Kessell and Repatriation Commission
[2011] AATA 254
•15 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 254
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0210
VETERANS’ APPEALS DIVISION ) Re RONALD BRENTON KESSELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date15 April 2011
PlaceHervey Bay
Decision The Tribunal affirms the decision under review.
......................[sgd]........................
Senior Member
VETERANS’ AFFAIRS – benefits and entitlements – disability support pension – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s24
Bilsby v Repatriation Commission [2011] AATA 133
Flentjar v Repatriation Commission (1997) 48 ALD 1
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
15 April 2011 M J Carstairs, Senior Member 1. Ronald Brenton Kessell has applied for an increase in the rate of his disability pension, presently paid to him at 100% of the general rate. He is seeking payment at a higher rate, related to loss of earnings, called “special rate”, payable where a veteran is unable to work because of accepted war-caused disability.
2. The respondent has accepted the following disabilities as war caused:
·post -traumatic stress disorder (“PTSD”);
·chronic solar skin damage to the trunk and forearms; and
·bilateral sensori-neural hearing loss and tinnitus.
3. The respondent says, that Mr Kessell does not qualify because he ceased work for reasons other than war-caused incapacity, and there are other factors that then account for his not further participating in the workforce. .
ISSUES
4. The issues before the Tribunal are limited to whether Mr Kessell satisfies s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), which addresses 2 questions:
§whether Mr Kessell is, by reason of incapacity from his war-cased disabilities alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
§whether he consequently is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
5. The questions could be confined in this way because the respondent conceded that Mr Kessell satisfied other parts of the qualification criteria in s 24 of the Act:
§his general rate pension is above 70%, satisfying s 24(1)(a) of the Act; and
§he is unable to work more than 8 hours per week because of war-caused disabilities alone, satisfying s 24(1)(b) of the Act.
6. Before leaving these concessions, I would observe that in regard to s 24(1)(b) the concession was properly made taking into account the medical evidence. That evidence comes primarily from Mr Kessell’s general practitioner Dr Carlo Rossi, who stated that Mr Kessell was unable to work due to PTSD[1]. Dr Marty Ewer, psychiatrist, had prepared a report on Mr Kessell in 2003[2] in which he concluded that Mr Kessell could work 8 to 20 hours per week with his (at that time untreated) PTSD condition. By 2010, however, Dr John Sowby, occupational physician, concluded that Mr Kessell was unfit to work more than 8 hours per week because of his PTSD, including the effects of that disorder on his motivation and functioning.[3] Certainly by the time Mr Kessell made his claim in 2007, the medical evidence supported a conclusion that Mr Kessell was unable to work 8 hours per week by reason solely of his PTSD.
[1] T4, p 67
[2] T4, pp 15-20
[3] Exhibit R4
BACKGROUND
7. Over the years Mr Kessell was able to turn his hand to a variety of jobs. It seems he was never out of employment for any significant period. His work history included:
§working in a bakehouse for 2 years after leaving school at the age of 15;
§this was followed by a short period as a storeman/delivery man – some 9 months prior to enlisting in the Army at the age of 18;
§he remained in the Army for 9 years (1960 to 1969) in Infantry and the Armoured Corp, including service in Vietnam;
§when he left the Army he worked in a bottle shop for 12 months followed by 10 years working as a plant operator at the Lytton refinery in Brisbane;
§he then moved to Alice Springs, working as a self employed deliveryman[4];
§this was followed by a stint in Darwin, doing deliveries for a wholesale grocery and liquor business however he injured his back and required a laminectomy, and thereafter he had to abandon his previous, more physical, work[5];
§he retrained, in clerical work, and obtained positions with the Northern Territory Government throughout the period from 1983 to 2002.
[4] Exhibit A4
[5] Exhibit A4
It was from his last employment with the Katherine office of Northern Territory Power and Water Authority that Mr Kessell took a voluntary redundancy in February 2002. At that stage he had been the Customer Services Manager for Power and Water Authority since 2000.
THE FLENTJAR TESTS
8. In operation, s 24(1)(c) has 2 limbs and these are conveniently addressed through the questions suggested by the Full Federal Court in Flentjar v Repatriation Commission[6].
[6] (1997) 48 ALD 1
What remunerative work was Mr Kessell undertaking?
9. Mr Kessell had undertaken a range of employment over the years but in view of his substantial period in public sector administrative roles (some twenty years), his remunerative work is best described as clerical and administrative.. The parties agreed on this description. (It was otherwise clear that non war-related back injury prevented Mr Kessell continuing in the more physical kinds of work in which he engaged before commencing clerical work.)
Is war-caused disability preventing Mr Kessell from continuing to undertake remunerative work?
