John William Burton and Repatriation Commission
[2015] AATA 105
•26 February 2015
[2015] AATA 105
Division VETERANS' APPEALS DIVISION File Number
2012/1851
Re
John William Burton
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President F J Alpins
Date 26 February 2015 Place Melbourne The decision under review is affirmed.
............................[sgd].......................................
Deputy President F J Alpins
VETERANS’ ENTITLEMENTS – application for increase in pension – special rate of pension – ss 24(1)(c) and 24(2)(b) of Veterans’ Entitlements Act 1986 (Cth) – whether veteran prevented by incapacity from war-caused conditions alone from continuing to undertake remunerative work – whether veteran’s incapacity the substantial cause of inability to obtain remunerative work
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 15, 19, 22, 23, 24, 120, 175
Cases
Baini v R (2012) 246 CLR 469
Banovich v Repatriation Commission (1986) 69 ALR 395
Brennan v Comcare (1994) 50 FCR 555
Byrne v Repatriation Commission [2001] FCA 1134
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Fox v Repatriation Commission (1997) 45 ALD 317
Magill v Repatriation Commission [2002] FCA 744
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Watkins [2015] FCAFC 10
Richmond v Repatriation Commission (2014) 140 ALD 380
Smith v Repatriation Commission (2014) 220 FCR 452
REASONS FOR DECISION
Deputy President F J Alpins
26 February 2015
INTRODUCTION
This application for review concerns the entitlement of the applicant, Mr John Burton, to a special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). The essential issue before the Tribunal is whether s 24(1)(c) is or was satisfied at any relevant time, given the operation of the provisions of s 24(2).
BACKGROUND
Mr Burton was born on 3 January 1946. He served in the Australian Army from 1966 to 1968 and gave operational service in Vietnam from 27 March 1968 to 20 August 1968.
Mr Burton suffers from various medical conditions, some which have been accepted as being “war-caused” for the purposes of the Act (see s 9), relevantly including post traumatic stress disorder (“PTSD”) and alcohol dependence. PTSD was accepted as a war-caused condition from which he suffers on 29 June 2005, with effect from 7 May 2003. It appears that PTSD was accepted as a war-caused condition by the respondent, resulting in a decision made by consent by this Tribunal on that day to that effect (by which Mr Burton’s pension was increased from 40% to 50% of the general rate), although nothing turns on whether the respondent first accepted as much.
Since June 2006, Mr Burton has been in receipt of a pension at 100% of the general rate under s 22 of the Act. On 25 November 2010, shortly before his 65th birthday, Mr Burton applied in accordance with s 15 of the Act for an increase in the rate of his pension, then making his claim with respect to his alcohol dependence.
On 20 October 2011, the Veterans’ Review Board decided that Mr Burton’s alcohol dependence was war-caused, with effect from 25 August 2010, given the operation of s 20 of the Act, and remitted the matter to the respondent for assessment of the rate at which Mr Burton’s pension was payable.
In a decision made on 26 October 2011, the respondent determined that Mr Burton was not eligible for the special rate of pension (under s 24 of the Act) nor the intermediate rate of pension (under s 23 of the Act) and that his pension would remain at 100% of the general rate. On 18 April 2012, the Veterans’ Review Board affirmed the respondent’s decision. Accordingly, the respondent’s decision is the decision under review (s 175 of the Act).
RELEVANT LEGISLATION
A pension under the Act may be paid at the general rate, the intermediate rate, or the special rate. As Mr Burton applied for an increase in the rate of his pension, s 19(4A) of the Act directs that his application be dealt with in accordance with sub-ss (5A), (5B) and (5C) and determined under sub-s (5D).
As the Full Federal Court recently stated in Repatriation Commission v Richmond [2014] FCAFC 124 at [18], “[t]he effect of these provisions is that the Commission was required to assess whether at any time during the assessment period [the veteran] was entitled to an increase to the special rate of pension pursuant to s 24” (see also Smith v Repatriation Commission (2014) 220 FCR 452 at [5], [40], [185]). The assessment period starts when the application was made and ends when it is determined; it therefore continues to run until the Tribunal makes its decision (see Richmond at [19]). It follows that ceasing particular employment for reasons unrelated to a war-caused condition prior to the assessment period does not destroy a veteran’s subsequent entitlement to an increased pension (see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402-403, 404; Smith at [70] per Buchanan J).
I note in passing that it is also necessary for the reasons expressed by the Full Federal Court in Smith to consider whether the veteran was entitled to an increase to the intermediate rate of pension at any time during the assessment period, given the provisions of s 19(5C) and (6) of the Act.
Section 24 relevantly provides:
“24 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
… 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;
(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.”
A reference to the incapacity of a veteran from a war-caused injury or a war‑caused disease, such as that made in s 24(1)(c), refers to the effects of that injury or disease, not the injury or disease itself (s 5D(2) of the Act; see also Smith at [2]).
Section 120(4) of the Act requires that a veteran’s entitlement to an increased rate of pension be decided to the respondent’s, and therefore the Tribunal’s, “reasonable satisfaction”, which involves a civil standard of proof (Repatriation Commission v Smith (1987) 15 FCR 327). No onus of proof is imposed on the applicant or the respondent (see s 120(6)).
RELEVANT AUTHORITIES
The Full Federal Court’s decision in Richmond was handed down after the hearing of his proceeding. I note that the parties were given the opportunity to lodge written submissions about the significance of the Full Court’s decision in Richmond. I note also that the Full Court’s decision in Richmond was very recently approved by a differently constituted Full Court, in Repatriation Commission v Watkins [2015] FCAFC 10 (see at [57]-[61], esp. at [61]).
The “overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason” (Smith at [47]-[48] per Buchanan J (esp. at [48]), adopted by the Full Court in Richmond at [24], [54]).
The first limb of s 24(1)(c) states:
“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 ...”
This limb is capable of being informed by s 24(2)(b) (Smith at [48]-[49]; Richmond at [21], [24], [52]).
The first limb of s 24(1)(c) “requires a causal connection between the veteran’s war‑caused incapacity, alone, and the veteran’s inability to undertake the remunerative work he or she previously engaged in” (Richmond at [52]).
That limb gives the Tribunal the task of assessing “what the veteran probably would have done, if he had none of his service disabilities during the assessment period” and that consideration of that question “is a hypothetical exercise” (Repatriation Commission v Hendy (2002) 76 ALD 47 at [36], [37]). I note also that “the requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past” (ibid at [36]).
In Richmond, the Full Court held, with respect to the first limb of s 24(1)(c) (at [57]‑[58]):
“The first limb of s 24(1)(c) requires the decision-maker to decide whether the veteran’s war-caused injury or disease (or both) alone prevented him or her from continuing to undertake the remunerative work the veteran was engaged in. The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity.
The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.” (Emphasis added.)
The Full Court cited various authorities as supporting its interpretation, including the decision of the Full Court in Hendy at [37], in which the Court said further with respect to the exercise to be undertaken by the Tribunal in determining whether the first limb of s 24(1)(c) is satisfied:
“The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work.If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact [of] the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to the veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the tribunal in determining whether the veteran’s war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly not open to review.” (Underlined emphasis in original; bold emphasis added.)
Similarly, in Smith Rares J observed that the question of whether the “alone” test in s 24(1)(c) is satisfied is “a question of fact, informed by commonsense” (at [16], see also at [17]); see also Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 per Burchett J, quoted with approval in Richmond at [59]-[60]).
In Richmond, the Full Court quoted with approval the following passage from the trial judge’s reasons for judgment (Richmond v Repatriation Commission (2014) 140 ALD 380 at [108]):
“The authorities in my view establish that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.”
In contrast, the Full Court (at [67]-[69]) disapproved of the contrary interpretation recently reached by Bromberg J in Watkins v Repatriation Commission [2014] FCA 787 at [24], [28] and [46]. As I have indicated, an appeal from that decision was allowed very recently, the Full Court instead following the decision of the Full Court in Richmond.
The Full Court in Richmond acknowledged that “this may be seen as a harsh result”, but noted that it arose from the plain words of s 24. Also, the Court noted that “the special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans” (at [65]). Furthermore, the Court observed that “the harshness of the ‘alone’ requirement is ameliorated to some extent by s 24(2)(b)” (at [66], see also at [21]; Smith at [11], [21], [48]-[49], [173]-[174], [176]).
The Court was also required to consider the meaning of the word “prevented” and more particularly the expression “prevented from” in the first limb of s 24(1)(c). The Court held that the word “prevented” in s 24(1)(c) took its ordinary meaning and that there was no need to use other words or expressions in its place; to that extent the Full Court departed from the trial judge’s “gloss” on the word “prevented” (at [73]-[76]).
The Court held further that, having regard to the text of s 24(1)(c), including the ordinary meaning of the expression “prevented from”, read in the context of the rest of s 24 and with proper regard to the legislative policy and purpose of s 24(1)(c) and the beneficial purpose of the Act, the first limb is concerned only with factors that prevent the veteran from engaging in remunerative work ((at [73]-[74], [78]-[79], [92]-[93], [97]).
Accordingly, factors such as increasing age, labour market forces and the unavailability of remunerative work, time out of the workforce and lack of recent work experience “are appropriate to be considered in an enquiry under the first limb [of s 24(1)(c)] as ... these factors may contribute to preventing a veteran from continuing in or obtaining remunerative employment” (Richmond at [98] and the cases cited therein, including Hendy at [37] (see above)). In Richmond, the Full Court noted that time out of the workforce may be a preventative factor because “in the eyes of many employers a person who has been out of the workforce a long time may be regarded as unemployable” (ibid).
I note by way of contradistinction that the Court held that a veteran will not be disqualified from entitlement to the special rate for failure to satisfy the first limb on the basis that the veteran made a voluntary or elective decision to cease work for a reason other than incapacity, as factors which induce or provide the veteran an incentive to cease the remunerative work in question are not relevant for the purposes of the first limb.
