Kelly and Repatriation Commission
[2005] AATA 202
•11 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 202
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/738
VETERANS' APPEALS DIVISION )
Re TREVOR VINCENT KELLY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, Member Date11 March 2005
PlaceBrisbane
Decision
The Tribunal affirms the decision under review.
...................[Sgd]........................
K S Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – pensions – application for pension at the special rate – whether applicant is prevented from undertaking remunerative work on the basis of his war caused diseases alone – applicant cannot work more than 8 hours per week – war-caused diseases were not alone, the cause of his being prevented from continuing to work – Decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 19, 24, 28
Leane v Repatriation Commission [2004] FCAFC 83
Forbes v Repatriation Commission (2000) 171 ALR 131; (2000) 58 ALD 394
Chambers v Repatriation Commission (1995) 129 ALR 219; (1995) 36 ALD 207
Flentjar v Repatriation Commission (1997) 48 ALD 1
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Van Ewijk v Repatriation Commission [2004] FCA 17
Repatriation Commission v Bowman (1981) 54 FLR 8
Moorcroft v Repatriation Commission (1999) 58 ALD 143
Magill v Repatriation Commission [2002] FCA 744
Repatriation Commission v Sheehy (1995) 133 ALR 654
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Hall v Repatriation Commission (1994) 33 ALD 454
Fox v Repatriation Commission (1997) 45 ALD 317Starcevich v Repatriation Commission (1987) 14 ALD 160
Re Reilly and Repatriation Commission (1987) 12 ALD 533
REASONS FOR DECISION
11 March 2005 Dr K S Levy, Member 1. The applicant Trevor Vincent Kelly has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of the decision of the Repatriation Commission dated 16 June 2003. The decision rejected a claim for a special rate of pension under section 24 of the Veterans’ Entitlements’ Act 1986 (the Act).
2. This appeal is being considered under section 44 of the Administrative Appeals Tribunal Act 1975. The jurisdiction of the Tribunal was not disputed by either party.
3. The current application is based on the contention that he satisfies sections 24 (1)(b) and 24 (1)(c) of the Act. He also contends that while there are war-caused injuries and non-war-caused injuries involved, it is reasonable to infer from the available medical evidence, that the veteran is totally and permanently incapacitated from undertaking remunerative work for periods aggregating more than eight hours per week, as a result of his war-caused injury or disease. The applicant’s case also contends that it is reasonable to infer by reason of incapacity from such war-caused injury or disease alone, that he is prevented from continuing to undertake remunerative work and that he continues to suffer a loss of salary or wages which he would not be suffering if he were free of such incapacity.
4. The matter was heard on 14 December 2004. The applicant was represented by Mr Anthony Harding of Counsel who was instructed by Poteri Woods Solicitors. The respondent was represented by Mr Malcolm Smith, a Departmental Advocate.
5. The following documents were admitted into evidence before the Tribunal:
·Exhibit 1 – “T” documents filed under section 37 of the Administrative Appeals Tribunal Act 1975
·Exhibit 2 – Applicant’s statement dated 1 July 2004
·Exhibit 3 - Undated statement of the applicant under cover of letter from Poteri Woods Solicitors dated 20 November 2003
·Exhibit 4 – Letter from Dr Glenn Torbey dated 6 October 2003
·Exhibit 5 – Letter from Dr Glenn Torbey dated 12 July 2004
·Exhibit 6 – Clinical notes from Dr Glenn Torbey dated 19 November 2003 (Folios 1-61)
·Exhibit 7 – Report of Dr Kingswell dated 30 April 2004
Background
6. The applicant is currently 60 years of age. His date of birth is 12 May 1944.
7. He served in the Australian Army for 23 years from 1965 to 1987. During that period, he served with the Military Police and undertook a Tour of Duty in South Vietnam from April 1966 until 1967. This posting constitutes “operational service” as required by the Act.
8. On return to Australia, he remained in the Military Police for 8½ years. He then transferred to the Royal Australian Army Ordnance Corps and served there for a further 14½ years. He was discharged with the rank of Sergeant.
9. Since leaving the army, he has mainly undertaken security work and was employed as a security guard with MSS (7½ years), as a security officer with Woolworths (4½ years) and as a security officer with Queensland Transport (4½ years). He ceased work with Queensland Transport on 30 October 2002 and had a medical certificate that he should “cease work forthwith”.
10. He currently has the following accepted service related disabilities – Sensorineural Deafness, Post Traumatic Stress Disorder (PTSD), and Alcohol Dependence or Alcohol Abuse.
Issue for Determination
11. The issue for determination in this matter, taking account of the oral and written evidence, is whether the applicant satisfies section 24 of the Act. In other words, the question for determination is whether the applicant, by virtue of his war-caused injury or disease, satisfies the requirements that he is prevented from undertaking remunerative work on the basis of those war-caused diseases alone. If these requirements are met at any time during the assessment period as defined in section 19 of the Act, the applicant will be entitled to be paid the special rate of pension (Leane v Repatriation Commission [2004] FCAFC 83).
