challenge acceptance of a condition as war-caused in proceedings before the Tribunal for assessment of rate of pension.

Veterans' Entitlements Act 1986 - ss19, 24, 28 and 120

Forbes v Repatriation Commission 58 ALD 394
Cavell v Repatriation Commission 9 AAR 534
Re Cotterell and Repatriation Commission 31 AAR 184
Banovich v Repatriation Commission 69 ALR 395

REASONS FOR DECISION

11 April 2001           Senior Member M D Allen Dr M E C Thorpe, Member

1. By application made 3 June 2000 the Applicant sought review of a determination by the Respondent affirmed on review by a Veterans' Review Board which granted him a Disability Pension at the rate of 70% of the General Rate for the war-caused incapacities of post traumatic stress disorder and tinea.

2. In these proceedings the Applicant claimed that as and from 22 October 1999, being the date he resigned from his employment with Wella Australia, he was entitled to pension at the Special Rate.

3. The criteria for the grant of pension at the Special Rate are set out in s24 of the Veterans' Entitlements Act 1986 (as amended) (the VEA):

   "(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."

1. The standard of proof in this matter is that provided by subs120(4) of the VEA, namely of that to the Tribunal's reasonable satisfaction.  As was pointed out by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327, the term "reasonable satisfaction" equates to the civil standard of proof, namely that of proof on the balance of probabilities. Subsection 120(6) provides that there is no onus of proof on either party to this review. Section 28 of the VEA then provides:

   "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)."

1. So far as the requirements of para 24(1)(c) of the VEA are concerned, in Forbes v Repatriation Commission 58 ALD 394 Nicholson J referred to the decision of the Full Court of the Federal Court in Flentjar v Repatriation Commission 48 ALD 1 at pp4-5 where the Court said that the issues before the Tribunal were:

   "1.What was the relevant 'remunerative work that the veteran was undertaking' within the meaning of s 24(1)(c) of the Act?

   2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

   3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

   4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?"

His Honour then went on to refer to the classic definition of the so-called "alone" test promulgated by Burchett J in Cavell v Repatriation Commission 9 AAR 534 at 539, namely that the word "alone" requires:

"… 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."

1. The Respondent, in its Statement of Facts and Contentions dated 29 March 2001 (Exhibit R1), sought to resist the Applicant's claim by arguing that he did not in fact suffer from a post traumatic stress disorder.  As pointed out by Deputy President Blow QC (as he then was) in Re Cotterell and Repatriation Commission 31 AAR 184 at 189:

   "… in assessing the rate of pension payable in respect of a war-caused condition, no decision-maker at any level has the freedom to reconsider, ignore or reverse the determination that that condition is war-caused."

Further, although not referred to by the learned Deputy President, in Banovich v Repatriation Commission 69 ALR 395 at 404 the Full Court of the Federal Court said:

"The task of the Administrative Appeals Tribunal, in reviewing a decision relating to an application for a pension, is to make the decision which the primary decision-maker ought to have made, upon the basis of the evidence before the tribunal.  Subject to any change in the relevant law, the tribunal should put the applicant in the position in which he or she was entitled to be put at the time of the primary decision.  …"

This further adds to the conclusion that this Tribunal in a matter where a veteran seeks an increase in the Disability Pension payable to him has no jurisdiction to consider whether the particular condition is war-caused or not.  If the Respondent Repatriation Commission wishes to go down this avenue of attack, it must exercise the powers granted to it pursuant to s31 of the VEA.

1. The evidence of the Applicant is quite clear.  As at October 1999, he was employed by Wella Australia as a line setter.  This involved him repairing breakdowns to production lines and setting those lines up for the manufacture of new products.  He had been employed full-time by Wella Australia for two and a half years and before that had been employed as a casual.  Previous to that employment he had worked for Upjohn Pharmaceuticals as a boiler attendant and general maintenance man.

2. Commencing in 1998 the Applicant found that he had increasing difficulty in carrying out his employment.  He could not concentrate on his job, he could not get on with fellow staff members and he found stress and difficulty in even travelling to work.  Fortunately he had a sympathetic supervisor but increasingly he found difficulties in both attending at work and carrying out his duties at work. 

3. He discussed his difficulties with his treating psychiatrist, Dr Altman, and it was decided that it would be in his best interests to cease work.  The Applicant stated that he did not really want to give up work as he liked the people, and he had never been unemployed.  Having ceased work, his condition has deteriorated further and he has lost interest in doing things, for example he no longer goes fishing although he has a boat, he no longer uses his wave ski.

4. According to his wife the Applicant has no self esteem, no direction and does not have patience with anything.  They have very little social life and what there is, is arranged by her, however, she noted that it was a relief for both herself and the Applicant when he ceased work.  Within two to three days after ceasing work she noticed an improvement in the Applicant's condition.  According to the Applicant, he was finally persuaded to cease work because of the pressure of work upon him.

5. At page 58 of Exhibit R8, the clinical notes of Dr Gahan, is a report from Dr Selwyn Smith, Psychiatrist, dated 12 November 1998.  In that report to the Applicant's general practitioner, Dr Smith says:

   "Ross does present with significant psychopathology.  He would certainly benefit from a marked curtailment, if not abstention, of alcohol and I have advised him in this regard.  I have also arranged for him to be assessed at our PTSD programme from the point of view of further involvement in the programme."