However, the Full Court held that such factors are relevant to the second limb of s 24(1)(c), which is:
“the veteran ... 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”.
That limb is amplified by s 24(2)(a) (Richmond at [21]-[23], [53], [80]-[81], [93]; Smith at [10], [48], [172]).
Accordingly, the Full Court in Richmond stated (at [86]):
“However we accept that the operation of the second limb of s 24(1)(c) and s 24(2)(a) means that a veteran who voluntarily chooses to cease remunerative work for reasons other than war-caused incapacity (for example, to access superannuation benefits or because of dissatisfaction with work unrelated to war‑caused injuries) will usually not be eligible for the special rate, as he or she will usually be unable to establish financial loss by reason of his or her war‑caused incapacity.”
Earlier in its reasons, the Court noted that the issue of whether a voluntary decision to cease working falls under the first or second limb of s 24(1)(c) is “not just a theoretical question” as “the enquiry under the second limb is less stringent than under the first limb” (at [56]). At that point in its reasons the Court adverted to the consequent requirement to determine whether a decision to cease work was in fact voluntary or rather was a consequence of incapacity from a war-caused condition (see also Byrne v Repatriation Commission [2001] FCA 1134 at [8]-[9] per Gyles J).
With respect to s 24(2) of the Act, the Full Court in Richmond expressed (at [23]) its agreement with the approach taken by the Full Court in Smith in its consideration of the proper interaction of ss 24(2)(a) and (b) with the first and second limbs of s 24(1)(c).
As Rares J noted in Smith at [11], s 24(2)(b) applies where the veteran has not been engaged in remunerative work and requires that the veteran satisfy the respondent of three matters, in order to have the benefit of the “beneficial easing” of the “alone” test in s 24(1)(c) (see also per Foster J at [174]). Section 24(2)(b) has residual operation - when “the requirements of s 24(1)(c) are met by a veteran according to their terms, there will be no role for s 24(2)(b) to play and no need to resort to that subsection in order to ameliorate the strict application of s 24(1)(c) in an otherwise worthy case” (Foster J at [176]; see also at [51] per Buchanan J, at [20] per Rares J).
The Full Court held in Smith that, in determining whether at any time during the assessment period a veteran was entitled to an increase to the special rate of pension pursuant to s 24, efforts made by a veteran to obtain work prior to the assessment period are to be taken into account in applying s 24(2)(b) (at [1], [52], [64], [69]-[70], [74], [76], [185], [192]). Furthermore, I note that the Full Court held that the application of s 24(2)(b) is not limited to circumstances where a veteran has not been engaged in remunerative work at all since leaving military service or becoming incapacitated (at [1], [15], [21], [49]-[50], [77], [181]-[182]).
In Smith, Buchanan J stated with respect to the operation of s 24(2)(b) (at paras [49], [51]):
“Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (i.e. loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.
...
On the view which I take, the test in s 24(2)(b) is one to be applied at the time when the assessment is required to be made under s 19(5C). A veteran who has not been engaged in remunerative work at a particular point in time (i.e. before or during the assessment period) may nevertheless satisfy s 24(1)(c) by demonstrating that there has been a genuine effort to engage in remunerative work, which effort would continue but for the incapacity, and that the incapacity is the substantial cause of an inability to obtain remunerative work. In that circumstance, the veteran is treated as having been prevented from continuing to undertake remunerative work earlier undertaken. Where the requirements of s 24(1)(c) are capable of being addressed directly, because a veteran is able to show a non-continuation of earlier remunerative work, it will not be necessary to have regard to s 24(2)(b). However, there may be circumstances, and the present case was one in my view, where a veteran will be entitled, notwithstanding earlier cessation of remunerative work (whatever the reason), to point to genuine efforts to re-engage in remunerative work. Such an approach does not subvert the operation of s 24(1)(c). It merely provides an alternative, and intended, method of satisfying s 24(1)(c).” (Emphasis added.)
Later in his reasons (at para [70]), Buchanan J explained further:
“I see no reason why a veteran would be disentitled to make an application for an increase in pension if he or she had ceased to work for particular reasons at one point in time, then commenced genuine efforts to find work and was then prevented only by a war-caused injury or disease from obtaining such work. Ceasing to work at a particular time for reasons other than war-caused injury or disease, including for reasons which might be entirely beyond the control of a veteran (such as redundancy for example), is not a permanently disentitling circumstance. Nor is it necessary to make efforts during an assessment period which might be futile and humiliating if there is adequate evidence before an application is made that genuine efforts have been made to obtain employment, those efforts have been without success, and the lack of success is due to the war-caused injury or incapacity. That is accommodated in terms by s 24(2)(b).” (Emphasis added.)
(See also per Rares J at [21].)
It is convenient to note at this point other aspects of the operation of s 24(2)(b). First, as I noted above with respect to s 24(1)(c), and as the respondent accepted in oral submissions, it is necessary to take into account the consequences of a veteran’s incapacity from their war-caused condition in applying s 24(2)(b). As Gyles J explained in Byrne (at [8]-[9]):
“[A] consequence of incapacity resulting from the war-caused injury or disease can hardly be counted as a factor against the applicant under s 24(2)(b) when considering the effect of that incapacity upon obtaining employment.”.
In Byrne, Gyles J also stated that s 24(2)(b) involves an exercise in comparison:
“The issue is not limited to the question as to why the incapacitated person is in fact unable to obtain employment ... although that may be relevant. In order to judge the effect of the relevant incapacity, it is necessary to compare the position of the applicant as he is with the position he would be in without the relevant incapacity. ... That process enables the true effect of war-caused incapacity upon the ability of the applicant to obtain work to be assessed.”
Furthermore, the expression “the substantial cause” in s 24(2)(b) “requires that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it” (Fox v Repatriation Commission (1997) 45 ALD 317 at 319-320 per Kiefel J). The use of the definite article in that expression “requires a stronger and more direct causal connection between the incapacity and the inability to obtain remunerative work” (ibid) – that is to say, there cannot be more than one such cause for the purpose of the provision.
I turn now again to the second limb of s 24(1)(c), which requires a causal connection between the veteran’s inability to undertake the remunerative work he or she previously engaged in and the veteran’s suffering of financial loss (Richmond at [53]). As I have indicated, in Richmond, the Full Court (at [24]) adopted with approval Buchanan J’s explanation of s 24(1)(c) at [47]-[48], including, relevantly, the propositions that s 24(1)(c) requires that prevention for the prescribed reason from continuing relevant work for the purposes of the first limb be the cause of a loss of earnings and that such loss of earnings would not be suffered but for the incapacity. Accordingly, the Court stated that the “enquiry under this limb relates to whether the veteran’s financial loss is a result of his or her war-caused incapacity” (at [53]).
In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 5, citing Repatriation Commission v Smith (1987) 15 FCR 327 (“Smith 1987”) at 336-7, the Full Court said that the second limb raises the question of what the veteran probably would have done in the absence of the relevant war-caused incapacity. Similarly, in Smith, Rares J stated (at [20]) that “the importance of the words ‘remunerative work that the veteran was undertaking’ in s 24(1)(c) is to connect the incapacity to the relevant loss of income by creating a before and after test or frame of reference.”
As I have said, the second limb of s 24(1)(c) is amplified by s 24(2)(a), which “supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied” being “in effect ... the opposite to the conditions in s 24(1)(c) itself” (Smith at [48] per Buchanan J; see also at [10], [19] per Rares J).
As Buchanan J pointed out, s 24(2)(a) operates on the basis that the veteran in question is incapacitated from war-caused injury or disease. However, the provision makes it clear that the “cessation of work and the financial loss caused by that circumstances must be the consequence of the war-caused incapacity not the result of an independent decision to stop work or the consequence of incapacity brought about by some incident or other matter which is not war-caused” (per Foster J at [172], cited with approval by the Full Court in Richmond at [82], see also at [83]). I note Buchanan J’s reference to s 24(2)(a) as concerning circumstances where incapacity is not the “only” reason for the economic loss (at [48]), although perhaps, read in context, his Honour did not intend to adopt a different construction.
The financial loss referred to in the second limb of s 24(1)(c) may be caused by a loss of existing employment or by an inability to obtain new employment (Magill v Repatriation Commission [2002] FCA 744 at [10], citing Banovich at 402).
I note that the expression “has ceased to engaged in remunerative work” in s 24(2)(a)(i) “entails that the veteran has left the workforce, and not that he or she is merely unemployed” (at [10] per Rares J).
In conclusion, it is worthwhile to mention the following point. Although, as the Full Court acknowledged in Richmond (at [29]), the questions distilled from the provisions of s 24(1)(c) by Branson J in the Full Court’s decision in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 have been followed in many Federal Court decisions (at both trial and appellate level), in Richmond the Full Federal Court declined to ascertain the application of s 24(1)(c) by reference to the Flentjar questions, given that “the application of s 24(1)(c) is not to be ascertained by construing the words in the authorities as if they were the words of the statute” (citing Brennan v Comcare (1994) 50 FCR 555 at 572 per Gummow J). In that respect, they agreed with Buchanan J in Smith (at [45]), where his Honour adverted to the dangers of such an approach, given that the distillation of issues in Flentjar necessarily occurred in the context of the particular facts of that case (see also at [67], with respect to the third Flentjar question).
As the High Court stated in Baini v R (2012) 246 CLR 469 at [14], “paraphrases of the statutory language ... in cases decided under [an] Act ... are apt to mislead if attention strays from the statutory text”. An illustration of how one might be led astray in the application of s 24(1)(c) to particular facts by consideration of the Flentjar questions can be found in the second and third questions, which are both directed to war-caused injury or war‑caused disease and their preventative effect. However, the text of the provision is instead directed towards “incapacity from” war-caused injury or war-caused disease, that is to say the effects of that injury or disease, not the injury or disease itself (see s 5D(2); see also Richmond at [52], Smith at [47]-[48]).
Accordingly, I have addressed the construction and application of s 24(1)(c) by reference to the statutory words (as construed in relevant case law: see Brennan v Comcare at 572), not by reference to the Flentjar questions.
