Johnston and Repatriation Commission
[2004] AATA 115
•6 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 115
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/15
VETERANS' APPEALS DIVISION ) Re WILLIAM STIVEN JOHNSTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date6 February 2004
PlaceAdelaide
Decision The Tribunal affirms the decisions under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS –- veterans' entitlements – Disability Pension – entitlement to pension at special rate – did applicant’s war-caused disabilities alone cause cessation of remunerative employment – if applicant is capable of working more than 8 hours per week – decision affirmed
Veterans’ Entitlements Act 1986 s 24
REASONS FOR DECISION
6 February 2004 Senior Member WJF Purcell 1. This is an application for review of two decisions. The first is a decision of the Veterans’ Review Board of 11 October 2001, which set aside a Repatriation Commission (the Commission) decision dated 23 November 1999, and substituted a decision assessing pension payable for war-caused alcohol dependence or alcohol abuse and post traumatic stress disorder (PTSD) at 70% of the general rate, with effect from 23 May 1999, and at 80% of the general rate, with effect from 2 September 1999. The second is a decision of the Repatriation Commission of 31 July 2000, as affirmed by the Veterans’ Review Board (VRB) on 11 October 2001, assessing the rate at which pension is payable for the war-caused conditions of alcohol dependence or alcohol abuse, PTSD and bilateral sensorineural hearing loss at 80% of the general rate with effect from 2 September 1999.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with exhibits tendered by the parties. Mr Ower appeared as counsel for the applicant, who gave oral evidence, and called Dr C Mills, Occupational Physician, and Dr M Ewer, Psychiatrist, as witnesses. Mr Doube represented the Commission, which called the applicant’s former employer, Mr Maloney, who gave evidence by way of telephone link-up.
3. The applicant, who is 61 years of age, served in the Royal Australian Air Force (RAAF) from the age of 20, in 1962, until 1968. He has operational service in Vietnam from 12 June 1966 until 3 April 1967.
4. The applicant’s last employer was Maloney Field Services, where he was employed on a part-time basis – not more than 20 hours per week. He has not worked for that company since 29 September 1999. The applicant maintains that he is entitled to payment of Disability Pension at the special rate, and that he satisfies s 24 of the Veterans’ Entitlements Act 1986 (the Act) which, as far as is relevant for the purposes of this review, provides:
“(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1) (c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…”
5. It is not in dispute that the applicant satisfies s 24(1)(a)(i) of the Act, in that he is in receipt of pension at a rate higher than 70% of the general rate. The Commission maintains that the applicant does not satisfy s 24(1)(b) of the Act, in that the incapacity from his war-caused conditions, is not of such a nature as of itself alone, to render him incapable of undertaking remunerative work for periods aggregating 8 hours per week. The Commission maintains also that the applicant does not satisfy s 24(1)(c) of the Act, in that he is not, by reason of incapacity from his war-caused conditions alone, prevented from continuing to undertake the remunerative work that he was doing. He is not suffering a loss of salary or wages, as he ceased to engage in remunerative work for reasons other than his incapacity from his war-caused conditions.
6. The Commission maintains finally, that the applicant does not satisfy the ameliorating provisions of s 24(2) of the Act, in that although he appears to have sought work since ceasing his last employment, his war-caused disabilities have not been the substantial cause of his inability to obtain remunerative work, as none of the potential employers was aware that he suffered the disabilities.
7. The applicant was 26 years of age, and a mechanical transport fitter, when he left the RAAF. He became Service Manager for Renault Australia in Victoria. He was a service station owner from 1972 until 1984, and then the proprietor of an auto repair shop. He said in evidence that by 1989 he was becoming bored with this occupation. He was offered employment 3 days per week from about 10.00am to 3.00pm with a Company involved in effluent treatment systems – such as recovering oil spills. He had another friend who had a cool room business, and he would help out when they were short staffed. He injured his back in 1989, while manoeuvring a heavy sheet of insulation; and received a workers’ compensation payout. He suffers low back and left hip pain.
