Lawrence Harbridge v Repatriation Commission
[2007] AATA 30
•22 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 30
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/354
VETERANS’ APPEALS DIVISION ) Re LAWRENCE HARBRIDGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date22 January 2007
PlaceCanberra
Decision The decision of the Repatriation Commission made 12 November 2003 as affirmed by the Veterans’ Review Board on 27 October 2005 is affirmed.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – Disability pension – Special rate – Intermediate rate – Whether veteran totally and permanently incapacitated – Whether alone test satisfied –Whether requirements of subsection 24(1)(c) of Veterans’ Entitlements Act 1986 (Cth) met.
Veterans Entitlements Act 1986 (Cth) ss 19, 23, 24, 120
Forbes v Repatriation Commission (2000) 101 FCR 50; [2000] FCA 328
Repatriation Commission v Alexander (2003) 75 ALD 329; [2003] FCA 399
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION
22 January 2007 J.W. Constance, Senior Member
INTRODUCTION
1. Mr Harbridge served as a member of the Armed Forces for 23 years and is a Vietnam Veteran. On 12 November 2003 the Repatriation Commission decided that Mr Harbridge was entitled to an increase in the disability pension payable to him under the Veterans Entitlements Act 1986 (Cth) to 90% of the general rate. The Commission decided that Mr Harbridge was not entitled to payment at either the special rate (section 24) or the intermediate rate (section 23). The Veterans’ Review Board has affirmed this decision.
2. Mr Harbridge is now seeking a review of the decision to refuse his application for payment at the special and intermediate rates. For the reasons which follow I have decided that the decision of the Commission should be affirmed.
EVIDENCE AND FINDINGS OF FACT
3. Unless otherwise stated the following findings of fact are based on the evidence of Mr Harbridge. I am satisfied of the facts found to my reasonable satisfaction as required by section 120(4) of the Act.
4. Mr Harbridge is 61 years of age. He left school at the end of 1962 and joined the Army in early 1963. His service in the Army included active service in Vietnam. He has a number of disabilities which have been accepted as being caused by his service, including Post Traumatic Stress Disorder with alcohol dependence and Ischaemic Heart Disease.
5. When Mr Harbridge left the Army in 1986 he immediately joined the Department of Defence. In general terms his work in the Department was similar to that he had performed in the Army. In the last year of working with the Department he was involved in the monitoring of the public switch telephone network and the telecommunications network for the Department and assisted in the formation of policy as to the Department’s requirements for communication services.
6. Mr Harbridge retired from the Department at the end of May 2001 at age 55. Mr Harbridge described the situation in the 6 months leading up to his retirement as follows:
“The months - months leading up to my decision that I had to leave the department, or work, there were things going on that just didn't seem to fall into a pattern that I'd been used to for 38 years or so, and they started to -- or did grate at me. As a consequence, I was angry at the directions that were being taken, angry at my supervisors. I felt distressed that I couldn't do what I thought was the correct thing. I was -- I was following party line, rather than helping the soldiers out there and this started to affect my health. I no longer wanted to go to work, I felt -- felt nervous." [1]
[1] Transcript of Proceedings, 18 October 2006, pp 7-8.
He felt that his authority had been eroded and he felt angry towards those who thought that they knew better than someone with as much experience as himself. He could not accept that the Department was trying to implement things that in his view the Army had proven in the past would not work.[2]
[2] Transcript of Proceedings, 18 October 2006, p. 25.
7. Mr Harbridge said that at the time he was having problems in his relationship with his family members, he was having nightmares, felt very nervous and was drinking to excess. He suffered chest pains on most days. He said that he decided to cease work as he felt that he could no longer cope with his employment. Having made this decision, he sought a redundancy package. A package was offered to him, which he took. Before taking the package Mr Harbridge considered his options in relation to his superannuation and decided that the package was financially beneficial to him.
8. Shortly after he left work Mr Harbridge was diagnosed as suffering from Ischaemic Heart Disease. In July 2003 a stent was inserted in his heart and since that time he has been on medication to control cholesterol and blood pressure.