The Facts
§ The Applicant
12. The applicant’s written statements outline his duties as a security officer with the Department of Transport. He undertook shift work (including weekends). Most of the time, he worked by himself doing security checks or overseeing an entry gate. He answered phone calls and made reports of matters with respect to problems around the property owned by the Department. He also had TV monitors to check which showed 13 locations around the Depot. He occasionally discovered people such as drug users who were outside the fence but which nevertheless required him to report these to police.
13. In his statement at Exhibit 3, he stated that he was generally working on his own 90% of the time apart from cleaners who were present for short periods after the close of business. Towards the end of the period which he worked for Queensland Transport, he stated that he had made a number of errors at work such as not locking doors of buildings properly and other matters had also not been attended to. He believed his performance got progressively worse over the last 2 years he was there. He also stated that he got into arguments with other employees and contact persons but these were mainly over fairly trivial matters. The applicant suffered a heart attack on 11 July 2002. He returned to work in August 2002 and in October 2002, he ceased work as his general practitioner Dr Torbey felt he was not coping and was not fit to work again.
14. In his statement at Exhibit 3, the applicant states:
“4.1…I would not presently be capable of undertaking duties similar to those previously undertaken by me or in any other type of work reasonably open to me.
“4.2Over the last four years I have undertaken some bowls coaching at the Logan City Mens Bowls Club. This involved coaching new players but I have only coached about four players in the last few years. It is an unpaid position and I am not qualified to be a professional coach.”
15. In the applicant’s statement dated 1 July 2004, he refers to having been retrenched from Woolworths in 1998 and obtaining his position at the Department of Transport through an old Army friend. He was employed there for 4½ years. In relation to his present lifestyle, he stated, “My general activities mainly include some household activities such as washing up, taking the dogs for a walk and watching TV. I go to bowls once a week and continue to drink large quantities of alcohol.” He also referred to having done some bowls coaching but this clearly was not an activity in which he was involved frequently. In that regard, he says “I feel that I would be capable of doing some more bowls coaching but there is none presently available and I do not think I would be able to undertake this or anything like on a full time basis even if it was available.”
16. In relation to his ability to obtain employment, his statement reveals the following - “I am not capable of employment. I continue to suffer from various symptoms which I believe are related to Post Traumatic Stress Disorder. In particular, I have difficulty in maintaining concentration and become easily stressed. In my last employment, I became particularly concerned about matters such as leaving gates and doors unlocked, leaving lights on, arguing with staff and generally not being able to do my job adequately. I very frequently become emotional and experience episodes of crying.”
17. In oral evidence, he stated that after returning to work following his heart attack in 2002, he was having no problems at all. Counsel sought clarification given that his statement indicated he was having problems and not doing his job properly. He then emphasised this was attributable to stress in his life resulting in him becoming forgetful and argumentative. He stated he felt he could have become violent at times, although he never did.
18. Before he ceased work, he believed he was getting worse and went to see his general practitioner because of his complete state of “helplessness and hopelessness”. He stated he rarely spoke to anyone. When he spoke to Dr Torbey about this, he was advised to cease work.
19. Since ceasing work in 2002, he did not consider reducing the hours of work rather than ceasing entirely as he was “too stressed” and was on medication. In an endeavour to improve his health, the Department of Veterans’ Affairs paid for him to have a membership of a gymnasium for 12 months where he works on exercise bikes, weights and a cross country machine. He does this for 3 to 3½ hours twice per week.
20. Notwithstanding this endeavour to improve his health, he stated that he drinks 8 to 10 glasses of wine per night and when he goes to the club he would drink 8 to 10 schooners of beer.
21. Under cross examination, Mr Smith referred to his level of activity and asked why he employed a gardener. He stated that it was easier to pay than to do it. The Tribunal was also referred to page 11 of Exhibit 1 which indicated he had never done heavy gardening as he has mild asthma. He also referred to various other ailments and said he was in a constant state of tiredness and suffered from lethargy.
22. Evidence was also given by reference to Dr Torbey’s clinical notes (Exhibit 6, page 48). It was noted that there was a WorkCover claim made by the applicant on 19 September 2002. However, Dr Torbey’s notes also show between 19 September 2002 and when Dr Torbey provided a certificate for him to cease work, an assessment of stress level and his impairment level was also carried out. This indicates a score for his impairment and lifestyle dysfunctionality.
23. The notes also show on 10 October 2002 that he reported to Dr Torbey that he was not coping. The notes show –
“feels can’t continue with work”
“falling asleep at wheel”
“difficulty dealing with people/phone calls/not concentrating at work/coping with stress”
“letter to work – cease work”.
§ Dr Torbey
24. Dr Torbey provided evidence by telephone. He has been practicing as a general practitioner at Kingston for 19½ years. Mr Kelly has been a patient of his for 16 years.
25. It was noted in Exhibit 1 that on 12 December 2002 (Folio 37), he had rated Mr Kelly’s Ischaemic Heart Disease with a functional impairment rating of 4. He also rated Sleep Apnoea with a functional rating of 5. However, almost 12 months later in October 2003, he reviewed his assessment of Mr Kelly’s Ischaemic Heart Disease. He indicated that he had improved his fitness significantly and that he then assessed Mr Kelly’s heart condition with a functional impairment rating of 2.
