Klatt and Repatriation Commission

[2003] AATA 1314

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1314

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/801

VETERANS' APPEALS DIVISION		)
Re		DESMOND KLATT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K L Beddoe

Date22 December 2003 

PlaceBrisbane

Decision

The Tribunal decides:
(a)      the decision under review is set aside;

(b) the applicant satisfies the requirements of section 24 of the Veterans’ Entitlements Act 1986;

(c)       the date of effect of this decision is 2 January 2001, and

(d)      to remit the matter to the respondent to give effect to the Tribunal’s decision.

..................(Sgd)........................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – assessment of rate of pension – whether special rate payable - applicant ceased work for a variety of reasons including his war caused conditions – ameliorating provisions – war caused conditions were the substantial reason applicant ceased work – applicant has been genuinely seeking employment – decision set aside

Veterans’ Entitlements Act 1986, s 24

National Service Act 1951

REASONS FOR DECISION

22 December 2003  Senior Member K L Beddoe         

1.      By letter dated 29 March 2001, received by the Department of Veterans’ Affairs on 2 April 2001, the applicant made an informal claim for a Disability Pension.  A formal claim was made on 31 May 2001.  The respondent made a determination dated 18 July 2001 which:

(a)accepted the claim for sensorineural loss right ear, actinic keratosis and tinea;

(b)refused the claim for sprain or strain of both ankles; and

(c)increased Disability Pension to 80% of the General Rate effective from 2 January 2001.

2.      The Veterans’ Review Board varied the diagnosis of the ankle conditions, affirmed the decision to assess pension at 80% of the General Rate from 2 January 2001 and increased the pension to 90% of the General Rate from 13 June 2002.  That decision was notified to the applicant by letter dated 7 August 2002.

3. By an application lodged in this Tribunal on 17 September 2002 the applicant sought review of the decision by the Veterans’ Review Board. The applicant subsequently withdrew the entitlement issue in relation to his ankles from the review. The issue before the Tribunal is whether the applicant should be assessed for pension at the Special Rate pension in accordance with section 24 of the Veterans’ Entitlements Act 1986 (“the Act”).

4. Prior to the hearing the respondent conceded that paragraphs 24(1)(a) and 24(1)(b) of the Act had been satisfied. Paragraph 24(1)(c) of the Act reads as follows:

“(1)     This section applies to a veteran if:

…

(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”

Sub-section 24(2) of the Act reads as follows:

“(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. At the hearing Mr Griffiths appeared for the applicant and Mr Kelly represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and the applicant’s witness statement was marked as Exhibit A.  The applicant also gave oral evidence.

6.      The applicant was born on 1 March 1950 (was 53 years of age at the time of hearing), and enlisted in the Australian Army in accordance with the National Service Act 1951 on 30 September 1970.  He saw service in South Vietnam from 14 July 1971 until his arrival back in Townsville on 17 December 1971; and was discharged from the Army on 29 September 1975 having been transferred to the Army Reserve on 29 March 1972.

7.      The applicant’s accepted service related disabilities are:

(a)Post Traumatic Stress Disorder (“PTSD”)

(b)Sensorineural Hearing Loss of the Right Ear;

(c)Actinic Keratosis; and

(d)Tinea.

8.      The non-accepted disabilities are:

(a)Bilateral sensorineural hearing loss; and

(b)Bilateral ligamentous instability of ankles.

9.      Prior to call up for National Service the applicant had worked as a cabinet maker.  He resumed that occupation after March 1972.

10.     The applicant was employed by Ansett Airlines from August 1976 to December 2000.  Initially he was employed as a cleaner of aircraft eventually being promoted to Leading Hand, in charge of nine cleaners, and responsible for the efficient and effective cleaning of aircraft.  Day Shifts required internal cleaning and night shifts involved both internal and external cleaning of the aircraft.  The applicant eventually found this work too difficult because of complications caused by his PTSD.

11.     In 1996 he left the cleaning duties and was transferred to aircraft loading duties with a consequential reduction in remuneration ($5,000 pa).  That seems to have been satisfactory employment until Ansett decided to rationalise the ground staff operations.  One consequence of this rationalisation was that the applicant was required to learn to drive a Tugmaster which is used for pushing out aircraft.

12.     The training made the applicant anxious to the extent that it seems to have aggravated his PTSD.  He decided that he would not be able to cope with pushing aircraft out onto the tarmac.  When a redundancy offer was made by Ansett he refused initially but eventually accepted a second offer of redundancy apparently widely made to downsize employment numbers at Ansett.  Employment with Ansett ceased on 10 December 2000.

13.     After accepting the redundancy offer from Ansett the applicant had a couple of months off and then set out to find new employment.  In particular he approached Centrelink and the Salvation Army.  He also approached a number of employers as set out in Exhibit A.  All of these approaches were unsuccessful.  In his oral evidence the applicant said he approached others for employment but has now forgotten the details of those approaches. 