9. Since ceasing his employment, Mr Harbridge has not sought to return to work other than making some very general enquiries. He does not wish to return to employment. He says that he cannot do physical work because of his accepted disabilities and that he cannot undertake sedentary or clerical work because his concentration span is not as it should be and when put under pressure he drinks to excess. He says he would not be able to do the job he was doing immediately prior to his retirement as it involved too much stress. He also says that he now suffers from the effects of post traumatic stress disorder only when an e-mail from an old Vietnam friend stirs up memories. He says that he still suffers from nightmares.
10. When asked by his Counsel how he spends his time, Mr Harbridge replied that he plays "a bit of golf". On the days that he does not play golf he walks his dog for an hour and 20 minutes. He also said that he does some limbering exercises after walking the dog, that during the afternoons he "pokes around in the garage, the yard" and has a couple of hours sleep. During the evening he watches television.
11. In cross-examination Mr Harbridge said that he plays golf two or three times per week, including playing in competitions. He plays 18 holes which take four or five hours each game.
12. In relation to his consumption of alcohol Mr Harbridge gave evidence that since leaving work he has reduced his alcohol intake and that he now drinks to be sociable whereas previously he would drink to become drunk.
Medical Evidence
13. Mr Harbridge was seen by Dr Harrex, Consultant Occupational Physician, in July 2004 for an assessment of his work capacity. Dr Harrex has substantial experience as a medical practitioner in the Air Force and in the rehabilitation of those suffering from alcoholism. It appears that the request for an assessment was made by the Department of Veterans Affairs. Dr Harrex further assessed Mr Harbridge in September 2006 at the request of Mr Harbridge’s solicitors. Dr Harrex provided reports of 20 August 2004[3] and 5 October 2006.[4] He also gave evidence.
[3] Exhibit A1, p. 98.
[4] Exhibit A3.
14. In his report of 20 August 2004 Dr Harrex recorded that Mr Harbridge’s stated drinking habits at the time were:
“He would drink a carton of the beer a fortnight and three or four bottles of white wine per fortnight with his wife and two or three bottles of red wine. He limits himself to three beers after each game of golf because of random breath testing." [5]
[5] Exhibit A1, p. 101.
15. In August 2004 Dr Harrex's assessment was that the Ischaemic Heart Disease rendered Mr Harbridge unsuited for physically demanding tasks and that he would require a low stress working environment and would only be suitable for sedentary office type work. Dr Harrex was also of the opinion that Mr Harbridge's psychiatric condition including his alcohol consumption may limit his reliability.
16. At the time of the September 2006 assessment Mr Harbridge reported to Dr Harrex that he could cut down his alcohol consumption if it suited him at the time and that he believed he had in fact reduced his consumption. He reported that at that time he consumed about two cartons of light beer per fortnight but still consumed four bottles of white wine per week. He had limited his consumption of red wine to one or two glasses at a time and no longer consumed port. He said that he only consumed alcohol when he felt like it but did not do so if he had to drive the next day. He regarded himself as more of a social drinker and did not binge drink as frequently as he had done previously.[6] At this consultation Dr Harrex conducted two alcohol screening tests. Dr Harrex assessed Mr Harbridge’s employability as follows:
"In view of his continued high risk drinking and with diagnoses of both PTSD and alcohol dependence, I certainly would not be willing or prepared to recommend to a prospective employer that Mr Harbridge would be a suitable candidate for employment, even for a few hours a week. His continued alcohol consumption and poor motivation to change are likely to result in Mr Harbridge proving to be an unreliable employee." [7]
[6] Exhibit A3.
[7] Exhibit A3.
17. In giving evidence Dr Harrex confirmed his conclusions in his first report as valid at that time and said that the further information he had subsequently obtained seemed to confirm the opinion that Mr Harbridge’s unreliability was such that he would not recommend him for employment.
