Johnston and Repatriation Commission

[2006] AATA 511

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 511

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/931

VETERANS’ AFFAIRS DIVISION		)
Re		RODNEY JOHNSTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date13 June 2006

PlaceBrisbane

Decision The decision under review is set aside. The Tribunal decides in substitution that the applicant is entitled to a special rate pension under s 24 of the Veteran’s Entitlements Act 1986.

.........BJ McCabe............

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – application for special rate pension – applicant suffers from a number of conditions which the respondent accepts is caused by his war service – alone test – applicant able to satisfy test – applicant entitled to special rate pension

Veterans’ Entitlements Act 1986 s 24

Flentjar v Repatriation Commission (1997) 48 ALD 1

REASONS FOR DECISION

13 June 2006	Senior Member B J McCabe
introduction

1. Rodney Johnston suffers from a number of conditions that the respondent has accepted are related to his war service. He has asked for payment of a pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 (the VEA). The respondent says the applicant was ineligible to receive a special rate pension. The Veterans’ Review Board agreed, and the applicant was held to be entitled to a pension paid at 80% of the general rate from 14 April 2003, increasing to 100% of the general rate as of 15 March 2004. Mr Johnston has asked the Tribunal to review that decision.

the material before the tribunal

2. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The applicant prepared two statements which were filed with the Tribunal. He also gave evidence at the hearing in Townsville. A number of medical reports were also filed.

3.      The applicant was represented by Mr Honchin of counsel. The respondent was represented by Mr Kelly, a Commission advocate. (Mr Kelly stepped into take over the hearing at short notice when his colleague became ill.)

the facts

4.      The applicant was born on 8 January 1948. He was 55 years of age on the date he applied for a pension (ie, on 14 July 2003). The respondent accepted that he suffered from a range of war-caused conditions, including post traumatic stress disorder (PTSD), alcohol dependence, depression and anxiety disorder. He also suffers from several non-accepted conditions, including joint pain, chronic emphysema and a back condition.

5.      The applicant left the Army in 1974. He initially worked as a security guard. He then worked in sales and transport until 1984-1985. He subsequently commenced work in the mining industry. He continued working for mining companies but he occasionally took other jobs. The applicant’s statement of facts and contentions suggests he had at least 37 jobs since leaving the Army; I have no reason to doubt that estimate after the applicant’s evidence. Many of the jobs involved physical labour although in the latter part of his working life the applicant was increasingly employed in skilled and supervisory positions. I accept the jobs in the latter part of the applicant’s career did not involve a lot of lifting, twisting and bending. Much of the work was undertaken on short term contracts. The contracts were arranged by employment agents like the Extra Group and JDA.

6.      Mr Johnston said he drank heavily during his working years. While he worked in Darwin, he said he would drink so heavily he would fall asleep while he was in the Casino. He would not be able to report for work the following day. He noted that many of the mines were introducing “zero tolerance” policies with respect to alcohol use in the latter part of his time at work. He claims in his statement that he was warned about his alcohol consumption on a number of occasions. Even so, he said the mine managers tended not to take a hard line. They would prefer to give informal warnings to those who drank to excess. Mr Johnston said he was protected to some extent because he was good at the various jobs he accepted.

7.      Mr Johnston admits he was a difficult person to work with at times. In his supplementary statement, he explained he would become angry and “went off” every time someone did something that irritated him. He had frequent arguments with his superiors.

8.      In 1999, Mr Johnston enrolled in an occupational health and safety course at Curtin University. He was given credit for previous experience. He said it was his intention to become a consultant or inspector on occupational health and safety issues in the mining industry. He says he was unable to complete the course because he could not concentrate on the material. He gave up at the end of 2000.

9.      While Mr Johnston spoke of difficulties completing his own studies and irritability on the job, he continued to perform complex and responsible work. In his supplementary statement, he spoke of developing a new training scheme for operators at the Pajingo gold mine in 2000-2001. He went on:

I also worked at various tasks involved with the commissioning of the plant, these included setting up the entire operation with a particular time frame, training operators and putting systems in place and then making the sure the plan operated smoothly…

10.     He also gave evidence that his poor concentration and memory were making his work increasingly difficult. He said he was experiencing difficulty remembering chemical combinations he needed to recall while working in the gold room in mines.

11.     In 2001, Mr Johnston worked at a mine outside Charters Towers in Queensland. Extra Group had found him the job. He was living in a caravan park. He fell and injured his ankle on 16 September 2001 while exiting his caravan. It was not a work-related injury. His broken ankle took 6-8 weeks to heal. He had only been at the mine for a short period when the accident occurred and the mine cancelled his contract when it became clear he would not be able to return to work quickly.

12.     The applicant says he kept in contact with Extra Group and other employment agencies about future work once his ankle healed. He says he rang them regularly to discuss whether there were any job openings.