EVIDENCE
Mr Burton’s evidence took the form of a witness statement and oral evidence; he was cross-examined. Mr Burton completed secondary schooling to leaving certificate level (equivalent to year 11). At the age of 16 or 17, he was then employed by the Bank of New South Wales and worked there, first as a “junior”, then as a “ledger examiner” and teller, until his enlistment in the Australian Army. After his discharge from the Army, he resumed work with the same employer and its successor (Westpac Banking Corporation) until his retrenchment, which occurred in about November 1996. At that time, having risen steadily in seniority, he was a manager of a branch of that bank in Melbourne’s central business district. Under cross-examination, Mr Burton said that he was “good at my job”.
Nevertheless, as part of a restructuring of the bank, his position was “downsized” to one of lesser seniority and he was made redundant. Under cross-examination, Mr Burton said that he was one of seven managers in the central business district made redundant as part of the downsizing, and that his staff was reduced from 27 to 17 people. He found out about his redundancy when his regional manager took him out for a cup of coffee. He accepted under cross-examination that costs pressures were being placed on bank staff and the banking industry as a whole during the period leading up to the restructuring.
At around the time of the restructuring, he was offered a position in the bank’s private banking division, which would have entailed higher remuneration but also greater responsibilities. Mr Burton declined that offer, as he felt unable to cope with its responsibilities. He was concerned that the customers he would be required to deal with would be more demanding and would put him under pressure. Also, he was concerned that he would be increasingly exposed to alcohol consumption in social activities he would be required to engage in with such customers, which would exacerbate his psychological problems. Under cross-examination, Mr Burton acknowledged that the private banking job constituted a promotion involving significant responsibilities.
Mr Burton felt at the time that he was only just coping with the demands of his position as branch manager, which included managing the branch staff. He gave evidence that he was then experiencing increasing difficulty relating to other people, problems in concentration and memory and that insomnia resulting from his recollections of war service was contributing to his symptoms, particularly his lethargy and irritability. In oral evidence, Mr Burton said that he was “having trouble with [my] staff and I was just being difficult to get on with” and “just having trouble coping”. He tended to become aggressive and argumentative, particularly with his regional manager. He also gave oral evidence that he “had a lot of anxiety” and that he was “feeling stressed out”, as the “staff ... weren’t working to their capacity”.
Accordingly, in his witness statement, Mr Burton described the offer of a retrenchment package as a “relief” and a “blessing in disguise”. Under cross-examination, Mr Burton said that he was working 60 hours per week when he was made redundant and accepted that he therefore had substantial work capacity at that time.
Mr Burton applied for another advertised position within the bank, but his application was not successful. Under cross-examination, Mr Burton explained that he applied for that job despite his problems because he couldn’t afford to give up work and he was “desperate to find another job”. He also said that he “was too senior” for the job in question.
Mr Burton gave evidence that, at the time he stopped working, in 1996, he had not made any financial arrangements for retirement and had not intended to stop work – he had intended to work until he was 65 years old. Under cross-examination, Mr Burton said that when he joined Westpac the usual retirement age for a bank manager was 65 and that that remained the case in the mid 1990s. He said also that “[i]n the old days” managers stayed to that age.
After his retrenchment in 1996 until early 2001, Mr Burton made numerous unsuccessful attempts to find other employment. He applied for a wide variety of jobs including financial, managerial, consulting and administrative positions, including jobs as a bank manager. In his desire to find employment, he also applied for at least one job as a courier driver. He also sought employment through networking.
Under cross-examination, Mr Burton accepted that a number of the jobs he applied for, such as jobs as a golf club manager, by their nature involved a significant social aspect. He explained that he “was desperately trying to find work”. He accepted that he nevertheless believed that he could do those jobs.
In response to a question from the Tribunal as to why he had declined the private banking job given his need to earn a living, which had found expression in his subsequent job seeking efforts immediately after his redundancy (which included jobs which required dealing with people, potentially including high net worth individuals (such as at golf clubs)), Mr Burton agreed that he was intimidated by the kinds of people he would have had to deal with in private banking and confirmed that “I just felt I could not do the job”. He said that the bank did not have any other positions available for him. Under cross‑examination he accepted that he did feel capable of doing the job he had unsuccessfully applied for at the bank.
Out of the numerous job applications he made over the period following his retrenchment, Mr Burton achieved about five interviews, none of which resulted in employment. In his witness statement, Mr Burton said that he believed that he did not perform well in those interviews, which he attributes to the psychological effects of his PTSD. He said “I believe that I presented as depressed, anxious (with a generally flat demeanour) and lacking enthusiasm and I believe that this was off-putting to prospective employers”.
Similarly, Mr Burton gave oral evidence that he did not “present well” at those interviews, as “I think I presented myself as I was [sic] anxious, nervous” and that “I couldn’t sell myself”. He said that he therefore did not remain hopeful of being hired after those interviews. He explained that his anxiety manifested itself by his “bottl[ing] everything up ... I ... don’t express myself well, and therefore don’t sell myself”. He said further that “I just couldn’t convince them that I was the right person for the job” and that “I guess my body language wasn’t showing positive thoughts”. In that context, he explained that he was very depressed at the time by his failure to obtain employment and all the “knockbacks” he received. Under cross-examination, Mr Burton accepted that some of his despondency during the period he was seeking work set in because of those rejections and that it was perhaps the case that at some point he did not present well because of the disappointment he suffered as a result.
In his witness statement, Mr Burton said “The fact is that I had not saved for retirement and the absence from the workforce gave me more time to ruminate about my problems (which I believe was unhelpful to my emotional state)”.
Mr Burton’s last letter seeking employment was sent in about March 2001. Since that time he has continued to look at job advertisements in the newspaper but has never found a position he believed he could cope with and accordingly has made no further applications for employment. Consequently, Mr Burton has not been employed since late 1996, when he was nearly 51 years old.
There was an inconsistency in Mr Burton’s evidence concerning the circumstances in which he stopped seeking work. Mr Burton said in oral evidence that he stopped applying for jobs not only because he saw no further advertisements for jobs he felt he could cope with but also because he felt he was “psychologically burnt out” given the contents of a psychiatrist’s report. Similarly, in his witness statement, Mr Burton said that “[t]o the best of my recollection I came to the belief that I was no longer fit for any form of remunerative work because of the symptoms from my post traumatic disorder (and, to a lesser extent, alcohol dependence) after discussing the issue with Dr Newlands”.
I note that the first report prepared by Dr Newlands in evidence before the Tribunal, which I address below, was prepared in September 2003. It is apparent from Dr Newlands’ reference to a letter of introduction in her prefatory remarks that she had not examined Mr Burton before that time. Furthermore, as will be apparent from content of the earlier reports prepared by psychiatrists in 1996 and 2000 set out below, those reports would not have formed a basis for Mr Burton to conclude that he was unfit for remunerative work, as those psychiatrists opined that he did not have PTSD. Accordingly, on the evidence before the Tribunal I infer that there was a hiatus between Mr Burton’s last application for employment (made in March 2001), and his forming of the belief that he was unfit for any form of remunerative work (which on the basis of his evidence could not have occurred before September 2003). In any event, for the reasons that follow, ultimately nothing turns on that discrepancy.
From 1997 to the present time, Mr Burton has done volunteer work in his local area, caring for veterans’ widows. He finds that he is able to do that volunteer work because he can do it at his own pace. As he expected, he has found that this work assists his psychological state. In contrast, he does not believe that he is capable of undertaking paid work, given the time pressures involved, which he believes would “aggravate my emotional state”. Mr Burton has undertaken this voluntary work for about six hours per week on average since he first started.
Mr Burton gave evidence that, at the time he was made redundant, he was drinking at least one full bottle of wine each evening, as a way of coping with his depression. In his witness statement, Mr Burton said that he does not believe that his alcohol intake was affecting his performance of his duties as branch manager. He also said that his alcohol intake is currently one bottle of wine per day but that he often drinks more than that amount. He does not believe that his drinking prevents him from working. In his witness statement Mr Burton said first that his alcohol intake has been fairly constant for about 20 years; however, under cross-examination, he instead said that he had been drinking one bottle of wine per night for the last 12 years, although when it was put to him that this equated to the year 2002, he was then unsure of when he had started to drink at that level. When it was put to him that in the year 2000 he had told Dr Kenny that “[h]e has never been a big drinker, not even in Vietnam, and he drinks two to three glasses a night”, he said, as clarified in re-examination, that that was a reference to “stubbies” of light beer, and that he nevertheless drank excessively during that period “[a]t times”.
With respect to his current psychiatric symptoms, Mr Burton gave evidence that he continues to have difficulty with memory and concentration and that he suffers nightmares. Mr Burton said that he has been taking strong sleeping tablets for about 25 years. With respect to his difficulty coping with pressure, he said that, it had “remained the same at times” compared with when he ceased work. He said that his anxiety was not as bad as it had been then as he was not under the same stress.
Mr Burton said that he has a limited social life and prefers to stay home, to avoid large groups of people. Loud noises make him nervous. He tries to avoid situations he finds stressful. He said that he is nervous and uncomfortable in social situations.
In his witness statement, Mr Burton said that “I believe that the sole reason why I have been unsuccessful in obtaining work since 1996 has been my post traumatic stress disorder and alcohol dependence”.
Medical evidence
No other witnesses were called. The medical reports upon which each party relied were accepted into evidence without objection. Mr Burton relied on reports prepared by Dr Carol Newlands in September 2006 and June 2011, by Dr Chris Steinfort in March 2011, by Dr Adam Bradshaw in September 2011 and by Dr Albert Kaplan in August 2012.
The respondent relied upon a report of Dr Martin van der Linden prepared in July 1996, reports of Dr Barrie Kenny dated April 2000 and May 2005, earlier reports of Dr Carol Newlands (dated September 2003 and April 2004), a report of Dr Michael Epstein dated December 2004, a report of Dr Nigel Strauss dated August 2012 and a report of Dr Robyn Horsley prepared in September 2012. I consider it to be instructive in this case to set out the medical reports upon which the parties relied in chronological order.
