JOHN LESLEY VEALL and REPATRIATION COMMISSION
[2009] AATA 575
•4 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 575
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1867
VETERANS' APPEALS DIVISION ) Re JOHN LESLEY VEALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member) Date4 August 2009
PlaceAdelaide
Decision The Tribunal sets aside the decision of the Repatriation Commission dated 11 September 2007, as affirmed by the Veterans’ Review Board on 22 February 2008, to refuse to increase Mr Veall’s rate of pension beyond 100 percent of the general rate. In substitution, the Tribunal determines that Mr Veall is qualified to receive pension at the intermediate rate, pursuant to s 23 of the Veterans’ Entitlements Act 1986, with effect from 2 November 2005.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – rate of pension payable – intermediate rate – applicant satisfies alone test – decision set aside
Veterans’ Entitlements Act 1986 s 23(1), 23(2), 23(3)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996
Starcevich v Repatriation Commission (1987) 18 FCR 221
Sheehy v Repatriation Commission (1996) 66 FCR 569
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50REASONS FOR DECISION
4 August 2009 Mr J G Short (Member) introduction
1. Mr Veall served in the Australian Army for approximately 20 years. On 2 February 2006, Mr Veall claimed pension in relation to post-traumatic stress disorder (PTSD) and alcohol abuse. The Repatriation Commission (the Commission) made a decision on 14 November 2006 to refuse acceptance of PTSD and alcohol abuse. On 11 July 2007, the Veterans’ Review Board (the VRB) varied the diagnosis of alcohol abuse to one of alcohol dependence and decided to accept PTSD as war-caused with effect from 2 November 2005. The VRB remitted the issue of assessment to the Commission.
2. On 11 September 2007, the Commission made a decision to pay Mr Veall a Disability Pension at the rate of 100 percent of the general rate with effect from 2 November 2005 (that is three months before Mr Veall lodged his claim for PTSD). On 22 February 2008, the VRB affirmed the Commission’s decision.
3. Mr Veall applied to this Tribunal for review of the assessment decision. Mr Veall said that he ceased work on 30 September 2005 solely as a result of the effects of his PTSD and that, throughout the assessment period (which commenced on 2 February 2006 and continues to the date of this decision), Mr Veall’s accepted disabilities are the sole cause of his inability to work for 20 hours or more per week.
4. Mr Veall’s accepted disabilities are as follows:
·bullet wound upper right arm;
·chondromalacia patellae;
·PTSD; and
·bi-lateral sensorineural hearing loss.
5. Mr Veall’s entitlement to pension at the intermediate rate is to be determined under s 23 of the Veterans’ Entitlements Act 1986 (the VE Act). The Commission acknowledges that he satisfies s 23(1)(a)(i) of the VE Act in that he is entitled to pension to be paid at least at 70 percent of the general rate. The Commission also concedes that Mr Veall satisfies the requirements of s 23(1)(b) of the VE Act in that his accepted disabilities alone are of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently.
6. The Commission asserts that Mr Veall does not satisfy s 23(1)(c) of the VE Act, that is the Commission asserts that Mr Veall is prevented from working otherwise than on a part-time basis, by reasons which include non-accepted conditions, particularly alcohol dependence and other factors, including the work stressors associated with Mr Veall’s occupation, his age and time out of the workforce. The Commission referred to the fact that Mr Veall has not sought employment since he ceased work on 30 September 2005 and suggested that this indicates that Mr Veall must have other reasons for not working, at least on a part-time basis.
issues for determination
7. I have noted the reports of psychiatrist, Dr Ewer, particularly Dr Ewer’s report dated 21 April 2009. In the light of the evidence before me, and having noted the concessions made by the Commission, I find that Mr Veall satisfies s 23(1)(a)(i) and s 23(1)(b) of the VE Act.
8. The remaining issue for me to determine is whether Mr Veall satisfies s 23(1)(c) of the VE Act, that is whether Mr Veall’s accepted disabilities are the sole cause of his inability to work more than on a part-time basis during the assessment period.
9. Along the road to this determination, I must also consider whether Mr Veall is disentitled from receipt of payment at the intermediate rate by reason of s 23(3)(a)(i) of the VE Act, that is, whether Mr Veall “ceased to engage in remunerative work for reasons other than his … incapacity from that war-caused injury or war-caused disease, or both”.