18. Dr Roberts, Consultant Psychiatrist, examined Mr Harbridge at the request of the Department of Veterans’ Affairs in March 2006. He provided a number of reports and gave evidence. Dr Roberts diagnosed Mr Harbridge as suffering from alcohol dependence. He did not consider Mr Harbridge’s psychiatric status would, of itself, produce an incapacity to work “if he was able to either abstain or very substantially diminish his alcohol ingestion.” [8] He considered that, from the purely psychiatric viewpoint, Mr Harbridge would be capable of undertaking 20 or more hours of work per week. In March 2006 Mr Harbridge described his current alcohol consumption to Dr Robertson as "drinking on Fridays 8 to 9 stubbies, one bottle of wine and some ‘red”’.[9]
[8] Exhibit R1, p. 17.
[9] Exhibit R4.
19. In evidence Dr Roberts said that he had some difficulty in accepting that Mr Harbridge drank as much as he said he did as his ability to play golf was indicative of a person who has maintained a degree of cognitive function and muscle strength and coordination. He said that clinically Mr Harbridge did not show any evidence of impairment of a cognitive nature. In his view, Mr Harbridge was “undertaking a variety of activities that, in terms of both physical and mental function, would equate to be able to doing [sic] paid employment." [10]
[10] Transcript of Proceedings, 18 October 2006, p. 36.
20. Dr Chase, Occupational Physician, also gave evidence. Dr Chase examined Mr Harbridge on behalf of the Department in February 2006. In the opinion of Dr Chase "none of the physical problems that he has would preclude him from returning to work in some sort of managerial, clerical or administrative role." He went on to say:
“As Mr Harbridge presented on 14th February 2006 I would have thought that he would still be physically and emotionally capable of performing full hours. The precise number of hours would to a degree depend upon the level of stress and responsibility in the job. The more stress and responsibility, or the busier the job, the lesser the number of hours he would be capable of working. On balance I would conclude that he is probably capable of working 20 hours or more per week. He is certainly capable of working more than eight hours per week……
Mr Harbridge would appear to have left his employment with the Public Service largely because of his frustration with the role he was working in at that time. He said that there were too many people in the office and not enough work. He got bored and felt like a malingerer.” [11]
[11] Exhibit R6.
In the opinion of Dr Chase the level of alcohol consumption claimed by Mr Harbridge was not consistent with the degree of his functioning in his daily living as reported by him. Dr Chase was also of the opinion that the level of disability was lower than that determined by Dr Harrex.
21. I also take into account a report of 14 October 2003 by Dr Reeve, Mr Harbridge’s general practitioner. In that report Dr Reeve assessed the effect on Mr Harbridge of the Post-Traumatic Stress Disorder with alcohol dependence. In his assessment Dr Reeve said that the recurring symptoms of loss of concentration and anxiety caused Mr Harbridge mild distress from which he could distract himself on most occasions. He also reported that disturbances of behaviour, emotion or thinking were occasionally noticeable by reason of Mr Harbridge's low tolerance to stressful situations. In response to the question “how does the condition affect his capacity to work?" Dr Reeve selected the response "minimal or no interference with work or occupation". He noted that no regular treatment was sought or recommended.[12]
[12] Exhibit A1, pp 24-26 & 29.
22. The clinical notes of Dr White, Mr Harbridge’s treating psychiatrist, were taken into evidence by consent. These notes included a report dated 20 May 2005.[13] In the opinion of Dr White the combination of chronic Post Traumatic Stress Disorder and Ischaemic Heart Disease at that stage made Mr Harbridge permanently unfit for any employment of eight hours or more per week. The clinical notes indicated that Dr White had been treating Mr Harbridge since August 1997. Dr White was not required for cross-examination.
[13] Exhibit R9.