As I have indicated, Dr van der Linden, a consultant psychiatrist, examined Mr. Burton in late July 1996, which was a few months before he was made redundant. He did so for the purpose of determining whether Mr Burton suffered from PTSD; he concluded that he did not. In taking Mr Burton’s history, Dr van der Linden noted that Mr Burton was currently employed as a bank manager and also noted that:
“Since Vietnam he has experienced insomnia and is unable to sleep for more than 4 hours at a time despite hypnotics. .... He said that since Vietnam he has been a very light sleeper, significant events such as Anzac Day ... result in him reliving his war time experiences and he is easily frustrated and irritable. There was no evidence of nightmares or pervasive depressive symptoms.”
In conclusion, Dr van der Linden stated that:
“Mr. Burton believed he socialized well, that he was good at his job and that there were no relationship problems.
On mental status examination Mr. Burton presented as a neatly dressed man who was co‑operative and pleasant throughout the interview. He was bright and cheerful and there was no evidence of anxiety or depression.
I do not believe that Mr. Burton is suffering from significant morbidity associated with his War Service in Vietnam. However, although he has no syndromal post traumatic stress disorder he does suffer from chronic insomnia and some reliving of his past War Service traumas. These symptoms cause subjective distress.”
I note that, in his oral evidence, Mr Burton said that he was dissatisfied with Dr van der Linden’s assessment because he felt that Dr van der Linden had concluded that he did not have PTSD “as soon as I walked in the door” and that he did not ask him “probing questions” about his wartime experience, particularly those which had, in Mr Burton’s view, established his PTSD. Mr Burton said that, given his tendency to “bottle things up”, he had therefore not had the opportunity to elaborate. He also said he felt that the interview was fairly short, about an hour or so long.
In his first report (prepared in 2000), Dr Kenny, also a consultant psychiatrist, took a detailed history from Mr Burton. He noted that Mr Burton told him that he had not worked for the last 2 ½ years as he had been retrenched by Westpac and that he was looking for other work, preferably in the Geelong area, to avoid commuting to Melbourne. He later noted that Mr Burton “has looked for a lot of jobs in Geelong, to no avail”. Furthermore, Dr Kenny noted that Mr Burton told him that the “only other time he’d seen a psychiatrist was in Geelong, about five years ago when he had an assessment, and that was because he couldn’t sleep and he’s had trouble sleeping since he returned from Vietnam”.
With respect to his psychiatric history, Dr Kenny noted that Mr Burton “said in general terms he’s a happy person”. He noted further that:
“He did say though that in his last years in the Bank pressure was mounting and he felt that somewhat worrying. He thought he may have been depressed at that time. He did tell me that he does have recollections about his Vietnam experiences that are not pleasant but don’t unduly distress him and in general terms he tries to avoid thinking about it”.
With respect to Mr Burton’s presentation, Dr Kenny noted:
“He was ... obviously an intelligent person, pleasant, emotionally responsive, quite animated, not overtly distressed, depressed or anxious and quite matter-of-fact in his presentation.
There was no obvious impairment of memory, concentration or cognition and to see him in interview there was no suggestion of any serious psychiatric disturbance.”
Dr Kenny opined that:
“I have no reason to doubt the man’s history and accept that he was attempting to give a good account of himself.
I see no reason to consider that he had, or has, significant underlying psychiatric, psychological or emotional problem [sic].
In my understanding he has a good and stable relationship with his wife and children, a good and stable work record, interrupted by his two years of National Service including one year in Vietnam.
From his description of the circumstances I would accept that he had experiences which would satisfy Criterion A for the development of post-traumatic stress disorder but I’m afraid I don’t think he has that condition.”
Dr Kenny went on to say:
“There may well have been times where he has been somewhat stressed in work and he may well be somewhat stressed at this stage in looking for alternative work. There may well have been sometime [sic] in the past where he was depressed, for example, in his last period of work in the Bank but didn’t seek treatment. It was not possible to get a detail of the symptoms he had at that stage, and anyway it clearly wasn’t related to his Vietnam experiences.
So I do not see this man as having a psychiatric disturbance caused by his Vietnam experiences and indeed I wouldn’t like to put a psychiatric label on this man’s presentation anyway.
...
I note too that he is currently out of work having been retrenched some two and a half years ago and that he is having difficulty finding alternative employment – as you would under the circumstances.
But the point I’m making is, that he doesn’t have any psychiatric disturbance at all associated with his Vietnam experience, but that’s not to deny that he had traumatic experiences and that he has some unpleasant recollections – normal enough under the circumstances.”
Dr Kenny concluded that “I don’t see him as having a psychiatric problem and ... he has been retrenched for reasons certainly not related to his Vietnam experience.”
In her first report (prepared in 2003), Dr Newlands, a consultant forensic psychiatrist, said of Mr Burton:
“He was attentive to interview, co-operative, and showed spontaneity of speech, which was normal in rate and content.
He appeared to be able to retrieve information, both recent and remote, and his attention was good. There was no evidence of thought disorder, or perceptual problems.”
Dr Newlands concluded, based upon her interview of Mr Burton, that he was suffering from PTSD, which he concluded was “entirely related” to his time in Vietnam. She also said:
“He has used alcohol and long working hours as a means of coping with the stress generated.
More recently, things have worsened, as he has no longer got his work to rely upon. His symptoms have caused him considerable distress, and has [sic] been evident to those around him.”
In that report, Dr Newlands assessed Mr Burton’s level of impairment determined using the Guide to the Assessment of Rates of Veterans Pensions (“GARP”) as being 33 points. In reaching that assessment, Dr Newlands noted with respect to occupation, allocating a rating of 5 in that regard, that;
“Mr. Burton was aware that he was irritable with others, and this had been put to him in the past. He also stated that he had declined a position, which would have been [sic] promotion for him, as he did not feel confident to perform it. This would have resulted in his having an overseas posting.”
With respect to Mr Burton’s manifest distress, she noted:
“Mr. Burton was aware that he tended to fidget, had poor concentration, and was never relaxed. To this extent, it would be evident to those with knowledge of him that he had some difficulties”.
Dr Epstein also concluded in his report (prepared in 2004) that Mr Burton suffered from PTSD; however he assessed Mr Burton’s GARP level of impairment as being only 10 points, with a nil rating for occupation and a rating of 3 for manifest distress.In recounting Mr Burton’s history, he noted:
“He continues to have dreams about Vietnam most nights ... and has ongoing severe sleep disturbance. He has flashbacks to his Vietnam experience at least monthly. He has recurrent intrusive thoughts about his war service. He is very jumpy and on edge and irritable, especially when he is fatigued. He feels he is difficult to live with. He feels irritable, upset, and depressed. At times he feels hopeless, helpless, and useless.”
Dr Epstein noted in his report that Mr Burton had been retrenched from his position with Westpac when the company downsized.
In his subsequent report, prepared in 2005, Dr Kenny addressed the difference in opinions expressed in prior reports and also his recent re-examination of Mr Burton. He referred to Dr van der Linden’s report prepared in 1996, his own report prepared in 2000 and Dr Epstein’s report. He referred also to Dr Newlands report prepared in 2003 and said that “I have to say that by that time his presentation had changed markedly in that he apparently referred to his sleep problem as comprising broken sleep and ‘shocking dreams’ (he had specifically denied bad dreams or nightmares when I saw him)”, but said that he would nevertheless not have seen Mr Burton as having the “full-blown syndrome” at that time.
Dr Kenny disagreed with Dr Newlands’ GARP assessment, which he considered to represent a serious level of psychiatric impairment. He explained that “[i]n my view she accepted a wide range of minor symptoms which I say are well within normal limits as indicating [PTSD]”. He noted by way of contrast that Dr Epstein assessed Mr Burton’s level of impairment as being only 10 points, which in Dr Kenny’s view represents a “very mild degree of [PTSD] of minimal clinical significance and is not really very different from my view and that of Dr Van der Linden”.
Dr Kenny opined that with each successive assessment Mr Burton had become progressively “entrenched” in having his PTSD accepted as service-related (as I have indicated, that did not occur until shortly after Dr Kenny’s 2005 report), already being “deeply” so at the time of Dr Newland’s assessment in 2003. Dr Kenny stated that in his experience, “with the passage of time and with repeated assessments, the symptoms, as it were, mature in an individual” and that it “is very common indeed” for each assessment to increase the likelihood that PTSD will be found in an individual determined to have it accepted, there being “quite a dramatic educated process that goes on once an individual gets enmeshed in this” which makes people “more inclined to develop the symptoms”. He explained that encouragement to dwell introspectively on the traumatic experiences suffered in Vietnam will of itself cause the symptoms to develop and progress, although not to a serious degree.
With respect to his recent reassessment of Mr Burton, Dr Kenny said that Mr Burton presented as being “pleasant, animated and emotionally responsive” and considered that his tendency not to volunteer symptoms was indicative of their not being severe. He concluded based on Mr Burton’s current presentation that Mr Burton suffered from mild, that is to say subsyndromal, PTSD and that many of his minor symptoms were related to his personality rather than being effects of his experiences in Vietnam.
Dr Kenny explained that he had changed his opinion from his previous opinion because “his symptoms have matured and developed somewhat, as much as anything because of this whole process in which he has become enmeshed”. He then said:
“This man is I suppose in a somewhat difficult situation. After all he is only fifty-nine, and still a fit and active man, who ... would like to have had work after he was made redundant from the bank but has been unable to find any such [sic]. Naturally he’s frustrated by all of that.
So considering the whole picture and considering the passage of time and the maturation and development of some of his symptoms I would conclude that he has this mild subsyndromal [PTSD].”