26. It is noted on 11 October 2002 (Exhibit 1 Folio 17), Dr Torbey stated that the applicant was suffering from a war-caused PTSD and that he should cease work forthwith. He believed if he returned to work, that he might become stressed and would then become distressed and not cope very well at all. His job was not physically demanding but after his heart attack he improved his fitness and did not think that would have had any limitations on his physical ability to perform the task of security officer. Dr Torbey gave evidence that the applicant had always been anxious over many years and about multiple issues. Dr Torbey thought it would be helpful for him to again see a psychiatrist as he thought he needed ongoing support for a long time.
27. Under cross examination, the respondent highlighted the types of employment which he might be able to do; for example a security job, taxi driver, car park attendant and perhaps cleaning. It was noted that his medical problems such as heart disease would not permit heavy manual work. He also stated that he has a degenerative condition of the back and arthritis.
28. The applicant told Dr Torbey that his problems were mainly psychological and in particular, it was the anxiety of dealing with other people with which he found it difficult to cope. He stated the security job was not a difficulty but it was the administrative aspects and the social interaction which resulted in arguments, which caused difficulties for him. Dr Torbey also stated that his PTSD was the main reason (although not the sole reason) for discontinuing work. Further time was spent in discussing his various conditions, in particular Sleep Apnoea and Cardiac Disease. All of these conditions were said to have prevented him from working but some had a greater impact on his ability to work.
§ Dr Kingswell
29. Dr Kingswell’s statement (Exhibit 7) highlighted that Mr Kelly seemed to have no predisposition or vulnerability to psychiatric disorder prior to his service in Vietnam. He highlighted that he has been drinking considerable amounts ever since he returned from Vietnam.
30. In his mental state examination, he did not appear to have any highly anxious or depressed mood and there was no evidence of any psychotic disorder. He noted that there were nightmares and flashbacks, but no hallucinations. Mr Kelly had no cognitive impairment.
31. Dr Kingswell says that he does have chronic PTSD and had symptoms in the form of nightmares, intrusive recollections, sleep disturbance, depression and poor concentration. He stated that with the applicant’s multiple physical and mental conditions, it was unlikely he would ever return to remunerative work. He stated that it was “theoretically possible” for him to return to work and that his disability was “no greater at the time of his report than in October 2002”. In fact, his disability is probably less chronic than it was then. He stated that he is theoretically capable of working “more than 20 hours per week”, but the likelihood of returning to work might increase only if rehabilitation was possible. However, he thought motivation would be problematic. He also noted that the applicant was reported by his supervisor Mr Johnson, as being a competent security officer prior to his retirement on medical grounds.
Legal Framework
32. Sections 24 and 28 of the Veterans’ Entitlements Act 1986 outline the circumstances in which a person is entitled to a special rate of pension.
“24 Special rate of pension
(1) This section applies to a veteran if:
(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;
(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.
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24 (1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”
33. Nicholson J in Forbes v Repatriation Commission (2000) 171 ALR 131 held that section 24(1)(c) is best understood by dividing it into its two limbs and relating those limbs to the relevant portions of what follows in section 24(2): the first limb of section 24(1)(c) is read subject to the application of section 24(2)(b), and the second limb of section 24(1)(c) is read subject to the application of section 24(2)(a).
Consideration and Analysis
34. In making a determination, decision or assessment of the rate of pension payable in relation to Mr Kelly’s application, section 120(4) of the Act requires the Tribunal to decide the matter to its reasonable satisfaction, thereby adopting the civil standard of proof. Pursuant to section 19 of the Act the relevant time period for determining Mr Kelly's entitlement to the special rate of pension is during the "assessment period", that is from 4 November 2002 (the date on which the applicant lodged an application for the special rate of pension with the Department of Veterans’ Affairs), until the date of the Tribunal's decision: Forbes v Repatriation Commission (2000) 171 ALR 131.
35. There was no dispute between the parties concerning the matters covered by section 24(1)(a) of the Act. The Tribunal finds that Mr Kelly has made a claim for pension, he had not turned sixty five when he made the claim and his degree of incapacity from war-caused disabilities has been determined under the Act to be at least 70 per cent (as he has been in receipt of a disability pension of 100% since 15 October 2001).
36. All of the written and oral material available to the Tribunal has been taken into account in reaching a decision in this matter. Each of the statutory requirements in sections 24 (1)(b) and (c), section 24 (2) and section 28 are considered below.
§ Section 24 (1)(b)
37. In the first instance, the task of the Tribunal is, under section 24(1)(b), to determine whether Mr Kelly is totally and permanently incapacitated. That is, his incapacity from his war-caused disabilities, alone, must have rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
38. In determining whether Mr Kelly satisfies the criteria in section 24(1)(b), the Tribunal may take into account only the matters set out in section 28 of the Act. The Tribunal notes that section 28 is exhaustive of the matters to be taken into account when making a determination under section 24(1)(b). Clearly, from the Federal Court decision in Chambers v Repatriation Commission (1995) 129 ALR 219, Mr Kelly could not be expected to undergo extensive training or skill upgrading in order to render him competent to undertake remunerative work. The type of work a veteran can be expected to perform must be reasonably available, give the veteran’s current level and type of skills and qualifications.