8. The applicant gave evidence that after an unsuccessful attempt at reconciliation with his wife, he moved to Adelaide in 1990, and Dr Mills noted in his report of 28 September 2000 [T24/130] that the applicant was for 6 months under the care of Dr McCleve and Mr Max Pfitzner, Physiotherapist, for his back; and that the symptoms settled.
9. In 1992 the applicant undertook short-term employment as a site supervisor at the installation of induction furnaces at Panorama TAFE, and in mid 1992 he commenced a Certificate Course in Vocational Education Information Technology. He was in receipt of Austudy, and subsequently he completed an Associate Diploma in 1994. In 1996 he commenced his studies for a degree in the Bachelor of Computer Science Course at the University of South Australia. In late 2000 he qualified for the degree of Bachelor of Science, with a Major in Computer Science.
10. In early 1999 the applicant finished 5 months of part-time work with the Spatial Measurement and Information Group at the University of South Australia. This was piecework and he was paid $2,750. On 18 June 1999 he commenced work with Maloney Field Services – Property Consultants and Valuers – as a consultant, accumulating data and information on the computer. He worked up to 20 hours per week.
11. On 15 July 1999 the applicant lodged a claim for disability pension for two conditions - his back condition, which he stated his treating doctors had told him had probably existed since birth, and “emotional and behavioural” disability. He requested to be assessed and treated by Dr Ewer. He stated in relation to employment that physically he could not do much because of his disabilities.
12. On 29 September 1999 the applicant’s employment at Maloney Field Services (Maloney’s) was terminated; and on 6 October 1999 the Managing Director, Mr B Maloney, sent the applicant a letter which reads in part:
“This letter is to confirm the severance of the working arrangements we have had with you on a casual basis for the past three months or so.
Whilst there were initial signs that you could assist us in developing our GIS Mapping Service, the funds we have expended in attempting to develop this service has considerably exceeded the works that we have been able to charge for and accordingly we no longer require your services in our team.
…” [Exhibit R2]
13. Dr Ewer examined the applicant on 18 November 1999 and diagnosed chronic post-traumatic stress disorder (PTSD) and alcohol abuse and dependence. He considered that the applicant could attempt to work 8 to 20 hours per week. This, he said, might need to be reviewed if the applicant’s psychiatric state altered, or if he continued to have difficulty coping.
14. On 23 November 1999 the delegate accepted the applicant’s claim for PTSD and alcohol dependence or alcohol abuse, and refused the claim for the back condition. Pension was granted at 60% of the general rate. The VRB set aside that decision on 11 October 2001, and assessed pension at 70% of the general rate, with effect from 23 May 1999, and at 80% of the general rate, with effect from 2 September 1999. On 2 December 1999 the applicant lodged a claim for the new disability of hearing loss. He stated at [T11/74] that between 1992 and 1999 he had been basically a full-time student with occasional part-time work in the computer area. This claim was accepted with effect from 2 September 1999, with an increase in pension to 80%, again with effect from 2 September 1999.
15. On 7 March 2000 Dr Ewer reported [T14/81] that the applicant told him he was struggling with his studies, and was about to drop back to one subject because he was not coping. Under the heading “occupation” Dr Ewer stated:
“Mr. Johnston’s poor memory and concentration result in him having difficulty retaining information. He is very disorganized in his thoughts and behaviour. His lethargy and insomnia would interfere with his ability to work. He is not coping with studying and he is about to drop back to one subject a year. Mr. Johnston tries to actively avoid contact with other people. He particularly avoids contact with Asians and when he sees Vietnamese people he instinctively thinks of getting a gun to shoot them. Mr. Johnston studies externally to avoid contact with people.
I do not believe Mr. Johnston is currently well enough to work and this equates to an impairment rating of 8.”
Dr Ewer stated also that he would take a conservative approach and rate the applicant’s mental state as “temporary”. Should there be no change within 8 to 10 months of psychiatric treatment, he would consider the applicant’s psychiatric state as “permanent”.. He recommended that the applicant attend a psychiatrist for psychotherapy and psychotropic medication.
16. On 20 June 2000 the applicant lodged a claim for payment of service pension on the grounds of permanent incapacity. His Austudy payments ceased at the end of June 2000, and late in 2000 he qualified for the degree of Bachelor of Science with a Major in Computer Science.