Dr Kenny then assessed Mr Burton’s GARP level of impairment as being 9 points. Like Dr Epstein, he assigned a nil rating to occupation, noting that “[t]o me he acknowledged that he had a good career and that he was basically made redundant”. He assigned a rating of 2 for manifest distress, stating that “[h]is anxiety and concern would only occasionally be noticeable”. He did not consider that treatment was required for Mr Burton’s PTSD, describing it as “just barely clinically significant”.
In Dr Newlands’ report prepared in 2006, in assessing Mr Burton’s degree of incapacity she noted with respect to Mr Burton’s subjective distress that:
“He is short tempered, and states that his irritability is ‘just below the surface’. He thus tends to explode quite a lot. ... .. [H]e often avoids conversation in general. His concentration and memory are much reduced.”
Dr Newlands opined with respect to his manifest distress that “[c]ertainly given Mr. Burton’s description, it would appear that those familiar with him would certainly be able to pick his distress, as would any astute observer”. With respect to his occupation in that respect, she said “Mr. Burton ceased work around 7 years ago ... However, whilst at work, it would seem that his irritability was very obvious ... [h]e also declined to accept promotion, as he did not feel confident in being able to perform adequately.” In that report, Dr Newlands assessed Mr Burton’s GARP level of impairment as then being 37 points, with a rating of 5 with respect to occupation. She assigned a rating of 6 to his manifest distress.
With respect to the question of whether Mr Burton’s ability to undertake remunerative employment had been affected by any disability, she noted that:
“Mr. Burton has not worked for over 7 years. Certainly from his description, it would appear that his PTSD symptoms made it difficult for him to continue. However, he was retrenched from his job at the Westpac Bank.
I understand the bank were [sic] downsizing, and his position was made redundant. He thus decided to retire”.
Dr Newlands opined that the factors which would affect Mr Burton’s current work ability “would include his irritability, poor concentration and memory, and his drinking, which would further affect his capacity to understand information given to him”. Furthermore, she said that “I believe that Mr Burton’s capacity for employment would certainly be limited by his disabilities, and that those disabilities are permanent, as is his limitation”. She concluded that she did not believe that Mr Burton is capable of undertaking any employment, and that the medical conditions affecting his capacity for work included his PTSD and his depressive disorder.
Dr Steinfort, a consultant physician in thoracic and sleep medicine, referred in his report, (which was prepared in 2011) to the “underlying anxiety problems” Mr Burton suffered in relation to his PTSD and said:
“A second major factor to Mr. Burton’s functional capacity is his underlying anxiety problems. These relate to his accepted disability of posttraumatic stress disorder, this problem results in substantial sleep fragmentation and sleep disturbance and interferes with his capacity to undertake meaningful employment .... His chronic anxiety state, his disturbed sleep and his underlying stress levels are major reasons why future employment is an unlikely option for Mr. Burton. Contributing to this statement is of course his age of 65 years.
...
Therefore Mr. Burton is prevented from undertaking employment ... because of his underlying anxiety and posttraumatic stress disorder. Having observed Mr. Burton over many years I believe that the anxiety factor is a major problem and is unlikely to resolve and does constitute a reason for him being unable to obtain employment. I therefore recommended Mr. Burton for total and permanent incapacity for employment or equivalent.”
In her subsequent report (also prepared in 2011), Dr Newlands noted with respect to Mr Burton’s mental state examination that:
“He was ... pleasant and established a comfortable professional rapport. He appeared euthymic and his mood was responsive to the topic under discussion. He was able to show humour appropriately. He gave his information in a matter of fact way and was able to give further details when required to do so. There was no obvious impairment of memory or concentration though I note his reported difficulties with some short term memory”.
In recounting his history, Dr Newlands noted that:
“He had been told that he was aggressive in his speech and was aware that he did not tolerate fools and would always point out their faults. He knew that he was aggressive and irritable towards other drivers in that he would flash his headlights at them but said that he did not become physically aggressive. He avoided programs or other reminders of Vietnam and did not wish to talk of it. He tried to avoid thinking of those times but “it’s hard to block it out”. He was aware that he had hyper arousal problems particularly with regard to loud noises.
...
He said that he did not go to the cinema or amongst crowds and would only attend family gatherings which involved his children and grandchildren. He disliked attending funerals .... He said he no longer tried to make friends but had acquaintances with whom he worked in the bank and played golf.”
Dr Newlands opined that “I believe Mr Burton continues to exhibit symptoms of post traumatic stress disorder” and that “I believe that he fulfils the requirements for alcohol dependence”. Dr Newlands opined further that those conditions contributed in proportions of 60% and 40% respectively to Mr Burton’s lack of capacity to undertake employment. On this occasion Dr Newlands gave Mr Burton a GARP rating of 40 points, assigning ratings of 8 and 6 to occupation and manifest distress respectively.
With respect to subjective distress, she said “[t]he veteran reported having frequent dreams and used alcohol as a means of blocking out the dreams and restlessness at night, often thinks of specific events particularly following reminders, is intolerant of fools and aggressive and irritable towards others and is rather more socially withdrawn”. I note that, with respect to manifest distress, Dr Newlands opined that:
“[Mr Burton’s] distress would be apparent to those who are familiar with him and astute observers. It is doubtful however that strangers would pick up he is distressed and he does not become verbally aggressive toward strangers. At times he does flash his light at people he feels are poor drivers however.”
With respect to Mr Burton’s occupation, Dr Newlands concluded that:
“The veteran cannot work. Given his ongoing heavy intake of alcohol ... his cravings for alcohol ... his reported irritability, his intolerance of ‘fools’ and his awareness that he has to make a determined effort to focus hard even to read I believe he would have difficulty supervising staff or maintaining morale in any situation”.
Before concluding that Mr Burton was unable to work because of his PTSD and alcohol dependence, Dr Newlands noted that:
“Mr Burton has not worked in any capacity since he took a redundancy package in 1995. He did however apply for some jobs prior to accepting a service pension in 2005”.
Dr Bradshaw, Mr Burton’s family doctor, opined in his “medical impairment assessment” concerning Mr Burton’s PTSD (prepared in 2011) that Mr Burton could not work as a result of his PTSD. He described the symptoms of subjective distress Mr Burton suffered from his PTSD as involving “sleep disturbance; long-term increased alcohol consumption, feelings of anxiety, tends to be anti-social”. He said in that regard that Mr Burton “[s]ays his anxiety causes him distress day and night – causes difficulties in relationships with wife, family & others .. [h]e has been unable to work for the past 12 – 13 years”. In terms of manifest features of Mr Burton’s PTSD that he had observed, he classified them as “[o]bvious distress and pre-occupation with the symptoms is evident to casual observers and even persons unfamiliar with him” and in that respect noted that “[h]e is restless, guarded in conversation and preoccupied with his anxiety symptoms”. He classified Mr Burton’s PTSD as having a “marked interference with function in many everyday situations” in that Mr Burton had been unable to work for the past 12-13 years, was “unable to deal with minor stresses, or most social interactions”. He referred to manifest features reported to him by others, namely excessive drinking and poor sleep patterns.
Dr Kaplan, consultant psychiatrist, opined in his report (prepared in 2012) that, as a result of his experiences in Vietnam, Mr Burton had been suffering from PTSD and alcohol dependence. In taking Mr Burton’s history, he noted that:
“Mr. Burton stated that in the latter period of his employment with Westpac, his symptoms gradually intensified. His alcohol consumption increased, he suffered from frequent headaches, became intensely irritable and short-tempered, and he would dread going to work. The bank at the time was going through a period of turmoil and Mr. Burton felt under increased pressure. As a result of these pressures and his intense symptoms, he was struggling at work. He was offered a promotion but declined as he did not feel that he would be able to cope with the additional pressure as he was struggling in any event with his work. He was consequently grateful to be offered the alternative of a redundancy package.”
Dr Kaplan then said:
“Mr. Burton’s accepted war-caused psychiatric disorders are, themselves alone, preventing him from undertaking remunerative work of period aggregating more than 8 hours per week. His intense irritability, inability to cope with minor stresses or pressure, anxiety, mood disturbance and a loss of self-esteem probably incapacitate him with regard to engaging in paid employment”.
In his report, prepared in 2012, Dr Strauss noted with respect to his examination of Mr Burton:
“He was an anxious but helpful and cooperative man who was well dressed and well groomed. He related well. His thinking was negative but there was no evidence of any psychosis or delusions or thought disorder. He was not clinically depressed. Eye contact was good and speech was normal. He was orientated.”
Dr Strauss had regard to prior reports. He concluded that Mr Burton suffered from PTSD and alcohol dependency. He opined:
“He keeps himself reasonably active but I suspect that he was having problems at work back in 1996 when he lost his job. For five years thereafter he tried unsuccessfully to find work and I suspect that his frustration aggravated his underlying psychiatric problems.
His psychiatric problems have now stabilised but taking all psychiatric factors into account I believe that his man is unable to work for more than eight hours a week purely on psychiatric grounds. He could not cope with employment because of his service related psychiatric difficulties.
...
He ceased work because he lost his job but I suspect in 1996 that he was not coping because of irritability, some social withdrawal and probably excessive alcohol consumption as well as low confidence. His situation was aggravated thereafter when he could not find work and his psychiatric problems have now stabilised despite treatment and continue to prevent him from working more than eight hours a week.
I accept that he initially ceased employment partly because of retrenchment but I suspect that, had he not been retrenched, he would have lost his job anyway because of the symptoms associated with his service related psychiatric problems.”
Dr Horsley, an occupational physician, also had regard to various prior reports in preparing her report (in 2012). She opined that “[t]he most significant barrier to return to work” was the combination of Mr. Burton’s PTSD and alcohol dependence. Having regard to the reports prepared by psychiatrists, she opined that “[o]n psychiatric grounds alone”, Mr Burton was prevented from working more than eight hours per week. She noted from Dr Strauss’ and Dr Newland’s reports that it appeared that, had Mr Burton not been made redundant, he would have ceased work in the foreseeable future given his psychiatric conditions.
