JOHN TAYLOR and REPATRIATION COMMISSION
[2006] AATA 464
•26 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006]AATA 464
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/485
VETERANS' APPEALS DIVISION ) Re JOHN TAYLOR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell Date26 May 2006
PlaceSydney
Decision The decision under review is set aside and in substitution the decision is made that Mr Taylor is entitled to the special rate of pension.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
VETERANS’ APPEALS – increase in pension rate – Applicant seeking to be paid the special rate of pension – seven accepted disabilities including Post Traumatic Stress Disorder with secondary alcohol abuse and depression – medical evidence supports that due to Applicant’s psychiatric conditions he is unable to work for 8 hours a week – Applicant’s remunerative work was manual labouring – Applicant’s war caused psychiatric conditions alone prevent him from undertaking and continue to prevent him undertaking remunerative work – decision set aside
LEGISLATION
Veterans’ Entitlements Act 1986 ss 24, 120(4)CASELAW
Flentjar v Repatriation Commission (1997) 48 ALD 1
Starcevich v Repatriation Commission (1987) 76 AAR 449
Fry v Repatriation Commission (1997) 47 ALD 776
Magill v Repatriation Commission [2002] FCA 744REASONS FOR DECISION
26 May 2006 Senior Member, Mrs Josephine Kelly and
Member, Dr John CampbellIntroduction
1. Mr Taylor is a Vietnam veteran. He is seeking a review of the assessment of his pension. It is currently assessed at 100% of the general rate. He wishes to be paid the special rate of pension. Mr Taylor was born on 20 July 1946 and is currently 59 years of age.
2. The decision under review is the decision of the Repatriation Commission (“the Commission”) dated 20 November 2003 that assessed disability pension at 100% of the General Rate, and which was affirmed by the Veterans’ Review Board on 22 February 2005.
3. The “assessment period” commenced on 24 October 2003, the date Mr Taylor made a claim for pension, which is the ‘application day’.
Mr Taylor’s Accepted Disabilities
4. Following is a list of Mr Taylor’s accepted disabilities and the dates of acceptance according to the Commission’s records:
· Gun shot wound right shoulder (date unknown)
· Perceptive deafness (date unknown)
· Anxiety state (dated unknown)
· Osteoarthrosis of the right shoulder (13 September 2000)
· Post traumatic stress disorder with secondary alcohol abuse and depression (24 July 2003)
· Diabetes mellitus (6 August 2003)
· Hypertension (6 August 2003)
5. It is not contested that the “gun shot wound” was in fact a mortar injury which Mr Taylor suffered during the Tet offensive while asleep in a shellscape when he was guarding American artillery. One of his mates was killed. He was taken by helicopter to an American base hospital where some of the shrapnel was removed. Following convalescence he went back into the field for about three weeks but had difficulty carrying his pack, and was returned to hospital. Further shrapnel was removed and then he was sent back to Australia. He still has shrapnel in his shoulder. We accept Mr Taylor’s unchallenged evidence that the “gun shot wound”, perceptive deafness and anxiety state were accepted shortly after he returned from Vietnam in around 1969.
Date of Effect
6. If this claim is successful, the earliest date of effect is 24 July 2003.
Law
7. The applicable standard of proof is reasonable satisfaction, pursuant to s 120(4) of Veterans’ Entitlements Act 1986 (“the Act”).
8. To receive the special rate of pension Mr Taylor must satisfy the requirements of s 24 of the Act, which relevantly provides:
(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) …
(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) …
(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.
9. It is conceded by the Commission that Mr Taylor satisfies s 24(1)(a) and (b). The Repatriation Commission does not concede that Mr Taylor satisfies s 24(1)(c).
Issues
10. The issue in this case is:
· Has Mr Taylor ceased to engage in remunerative work for reasons other than his incapacity from his war-caused incapacity? (s 24(2)(a)(i)).