23. Taking into account the evidence of Mr Harbridge and all of the medical evidence I am not reasonably satisfied that at any time during the assessment period Mr Harbridge was incapable of undertaking remunerative work for periods aggregating more than eight hours per week. In this regard I prefer the evidence of Dr Roberts, Dr Chase and Dr Reeve to that of Dr Harrex and Dr White. Dr Harrex placed considerable weight upon Mr Harbridge’s psychiatric condition, including his excessive alcohol consumption, in forming his view that he would not recommend Mr Harbridge for employment as he did not believe that Mr Harbridge would be reliable. Whilst I accept Dr Harrex's view that he would not recommend Mr Harbridge, this is not the test required by the section. What is required is that the relevant condition suffered by Mr Harbridge renders him incapable of undertaking remunerative work not whether it would be appropriate to recommend him for work. Further, it appears that Dr Harrex's opinion has been based on a stated consumption of alcohol by Mr Harbridge which is greater than that of which Mr Harbridge has now given evidence.
24. The clinical notes of Dr White do not make clear the basis for his opinion that Mr Harbridge was permanently unfit for employment of eight hours or more per week as at May 2005. Although the doctor refers to the presence of chronic Post Traumatic Stress Disorder and Ischaemic Heart Disease as the reasons for his opinion, he does not explain the consequences of these diseases which would justify his view. On consideration of the evidence of Mr Harbridge and Dr Roberts, I am not satisfied that the Post-Traumatic Stress Disorder is such as to prevent Mr Harbridge's employment and there is insufficient evidence to be satisfied as to why the Ischaemic Heart Disease would have that result. I am left in the same situation in relation to the combined effect of these conditions. Mr Harbridge has not sought treatment for the Post-Traumatic Stress Disorder and there is no suggestion that the treatment he has received for his heart condition has not been successful in controlling that disease.
25. I am not reasonably satisfied that during the assessment period Mr Harbridge’s consumption of alcohol was as excessive as he has described from time to time. Whatever his intake of alcohol may have been before he ceased work I am satisfied on Mr Harbridge's own evidence that he has reduced his consumption of alcohol and that he has, as a matter of choice, limited consumption of substantial amounts to Friday evenings. I am also satisfied that he is able to limit his consumption if he so chooses. This is consistent with his stated decision to limit his consumption after golf to avoid the risk of failing a breathalyser test and with his ability to lead an active lifestyle including an ability to play golf for considerable periods each week. On this basis I am not satisfied that the opinions expressed by Dr Harrex and Dr White are based on fact.
26. I am satisfied that Mr Harbridge's decision to cease his employment with the Department of Defence was substantially contributed to by his dissatisfaction with his work and with his superiors and in particular his dissatisfaction arising from his belief that he was being required to undertake tasks in a manner which, in his experience, would be ineffectual. I am not satisfied on the evidence that this attitude to his work was brought about by his accepted conditions. It should be noted that Mr Harbridge was frank in stating the effect of the dissatisfaction he felt with his job and the reasons for this.
LEGISLATIVE BACKGROUND
27. The special rate of pension sought by Mr Harbridge is provided for by section 24 of the Act.
Section 24(1) relevantly provides:
“This section applies to a veteran if:
…………………………………………………………………………………..
(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;"
28. Section 23 provides for payment of an intermediate rate of pension in certain circumstances if the special rate is not payable. The only relevant difference between the sections for the purposes of Mr Harbridge’s application is that to qualify for the intermediate rate the applicant must only be capable of working for less than 20 hours per week.
29. Section 19 provides for the determination of the rates at which a pension is to be payable during the assessment period. “Assessment period” is defined in sub-section 24(9). In this matter there is no issue that the assessment period began on 1 July 2003 and continues to the date of this decision.
THE ISSUES
30. The parties have agreed that the only issues requiring determination in order to decide whether Mr Harbridge is entitled to a special rate pension under section 24 are whether he meets the requirements of subsection 24(1)(b) and the requirements subsection 24(1)(c). This is an appropriate agreement. Mr Harbridge does not seek to rely on the ameliorating provisions of subsection 24(2).
31. If Mr Harbridge is not entitled to special rate pension, it will be necessary to consider whether he is entitled to receive a pension at the intermediate rate under section 23. The parties have properly agreed that in relation to the intermediate rate, the issue for determination is whether Mr Harbridge is capable of undertaking work for 20 or more hours per week.