CONSIDERATION
Parties’ submissions
As I have indicated, the only issue in dispute with respect to Mr Burton’s entitlement to the special rate of pension under s 24 of the Act was whether s 24(1)(c) was satisfied, whether on its own account or by operation of s 24(2). It was not in dispute that the preceding provisions of s 24(1) were satisfied. In particular, the respondent conceded, given the reports of Dr Kaplan, Dr Strauss and Dr Horsley (which I note were all prepared in 2012) that s 24(1)(b) was satisfied during the assessment period. I note that the relevant incapacity referred to in each of those reports for the purposes of s 24(1)(b) is the psychological effects of Mr Burton’s PTSD and also of his alcohol dependence.
Although in oral submissions the respondent focused on the psychological effects of PTSD, I have taken the concession, given the reference to those reports as supporting it, to concern both accepted war-caused conditions, that is to say, to concern incapacity from alcohol dependence too. If I am wrong in that, I would find in any event, based on those reports that, for the purposes of s 24(1)(b), Mr Burton’s incapacity was from both PTSD and alcohol dependence, that is to say that it was the psychological effects of both those conditions (see s 5(D)(2)), although nothing ultimately turns on that point.
I find, for the purposes of s 24(1)(b) and (c) and s 24(2), based upon Mr Burton’s evidence and the medical evidence, that his incapacity from those conditions, particularly his PTSD, includes, inter alia, the following psychological effects - sleep disturbance, irritability, inability to deal with minor stresses and pressures, anxiety, depression, social withdrawal and difficulties in memory and concentration.
It was also common ground that, during the assessment period, Mr Burton was by reason of incapacity from a “war-caused” condition within the terms of s 24(1)(c), prevented from continuing to undertake remunerative work that he was undertaking. As I said, the primary focus was on Mr Burton’s PTSD, but his alcohol dependence also answers that description, for reasons consonant to those concerning s 24(1)(b). I note that there appeared to be no dispute about that nature of that remunerative work, which I find to be work as a bank manager.
Furthermore, there was no dispute that the assessment period commenced on 25 November 2010, being the date when Mr Burton applied for an increase in the rate of his pension.
Mr Burton’s primary contention was that s 24(1)(c) was satisfied on its own account – that is to say, that for the purposes of the first limb of that provision, it was by reason of incapacity from his PTSD and alcohol dependence alone that he was prevented from continuing to undertake remunerative work that he was undertaking during the assessment period. However, the respondent contended that there were other factors that affected Mr Burton so as to preclude the satisfaction of the “alone” test in the first limb of s 24(1)(c), being his age and time out of the workforce. In that regard, the respondent pointed to the facts that at the commencement of the assessment period, Mr Burton was 64 years and 10 months of age and had been out of the workforce for 14 years since being made redundant in 1996.
With respect to the first limb, Mr Burton relied in the alternative upon the ameliorative provision in s 24(2)(b). The issue in dispute between the parties for the purposes of s 24(2)(b) was whether Mr Burton’s incapacity from his PTSD and alcohol dependence was “the substantial cause” of his inability to obtain remunerative work in which to engage.
Mr Burton said that was so because that incapacity had affected his presentation in the five interviews he had obtained in his job seeking efforts during the period 1996-2001. He relied particularly upon his evidence, Dr Steinfort’s report and Dr Bradshaw’s assessment as establishing that his symptoms would have been observable in the job interviews he attended, as he then had an “obviously anxious effect” which would have negatively affected his performance in interviews. He submitted further that it was telling that none of the five interviews he had attended had resulted in an offer of employment. He also submitted that labour market forces were not operative given that there were many jobs available for which he applied during that period.
Mr Burton submitted that the evidence established that his psychological symptoms and were increasingly “florid” by 1996, referring in that regard to his “high levels of anxiety, irritability and tolerance with people, inability to deal with pressure, memory and concentration problems”. He submitted that the evidence established that his symptoms “have not changed since 1996”.
In his statement of facts and contentions, he submitted that the opinions of Dr van der Linden and Dr Kenny should be given little weight given that PTSD was subsequently accepted as a war-caused condition suffered by Mr Burton in any event. However, in oral submissions he relied upon the fact that Dr van der Linden had recorded in his history that he was a “very light sleeper” and that he “is easily frustrated and irritable”, referring to that as evidence of his psychological symptoms suffered at that time, despite Dr van der Linden’s opinion that he did not have PTSD.
The respondent contended that Mr Burton’s incapacity was not “the substantial cause” of his inability to obtain remunerative work, as labour market forces had had an operative effect. The respondent pointed to the fact that Mr Burton had been made redundant at the age of 50 and was facing the ordinary reality of those circumstances, given also the difficult conditions in the banking industry at that time. In that regard, the respondent submitted that it was telling that Mr Burton had only obtained five interviews from his numerous job applications during the period 1996-2001. The respondent pointed also to the fact that Mr Burton was over-qualified for the position he did apply for at the bank prior to his redundancy and that his seniority had also affected his job seeking efforts.
Furthermore, the respondent submitted that none of the psychiatric evidence supported Mr Burton’s submission that his incapacity was “the substantial cause” of his inability to obtain remunerative work in any event. The respondent submitted that there was no evidence to suggest that Mr Burton’s incapacity had affected his obtaining of job interviews, nor the decision of employers not to employ him following those interviews. The psychiatric evidence did not establish that Mr Burton was significantly affected by PTSD during the period he was seeking employment following his redundancy and did not support the conclusion that his incapacity had affected his presentation at interviews. The respondent relied upon the contemporaneous reports of Dr Van der Linden and Dr Kenny, which indicated that at that time Mr Burton was “affable and presented well”.
The respondent submitted that, while s 24(1)(b) was satisfied, s 24(2)(b) raises a different question, and its provisions were not satisfied. In reply, Mr Burton submitted that the respondent’s concession that s 24(1)(b) was satisfied did “not necessarily sit comfortably” with his contention that s 24(2)(b) was not.
The respondent also contended that Mr Burton was not entitled to a special rate of pension at any time during the assessment period because the second limb of s 24(1)(c) was not satisfied. In particular, the respondent relied upon s 24(2)(a)(i). The respondent submitted that Mr Burton had ceased to engage in remunerative work for reasons other than his incapacity from his PTSD and alcohol dependence; rather, he had ceased to engage in remunerative work because he had been made redundant, at a time when he had the ability to work long hours. The respondent relied upon Dr Epstein’s report and Dr Kenny’s report prepared in 2005 in that regard. The respondent submitted that Mr Burton “ceased to engage in remunerative work” for the purposes of s 24(2)(a)(i) in 2001, when he stopped seeking employment.
Section 24(1)(c)
For the reasons that follow I have found, according to the standard of proof prescribed by s 120(4) of the Act, that the first limb of s 24(1)(c) is not satisfied, whether by its own terms, or by operation of s 24(2)(b).
I am not reasonably satisfied that, at any time during the assessment period, Mr Burton was, by reason of incapacity from his war-caused conditions “alone” prevented from continuing to undertake remunerative work that he was undertaking. I find that Mr Burton’s age, time out of the workforce and lack of recent work experience each contributed to preventing him from continuing to undertake remunerative work (see Hendy at [37]). Given the reasoning of the Full Court in Richmond, as approved by the Full Court in Watkins, it is unnecessary for me to consider whether those factors of themselves had a preventative effect for the purposes of the first limb of s 24(1)(c).
As the respondent pointed out, Mr Burton was 64 years and 10 months old at the commencement of the assessment period. I note Mr Burton’s evidence that in 1996 he had the intention of working until the age of 65, that having been the usual retirement age for a bank manager when he joined Westpac and also during the mid-1990s. It was unclear from his evidence whether his reference to “the old days” meant that bank managers now work to an older or rather younger age. Of course, it is conceivable that Mr Burton’s intention might have changed in the absence of his incapacity once he reached his planned retirement age, given also the current tendency for people to retire at a later age. But in that case it would not follow that his changed intention would have resulted in him continuing to undertake remunerative work.
I note also that in March 2011 (being a few months after the commencement of the assessment period and a couple of months after Mr Burton’s 65th birthday) Dr Steinfort referred in his report to Mr Burton’s age as contributing to the unlikelihood of Mr Burton’s future employment, albeit he is a physician specialising in thoracic and sleep medicine rather than an occupational physician.
I do not mean to suggest that Mr Burton’s imminent 65th birthday signaled the arrival of some automatic “cut-off” point constituting a preventative factor for the purposes of the first limb of s 24(1)(c). However, it remains a relevant factor (see Repatriation Commission v Strickland (1990) 22 ALD 10 at 17 per Davies, Jenkinson and Ryan JJ), particularly given his prolonged absence from the workforce following his redundancy and his lack of recent work experience (leaving aside his volunteer work, which I conclude would not have materially improved his employability at the commencement of the assessment period, given the nature of that work and its lesser demands).
As the respondent pointed out, at the commencement of the assessment period Mr Burton had been absent from the workforce for 14 years following his redundancy. Furthermore, he had not worked in the banking industry since 1996 and therefore had not had any recent experience managing a bank according to current practices and conditions, including increased use of computer technology and the Internet, and increased complexity in other aspects of the banking industry. As a matter of common sense, Mr Burton’s age, lengthy absence from the workforce and lack of any recent experience in bank management had a contributory preventative effect from the purposes of s 24(1)(c).
Put another way, in undertaking the hypothetical exercise required by the first limb (see Hendy at [36]-[37], Smith 1987 at 337), I find on the balance of probabilities that, in the absence of his incapacity from his PTSD and alcohol dependence, as from the commencement of the assessment period, Mr Burton would have been in precisely the same position – that is to say that he would not have been employed in any event, given those factors. Having regard to the factual matrix, including the nature of the remunerative work that he was undertaking (as a bank manager), it would be unrealistic to conclude otherwise. Put in terms of the Full Court’s obiter in Richmond (at [98]), “in the eyes of many employers” I consider that he would have been “regarded as unemployable”. Although the Full Court was referring in that context to the factor of time out of the workforce, I consider that that comment is even more apt given that Mr Burton was nearly 65 years of age and given his lack of recent work experience in the banking industry.