10. In 1998, the respondent had commissioned a report from Dr Leonard Marinovich, psychiatrist, about Mr Kessell’s PTSD. Dr Marinovich stated that Mr Kessell was then “fit for full-time duty” but that his position was precarious. He said “I doubt that any change in his situation will occur and, eventually, he is likely to have to give up work because of it”.[7]
[7] T4 pp 107-112
11. As to Mr Kessell’s gastrointestinal symptoms (which have not been determined to be related to his war service), Dr Miso Kostic provided a report confirming that Mr Kessell suffers from diverticulosis not diverticulitis, the latter being an inflammatory condition, and for that reason, as I understood the evidence, more severe and difficult to manage.[8] Dr Kostic confirmed that Mr Kessell also suffers with irritable bowel syndrome.
[8] Exhibit R5
12. In his oral evidence, Dr Kostic indicated that he considered Mr Kessell’s symptoms to range between moderate and low severity, and Mr Kessell generally managed those symptoms with diet and lifestyle modifications. Dr Kostic was confident that his symptoms would not prevent Mr Kessell doing clerical work.
13. Dr Sowby tended to agree with Dr Kostic’s conclusions. Dr Sowby said that “minimal workplace disability was identified with his (Mr Kessell’s) other known conditions.” Mr Kessell had explained to Dr Sowby that he was never incapacitated by his symptoms of gastrointestinal distress, but they did require careful management. Dr Sowby clearly accepted that Mr Kessell had managed these conditions well in the past and could still do so if working in a clerical environment. Dr Sowby perceived Mr Kessell had no other significant disability apart from his PTSD.[9]
[9] Exhibit R4, p13
14. The medical evidence supports a conclusion that, from the start of the assessment period, war-caused disability prevented Mr Kessell from continuing to undertake remunerative work. The evidence of Drs Sowby and Rossi satisfies me of that, and the respondent did not argue to the contrary either in written or oral submissions. So, this question can be answered “yes”, for the assessment period.
Is war-caused disability the only factor preventing Mr Kessell undertaking remunerative work?
15. Mr Kessell has not worked since 2002. He appears not to have perceived himself as capable of further attempts at employment after taking the redundancy.
16. According to Mr Kessell, the redundancy process masked the employer’s real motive, which was to deal with Mr Kessell’s perceived inadequacies in the workplace. Mr Kessell felt devastated by the process and it affected him badly then, and continues to do so, as was evident at the hearing.
17. However I am not prepared to accept Mr Kessell’s account that the redundancy process was targeted at him personally. There is really no independent evidence of that being the case. Mr Kessell said that he had clashes with people in the workplace. However, when asked to cite instances Mr Kessell recalled only occasional run-ins.
18. Mr Kessell now firmly believes that it was a mistake for him to have taken up the management role when it was offered to him in 2000, having been diagnosed with PTSD in 1998. He stated, and I accept, that he found it difficult to manage his stress levels and had problems supervising others.[10] Nevertheless in his oral evidence Mr Kessell said that he had thought that he had been performing well as customer service manager. It appears only in hindsight that he has persuaded himself that he was not managing at all well.
[10] Exhibit A4
19. It is true that in the course of the restructure Mr Kessell was told that his position was no longer required. Mr Kessell stated[11] that he was not offered any option but to accept the offer of redundancy. He said it was made clear to him that he would not be recommended for another position. Mr Kessell, however, conceded under cross-examination that he had been told that there were options for alternative employment or redeployment. I note also that Mr Kessell had signed for receipt of written advice[12] that redeployment and retraining opportunities were offered.
[11] Exhibit A4
[12] Exhibit R3: letter dated 16 January 2002
20. The Deputy General Manager (Retail) for the Power and Water Corporation, Mr Alan Whyte, provided a written statement dated 24 April 2003.[13] Mr Whyte in that statement observed that Mr Kessell’s standard of work, whilst generally good, could be “variable”. He also said that Mr Kessell tended to become frustrated with decisions of others and at perceived inefficiencies on the part of staff or fellow workers. Mr Whyte said that Mr Kessell became frustrated by his perception that there was no position for him after the restructure.
[13] Document T4, p 13
21. A rather different picture was presented in the document prepared by Mr Andrew Macrides, the Managing Director of Power and Water Corporation in 2010[14]. He also provided copies of Mr Kessell’s performance appraisals along with other extracts from his personnel file, including relevant documents signed when Mr Kessell took the redundancy. Mr Macrides stated that the restructure was undertaken in readiness for corporatisation and involved various locations in the Northern Territory. A number of redundancies were offered but only one was accepted in the Katherine office (presumably this refers to Mr Kessell’s acceptance of offer). Mr Macrides stated that Mr Kessell would have been offered redeployment and retraining opportunities in the public sector and that Mr Kessell was advised of his other options but had indicated his interest was in taking a voluntary redundancy.