17. The applicant gave evidence that as a result of his work injury in 1989, he was advised by his treating specialist not to return to any heavy work. He suffers continuous backache in the lower dorsal and lumbar spine [T15/88], and has limited ability to lift, bend and stoop. He said in evidence that his back condition does not prevent him from working, it prevents him from undertaking heavy work. Dr Mills, Occupational Physician, gave evidence of his opinion that the applicant’s physical injuries, his low back and left hip degenerative conditions, do not prevent him from working. I accept Dr Mills’ evidence and opinion on this topic.
18. The applicant said in evidence that he has difficulties concentrating, and in comprehending information and retaining it. He sleeps poorly at night – between 2 and 6 hours, waking every hour; and continues to be troubled by nightmares. He is irritable and short-tempered. He said that he loses his temper 2-3 times per week.
19. The applicant said in evidence that he dislikes Asians, he feels intimidated by them. He does not like women, and does not like working with women. He gave evidence that he does not like black people, Japanese people, “some Europeans are okay”, but he is not keen on Austrians, Dutchmen, and South Africans. He regards most Englishmen as okay. He says that this dislike affects his ability to work. He is at his best, he says, working on his own, at his own pace, and in an administrative position. He maintains, in effect, that it was his dislike of women and inability to work with women, and thus his PTSD disability, which led to his dismissal from Maloney’s.
20. The applicant gave evidence that his role at Maloney’s involved the development of a mapping service. He had problems with the female director, Ms Maloney, from the beginning because she would tell him what to do and he says that she knew nothing about Geographic Information System Mapping, and the discussions became “relatively heated”.. He would sometimes go to the office in the evenings, and one Thursday night he went to the office at about 7.00pm. Ms Maloney came into the office and asked him what he was doing. He replied that he was producing some maps, and there was a general discussion which related to her requesting that he not spend so much time helping other employees with their work. At the conclusion of the conversation the applicant says he left the office intending to return on the following Wednesday, after visiting his mother in the country; and with him understanding that his hours of work might be expanded to enable him to train other staff.
21. The applicant said in evidence that when he returned on the following Wednesday, his desk had been cleared, and Ms Maloney’s brother told him that his services were no longer required. He said that he was shocked, as he had no idea that the altercation with Ms Maloney would lead to his subsequent sacking. He said also that at no time did Ms Maloney mention his PTSD disability, or his alcohol problems.
22. Mr Barry Maloney, the Managing Director of Maloney’s, gave evidence that the applicant was engaged as a consultant, because it was understood that he could develop the Geographic Information System; but after 3 months the Company did not have the start of the product or a system. The money had been spent, and the Company was unable to recover those expenses from clients. The applicant was no longer needed because he could not complete the task. Mr Maloney said that the applicant was not your normal white-collar staff member. He came to the premises with the work that he had completed when necessary. He was casual “a bit of a muddler”, but considered by Mr Maloney, and other staff, as “a pleasant person”.. There was nothing at all of any note as to conflict. Mr Maloney said there was reference in a file note that Ms Maloney was concerned at the applicant being in the office at night. This concern, Mr Maloney said, was never raised with him. He made a financial decision that the applicant’s services were no longer required. I accept Mr Maloney’s evidence.
23. The applicant gave extensive evidence of the effects his PTSD symptoms had upon his ability to undertake his studies. His inability to concentrate, to retain information, his memory loss, his lack of motivation, were matters of which he complained to both Drs Mills and Ewer. He said that in first semester in 1999 he had a mentor appointed to assist him, and at his recommendation he transferred to another stream of subjects, so that he could complete his degree. Dr Mills understood when he interviewed the applicant on 11 September 2000, that he had one subject to complete for his degree, but was not motivated to continue. Dr Ewer noted on 7 March 2000 that the applicant should be doing four subjects this year, but had only been doing three, and was about to drop back to one subject.