10. I have reached the conclusion that Mr Veall is not disentitled by reason of s 23(3)(a)(i) of the VE Act. I have found that he did not cease to engage in remunerative work for reasons other than his war-caused disabilities and have also found that Mr Veall satisfies s 23(1)(c) of the VE Act in that during the assessment period, it was his accepted disabilities alone which have prevented him from working more than on a part-time basis. The reasons for these decisions are set out below.
legislation
11. Sections 23(1), (2) and (3) of the VE Act read as follows:
“23 Intermediate 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’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; and
(c)the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(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.
(3) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i)if 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;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.”
background and evidence
12.
Mr Veall told the Tribunal that after serving in the Australian Army for approximately 20 years, he initially found work as a purchasing officer for about 2 years and then commenced work for a security department for about 18 months. After leaving this last position, he commenced work at the Real Estate Institute of Queensland (REIQ) and remained with that employer for approximately 17 years.
Mr Veall said that he was a manager of the retail sales section of the REIQ and that he was required to manage the production and sale of real estate documentation. In this capacity he oversaw the implementation of the first phase of a computer software system and then commenced the task of implementing a second phase of that software system.
13. Mr Veall said that he did not consider he was receiving sufficient support from his superiors. He said that he was also struggling with the physical side of his job. He referred to the condition of his knees, an accepted disability.
14. Mr Veall said that he became frustrated at work. He said that he now understands that it was his PTSD which caused him to become stressed, angry and frustrated. Mr Veall said that it was as a result of his PTSD symptoms that he decided to end his employment with effect from 30 September 2005. He said that he has not sought employment or worked since this last mentioned date.
15. In reference to other factors which the Commission suggest may, in combination with his PTSD symptoms, have led to the cessation of his employment and later to his inability to work more than on a part-time basis, Mr Veall said that his now diagnosed alcohol dependence did not affect his ability to work and neither did the stressors associated with the implementation of stage two of a software package. Mr Veall repeated that it was the symptoms of his PTSD alone which led to his cessation of employment and now prevent him working more than on a part-time basis.
consideration
16. In considering the application of s 23(1)(c) of the VE Act, I refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour was referring to s 24(1)(c) of the VE Act, but her comments apply equally to s 23(1)(c) of the VE Act. Her Honour said that proper consideration of s 24(1)(c) requires responses to the following four questions:
“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 account that he would not be suffering if he were free of that incapacity?”
17. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
18. The time at which the assessment under s 23(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act.
19. As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial: Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J. Finally, the remunerative work must be substantial remunerative work which the veteran has effectively performed: Starcevich (supra) at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569.
20. The type of work being undertaken by Mr Veall was that of a purchasing officer and department manager.
21. The second question in Flentjar is whether the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of employment which I have found is relevant. As mentioned, the Commission has conceded that s 23(1)(b) is satisfied. On the evidence, I find that by reason of his war-caused conditions, Mr Veall has, at least since the date of his application for pension (2 February 2006) been prevented from continuing to undertake the type of remunerative work which he had previously undertaken.
22. The third question in Flentjar refers to the “alone” test in s 23(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 23(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.
23. In Cavell, Burchett J said further, at [539], that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 23(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”. In Forbes, RD Nicholson J said at [39]: “The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
24. The Commission opposed Mr Veall’s application on the basis that throughout the assessment period his incapacity to work more than on a part-time basis was a result of not only his accepted disability of PTSD, but also from his non-accepted condition of alcohol dependence and other factors including Mr Veall’s work situation, his age and time out of the workforce. The Commission had initially argued that Mr Veall’s reduced capacity to work also stemmed from a hernia and the attraction of a redundancy package. The Commission withdrew its submission in respect of hernia and a redundancy package during the course of the hearing.
25. In reference to Mr Veall’s alcohol dependency, a report from psychiatrist Dr Marty Ewer dated 21 April 2009 provided the opinion that Mr Veall’s symptoms which interfere with his ability to function in the workplace were:
“ …
·Impaired memory and concentration.
·Irritability.
·Difficulties interacting with and coping with people (particularly authority figures).
·Reduced ability to cope with pressure.”
Dr Ewer said that all of these symptoms are symptoms or behaviours caused by PTSD.
26. Dr Ewer went on to say that some of these problems can be contributed to by alcohol dependence. He said that when he first assessed Mr Veall in May 2006, Mr Veall had told him that he drank alcohol almost every day. He usually drank one or two cans of full strength beer, a bottle of wine and up to 10-12 glasses of port or sherry per day. He also said that sometimes he was drinking excessive quantities of spirits. At hearing, Mr Veall described a lesser alcohol intake, that is less sherry and port than initially mentioned to Dr Ewer. He told the Tribunal that he was drinking a bottle of wine each night (perhaps one glass less) and that he was having one or two stubbies of beer per night and in winter he was having four or five glasses of sherry or sometimes port. Mr Veall also indicated that he was not drinking alcohol prior to or during working hours and that his level of consumption had been relatively consistent for many years.