Mr Taylor’s Evidence
11. Following is a summary of Mr Taylor’s evidence. He left school in second year high school when he was 14 years old. After school he worked in labouring jobs including in a shearing shed as a rouseabout, doing factory work, building and construction work, including working on freeway construction, which included pouring concrete and using a 90 pound jackhammer. He was also a sheep shearer, worked in a sawmill stacking timber, and tailoring, which is as aspect of sawing logs, and working for plumbers and drainers.
12. When he was discharged from the Army after two years’ national service, he became a brickie’s labourer, and learnt to be a bricklayer.
13. He started his own business as a bricklayer in 1975 or 1976. A lot of his income was cash, and much of his work came through contacts in hotels. He did not pay tax for 14 years. He took advantage of a tax amnesty that meant he only had to pay tax for two years. He ceased business. For about 19 months he worked for the Public Work Department as a labourer, sometimes bricklaying. When a job was coming to an end at Bateau Bay, he quit because people were being put off. He said he was never sacked in his life.
14. He then worked for Wyong Council under an employment scheme for three months because he could not find another job. In 1985 a fellow worker hit him with a wheel barrow full of concrete and he hurt his back. He had two weeks off work and was on compensation. He returned to light duties working with a plumber. He had no residual effects.
15. In 1986 he worked for General Construction in the Ettalong - Umina area labouring, laying sewer pipes. He described how he was in a cage four metres underground and having “to shovel like hell” to prevent the tunnel caving in. He twisted his back in May. He was put on workers compensation until August when the work in that area ended, and he was made redundant. Centrelink then put him on what he described as sickness benefits until Christmas 1986. Thereafter he was on a disability pension. In 1991 at the suggestion of the Vietnam Veterans’ Association he applied for and was granted a service pension (Exhibit R3 p 64). His application specified his disability as shoulder wounds and back injury. He described how his shoulder sometimes locks, which is one of the reasons he will not get a job. For example, sometimes he would drop a trowel full of mortar because of that happening. His right shoulder caused him difficulties when he was bricklaying and labouring.
16. He said that he sought employment but nobody wanted to give him a job because he was thought to be unreliable and drunk all the time and that he would not turn up to work. He went through telephone books with a mate he worked with, and rang builders. However, they were happy with the people they already had.
17. In 1994 he moved from the Central Coast where had had lived for 34 years to his present home near Wagga Wagga. He moved because he had a couple of brothers there who seemed to get plenty of work.
18. In 2000 he worked for two days a week for three weeks crutching sheep which involved much bending down. Crutching one sheep takes 20 seconds to two minutes, depending on how dirty it is. He crutched about 200 sheep a day. He said he cannot have been doing too badly as he ran second. He had no trouble doing the job. He was angry when he found he had to pay back some of his pension. His understanding from what Veterans’ Affairs had told him was that this work would not affect his pension. In fact it did, and now he does not believe anything Veterans’ Affairs tells him. He also did not know that he had to tell them before he started work.
19. He has built a barbecue for himself which took 6 years and has built others for friends but takes his time.
20. He tries to get work but if he tells the truth no-one would employ him. He is not a liar. He knows fencers and others and they will not give him a job. People where he lives know about his war-caused disabilities. He went to Centrelink in Wagga Wagga a couple of months ago. He told them what was wrong with him and they have not contacted him. They said they had nothing for him. His JobSearch card was Exhibit A2. Before that he had seen people at the dog track involved in building and fencing and asked if any work was going.
21. He does not go to pubs now to drink but drinks at home. He does go to the pub to bet on races. He said that drinking is all he has got. He drinks one to two dozen stubbies of beer a day. There is no work in the small town where he lives. He sleeps four hours a night. He did have greyhounds and would take them for a walk when he got up. However he gave them away when a neighbour complained about their barking. He usually eats only one meal at night which he prepares. He enjoys his food. Sometimes he has a sandwich for lunch. He takes several medications.