What has to be noted from this report is that at 12 November 1998, Dr Smith was of the opinion that the Applicant suffered from a post traumatic stress disorder.  Dr Smith did state in that report:

"Ross reported that he has been married for 20 years and has an 18 year old son who has, what he described as, an inoperable brain tumour.  This is causing him and his wife a considerable degree of distress."

1. The Applicant and his now treating psychiatrist, Dr Altman, were extensively questioned regarding this and Dr Altman freely admitted that it was an aggravation to the incapacity caused by the Applicant's post traumatic stress disorder.  In our opinion the fact that a veteran's war-caused incapacity is aggravated by extraneous events does not enable the Respondent to argue that his inability to engage in remunerative work is due to factors other than war-caused disability alone.  It may well be that the illness of his son was the factor which, to use a colloquialism,  "broke the camel's back" and resulted in the Applicant ceasing work, however, as pointed out by Dr Altman, it was an aggravation to a pre-existing war-caused post traumatic stress disorder.

2. The Respondent also argued that, on the bases of a reference given to the Applicant dated 1993, he was a competent employee and his post traumatic stress disorder was not affecting his work.  That may well be but of that document two points can be made:

   (1)that it was dated 1993 and the Applicant's condition has obviously become worse;  and

   (2)that in any event it is a reference and may not represent reality.

1. In any event it is clear from the evidence of the Applicant, his wife and Dr Altman that it was the Applicant's psychiatric disabilities which caused such a degree of incapacity that it was decided between the Applicant and his treating psychiatrist that his best course of action was to cease work.  As stated above, his wife said that upon ceasing work his condition did seem to improve.

2. The Applicant is, however, still severely disabled by his post traumatic stress disorder.  The opinion of Dr Altman is that he would not be able to work.  Work would impose stresses upon the Applicant and his condition would deteriorate.  Dr Altman was extensively cross-examined about the theoretical possibility of the Applicant undertaking a job which was low stress and in his immediate neighbourhood.  This may be theoretically possible but, as Dr Altman pointed out, if put to the test he believes the Applicant still would not be able to cope.  He further added that he did not think it would improve his condition if he managed to find such employment although it may improve his self esteem.  Dr Altman added in this regard that the Applicant had always worked when he could and at present he regards his degree of impairment as being "stable".

3. In his first report to the Respondent, Dr Shand (Exhibit R2) stated that the Applicant, on the history given, did fulfil the criteria for a post traumatic stress disorder and that he should be regarded as unfit for any work whether 8 or 20 hours per week.  Although in later reports Dr Shand amends his diagnosis to anxiety depressive disorder with conduct disorder, he does not revise his opinion as to the Applicant's unfitness for work.

4. Notwithstanding the arguments by the Respondent that there may possibly theoretically be a job that the Applicant could undertake, no evidence was given that such a job in fact exists.  Section 28 of the VEA points out the criteria which must be examined in ascertaining what capacity an applicant veteran has to undertake remunerative work.  In this matter the only evidence is that it became impossible to continue with the work which the Applicant had been undertaking, and which was of the nature which he had undertaken for some years, because of his war-caused post traumatic stress disorder.  It may be suggested as a matter of theory that there is other remunerative work which he could undertake but, using the test propounded by Burchett J in Cavell supra as a matter of commonsense and having an eye to reality, no position which the Applicant could reasonably undertake has been placed in evidence before this Tribunal.  If the Respondent wishes to suggest that there are such positions and the Applicant is capable of fulfilling them, we would expect that there would be evidence from a body such as the Commonwealth Rehabilitation Service.

5. The Applicant does have other diseases, in particular ischaemic heart disease and a dislocation of the left shoulder, which are not war-caused.  The evidence, however, is clear that none of these conditions would affect his ability to undertake remunerative employment.  The Applicant did have a shunt inserted in a blocked coronary artery in 1998 but, as pointed out at page 5 of Exhibit R7, he was given the all clear to return to work by his general practitioner on 16 November 1998 and then worked for approximately another year before his post traumatic stress disorder disabled him.  The Applicant gave evidence that his dislocation of the left shoulder did not affect him and it is clear that the other incapacities, namely seborrhoeic dermatitis and inflammatory periodontal disease would not affect an ability to work.  So far as hearing loss is concerned, the report in the clinical notes of Dr Gahan show that the Applicant does not in fact suffer from a hearing loss.

6. Having regard to all of the material before us in this matter we are satisfied, on the balance of probabilities, that but for his post traumatic stress disorder, the Applicant would still be employed by Wella Australia. The severity of his post traumatic stress disorder is such that he would not now be able to engage in remunerative work and that has been the position since he retired from Wella Australia on 22 October 1999. The decision under review is therefore set aside and the Tribunal substitutes in lieu thereof its decision that the Applicant is entitled to pension for the war-caused incapacities of post traumatic stress disorder and tinea as and from 18 August 1998 up to and including 21 October 1999, at the rate of 70% of the General Rate and, as from 22 October 1999, at the Special Rate pursuant to s24 of the VEA.

   I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of:

   Senior Member M D Allen
     Dr M E C Thorpe, Member

   Signed:         Kwai-Ling Wong

   .....................................................................................

   Associate

   Date of Hearing  30 March 2001
   Date of Decision  11 April 2001
   Counsel for the Applicant        Mr C A Vindin
   Solicitor for the Applicant         Mr Kenneth Harrison
   Advocate for the Respondent  Mr S Modder, Department of Veterans' Affairs