14.     The applicant is in receipt of a Service Pension on grounds of permanent incapacity.

The Medical Evidence

15.     The applicant’s general practitioner, Dr Brown, made a report “to whom it may concern” dated 17 July 2002 which was tendered to the Veterans’ Review Board.  Dr Brown said, inter alia, that he did not feel the applicant would be capable of sustaining employment of any sort for greater than eight hours per week because of PTSD.  Dr Brown also said that the applicant was “reasonably unwell when he accepted a redundancy payout”.  I infer that Dr Brown considered the applicant as unfit for work at the time he accepted the redundancy payout.  

16. Document T4/47 is a copy of a report by Dr Hargreaves, Consultant Psychiatrist, dated 9 July 2001 and addressed to the Department of Veterans’ Affairs. The report is limited in scope and mainly concerned with assessment in relation to the PTSD condition. To some extent the report contradicts the acceptance that paragraph 24(1)(b) of the Act is satisfied. Dr Hargreaves’ report does however satisfy me that the applicant accepted the offer of redundancy because of chest pains, sweatiness and shakiness being symptoms of being extremely stressed by the new job requirements.

17.     Dr Hargreaves assessed the applicant under Chapter 4 of the Guide to the assessment of rates of veterans’ pensions as follows:

Table	Rating	Comments
Table 4.1 (Subjective distress)	15	Frequent severe insomnia, nightmares, depressed mood, low energy, intrusive thoughts about Vietnam incidents.  Irritability.  Anxiety in traffic, and in any interpersonal settings.  Poor concentration.  Appears troubled and dysphobic.  Relief is very difficult to obtain despite extensive treatment.
Table 4.2 (Manifest distress)	10	The family complain a lot about his behaviour.  His wife says “get sorted out or get out”.  His anxious and troubled nature would be easily observable by casual observers.
Table 4.3 (Functional Effects)	0	No significant disturbance.
Table 4.4 (Occupation)	6	…inability to cope with broadening of tasks, loss of confidence, concentration problems, depression.  Lacks all motivation and confidence now to work.  This may improve if he responds to treatment.
Table 4.5 (Domestic Situation)	6	General withdrawal.  Attends church once a week; minimal interaction there, otherwise no social contact.

I need not set out the assessments for Tables 4.7 and 4.8.  Final rating was 45.

18.     While Dr Hargreaves is ambivalent about the applicant’s ability to work because he did not assess him at eight points on Table 4.4 (the veteran cannot work), his comments as to functional loss as set out above satisfy me that, as a fact, the applicant cannot work because of his PTSD.  I accept that Dr Hargreaves’ comments are the best evidence of the applicant’s functional capacity.

Consideration

19.     As the respondent submits I accept that the applicant ceased employment at Ansett and thereby suffered a loss of remuneration because he accepted the redundancy payout.  It therefore cannot be the case that the applicant’s PTSD was the only cause which prevented him from continuing to undertake remunerative work.  While I think it is more likely than not that the applicant was motivated to accept the redundancy package because of the difficulties at work, especially the requirement to train on the tugmaster, and those difficulties were contributed to in a material way by his PTSD, it is not the case that it was the PTSD alone which prevented him from continuing to undertake remunerative work.  The fact of changes in the workplace was clearly, in my view, a substantial cause of his decision to accept the redundancy payout thereby terminating his employment at Ansett.

20.     I am therefore satisfied that the applicant ceased to engage in remunerative employment for reasons which included his PTSD but also included his dissatisfaction with changes in the workplace and in particular that he multi skill by learning to drive an Tugmaster.

21.     I am also satisfied that the applicant has been genuinely seeking to engage in remunerative employment since he left Ansett.  I accept his evidence about seeking work and I am satisfied he was making genuine attempts to obtain work in cabinet making and other less skilled occupations including cleaning.

22.     The applicant is no longer seeking to obtain remunerative work because he is no longer capable of undertaking remunerative work because of the PTSD and his apparent failure to respond to treatment so far.

23.     I am therefore satisfied that the substantial cause of the applicant not being successful in obtaining work is his PTSD.  The report and assessment by Dr Hargreaves satisfies me that is the case.  Dr Brown also supports this conclusion.

24.     The applicant has been suffering a loss of remuneration since leaving Ansett that he would not be suffering if he was free of the incapacity.

25.     I have not taken into account the fact that Ansett subsequently ceased to carry on business.  If, however, that is thought to be relevant it does not, in my view, change the outcome in this case.  The application was made to the Commission well before the collapse of Ansett so that the matter before the Tribunal is to be considered at the date of application.

26. I am satisfied that sub-section 24(2) operates in favour of the applicant so that he satisfies the requirements of section 24 of the Act. The date of effect is 2 January 2001.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe

Signed:         Sarah Oliver
  Associate

Date of Hearing  5 June 2003
Date of Decision  22 December 2003
Counsel for the Applicant         Mr Griffiths
Solicitor for the Applicant          Sciaccas
For the Respondent                  Mr Kelly, Departmental Advocate