39. The joint judgment in Chambers held that a narrow approach is not to be taken to the construction of either section 28(a) or section 28(b). Their Honours found that the purpose of section 28(a) is to direct attention to the range of employment opportunities available to a veteran, but for his or her disability. A veteran's skills and qualifications that enable him or her to undertake remunerative work must be taken into account despite the skills and qualifications which have been acquired but have not been utilised in any previous employment. In relation to section 28(b) it was noted that :
"A broad view of s.28(a) does not produce the result that opportunities for remunerative work must be considered, even where it would be unreasonable for a person with the veteran's skills, qualifications and experience to undertake that work. Section 28(b) requires the question of reasonableness to be addressed." (Chambers at p 236).
40. For the purpose of section 28(a), the evidence before the Tribunal on which to base an assessment of Mr Kelly's vocational, trade and professional skills, qualifications and experience, are those acquired in or deriving from his previous employment in the Army and doing the work of a security officer. For the purpose of section 28(b), Mr Kelly's possible work as a taxi driver or car park attendant as suggested by the Respondent’s advocate, would indicate that he may have the skills, qualifications and experience necessary to undertake remunerative work in these capacities. He may be also be able to undertake work as a storeman or like functions based on his lengthy Army experience in the Royal Australian Army Ordnance Corps. However, there are presently some medical and psychological limitations which would mitigate against productive employment for the applicant in this regard. This will be traversed again later.
41. Accordingly, in the Tribunal's view of the evidence, Mr Kelly was qualified for, and experienced in, work as a security officer. Other work such as a Chauffeur, taxi driver, cleaner or storeman may be relevant given the applicant’s background in the military police and logistics units. The Tribunal finds such work to be the kinds of remunerative work that a person with Mr Kelly's skills, qualifications and experience could reasonably undertake.
42. Turning to section 28(c) it is necessary to have regard to the degree to which Mr Kelly's war-caused impairment has reduced his capacity to undertake the kinds of remunerative work referred to above. The medical evidence, taken as a whole, describes with some consistency the symptoms being suffered by Mr Kelly that are associated with PTSD, Alcohol Dependence or Alcohol Abuse and sensori-neural deafness, all of which have been accepted as war-caused. However, there are other disabilities which are not war-caused and assessing the relative impacts of these conditions on his capacity to undertake remunerative work and the effect of the war-caused conditions alone is subject to some difference of views between the applicant and the respondent. In particular, there is conflicting evidence about whether the applicant could, by reason of his qualifications, experience and medical status, reasonably undertake remunerative work for more than eight hours per week as specified in section 24 (1)(b). However, as referred to under section 24(1)(c), it is noted that while the applicant is capable of working more than 20 hours per week, the applicant has multiple psychiatric disabilities and given the nature of these and motivational problems as outlined by Dr Kingswell, it is accepted that from a practical point of view, he would not effectively perform work of greater than 8 hours per week.
§ Section 24(1)(c)
43. The Tribunal's task under section 24(1)(c) is to determine whether, during the period from 4 November 2002 to the present, Mr Kelly's incapacity from his war-caused disabilities alone, has prevented him from continuing to undertake remunerative work reasonably available to him. The second limb of the paragraph requires the Tribunal to determine whether by reason of being so prevented, he has suffered a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity. In carrying out this exercise, the Tribunal is to have regard to the matters referred to in section 24(2) of the Act.
44. The Tribunal must consider the following four questions in resolving these statutory provisions. These were set out by the Full Court of the Federal Court in Flentjar v Repatriation Commission [1997] 48 ALD 1 at 4-5:
“1. What was the relevant "remunerative work the veteran was undertaking" within the meaning of section 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
45. In relation to question 1 above, the Full Court in Banovich v Repatriation Commission (1986) 69 ALR 395, when it discussed the expression "remunerative work", put it this way:
“But it is, in our opinion, erroneous to read the phrase 'remunerative work that the member was undertaking' as referring to a particular job with a particular employer. The term 'remunerative work' is used in the Schedule in a context which indicates an intention to refer to work generally ... Consistently with that use, the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job.” (p 402)
46. Applying that principle, the Tribunal finds that the work carried out by Mr Kelly as a security officer, to be "remunerative work that the veteran was undertaking" for the purposes of section 24(1)(c).
47. In relation to question 2 in Flentjar’s case, the Tribunal must consider whether Mr Kelly's war-caused disabilities prevent him from continuing to undertake remunerative work.
48. In this case, Mr Kelly has a number of war-caused and non war-caused disabilities. The interaction and contributions of the non war-caused disabilities will be considered later. For the purpose of this question, only the war-caused disabilities are relevant. Therefore, this refers to the accepted conditions of PTSD, Alcohol Abuse and sensori-neural deafness. In that regard, Dr Kingswell referred to his Alcohol Abuse and the veteran’s reported alcohol consumption. The veteran had reported to Dr Kingswell that he drank 10-12 glasses of red wine per day which, Dr Kingswell indicated was hazardous as he had an abnormal liver function. In relation to his deafness, this is clearly an impediment to productive employment in some respects. As a security officer, it mainly affects his duties in answering telephones but undoubtedly had also caused other difficulties in communication with persons, for example, who seek authority to park a vehicle. It would seem that for a person with an already anxious disposition and post traumatic stress disorder, the hearing difficulties are likely to heighten his anxiety.