[14] Exhibit R3
22. In a written statement[15], Mr Kessell said that he believed that the organisation was manoeuvring him out of employment by using the restructure processes. He said that Mr Whyte’s written statement suggested he (Mr Kessell) was a “tyrant”, and that statement only served to ensure that he would obtain no other work. Mr Kessell also said with respect to the possibility of seeking other work, that “mentally I was out of the zone” and he was not ready to face job interviews. He said his skills were specialised and, as a consequence, he would have found it hard to adjust to a different vocation.
[15] T4, p 105
23. I am not prepared to accept that the organisation was conspiring to get rid of him, as Mr Kessell suggests was the case. I have no reason to doubt that there was a real restructure process ongoing in the organisation for the reasons stated by the employer and not for some ulterior motive targeted at Mr Kessell. I would make the observation here that in a restructure a man in Mr Kessell’s circumstances, about to turn 60 years of age, would be one of the more likely subjects of an offer of redundancy.
24. Mr. Kessell struggled in his oral evidence to make good his assertion that he was in repeated conflict with others or that he was performing badly. I do not accept that Mr Kessell was being targeted as being troublesome. He rose through the ranks of the Northern Territory Public Service to successfully achieve middle management positions. His personnel records reveal very positive remarks being made by those who from time to time were assessing him. I was impressed by one example of his reporting to senior management in June 2001; it was a fine example of concisely expressed report writing. I do not accept that things were other than as they appear from the documented materials now provided by the employer, that is that the restructure was genuine and not targeted at Mr Kessell.
25. I have no doubt, however, that Mr Kessell was significantly distressed by what happened to him at the end of his working career. I accept him as holding a genuine but mistaken belief that he was being targeted.. It seems to me that Mr Kessell was reading far more into the words that Mr Whyte wrote about him than those words in fact bear. I am not prepared, as was urged upon me, to “read between the lines.” Even Mr Kessel acknowledged in his oral evidence that Mr Whyte, based 1500kms away in Alice Springs, would not have been in a position to make comments about Mr Kessell.
26. As to all the matters surrounding the offer and acceptance of the redundancy, in the context of the tests in s 24 of the Act, it must be remembered that qualification for special rate of pension does not focus on when the veteran gave up work. The tests focus on a person’s qualification from the start of the assessment period. For Mr Kessell that is some five years after he left work.
27. The third Flentjar test requires a practical decision about whether the veteran’s loss of remunerative work is attributable to service-related incapacities alone and not to something else as well. If a non service-related factor contributes to the veteran’s inability to work or to obtain and hold remunerative work, that factor is sufficient to displace the veteran’s case for pension at the special rate.
28. The correct approach to that test is set out by the Full Federal Court in Repatriation Commission v Hendy:[16]
“The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period”.
[16] (2002) 76 ALD 47 at [37]
29. It is of some considerable importance that by the time Mr Kessell came to make his application he was within a month of turning 65 years of age. Mr Kessell acknowledged in his oral evidence that he would have retired at age 65.
30. Mr J Crosby, who represented Mr Kessell, submitted that s 24(2)(b) of the Act has a role to play in deciding this case. That subsection deems the first limb of s 24(1)(c) to have been met in respect of certain veterans aged under 65 years who might not have met the special rate tests at the time they ceased working. Such veterans retain their eligibility if they are genuinely seeking work and their service-related incapacity remains the substantial cause of their inability to obtain remunerative work.However, the benefit of this provision can only be taken where a veteran has been genuinely seeking to obtain remunerative work in the assessment period but has been unable to do so (or to continue to do so) substantially because of incapacity from war-caused injury or disease.
31. Mr Kessell could not point to any continued work efforts on his part. In his account of this he said that he was not “in a good space” after taking the redundancy and would not have been attractive to any employer.
32. The Full Federal Court emphasised in Leane v Repatriation Commission[17] that a person is not seeking remunerative work if they merely have a wish or desire; they have to make a genuine attempt. Any attempts must be undertaken during the assessment period. The steps must be genuine and they must be undertaken. Mr Kessell made no attempt to re-engage in remunerative work during the assessment period and, as a consequence, he cannot take the benefit of s 24(2)(b) of the Act. In that crucial respect, Mr Kessell’s situation was vastly different from the applicant in Bilsby v Repatriation Commission[18], which Mr Crosby relied upon.
[17] (2004) 81 ALD 625
[18] [2011] AATA 133
33. I am satisfied that at the start of the assessment period, and throughout it, factors other than war-caused disability prevented Mr Kessell from undertaking remunerative work. Consequently, Mr Kessell is unable to pass the third Flentjar test. These “other factors” were primarily his age (very close to what is the normally accepted retirement age) in combination with the length of time he has spent out of the workforce. Accordingly, it is unnecessary to decide the fourth of the Flentjar questions.
DECISION
34. The Tribunal affirms the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed: ................................[sgd].................................
Dominique Mayo, AssociateDate of Hearing 17 March 2011
Date of Decision 15 April 2011
Solicitor for the Applicant Justin Crosby Solicitors
Solicitor for the Respondent Repatriation Commission
0
4
0