Keech and Repatriation Commission
[2002] AATA 97
•9 January 2002
DECISION AND REASONS FOR DECISION [2002] AATA 97
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1090
VETERANS' APPEALS DIVISION )
Re ANTHONY BRUCE KEECH
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen; Dr P Lynch, Member
Date9 January 2002
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/1090
)
VETERANS' APPEALS DIVISION )Re: ANTHONY BRUCE KEECH
ApplicantAnd: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr P Lynch, Member
Date 9 January 2002
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Special rate. Applicant resigned from regular army at own volition. Has not looked for work since. Not entitled to Special Rate pension.
Veterans' Entitlement Act s24, s120(4)
Forbes v Repatriation Commission 58 ALD 394
Repatriation Commission v Sheehey 39 ALD 286
REASONS FOR DECISION
Senior Member M D Allen
Dr P Lynch, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed:
..................................................................................……………………………….Associate
Date of Hearing 9 January 2002
Date of Decision 9 January 2002Representative for Applicant Mr Adam Halstead, Legal Aid Commission
Representative for Respondent Ms Susie Breuer, Repatriation Commission
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/1090
By MR M.D. ALLEN, Senior Member and
Dr P Lynch, Member
KEECH and REPATRIATION COMMISSION
SYDNEY, WEDNESDAY 9 JANUARY 2002MR ALLEN: By application made 17 July 2000, the applicant sought review of a decision by the Repatriation Commission of 9 July 1999 as affirmed by the Veterans Review Board that assessed his disability pension at 100 per cent of the general rate. In these proceedings the applicant claims that he is entitled to pension at the special or totally permanently incapacitated rate. He has a number of accepted conditions chief of which is a post traumatic stress disorder with alcohol abuse.
In considering this matter the tribunal pursuant to subsection 4 of section 120 of the Veterans Entitlement Act 1986 is to decide this matter to its reasonable satisfaction. That term was stated by the Full Court of the Federal Court in Repatriation Commission and Smith 15 FCR 327 to equate to the civil standard of proof. That is to say proof on the balance of probabilities. The criteria for the grant of pension at special rate is set out in section 24 of the Veterans Entitlement Act.
This applicant who was born 15 June 1942 is at all relevant times under the age of 65 years. Consequently, subsection 1 of section 24 applies to him as he is receiving pension at 100 per cent of the general rate then he is entitled to have his entitlement to special rate considered as per paragraph 24(1)(a)(i) of the said Act. Paragraph B of subsection 1 provides that:
A veteran is totally and permanently incapacitated, that is to say veteran's incapacity from war caused injury or war caused disease or both is of such a nature as or itself alone to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
Paragraph C:
The veteran is by reason of incapacity from that war caused injury or war caused disease or both alone prevent him 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.
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8Auscript Pty Ltd 2002So far as the so called alone test is concerned as was pointed out by his Honour Burchett J in Cavell v Repatriation Commission:
The task of the tribunal is to make a practical decision whether the veteran's loss of remunerative work is attributable to his service related incapacities and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with an eye to reality and as a matter in respect of which common sense is the proper guide.
Those remarks his Honour were endorsed by his Honour, Nicholson J in Forbes v Repatriation Commission 58 ALD 394. In this matter the applicant's evidence is contained largely, in a statement which became exhibit A2. That statement together with the applicant's oral evidence here today reveals that the applicant joined the Australian regular army on 9 January 1961 as a private soldier and was allocated to infantry. He progressed through the ranks so that by the time he retired on 30 March 1996 he had attained the rank of Major.
In evidence, he stated that he was promoted to commissioned rank in 1983, in the rank of Captain becoming a temporary Major in 1987 and a substantive Major in 1989. As what is termed a prescribed service officer, he could not reasonably expect promotion beyond the rank of Major however, he was, he understood respected by his subordinates. He got above average annual reports and had an expectation that when he reached his prescribed retiring age of 55 which would be in 1997 his application for an extension of his service would be favourably considered.
All in all the evidence of the applicant is such that we conclude that at the time he retired from the Australian regular army, his position was secure and although he referred to his possibly being down graded medically, that had not occurred and we are satisfied that he could have continued to do the work in which he was engaged but that he elected to retire when he did because of financial advantage to him in that if he had been medically retired he would have not been able to take his military superannuation as a lump sum.
As he says in his statement:
I felt that my state of health and age I was a target for any cuts in the defence forces.
He further says:
It was the case though that the stress of the changes occurring
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8Auscript Pty Ltd 2002totally consumed my thinking. I felt totally safe and secure in my job as an army officer until the time of those restructure changes. I was completely overwhelmed by the changes and couldn't cope with the thought.
He also says that he had reservations about a new commanding officer coming in. However, as we said, we find the fact that at the time he retired it was a purely voluntary retirement. That he was regarded as a competent officer, notwithstanding his various incapacities is evident by the fact that shortly before his retirement he was seconded to Papua New Guinea. That being so, once he had retired the applicant spent some time arranging his affairs, purchasing a dwelling but at not stage since his retirement from the Australian regular army has the applicant taken any steps to seek other employment.
The applicant's ability to engage in employment has been considered for the respondent by Dr Harvey Sutton. In her report which became exhibit R3, she opines that the applicant's non accepted disabilities would not materially affect his capacity to work but adds:
He does not have any obvious disabilities to a prospective employer and I do not believe that his accepted disabilities would have prevented him from obtaining employment.
This can be compared to the evidence of Dr Shand, psychiatrist. At page 5 of his report Dr Shand said:
Post service work record has been nil since discharged from the army. He said his attitude was that a 54 year old ex soldier had no chance of getting a job and so he did not try.