49. With respect to PTSD, he has been diagnosed with this condition by Dr Les Ding and Dr William Kingswell. Dr Ding diagnosed this condition in 2002. Dr Kingswell, whose report is dated 30 April 2004, described nightmares and flashbacks and poor concentration on behalf of the applicant. He said his appetite was good and he was trying to lose weight. He was alert and presented with no distortions in cognitive functioning or orientation as to time and place. He had some sleep disturbance and depression at times.
50. However, there was some inconsistency in the evidence the applicant has provided to Doctors Torbey, Kingswell and Ding. In the forms completed in his application to the Veterans’ Review Board on 1 November 2002, he stated that he “can’t do” grocery shopping, minor house repairs, heavy gardening or lawn mowing or cooking. He said he could undertake washing the car or lifting “with help”. He did not do house cleaning or washing up as this was in the category of “don’t need to”. He also said that he rarely or never plays a sport eg. golf, tennis or bowls. However, in relation to his responses to the application to the Veterans’ Review Board as outlined above, those responses seem somewhat at odds with the report he gave to Dr Ding almost two months later. Dr Ding reports that he “does play outdoor bowls regularly and feels relatively comfortable within that group”. He also reported attending “monthly freemasons meetings”. He also attends the gym twice per week for three hourly sessions. This seems somewhat inconsistent with his application to the Veterans’ Review Board which stated that he prefers to avoid social situations and likes to be by himself, although Dr Ding noted that the applicant had reduced his social interaction except for bowling and the Lodge. In particular, his report states that Mr Kelly has indicated “there is some reduction in recreational activities but fortunately, probably on account of his history of sportsmanship has succeeded in enjoying himself as a regular member of an outdoor bowling club”.
51. The Veteran’s Review Board application was somewhat consistent with his oral evidence at the Tribunal which displayed an impression that he would prefer to avoid doing most forms of work. For example, when asked why he had a gardener, he stated that it was easier to pay than to do gardening himself. This impression is also consistent with a conclusion formed by Dr Kingswell.
52. The reported preference for more solo activities and withdrawal from social situations is consistent with PTSD. When this preference is related to his capacity for remunerative work, Dr Kingswell has stated that Mr Kelly’s capacity for work is “theoretically possible”. His view is that Mr Kelly’s disability was no greater at the time of his report in April 2004 than it was in October 2002 and states that it is “probably less”. He thought that the applicant could theoretically work greater than 20 hours per week. However, he qualified his conclusion by stating that motivation would be problematic for Mr Kelly. He thought with his present conditions, he would probably have days off work to recover from Alcohol Abuse or PTSD symptoms. He thought he could return to work if rehabilitation was offered. On balance, Counsel for the applicant argued that it really comes down to commercial reality and whether an employer would want to have an employee such as Mr Kelly who might be an irregular attendee at work and whose performance might be less than satisfactory or perhaps even affect the morale of other employees. In reaching a conclusion on this point, Dr Kingswell also thought it was the applicant’s heart condition that drove him from the workforce although he said it may also have been his Alcohol Abuse. In any event, the heart attack undoubtedly caused considerable anxiety and together with his PTSD, Alcohol Abuse and poor motivation, a reasonable conclusion can be drawn that the applicant’s disabilities are permanent. In the circumstances, the answer to question 2 is that the veteran’s war-caused diseases prevent him from continuing to undertake “remunerative work the veteran was undertaking”. Therefore, for the purposes of section 24 (1)(b), the Tribunal would answer this question ”yes”.
53. In relation to question 3 of Flentjar’s case, it is necessary to determine whether his war-caused incapacity is the only factor preventing him from continuing with that work. Some assistance in answering this, is drawn from Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539-540 approved the following statement made there by the Tribunal as being an appropriate application of the statutory test: "Again it follows from the use of the word 'alone' in section 24, that any factor having employment consequences which play a part in the applicant's inability to work or to obtain and hold employment, is sufficient to displace the applicant's case for pension at special rate." This question must consider some of the conflicting views of the applicant and the respondent, particularly the effects of other non war-caused diseases on the contribution to the applicant’s cessation of remunerative work.
54. In considering the approach to resolving the conflicting views and evidence, the Tribunal is also mindful of the following principle espoused by Burchett J in Cavell’s case (supra) at 539:
“It is a decision that should not be made on nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”.
55. In applying this principle in a realistic and common sense manner, it seems to the Tribunal that the Commission's submissions turn on the issue of Mr Kelly's employability, about which views may differ. On the one hand, a person with skills, qualifications and experience gained over years of work in a profession may be attractive to a prospective employer. On the other hand a prospective employer, with an eye to the future productive capacity of an employee, may be less inclined to employ a person with the disabilities held by Mr Kelly, particularly as he approaches the usual age of retirement.