22. If he was offered a job tomorrow he would take it. He knows he could do manual work. He said that he would just have to drink after work, that he would have to see how his depression went and that his right shoulder could be right for a couple of months. He said that he had a capacity to work in 2003 when he applied for the pension increase. His lower back does not prevent him working.
23. His anxiety state affected his ability to work a great deal. He did not know what would happen tomorrow and did not care. He attempted suicide twice in one week when his wife left him in 1990 and after the second attempt woke up four days later in a clinic. In 2005 he received psychiatric treatment for 30 days in hospital. He has no dependents and lives on his own.
24. In his claim form (T5), the impacts of his disabilities on his life were listed as affecting his social life as he avoids social contact with others and that he has a high alcohol dependence. He has feelings of detachment and isolation. He does not like being in close proximity to others. When completing domestic duties he had difficulties concentrating and he has a lack of interest, and is preoccupied with traumatic events in the past. In response to a question which asked if his disabilities stopped him working in any way, he answered:
“Weakness in (R) shoulder. Lack of concentration. Exaggerated startle response. Angry outbursts. Unable to get on with others.”
25. The claim form also states that he has not sought employment and he is not intending to seek employment.
Dr Fermanis (T8)
26. Dr Fermanis, a general practitioner expressed the opinion that due to his anxiety, post traumatic stress disorder with alcohol abuse and depression, combined with diabetes, hypertension and osteoarthrosis, Mr Taylor is unable to work for more than eight hours per week.
Dr Harvey-Sutton
27. Dr Harvey-Sutton, consultant occupational physician, prepared a report dated 21 July 2005 (Exhibit A1). She set out a detailed occupation history which is essentially as summarised above. To the extent that there are differences we do not consider them significant. Additional information in the history she took was that Mr Taylor received a compensation payment for his back of $29,000.
28. She noted that when he did the sheep crutching work in 2000 he reported that his back was okay to complete this task. He said that he moved to the Riverina about 11 years ago because he was “too well known” to the police for his drinking. He was locked up on several occasions. He used to get drunk and get into fights. He no longer drinks at pubs or clubs to avoid getting into fights. He told her he was unable to get further work as his general health and alcoholism is known about in the area where he now lives.
29. In her summary Dr Harvey-Sutton states that:
“he initially appeared to work for some 15 years and appears to have stopped working following an injury to his back. However, I am of the opinion that more likely than not, his post-traumatic stress disorder/ anxiety contributed to his eligibility for the Disability Support Pension in 1986.”
30. It is her opinion that as he was able to do some sheep crutching in 2000, his back no longer impacts on his vocational capacity.
31. Based in the history given, the clinical examination and accompanying documents, her opinion was that he meets the criteria for Special Rate of pension. That is, he is unable to work for 8 hours a week or more and his PTSD with secondary alcohol abuse and depression is the operative factor which more than any other factor explains his inability to work.
Dr Lewin
32. Dr Lewin, psychiatrist, prepared a report dated 9 November 2005 (Exhibit R1). He also completed a detailed work history from Mr Taylor which is similar to that already set out. However, he notes that Mr Taylor informed him that he has worked intermittently for short periods of time and completed work for friends. This intermittent work occurred after 1986. Mr Taylor told Dr Lewin that he had been involved in “heaps of fights” when drinking. The last occasion he described was two years ago when he was “laying into” his daughter’s partner. Although he had many assault charges he had never been convicted.
33. Dr Lewin referred to a series of questions he had been asked about Mr Taylor’s fitness to work. In relation to Mr Taylor’s psychiatric condition, Dr Lewin’s opinion is that if Mr Taylor presented himself to a prospective employer how he attended his room, the employer would be aware of a significant problem. He notes:
Lack of attention to personal hygiene, a garrulous, disinhibited and aggressive pattern of behaviour would be evident to a prospective employer. The alcohol problem has proved to be a chronic problem.