At page 6 of his report, Dr Shand said:
He denied any financial problems because of his 35 years of army superannuation. He took it out and rolled it over into a fund. He spends on dress and good grog and also travelled first class.
The comment re travel first class seems to be inaccurate. Dr Shand continues:
He mentioned that he is just back from a trip to South America in a group of 27. He has also been to the Mediterranean, Barcelona to Istanbul and to Galipolli where he said he stood on the beach and cried.
It would appear from the applicant's evidence that he has had two trips overseas, one to South America and one to the Mediterranean. Dr
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8Auscript Pty Ltd 2002Shand concludes:
In my opinion, he has been fit to undertake remunerative work since discharge from the army but he lacks motivation to work. He does not need the money and he is happy working for the Vietnam Veteran's Association.
Again, that is wrong, it should be the Seven Battalion Royal Australia Regiment Association in the manner mentioned above. Dr Shand continued, "He rationalises that he would be unable to get a job. It is clear that neither his PTSD or his alcohol abuse/dependence has prevented him from pursuing his very successful career in the army which has been translated into his work for Vietnam Veterans Association (sic)". We would only mention here that the applicant has been successful in his army career. He has received above average annual reports and he has performed in his job. We do not accept his evidence that top level management in the army are drunk all the time.
Dr Pierides reported to the applicant's solicitors. Dr Pierides opines that the applicant could not work as a human resource manager or personnel manager because of his post traumatic stress disorder and alcohol abuse. He also says interaction with people on a regular basis in any form of work would be difficult due to his irritability and stress created by the post traumatic stress disorder. This opinion contrasts with that of Dr Harvey Sutton and also with Dr Shand and we find that we prefer their opinions suffice to say that the applicant has never at any stage attempted to ascertain whether in fact he could work.
Dr Chambers is the applicant's general practitioner, in a report dated 26 November 2000 he says:
Mr Keech is not fit to travel to North Sydney by public transport especially if forced to stand on a train due to his PTSD knee and back problems.
The applicant stated that he is capable of managing public transport namely train from Penrith to Sydney city, but if the journey goes over 40 minutes he may have to stand. We note however, that he has been able to undertake flights of up to 14 hours. Dr Morris provided a report to the applicant's solicitors that report is dated 13 November 2000 and although the applicant referred to Dr Morris as the applicant's treating psychiatrist, the report of 13 November 2000 was after Dr Morris' first consultation with the application on 2 November 2000.
Significantly, Dr Morris opined that the applicant was prevented from working due to his chronic post traumatic stress disorder and alcohol abuse and added:
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8Auscript Pty Ltd 2002He also complains of significant and pervasive irritability which makes it hard for him to cope with people which has affected his relationship with friends and family. He is also anxious and finds it difficult to cope with stress. He is also currently consuming alcohol at hazardous levels and in amounts which would make it difficult for him to work.
Suffice it to say that the applicant has had a history of consuming large levels of alcohol during his service and managed to have a successful career notwithstanding. So far as relationships go it would appear that he has certainly been able to cope with the strains, stresses and interpersonal relationships to two overseas tours with other people. More significantly, however, Dr Morris in a later report of 26 April 2001 said:
Mr Keech related to me in our assessment that the reasons for his decision to retire from the army were his concerns about restructuring, working for a new senior officer and not wanting to be discharged as medically unfit. In my opinion were not linked to or symptomatic of his post traumatic stress disorder.
Taking the whole of the evidence in this matter, we are of the opinion that the applicant cannot be said to be incapable of undertaking remunerative work for periods aggregating more than eight hours per week because of incapacity from war caused injury or disease alone but notwithstanding that, paragraph C refers to:
... a veteran by reason of incapacity from war caused injury or war caused disease or both alone, prevented from continuing to undertake remunerative work that the veteran was undertaking.
Notwithstanding the definition of remunerative work in section 5(Q) of the Veteran's entitlement Act. The paragraph is in past tense namely work the veteran was undertaking and this matter the only work that the veteran was undertaking was that of an army officer. Subsection 2 of section 24 then provides:
For the purpose of paragraph 1(C) (a) a veteran who is incapacitated from war cause 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, one, the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war caused injury or ward caused disease or both.
Now in this matter, it was not due to incapacity from war caused disease
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8Auscript Pty Ltd 2002or injury that caused the applicant to resign from the Australian regular army. He could have continued but decided not to because of his financial advantage. Subparagraph 2 then refers to:
... a veteran who is incapacitated or prevented from engaging remunerative work for some other reason.
And that does not apply here. Paragraph B of subsection 2 is an ameliorating provision for veterans who have not attained the age of 65 years and they have satisfied the commission that they have been genuinely seeking to engage in remunerative work. In this case the applicant since his retirement from the army has made no effort whatsoever to engage in remunerative work. As was pointed out by his Honour Sackville J in Repatriation Commission v Sheehey 39 ALD 286 at 292.
Section 24(2)(b) specifies three criteria applicable to a veteran under the age of 65, the first is which the veteran has been genuinely seeking to engage in remunerative work. So that the ameliorating provisions do not apply to this veteran. It is our finding therefore, that paragraph 24(1)(c) is inapplicable to this veteran as well. Regard should also be had in considering this matter to the second reading speech of Minister for Veterans Affairs in relation to the criteria for the grant of pension at a special rate. Part of it is set out in the judgment of his Honour Sackville J in Repatriation Commission v Sheehey Supra at page 292. The Minister said:
The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate should become payable to a veteran who having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force.
As we said, this man retired from the army at his own volition and when still had time to serve, and he retired for his own personal reasons. Since that time he has not looked for work. He does not meet the criteria in paragraphs 24(1)(b), 24(1)(c) and therefore the decision under review is affirmed.
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