56. Question 2 above has been answered in the affirmative, that is, Mr Kelly is prevented from undertaking remunerative work. However, in this case, Mr Kelly also suffers from a number of non war-caused conditions. In particular, he suffered a heart attack in July 2002, three months before he ceased work. He also suffers from sleep apnoea which was a condition for which he is being treated contemporaneously with his heart disease both of which existed at the same time as he ceased work. He also has been treated for gastritis and there is evidence that he also suffers Crohn’s Disease.
57. The conditions of gastritis and Crohn’s Disease were not given as much prominence as the other non war-caused diseases of sleep apnoea and heart disease. Those former conditions seem to have been more recent and less influential in the scheme of medical conditions from which Mr Kelly suffers. However, sleep apnoea seemed far more important. The clinical notes show that Mr Kelly fell asleep at the wheel of his vehicle on 19 September 2002. He then attended a clinic at the Greenslopes Private Hospital in 2002 and 2003 for treatment for this condition. A report from that clinic on 8 November 2002 by Dr Chris Schull indicates he was being tested and under treatment and it was recommended at that time that he lose weight to assist with this condition. It was also reported that alcohol and sedation aggravated his sleep apnoea and that he should avoid alcohol. His alcohol abuse and sleep apnoea clearly were not compatible. On 12 December 2002, he was assessed by Dr Torbey as having a functional impairment rating of 5 in relation to sleep apnoea. He was subsequently seen by Dr Allan Finnimore from that clinic on 7 March 2003 whose clinical notes show that his health was improving from attendance at the gym, although his weight had gone up. He was reviewed again by Dr Finnimore on 15 October 2003 who reported his sleep pattern was then improved although his weight and his neck size had increased. A further review by that clinic on 10 November 2003 indicated that he had more obstructive sleep apnoea at that time and that this was due to weight gain and alcohol.
58. In relation to his heart disease, he suffered a myocardial infarction in July 2002, after which he was taken to Greenslopes Hospital. He was off work for one month and then returned to work as a security officer with Queensland Transport until October 2002. In that two month (approximately) period after he returned to work, there seemed to be considerable change in his condition and/or ability to cope. Dr Torbey has reported that one month off work following a heart attack was probably inadequate and he should have had a longer period of leave prior to returning to work. However, after he returned to work, he said in evidence at the Tribunal that he was “having no problems at all”. But by the end of October 2002, this condition had deteriorated rapidly. He consulted Dr Torbey during this period and stated in evidence that between going back to work and finally stopping work two months later in October 2002, he was getting worse and was in a complete state of “helplessness and hopelessness”. He stated that he rarely spoke to anyone and that he was unable to work. After consulting with Dr Torbey, he obtained a certificate to cease work as Dr Torbey considered that he was not coping.
59. On 12 December 2002, Dr Torbey undertook a structured assessment and decided his functional impairment rating was at a level of 4. By October 2003, (ten months later and one year after ceasing work), Dr Torbey provided another assessment and indicated that he had considerably improved and that his functional impairment rating was then at a level of 2. In that intervening period, his cardiovascular condition was considered to be normal although he also suffered from asthma. Dr Torbey indicated that his undertaking a gym programme which had been provided by the Department was of considerable value and had improved Mr Kelly’s physical condition.
60. In considering the effect on the balance of probabilities of the war-caused and non war-caused conditions, the following principle is helpful:
“It is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination.”…..But the fact that a non war-caused condition is not alone causative of such preventative effect, does not prevent it having that effect in combination with the war-caused condition. It is, consistent with the application by a Tribunal of a common sense approach “with an eye to reality”. (Forbes v Repatriation Commission [2000] FCA 328).
61. Having regard to the whole of the material, the Tribunal is satisfied on the balance of probabilities, that the extent and timing of the applicant’s non war-caused medical conditions have contributed to his ceasing work in October 2002. Having taken account of the decisions in Cavell and Forbes (supra), the effect of the non war-caused disabilities are to be regarded as operating concurrently with the war-caused disabilities. However, the Tribunal does not regard the war-caused disabilities as the predominant cause preventing the applicant from continuing to undertake remunerative work as at the “application day”, that is, 4 November 2002, and throughout the subsequent assessment period, within the meaning of section 19 of the Act.
62. The Tribunal finds that the applicant has been prevented from continuing to undertake remunerative work throughout the assessment period by reason of incapacity from war-caused diseases (PTSD, alcohol abuse or alcohol dependence and sensori-neural deafness) as well as from non war-caused diseases (heart disease, sleep apnoea and other conditions). Therefore, the Tribunal finds that “the alone test” in section 24(1)(c) of the Act is not satisfied in this case. This is consistent with Dr Kingswell’s pragmatic evidence and is supported by the decisions of Forbes and Cavel.
63. Given the finding that Mr Kelly does not pass the test in the first limb of section 24(1)(c), reliance upon the ameliorative provision in section 24(2)(b) will be undertaken.
64. In relation to question 4 in Flentjar’s case, it is necessary to consider the second limb of section 24(1)(c) which requires the Tribunal to determine whether the veteran's war-caused incapacity that has left him totally and permanently incapacitated, has caused the veteran to be " ... 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;..." Branson J said that "It is issue 4 which throws up for consideration the question of what Mr Flentjar would have done if he had none of his service disabilities ..." (see page 5). In this regard, consideration must also be given to the matters set out in section 24(2)(a)(i) and (ii).