APPLYING THE LAW
32. In numerous cases the Federal Court has emphasised the importance of correctly construing the word “alone” in applying subsection 24(1)(b) and 24(1)(c): Forbes v Repatriation Commission (2000) 101 FCR 50; Repatriation Commission v Alexander (2003) 75 ALD 329. In Forbes v Repatriation Commission Nicholson J said that it was correct to say that, "any factor having employment consequences which played a part in the applicant's inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant's case for pension at the special rate." [14]
[14] At p. 55.
33. In Flentjar v Repatriation Commission (1997) 48 ALD 1 the Full Court of the Federal Court set out the questions to be addressed in applying subsection 24(1)(c):
“1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 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?” [15][15] At pp 4-5.
REASONING
Has Mr Harbridge been “totally and permanently incapacitated” within the meaning of subsection 24(1)(b) at any time during the assessment period?
34. For Mr Harbridge to meet this requirement I must be reasonably satisfied that he has incapacity from his Post-Traumatic Stress Disorder and/or his Ischaemic Heart Disease of such a nature as, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. As I have previously indicated, I am not satisfied that any time during the assessment period Mr Harbridge was incapable of undertaking remunerative work for periods aggregating more than eight hours per week. For this reason Mr Harbridge does not satisfy the requirements of subsection 24(1)(b). Further, even had I had been satisfied that he could not work more than eight hours per week I would not have been satisfied that his incapacity is of such a nature as, “of itself alone”, would render him incapable of undertaking the requisite remunerative work. My reason for this is partly my finding that Mr Harbridge’s decision to cease work was substantially contributed to by his dissatisfaction with the work he was doing and with his superiors. In addition, I am satisfied that during the assessment period Mr Harbridge has been enjoying his retirement and has not been motivated to return to work. I am not satisfied that his lack of motivation has been caused by his war-caused diseases.
Does Mr Harbridge meet the requirements of subsection 24(1)(c)?
35. In case I am incorrect in the decisions set out in the preceding paragraph I will proceed to consider whether Mr Harbridge meets the requirements of subsection 24(1)(c) by considering the questions posed by the Full Federal Court in Flentjar v Repatriation Commission.
What was the relevant "remunerative work that the veteran was undertaking" within the meaning of section 24(1)(c) of the Act?
36. On the basis of Mr Harbridge’s evidence I am reasonably satisfied that prior to his ceasing work Mr Harbridge was working as a clerk in the public service, monitoring telecommunications networks and assisting in the development of policy in relation to communications services.
Was the veteran by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
37. For the reasons previously stated I am not satisfied that, at any time during the assessment period, Mr Harbridge was prevented from continuing to undertake the type of work he had previously performed. On this basis Mr Harbridge fails to meet the requirements of sub section 24(1)(c).
38. In view of the answer to the preceding question it is not necessary to answer the remaining questions. However, for the sake of completeness, and in accordance with my previous findings, I am not satisfied that either of the war-caused diseases were the only factors or factor preventing Mr Harbridge from continuing to undertake the type of work he had previously carried out.
Does Mr Harbridge meet the requirements of section 23 and thereby become entitled to payment of the intermediate rate of pension?
39. As previously indicated, the parties agree that the only issue as to Mr Harbridge’s entitlement (if any) under this section is whether he is incapable of undertaking work for 20 or more hours per week. For the reasons already stated I am satisfied that he is capable of undertaking such work.
DECISION
40. For the reasons stated the decision of the Repatriation Commission made 12 November 2003 as affirmed by the Veterans’ Review Board on 27 October 2005 is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 18 & 19 October 2006
Date of Decision 22 January 2007
Representative for the Applicant Mr J Orr
Solicitor for the Applicant Capital Lawyers
Representative for the Respondent Mr T O’Reilly
Solicitor for the Respondent Department of Veterans’ Affairs
0
4
1