13.     Mr Johnston was diagnosed as suffering from depression, alcohol dependence and anxiety in 2002. He was diagnosed with PTSD in 2004. He was receiving medication in respect of his psychiatric conditions in particular. He said he was required to disclose the medication to potential employers. That is understandable: Mr Johnston pointed out the medication slowed down his reaction time, which made it dangerous for him to carry out many of the tasks he was otherwise equipped to perform. By way of example, he said he still had a licence to drive a road train but he thought it was too dangerous for him to do so in his medicated state.

14.     He said the employment offers dried up once the agencies became aware he was receiving medication for psychiatric conditions. He noted in his statement that he did not get the same reaction when he had previously advised of a back condition.

15.     The applicant agreed he has been offered at least one job that he did not take: he says he was offered a position in Papua New Guinea but he declined to take it because of his psychiatric conditions. He says he did not think it was sensible to be marooned in the highlands of New Guinea with his condition and requirements for medication.

16.     Mr Johnston insisted he remained ready to work notwithstanding his accepted conditions. He says his back condition and his emphysema were not an obstacle to him continuing to work. He said he finally stopped calling the employment agencies during 2003-2004 when it became clear he was not going to get any work.

the medical evidence

17.     I have already explained that the applicant has been diagnosed with a range of accepted medical conditions. He was diagnosed in particular with depression and alcohol dependence and anxiety early in 2002. He was subsequently diagnosed as suffering from PTSD in 2004. Dr Likely, the applicant’s treating psychiatrist, says the applicant has probably been permanently incapacitated as a result of his psychiatric conditions since late 2002. I have no reason to doubt that evidence, and I accept it.

18.     Dr Boys provided a report in respect of the applicant’s back condition on 25 July 2005. Dr Boys says the applicant is capable of light work for up to 20 hours a week as a result of his back condition. Dr Jamieson offered a similar view in 2003. Dr Low offered a more optimistic assessment. His report dated 13 May 2004 suggests the applicant’s back and foot problems do not prevent him from working. I accept the applicant would have had difficulty obtaining work that involved heavy physical labour, but I also accept that he was no longer being offered that type of work towards the end of his career in any event. As the applicant explained, he had made the employment agencies aware of his back condition but he was usually offered work that was of a more sedentary nature: skilled work that involved setting up systems, supervising and so forth.

19.     The recent diagnosis of emphysema does not appear to have had a significant affect on the applicant’s capacity to work at this point.

the law

20. The applicant’s claim for a special rate pension is assessed having regard to s 24 of the VEA. The veteran is under 65, so his application must satisfy s 24(1) in particular. Mr Kelly accepted the applicant satisfied all of the requirements of s 24(1) save for s 24(1)(c). After having reviewed the evidence, I accept the other provisions of s 24(1) are satisfied. It only remains to be seen whether the applicant can satisfy the so-called “alone test”, or else take advantage of the ameliorating provision in s 24(2).

21.     The Full Federal Court discussed the correct approach to dealing with the alone test in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5. I will follow that approach in this case.

22.     The first step is to identify the remunerative work that the veteran was undertaking. In this case, the veteran has worked in a wide variety of occupations. In his earlier life, many of those jobs involved heavy physical work. That was no longer the case towards the end of his career. By that point, he was working in various capacities as a skilled miner. While he was still engaged in manual labour, the work did not require heavy lifting or twisting. I am satisfied he should be described as a skilled labourer in mines.

23.     The next step is to identify whether the applicant’s war-caused conditions prevented him from continuing to undertake that work. Given the evidence of Dr Likely, I am satisfied the applicant was prevented from undertaking that work by reason of war-caused psychiatric conditions after 2002. He may have stopped work at his last place of employment because of his injured ankle, but I accept he remained ready and willing to work thereafter until his accepted conditions became an insuperable obstacle to work during the assessment period.

24.     The third question is whether the war-caused condition is the only reason why he cannot continue with that work. I acknowledge the applicant is suffering from other non-accepted conditions however they do not appear to have impacted on his ability to do the skilled mining work he was doing. The applicant says he told prospective employers about his back, for example, and he was still offered jobs. He has not been out of the workforce for a long period of time, and his skills appear to remain relevant and valued. He has retained his licence to drive heavy vehicles. There is no evidence to suggest his age is an obstacle and he remains ready to move around Australia in search of work, wherever it might arise. He says he continued to look for work in the same way he always looked for it: by speaking to the employment agencies. The only thing that has changed is the fact the employment agencies became aware he was being treated for psychiatric conditions. (Mr Kelly suggested there was some doubt about the extent of the agencies’ knowledge of the conditions, but I accept Mr Johnston’s claim that he felt obliged to tell them.)

25.     The last question in the Flentjar analysis deals with the loss of salary or wages or earnings. I am satisfied the applicant has lost salary or wages as a result of not being able to work.

conclusion

26. It follows I accept the applicant has satisfied the requirements of s 24 of the Act. He is therefore entitled to succeed in his claim for a pension at the special rate. The decision under review is set aside.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:          Associate      Adam Ryan

Date of Hearing  21 March 2006
Date of Decision  13 June 2006
The applicant was represented by Mr Honchin, of Counsel.
The respondent was represented by Mr Kelly, a departmental advocate, by telephone.