65. In considering the second limb of section 24(1)(c), the evidence of the applicant concerning his employment history is highly relevant. This history, together with the medical evidence is crucial to the Tribunal’s conclusion (Van Ewijk v Repatriation Commission [2004] FCA 17).
66. An approach to assessing this question is to consider a hypothetical situation with the applicant being free of his disability (Repatriation Commission v Bowman (1981) 54 FLR 8). Adopting this approach, the Tribunal considered the hypothetical circumstance of Mr Kelly, at sixty years of age and with his skills and experience in security officer’s work, seeking remunerative work, but free of his disability.
67. In the hypothetical scenario, there is evidence that Mr Kelly has suffered difficulty in communication and controlling his temper for many years, as evidenced from the time of his first marriage. From that time, through to the time of his cessation of work, the applicant has demonstrated there were times of dysfunctionality which could be attributed to his war-caused incapacity. However, if one assumed that he had not served in Vietnam and did not subsequently suffer from mood disorders or PTSD and anxiety, as well as alcohol abuse, then his non war-caused disabilities may still have been in existence. The war-caused disabilities have almost certainly aggravated these, however, his ability to cope and his heart condition, which may have been aggravated by his alcohol abuse and his sleep apnoea, would undoubtedly still exist, although perhaps not necessarily to the same degree. There is evidence from Dr Kingswell that the anxiety caused by the heart condition had subsided by the time he saw Mr Kelly and there is also evidence that the functional impairment rating relevant to his heart condition has improved considerably from December 2002 (five months after his heart attack) until October 2003. Dr Kingswell has given evidence that Mr Kelly’s disability at the time of his report in July 2004 was perhaps less dysfunctional than it was in October 2002 at the time of his ceasing work. He thought that he was not incapable of working at least 20 hours per week. However, there were many psychiatric problems pertaining to his PTSD and alcohol abuse which made that a practical difficulty because of the permanency of those conditions. Accordingly, the Tribunal finds that, by reason of being prevented from continuing to undertake remunerative work he had previously undertaken because of his non war-caused disabilities, Mr Kelly may be suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity in combination with his war-caused disabilities. This conclusion is reached after considering the foregoing “with an eye to reality”.
§ Section 24(2)
68. In Moorcroft v Repatriation Commission(1999) 58 ALD 143, Dowsett J decided that section 24 (2) was designed to deal with “supervening causes”, which he said, refers to “factors preventing a veteran from working, other than his war-caused condition, and that section 24(1)(c) is not concerned with those matters.” (at 0-21).
69. In considering the first limb of section 24(1)(c) and section 24(2)(b), the latter section has been referred to as an ameliorative provision, for example in Magill v Repatriation Commission [2002] FCA 744 per Drummond J at paragraph 7. In Repatriation Commission v Sheehy (1995) 133 ALR 654 Sackville J said that section 24(2)(b) specifies three criteria applicable to veterans such as Mr Kelly who had not turned 65 at the time of his claiming pension (at 660):
“(i) that the veteran has been genuinely seeking to engage in remunerative work;
(ii) that the veteran, but for the incapacity, would be continuing to seek to engage in remunerative work; and
(iii) that the incapacity is the 'substantial cause' of the veteran's inability to obtain remunerative work in which to engage.”
70. The respondent argued that Mr Kelly did not attempt to look for work after ceasing work in October 2002. This was not disputed. However, section 24(2)(b) was not meant to be an unrealistic challenge for those who have an incapacity and who have ceased work (see Re Hornery and Repatriation Commission (1998) 52 ALD 317). An approach which is “realistic” and with “regard to the nature and extent of the incapacity” must be adopted with veterans who are permanently incapacitated for any form of remuneration work (see Spender J in Hall v Repatriation Commission (1994) 33 ALD 454). Therefore, this requirement for Mr Kelly might be regarded as being not practically achievable, or viewed another way, he cannot be disadvantaged in the circumstances for not seeking remunerative work, and therefore, he is to be regarded as satisfying this criterion.
71. The second criterion requires consideration of whether the applicant would have continued to seek to engage in remunerative work were it not for his incapacity. This is a difficult question owing to the convoluted nature of the war-caused and non war-caused disabilities. The question relates to the applicant’s symptoms of PTSD etc and his motivation to continue working and Dr Kingswell has already noted that motivation is a problem for Mr Kelly. Symptoms of nightmares, intrusive recollections, depression, poor concentration and a tendency for spontaneous crying are related to his PTSD, but he clearly also suffers from non war related disabilities, such as asthma (since 1967), and from ischaemic heart disease, sleep apnoea, gastric ulcers and Crohn’s disease (all of which were present in 2002). The Tribunal concludes that he would have continued to seek to engage in remunerative work had he not suffered from both the war-caused and non war-caused diseases.