Section 24(2)(b)
I turn now to the question of whether s 24(2)(b) applies in this case so as to achieve the satisfaction of the first limb of s 24(1)(c), given that the latter provision is not satisfied on its own account. It is necessary therefore to consider whether Mr Burton’s incapacity from his relevant war-caused conditions, being his PTSD and alcohol dependence, is “the substantial cause” of his inability to obtain remunerative work in which to engage. As I have said, I have concluded that s 24(2)(b) was not satisfied at any time during the assessment period.
Contrary to Mr Burton’s submission that his symptoms did not progress during the period following his redundancy in 1996 and his evidence to that effect, the striking feature of the medical evidence before the Tribunal, considered in its totality and according to its chronology, is the extent to which it reveals a pattern of the progressive worsening of Mr Burton’s symptoms over the period from 1996, when he was made redundant, to 2012, when the most recent reports before the Tribunal were prepared. It suffices to say for present purposes that the progression over those years of the symptoms suffered by Mr Burton makes the medical evidence contemporaneous with his redundancy and job seeking period particularly probative in this case. In any event, as the respondent submitted, none of the psychiatric reports, including those prepared during later years, establish that Mr Burton’s psychological symptoms affected his presentation in his job interviews during the period 1996-2001.
The medical evidence immediately preceding and contemporaneous with Mr Burton’s job seeking efforts following his redundancy, comprising Dr van der Linden’s report (prepared shortly before Mr Burton’s redundancy) and Dr Kenny’s report prepared in 2000 (almost a year before Mr Burton ceased looking for work), does not support the conclusion that Mr Burton did not present well at his interviews because of the psychological effects of his PTSD and alcohol dependence.
Indeed, as the respondent submitted, if anything those reports support the contrary conclusion, that his presentation remained unaffected by any incapacity he suffered at that time, in that he presented well. I have taken into account the fact that Mr van der Linden’s report did precede Mr Burton’s redundancy, if only by a few months. However, he also presented well when interviewed by Dr Kenny in 2000, when he was well into his job seeking, having been made redundant a few years ago.
As the applicant pointed out, Dr van der Linden recorded Mr Burton’s history as including insomnia. However, Mr Burton, as is apparent from other reports (including Dr Kenny’s first report), had suffered from insomnia since his service in Vietnam and had nevertheless had steadily progressed in his career since then until 1996.
I am not prepared to give lesser weight to those early reports on the basis that it was later accepted that Mr Burton did suffer from PTSD, despite the opinions expressed in those reports. What those reports show is that during the period 1996 to 2000, Mr Burton’s degree of incapacity from his PTSD and alcohol dependence was not significant, so much so that two psychiatrists opined that he did not suffer from PTSD. What those reports also tend to show is that, to the extent that Mr Burton did suffer from symptoms of PTSD and alcohol dependence during his period of job seeking, those symptoms were not manifest, particularly upon interview by those he had not met before, such as Dr van der Linden and Dr Kenny.
Although Mr Burton gave evidence that he considered that his symptoms, particularly his anxiety, did affect his presentation at the job interviews he attended and that he thought at the time that he had not presented himself well in those interviews, I prefer the psychiatric evidence, particularly the contemporaneous reports of Dr van der Linden and Dr Kenny, as being more probative of how he appeared at that time at interview than Mr Burton’s assessment of the impression he might have made, particularly given that he is recalling events from a number of years ago, and in the context of now knowing their outcome.
I note also that Dr Strauss’ report, prepared in August 2012, appears to be the first to contain material to the effect that Mr Burton believed that his psychological symptoms had affected his performance in job interviews following his redundancy.
As I have said, Mr Burton also relied upon the reports of Dr Steinfort and Dr Bradshaw as serving to establish that his incapacity was “the substantial cause” of his inability to obtain work for the purposes of s 24(2)(b) of the Act, particularly their reference to his anxiety and its manifestations, which Dr Steinfort said was “a major problem” based upon his observation of Mr Burton “over many years”. I consider that evidence to have insufficient probative value for the purpose of satisfying s 24(2)(b). First, it requires far too high a degree of extrapolation to infer from the statements made in those reports, prepared in 2011 and 2012, that Mr Burton’s anxiety or any other aspect of his incapacity during the period 1996 to 2001 was manifest in his job interviews to such an extent that it was the substantial cause of his inability to obtain work.
Those statements are general and, more to the point, largely concern his present condition. To the extent that they refer to Mr Burton’s past condition, they are made in the context of what has been observed by those doctors as his GP and also his thoracic physician. (Mr Burton said in his witness statement that Dr Steinfort is his treating respiratory physician rather than treating him for his insomnia, which tends to be confirmed by the balance of Dr Steinfort’s report.) I note from Mr Burton’s witness statement, taken in 2012, that Dr Bradshaw had only been his GP for 2 years at that time. To the extent that Dr Steinfort’s observations extended over a longer (indeterminate) period, they are made in the context of having observed him over a long period of time as his treating physician. One would therefore expect that Mr Burton to have been more likely to reveal his anxiety deriving from his PTSD in that context than in a job interview. Furthermore, neither Dr Bradshaw nor Dr Steinfort are psychiatrists and are therefore less qualified to opine on psychological symptoms. I therefore I give little weight to either of those reports in terms of how Mr Burton might have presented in interviews during his job seeking period.
In my view, Mr Burton’s argument was based upon an erroneous conflation of two different concepts - in substance, he contended that, if his incapacity from his PTSD and alcohol dependence was of such a nature as to satisfy s 24(1)(b) during the assessment period (as the respondent accepted), it necessarily followed that that incapacity was manifest to such an extent that it was “the substantial cause” of his inability to obtain work during the period 1996-2001. In substance, Mr Burton contended that if s 24(1)(b) was satisfied, then the ineluctable conclusion was that s 24(2)(b) was also satisfied. However, s 24(1)(b) and s 24(2)(b) raise discrete questions, both as a matter of law and as a matter of fact.
Furthermore, Mr Burton’s contention was necessarily founded on certain premises which I have concluded are not supported by the evidence. First, his contention is predicated on acceptance of his submission that his psychological symptoms from his PTSD and alcohol dependence did not worsen after 1996, so that later medical evidence is therefore probative of Mr Burton’s condition in earlier years. Secondly, it is predicated on the assumption that, to the extent that he did suffer such psychological symptoms during the period of his job seeking (1996-2001), that those symptoms were necessarily manifest to others.
As I have indicated, there are numerous indications in the medical evidence that the psychological effects of Mr Burton’s PTSD and alcohol dependence became progressively worse following his redundancy, culminating in general consensus between psychiatrists being reached by 2011 or at least 2012 that he was incapacitated to such an extent that he was incapable of undertaking remunerative work. However, it is important to note that by then about 15 years had passed since he was made redundant.
As Rares J noted in Smith (at [18]), “the manifestation of a psychological war‑caused injury or disease, may occur years after the veteran has re-entered the work force, so as to prevent him or her at that later time from continuing to pursue his or her work”. Consonantly, it may be the case, and I conclude from the evidence before the Tribunal that this is such a case, that prior to that time, the veteran’s war-caused condition does not manifest in such as way so as to be “the substantial cause of his or her inability to obtain remunerative work in which to engage” for the purposes of s 24(2)(b).
Although in Smith Buchanan J referred to circumstances such as redundancy as not being a “permanently disentitling circumstance” (at [70]), his comments were predicated on the lack of success in obtaining employment prior to the assessment period being attributable to the incapacity in question – the efforts to obtain work must be “made fruitless by the incapacity (at [49]). Section 24(2)(b) requires such a nexus in order to ameliorate s 24(1)(c) in an appropriate way.
It is convenient to enumerate at this point indications that Mr Burton’s psychological symptoms from PTSD worsened progressively over the period 1996 - 2012. That much is apparent from the opinions of Dr van der Linden, Dr Kenny and Dr Epstein. As Dr Kenny noted in his subsequent report (in 2005), at the time of his earlier report (and also that of Dr van der Linden), Mr Burton gave no history of having suffering nightmares. I note that Dr Kenny recorded in his first report that Mr Burton generally tried to avoid thinking about his experiences and Vietnam and was not “unduly” distressed by his memories of those times. That stands in marked contrast to Dr Newlands’ 2011 report.
The reports prepared by Dr Epstein in 2004 and Dr Kenny in 2005 tend to confirm that that the psychological effects of Mr Burton’s PTSD and alcohol dependence were still not significant by that stage. Those reports stand in marked contrast to Dr Newlands report of 2003. However, the preponderance of the medical evidence from the period 1996-2006 supports the conclusions of Dr Epstein and of Dr Kenny in his 2005 report. Furthermore, all of the medical evidence from that period supports the conclusion that Mr Burton’s incapacity was worsening progressively. I also accept Dr Kenny’s express opinion to that effect.
Furthermore, I note that the same conclusion can be drawn from Dr Newlands’ reports, which successively assessed Mr Burton’s GARP degree of impairment as being 33 (in 2003), 37 (in 2006) and later as being 40 (in 2011). In her 2003 report, she noted in Mr Burton’s history that “[m]ore recently, things have worsened, as he has no longer got [sic] his work to rely upon”.
More to the point, as I have said, none of the reports for the period 1996‑2006 support the conclusion that Mr Burton’s incapacity, such as it was during the period 1996-2001, was manifest in such a way as to affect his presentation in his interviews. Although Dr Newlands in her 2003 report said in recounting Mr Burton’s history that his symptoms “has [sic] been evident to those around him”, later in assessing his manifest distress she opined with respect to rather limited symptoms to which she referred in that context that “[t]o this extent, it would be evident to those with knowledge of him that he had some difficulties”, which does not bear upon to the extent to which his symptoms might be manifest to strangers. In any event, that report was prepared in 2003 and in the context of his symptoms being recorded as having recently worsened.