27. Dr Ewer said that if I were to find that Mr Veall’s alcohol intake was reasonably stable over many years, that his alcohol intake was similar to what he told the Tribunal or that the employer was unaware of Mr Veall having an alcohol problem, then it would be Dr Ewer’s opinion that the symptoms which were causing his problems in the workplace were due to his PTSD and not to alcohol dependence. Dr Ewer said that even if I were to find that Mr Veall’s alcohol consumption was closer to that which Mr Veall initially described to Dr Ewer, then it was a possibility that his alcohol dependence contributed to his reduced working capacity. Dr Ewer said however that this would only be a possibility, rather than a probability.
28. The Commission argued that Dr Ewer may have been usurping the role of the Tribunal in expressing the opinions provided in his report dated 21 April 2009. I disagree. Dr Ewer has left the findings of fact to the Tribunal, but provided expert medical opinion evidence in relation to circumstances flowing from the findings which may be made by the Tribunal.
29. My findings must be made on the balance of probabilities. I find that Mr Veall’s rate of alcohol consumption has remained steady for many years during which he was able to adequately perform his work duties. I do not consider that alcohol dependence was a factor in Mr Veall’s decision to cease employment or a factor, which, perhaps in combination with others, reduced his capacity to work during the assessment period. This finding is consistent with the evidence provided by an executive manager of the REIQ, Mr Ian Murray. Mr Murray told the Tribunal that Mr Veall had been highly respected within the real estate industry. He said that he did not recall any incidents in the whole time he had worked with Mr Veall, involving the consumption of alcohol at work. He said that he never saw Mr Veall drinking alcohol at work and never suspected that Mr Veall had a problem with alcohol. He also told the Tribunal that neither Mr Veall nor anyone else who had worked at the REIQ, received a redundancy package.
30. In relation to Mr Veall’s workplace structure and pressures, Mr Murray said that there were significant pressures at work. Mr Veall also provided this evidence. Mr Veall said that he felt that he was not supported by other managers. He said that things gradually deteriorated and that he spent the time leading up to his cessation of employment in September 2005, simply sitting at his desk and not performing any work.
31. Mr Veall ceased employment on 30 September 2005. He lodged his application for, amongst other things, acceptance of PTSD, in February 2006, that is within six months of cessation of work. At the commencement of the assessment period, Mr Veall had been out of the workforce for less than six months. He was 58 years of age at the commencement of the assessment period and I am satisfied that neither his age nor time out of the workforce were factors which contributed to a reduction in his capacity to work during the assessment period or which motivated, in any way, his decision to cease employment on 30 September 2005. In the light of these findings, the third factor referred to in Flentjar is satisfied, that is Mr Veall’s war-caused PTSD is the only factor which reduced his capacity to work during the assessment period.
32. The fourth question in Flentjar is whether Mr Veall has suffered a loss of wages or earnings that he otherwise would not have suffered. This question must be considered by reference to s 23(3)(a)(i), which provides in effect that in order to suffer a loss of wages or earnings, a veteran must not have ceased to engage in remunerative work for some reason other than his incapacity from war-caused conditions.
33. The Commission again argued that Mr Veall’s alcohol dependence, his work situation and, to a lesser extent, his age, contributed to his cessation of employment. Noting the expert medical opinion evidence of Dr Ewer, together with the evidence of Mr Veall and Mr Murray, I find that the only factor which reduced Mr Veall’s capacity to work and led to his cessation of employment with effect from 30 September 2005, was his accepted disability of PTSD. I consider that over his long association with the REIQ, Mr Veall had encountered stressful situations and that he would have managed the stressful situations he found himself in during the first half of 2005 if it had not been for the symptoms of his PTSD.
34. In the light of the abovementioned findings, the final question asked in Flentjar is answered in the affirmative. Mr Veall satisfies the requirements of s 23 of the VE Act and is entitled to the intermediate rate of pension with effect from 2 November 2005, that is three months prior to the date upon which Mr Veall lodged his claim for acceptance of PTSD (which was accepted by the VRB on 11 July 2007 with effect from 2 November 2005). The application is successful.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Signed: .....................................................................................
B Bills Admin AssistantDate/s of Hearing 13 February 2009
Date of Decision 4 August 2009
Counsel for the Applicant Mr N Floreani
Solicitor for the Applicant Tindall Gask BentleyAdvocate for the Respondent Mr A Crowe
Department of Veterans' Affairs
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