72. The third criteria above, is whether that war caused incapacity is the substantial cause of his inability to obtain remunerative work. In examining section 24(2)(b) Kiefel J in Fox v Repatriation Commission (1997) 45 ALD 317, held that (at 319-320): "The words 'the substantial cause' require 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. That something might be a “substantial cause” has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as “substantial”… ". Is Mr Kelly's incapacity from PTSD and Alcohol Abuse, distinct from his other accepted conditions including sensori-neural hearing loss, the operative factor that explains his inability to obtain remunerative work? Or is his heart condition and sleep apnoea which resulted in general lethargy and tiredness the substantial cause? In this case, as there are clearly disabilities which are war-caused and which seem to be all-pervasive, as well as non-war-caused disabilities.
73. Mr Kelly’s cessation of work may be due to some of his war caused diseases, such as his inability to cope with others around him. However, the temporal nature of his heart attack, followed by return to work and then sudden cessation of work however, is accepted as strong evidence of the cause of his giving up work. This was not the only “supervening cause” (see Dowsett J in Moorcroft v. Repatriation Commission). He also had contemporaneously with his heart attack, treatment for sleep apnoea, of which the latter condition resulted in poor sleep and a constant lethargic feeling throughout the day. This latter condition was undoubtedly aggravated by his alcohol abuse (an accepted war condition). Gastric ulcers and Crohn’s disease were also concurrent conditions and contributed to the “supervening causes”. Therefore, consistent with the expert medical opinions provided, the Tribunal finds, to its reasonable satisfaction, his non war-caused disabilities of heart attack and sleep apnoea (which undoubtedly also had an effect on his anxiety and perhaps other psychiatric conditions) were the substantial causes of, or the operative factor explaining, his inability to obtain remunerative work. Accordingly, the Tribunal finds that the third criterion in section 24(2)(b) (Sheehy’s case) should be answered 'no'.
74. In relation to the second limb of section 24(1)(c) and its operation with section 24(2)(a) of the Act, the veteran will not be taken to be suffering such a loss of salary or wages or other savings by reason of his war-caused incapacity in one of two circumstances.
75. Sub-paragraph (i) of section 24(2)(a) reads "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". The Full Court in Banovich v Repatriation Commission [1986] 69 ALR 395 at 402-403 referred to a previous equivalent section to section 24(2)(a) and said:
“We accept that the loss referred to in para[1](b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment. There is no difficulty in regarding either circumstance as preventing the member 'continuing to undertake' remunerative work. ... the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity.” (adopted in Starcevich v Repatriation Commission (1987) 14 ALD 160; and Hall v Repatriation Commission (1994) 33 ALD 454).
76. Clearly, the expression "the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity " in section 24(2)(a)(i) is not a reference to the cessation of Mr Kelly's employment at Queensland Transport. Rather, it directs the decision-maker to establish why the veteran has ceased to engage in remunerative work - not merely why he left his last job. For example, if cessation of employment was due to a criminal offence, then an applicant would have ceased to engage in remunerative work for reasons other than a war-caused injury, even if he suffered contemporaneously from a war-caused disability which would have incapacitated him from future work (Re Reilly and Repatriation Commission (1987) 12 ALD 533).
77. The 'remunerative work' referred to in section 24(2)(a)(i) is a reference to the 'remunerative work that the veteran was undertaking' in section 24(1)(c) (Question 4 in Flentjar's case). The Tribunal has found that the relevant remunerative work, is work as a security officer. The “reason” why his war-caused condition might not be attributable to loss of salary or wages or other savings relates to the “motive, cause or justification” for the applicant ceasing work (Concise Oxford Dictionary).
78. It was noted earlier that the Tribunal has determined that the applicant ceased work because of non war-caused conditions operating concurrently with his accepted war-caused diseases. This must be assessed at the time the applicant made the application (that is, 4 November 2002). In Cavell v Repatriation Commission (supra), Burchett J upheld an appeal when advancing age, deteriorating health and absence from the workforce were regarded as “other reasons” why the applicant there ceased to engage in remunerative work, for the purposes of section 24(2)(a)(i). But in this case, while the applicant’s age and health are such that he would be prevented from continuing to undertake remunerative work, for the purposes of section 24(2)(a)(i), the Tribunal determines that he has ceased to engage in remunerative work for reasons other than his war-caused condition, namely, due to his heart disease and sleep apnoea condition.
79. In summary, the Tribunal has found that the applicant cannot work for more than 8 hours per week (section 24 (1)(b); that the relevant remunerative work was that of security officer (although other work was identified as fitting the class of work the applicant could be regarded as being capable of performing); that he is prevented from continuing to undertake that work; that the war-caused disease was not alone, the cause of his being prevented from continuing to undertake that work; and he is not suffering loss of salary or wages or other savings due war caused diseases alone, but that other reasons are attributable to his cessation of work (section 24 (1)(c)).
80. It follows that the decision under review should be affirmed. This means that the Tribunal decides that Mr Kelly is not entitled to be paid disability pension at the special rate with effect from 4 November 2002.
Conclusion
81. The Tribunal decides that the decision under review is affirmed.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Camille Banks
AssociateDate/s of Hearing 14 December 2004
Date of Decision 11 March 2005
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Poteri Woods Solicitors
For the Respondent Mr M Smith, Departmental Advocate
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