By 2006, Dr Newlands was of the opinion, stated in somewhat guarded terms, that “[c]ertainly given Mr Burton’s description, it would appear that those familiar with him would certainly be able to pick his distress, as would any astute observer”. That was the first report to express the view that his symptoms might be manifest to anyone other than people who knew him. In her 2011 report, Dr Newlands said that “[i]t is doubtful however that strangers would pick up he is distressed”.
I infer from that report, compared with her earlier report, and considered together with all the earlier reports, that the psychological effects of Mr Burton’s PTSD and alcohol dependence were not generally manifest to any people who did not know him until 2006 at the earliest. None of that evidence supports the conclusion that Mr Burton’s presentation in his job interviews was deleteriously affected by his incapacity.
In 2012, Mr Burton presented as “anxious” upon interview by Dr Strauss. While Dr Strauss opined about Mr Burton’s psychological symptoms at the time he was made redundant, I consider that his opinion should be given little weight in considering whether s 24(2)(b) is satisfied. First, it was prepared well after the period in question and is, as is evident by Dr Strauss’ use of the word “suspect”, largely supposition. More to the point, Dr Strauss’ report, particularly his opinion that Mr Burton was not coping well with work in 1996 to such an extent that, had he not been made redundant, “he would have lost his job anyway”, does not bear upon the question of what effect Mr Burton’s incapacity might have had on his obtaining of subsequent employment.
It is convenient to note at this point that two possible reasons were presented in the medical evidence as to why Mr Burton’s psychiatric problems worsened after 1996. Dr Kenny expressed the view in 2005 that it was a result of becoming “entrenched” in having his claim for PTSD accepted. Dr Newlands in her 2003 report and Dr Strauss in his report opined that it was caused by his redundancy and his subsequent inability to find further employment. It is not necessary for present purposes for me to draw conclusions as to which reason is the correct one, or whether in fact both reasons apply.
However, it is worth noting that if in fact Mr Burton’s inability to obtain work following his redundancy did exacerbate his psychological symptoms, that does not ipso facto mean that the converse follows. In other words, that reason could only be relevant to the extent that it resulted in circumstances where his symptoms were exacerbated to such an extent that they were rendered “the substantial cause” of his inability to obtain work. But that is a different question and it is the true statutory question that must be answered.
On a similar point, to the extent that evidence establishes that the psychological effects of Mr Burton’s PTSD and alcohol dependence caused him stress in his work prior to the redundancy and that he declined the offer of the job in private banking as a consequence of those psychological effects, both being propositions I accept as being established by the evidence, that is not of itself determinative of the question of whether that incapacity was “the substantial cause” of his inability to obtain remunerative work in which to engage following his redundancy. Again, that raises a different question; as I have said the evidence does not support that conclusion.
To the extent that Mr Burton was suffering the psychological symptoms of his PTSD and alcohol dependence during the period 1996-2001 I find based on the medical evidence that any such symptoms did not manifest themselves so as to affect his presentation in his interviews. For the reasons I have expressed, the earlier evidence is to be preferred to extrapolations from later evidence and is also to be preferred to Mr Burton’s contrary evidence.
In considering whether Mr Burton’s incapacity was the substantial cause of his inability to obtain work following his redundancy, I consider it to be significant that Mr Burton was not simply retrenched. Rather, he was first offered a promotion by the bank to a position in private banking. I infer from that fact that he presented at the bank, despite his apparent altercations with staff and his regional manager, as an employee who was capable of meeting the needs of valued customers of the bank and dealing with those needs in an appropriate way and with discretion and also capable of socializing with such customers. He presented as an employee who should be retained and promoted, rather than simply retrenched. That also tends to confirm that his symptoms from his PTSD and alcohol dependence were not sufficiently manifest to affect his performance in interview, particularly when Dr van der Linden’s report and Dr Kenny’s first report are considered. Furthermore, I note with respect to the latter symptoms that Mr Burton gave evidence that his alcohol consumption did not affect his work performance at the bank.
I note also that the medical evidence establishes that he has suffered from insomnia since his service in Vietnam. I infer from that fact that his insomnia did not affect his career progression at the bank. That also tends to suggest that it did not affect his presentation at his interviews.
I also accept the respondent’s contention that it could not be said that Mr Burton’s incapacity was “the substantial cause” of his inability to obtain remunerative work during the period of 1996-2001 because another operative factor which explained that inability to such an extent so as to preclude such a conclusion (see Fox at 319-320 per Kiefel J) was labour market forces (see Hendy at [17], [35], Smith [1987] at 337).
Contrary to the applicant’s submission, I do not place great weight on the fact that the applicant was not offered employment following the five interviews he obtained. Despite Mr Burton’s evidence that he believed that he performed poorly in those interviews, given the conclusions I have drawn about the medical evidence and particularly given the psychiatric evidence contemporaneous with Mr Burton’s job seeking efforts, I am not prepared to infer from that fact that Mr Burton’s incapacity from his PTSD and alcohol dependence affected his presentation at those interviews. There is nothing particularly unusual in the fact that Mr Burton’s interviews did not result in employment; one would ordinarily expect that other candidates would also have been interviewed and might have been chosen over Mr Burton for a variety of reasons.
Nor do I accept that the fact that there were many jobs for which Mr Burton applied indicates that labour market conditions in the banking industry were not tight when Mr Burton was looking for employment. On Mr Burton’s own evidence, they were, as the restructuring of the bank was occurring in the context of increasing costs pressures not only at Westpac but also in the whole banking industry. I note that his evidence was given in the context of lengthy work experience in that industry.
I infer that there was a relative lack of employment opportunities for bank managers at the time Mr Burton was made redundant not only from his evidence but also from the fact that he was one of a number of bank managers and staff who were made redundant as part of Westpac’s restructuring. Accordingly, Mr Burton was affected by that reality in subsequent job seeking. I note also that a number of the jobs he applied for were not in banking but rather other management jobs and also jobs not requiring management skills, such as positions as a courier driver. Relatively few of the jobs for which he applied were for positions as a bank manager.
Moreover, labour market conditions do not only affect the level of available jobs – they also affect the number of interviews an applicant is likely to be offered and the likelihood that an offer of employment will follow that interview, as the quality of applicants and interviewees will tend to increase when there are more applicants for fewer positions.
As the respondent submitted, what is telling is not so much Mr Burton’s lack of offers of employment following his five interviews – as I have indicated an applicant, particularly one in Mr Burton’s circumstances, might undergo many interviews before being offered employment. What is far more telling is that, out of all the job applications he made, Mr Burton achieved only five interviews. As the respondent submitted, there is no evidence that Mr Burton’s incapacity affected his job applications, and the written application before the Tribunal gave no indication of Mr Burton’s incapacity.
What would have been apparent from Mr Burton’s applications, however, is he had worked for one bank for his entire career, had just passed the age of 50 and had been made redundant. Furthermore, he was over-qualified for some of the jobs (both outside and within the bank) for which he applied.
As I have said, I therefore find that Mr Burton’s incapacity from his PTSD and alcohol dependence was not “the substantial cause” of his inability to obtain remunerative work in which to engage. In the first instance, I am not reasonably satisfied that the psychological effects of Mr Burton’s PTSD and alcohol dependence had the requisite causative effect, given the medical evidence before the Tribunal considered in its totality and given particularly the psychiatric evidence contemporaneous with Mr Burton’s seeking of employment following his redundancy.
Furthermore, I find on the basis of the evidence before the Tribunal that labour market forces constituted an operative factor explaining Mr Burton’s inability to obtain remunerative work in which to engage, such as to preclude the conclusion that his incapacity was “the substantial cause” of that inability for the purposes of s 24(2)(b).
Put in terms of the exercise of comparison to which Gyles J referred in Byrne, I find that Mr Burton would have been in the same, or an insufficiently different, position with respect to his ability to obtain work for the purposes of s 24(2)(b) in the absence of his incapacity.
Given my conclusion that Mr Burton’s incapacity was not “the substantial cause” of his inability to obtain work for the purposes of s 24(2)(b), it is therefore unnecessary for me to consider whether Mr Burton “would, but for that incapacity, be continuing so to seek to engage in remunerative work”, being the third requirement under that provision. I note that there the parties did not focus on that requirement in their submission in any event. (As I have indicated, it was not in dispute that Mr Burton had been “genuinely seeking” to engage in remunerative work for the purposes of s 24(2)(b).)
Given that the first limb of s 24(1)(c) was not satisfied at any time during the assessment period, whether on its own account or by operation of s 24(2)(b), it follows that Mr Burton was not entitled to an increase to the special rate of pension under s 24 at any time during the assessment period. It is therefore unnecessary for me to consider whether the second limb of s 24(1)(c) was satisfied at any relevant time, given that those limbs prescribe conjunctive requirements, as indicated by the use of the word “and”.
Section 23
As I have indicated, although the parties reached common ground in this case that the sole issue before the Tribunal was whether s 24(1)(c) was satisfied, that cannot be the case. As s 24 does not apply to Mr Burton, it is prima facie also necessary to consider whether Mr Burton was entitled to an increase to the intermediate rate of pension during the assessment period (see also s 23(1)(d)). However, as the first limb of s 24(1)(c) is not satisfied own its own account, neither is the analogous provision in s 23 (s 23(1)(c)). Furthermore, as s 24(2)(b) is not satisfied, neither is its “imperfect analogue” in s 23 (Smith at [25] per Rares J), being s 23(3)(b). Accordingly, Mr Burton is not eligible for the intermediate rate of pension.
CONCLUSION
For the above reasons, the Tribunal will affirm the decision under review.
I certify that the preceding 171 (one hundred and seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins. .............................[sgd].....................................
Associate
Dated 26 February 2015
Date of hearing 1 September 2014 Date final submissions received 15 October 2014 Counsel for the Applicant Ms F Ryan Solicitors for the Applicant Mr Michael Jorgensen, Williams Winter Advocate for the Respondent Mr K Rudge, Department of Veterans’ Affairs, Review Section
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