24. A perusal of the documentary evidence discloses that the applicant completed successfully all the subjects he undertook, and that in 1999 his results were as follows:
“Statistics 1B – P1
Cartographic P’ples C
Env: A Human Perspec C
Geodetic Concepts P2
Spatial Info Syst I Credit
Biophysical World D
Geomatics 1 DIntro to Planning C”
[Exhibit A11]
For the year 2000 there was only one subject remaining – Global Environment Politics – which the applicant completed in late 2000. It is clear on the evidence, and I am so satisfied, that the applicant exaggerated the level of intellectual difficulties he was experiencing in the course of his studies.
25. Both Drs Mills and Ewer reported by the year 2000 that the applicant was unable to work. Dr Mills reported on 29 July 2002 [Exhibit A4] that the applicant was medically unfit for any work reasonably available to him by education or experience, as a direct consequence of his alcohol dependence and PTSD. Dr Mills said in evidence that he was not aware that the applicant had obtained credits and distinctions in 1999; and said that these results were not those of a man who was lacking in motivation, as he had understood.
26. Dr Ewer reported on 7 March 2000 [T14/81] that in his view the applicant was unable to work 8 hours per week because of his psychiatric illnesses. In his report of 29 May 2002 [Exhibit A3], Dr Ewer stated that there had been no progress in the applicant’s condition; he had not sought any psychiatric treatment. Dr Ewer recorded that the applicant was unable to work 8 hours per week because of his excessive alcohol intake, his irritability, his difficulties relating to people (particularly Asians and women) and his lethargy and insomnia. In the course of his oral evidence, Dr Ewer said that he was not aware that the applicant had obtained credits and distinctions in 1999; nor that he had told the VRB Hearing on 11 October 2001, that with his Science Degree he was hoping to find a better job; that he would rather work from home if he could find a job, but had applied for a full-time job as a Technical Administration Officer at Light Regional Council.
27. Dr Ewer said in the course of his oral evidence, that in the light of the applicant’s academic results his memory and concentration were better than Dr Ewer understood them to be. Dr Ewer said that he thought that the applicant could manage 8 hours per week or 1½ hours per day. There would be work limitations because of the applicant’s difficulties with other people, his possible aggression because of his PTSD and alcohol dependence, and his specific difficulties with Asians. These opinions Dr Ewer said, were based on what the applicant told him, and what Dr Ewer was able to observe.
28. The applicant tendered a bunch of acknowledgments of job applications dating from June 1995 to 19 December 2000. The final acknowledgment was from the Light Regional Council. The applicant said in evidence that he has not applied for any further positions. Unfortunately for the applicant, none of his applications for positions led to a job interview, so there was no opportunity for any prospective employer to assess the applicant’s suitability for the position.
29. Turning to the question of whether the applicant satisfied s 24 of the Act. With respect to s 24(1)(b) of the Act, I am reasonably satisfied on the whole of the evidence that the applicant has the capacity to undertake work of the type for which he has been retrained, namely light clerical computer type work, for more than 8 hours per week. I am satisfied therefore that the applicant does not satisfy s 24(1)(b) of the Act.
30. In relation to s 24(1)(c) of the Act, I consider that the part-time job the applicant performed at Maloney’s is “remunerative work” for the purposes of the sub-section. I am reasonably satisfied on the evidence that the applicant ceased to engage in that remunerative work for reasons other than his incapacity from his war-caused conditions, namely, as a result of Mr Maloney’s decision, on purely financial grounds, that the applicant’s services were no longer required. I am reasonably satisfied therefore that the applicant is not, by reason of incapacity from his war-caused conditions alone, prevented from continuing to undertake the remunerative work that he was undertaking. He is not suffering a loss of salary or wages, and he does not satisfy s 24(1)(c) of the Act.
31. In relation to the ameliorating provisions of s 24(2) of the Act, although he has genuinely sought work, none of the prospective employers responded to the applications, nor were they aware of his accepted conditions of PTSD and alcohol dependence. These conditions cannot be the substantial cause, therefore, of his inability to obtain remunerative work. In my view he does not satisfy s 24(2) of the Act; and is not qualified therefore, for payment of Disability Pension at the special rate.
32. For these reasons, the Tribunal affirms the decisions under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDates of Hearing 10/11 April 2003
Date of Decision 6 February 2004
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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