34. He noted that Mr Taylor is not going to change his drinking problem and specialist treatment has had no impact on curbing his drinking habit.
35. Dr Lewin concludes:
When considering Mr Taylor’s Post Traumatic Stress Disorder and associated alcohol abuse, I consider Mr Taylor unfit for any work. This opinion is compounded by other factors, including factors related to motivation. Even if one assumes that Mr Taylor was highly motivated to work, factors relating to his accepted psychiatric disabilities would prevent him from working in any capacity.
I have no objective way of assessing whether Mr Taylor has “genuinely” been seeking work. He told me that he had stopped looking for work because of the actions of the Department. Mr Taylor was evidently very angry when telling me about this.
When Mr Taylor’s accepted psychiatric conditions are considered separately from factors related to motivation, opportunity and his physical condition, I concluded that Mr Taylor is unfit for work, even on the basis of eight hours per week.
Dr Chase
36. Dr Chase, occupational physician, prepared a report which contained a very detailed history included an occupational history which is similar to the occupational history already given (Exhibit R2). He also gave oral evidence.
37. Dr Chase recorded in his report that Mr Taylor was unkempt, wearing shorts, thongs and T-shirt and smelt strongly of alcohol at 9 am. He was heavily tattooed, generally very grubby and his eyes were red.
38. In answer to a series of questions about Mr Taylor’s psychiatric condition, Dr Chase wrote:
… On return from Vietnam he started drinking heavily and would drink seven days a week. He frequently became involved in fights and there was progressive breakdown of his marriage to the point where his wife left hime in 1990. Over the years he has gradually reduced his contact with Veterans, the RSL, the Vietnam Veterans’ Association and the attendance at Anzac Day parades. He suffered from nightmares for many years and he describes ‘flashbacks.’ These flashbacks appear to have become worse in recent years with the increasing Australian Military involvement overseas. Ironically while he was very upset with the ‘old timers’ who would not recognise his War experience he describes the current soldiers who have been involved in East Timor, Afghanistan and Iraq as ‘fairies’. He says that he does not think about Vietnam every day but he thinks about it ‘a lot of times.’ He has for many years been isolated from friends and is completely isolated from his family. His anxiety is persistent.
39. Dr Chase also expressed the opinions that Mr Taylor’s psychiatric condition had been stable for some time.
40. He believes that Mr Taylor is not continuing in employment due to “Mr Taylor’s disillusion with the fact that it conflicted with his Pension and that he was required to pay the money back”.
41. In response to the question of whether Mr Taylor is capable of continuing employment in his usual employment of labourer and shearer, Dr Chase stated:
He is physically capable of engaging in such employment. His psychiatric states would provide some significant barriers to engaging in full-time employment. On balance I think that he is probably not capable of continuing employment.
42. Other questions and answers relevant to the issues in this case given by Dr Chase in his report are:
Would Mr Taylor’s psychiatric disabilities, if any, be obvious to a prospective employer?
Yes. He presents as an angry and anxious man. He would have a great deal of difficulty with both authority figures and co-workers.
If Mr Taylor is not able to work, would he be able to undergo rehabilitation or retraining?
No.
If Mr Taylor is not able to work what is the reason for this?
It is his psychiatric disability alone.
Has Mr Taylor genuinely been seeking remunerative employment?
No.
If Mr Taylor has not genuinely been seeking remunerative employment what is the reason for this?
The predominant reason that he gave to me was that attempting to seek work or engaging in paid work would compromise his Pension.
43. In his oral evidence, Dr Chase confirmed his opinion that Mr Taylor cannot go back to work because of his psychiatric state. The work Mr Taylor undertook in 2000 was short term and he would be very surprised if he could maintain that level of work much beyond what he did. It was not a true reflection of his ability to work.
Consideration
44. The correct approach to the application of s 24(1)(c) of the Act is the four steps set out in Flentjar v Repatriation Commission (1997) 48 ALD 1.
45. First, we find that “the remunerative work” that Mr Taylor was undertaking within the meaning of s 24(1)(c) of the Act was manual labouring work. For clarity that includes the kind of work he was doing in 1986 and 2000. In coming to this conclusion we have taken into account the comments of Fox J and Jenkinson J in Starcevich v Repatriation Commission (1987) 76 ALR 449.
46. Doctors Harvey-Sutton, Lewin and Chase were of one opinion, that is that Mr Taylor is prevented from continuing to undertake that work by reason of his accepted war-caused injury or disease, that is his psychiatric conditions. In accordance with the second step in Flentjar we find that as of the assessment date Mr Taylor is prevented from continuing to undertaking that work because of war-caused injury or disease.
47. Thirdly, on the evidence, including that of all of those three doctors, that is the only factor preventing him from continuing to undertake that work. His lower back is not preventing him from working, and nor is his right shoulder.
48. Fourthly, we find that by reason of being prevented from continuing to undertake manual work that he was undertaking, Mr Taylor is suffering from a loss of salary, wages or earnings that he would not be suffering if he were free of the incapacity.
49. In relation to our third and fourth findings, it is appropriate to set out our reasons for rejecting the submission made by Mr Bunn who appeared for the Commission. As we understood his submission, he argued that Mr Taylor did not meet what he described as the “loss” test because either he has ceased to engage in remunerative work for reasons other than incapacity from war-caused injury or disease (s 24(2)(a)(i)) or is incapacitated or prevented from engaging in remunerative work for some other reason (s 24(2)(a)(ii).
50. We accept that if that is so, the ameliorative effect of s 24(2)(b) does not apply: Fry v Repatriation Commission (1997) 47 ALD 776, Magill v Repatriation Commission [2002] FCA 744.
51. Mr Bunn argued that Mr Taylor did not cease work in either 1986 or 2000 because of his service related disabilities. We agree that on the evidence that is so. Mr Taylor stopped working in 1986 because of a back injury and the job coming to an end and in 2000 because the job was short term and came to an end. Mr Bunn concedes that that is not determinative of the issue and went on to argue that a number of other factors “play a major role” in preventing Mr Taylor from continuing to undertake remunerative work. They include that Mr Taylor is electing not to compromise the payment of his service pension by seeking work, his time out of the work force and that there is no work where he lives and that it is seasonal.
52. We take into account the evidence of Dr Lewin and Dr Chase on the question of Mr Tayor’s motivation to seek work. We note also that that evidence was given in the context of whether Mr Taylor was genuinely seeking work, a test in s 24(2)(b) of the Act.
53. We accept Mr Taylor’s evidence that over the years, including recently, he has looked for work, in hotels, at the dog track and from Centrelink. However, people in his local area know him and do not wish to employ him. Centrelink had nothing available for him. He advised Centrelink about his accepted conditions. His anger with Veterans’ Affairs was because he felt he had been misled.
54. As set out above, the three doctors who provided evidence agree that it is his psychiatric conditions alone that prevent him from undertaking remunerative work. For example, Dr Lewin’s opinion was that “Even if one assumes that Mr Taylor was highly motivated to work, factors relating to his accepted psychiatric disabilities would prevent him from working in any capacity”. We do not agree that the possible consequence for his pension is a reason why he ceased work or is a factor which prevents him from working. We do not accept Mr Bunn’s argument.
55. For the above reasons, we are satisfied that Mr Taylor satisfies s 24(1)(c) of the Act. It is therefore unnecessary for us to consider the application of the ameliorative provision of s 24(2)(b) of the Act.
Decision
56. The reviewable decision is set aside and in substitution the decision is made that Mr Taylor is entitled to the special rate of pension.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell.
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 18-19 May 2006
Date of Decision 26 May 2006
Solicitor for the Applicant Winship Lawyers
Advocate for the Respondent Department of Veterans' Affairs
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