Leonard and Repatriation Commission - [2000] AATA 955

DECISION AND REASONS FOR DECISION [2000] AATA 955

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. T1999/175

VETERANS' APPEALS DIVISION          )
           Re      RONALD LEONARD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date1 November 2000
PlaceHobart

Decision The decision under review is set aside and in substitution IT IS DECIDED at all relevant times the applicant has been entitled to special rate pension.

..……………….……….
Senior Member
CATCHWORDS: Veterans Entitlements – Whether applicant qualifies for special rate – whether war-caused injuries the substantial cause of incapacity – decision set aside.

Veterans' Entitlements Act 1986 s24(2), s24(1)(a) and s24(1)(b)
Re: Fox v Repatriation Commission 1997 45 ALD 317

Re: Hornery and Repatriation Commission 1998 52 ALD 317
Re: Banovitch v Repatriation Commission 1986 69 ALR 195
Re: Starcevich v Repatriation Commission 1987 14 ALD 160

REASONS FOR DECISION

1 November 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board made on 26 October 1999. The Board then decided to affirm a decision previously made by the respondent to grant pension payable to the applicant at 100% of the General Rate.
By this application Mr Leonard seeks payment of Special Rate pension.
The applicant is presently 61 years of age having been born on 1 March 1939. He has the accepted disabilities of sensori neural hearing loss and tinnitus, skin cancers of left leg and alcohol dependence. Conditions of haemorrhoids and gout are rejected as war-caused. Mr Leonard also suffers from a back injury, a right knee injury and shortness of breath which have not been claimed on the respondent.
The applicant was a member of the Far Eastern Strategic Reserve ("FESR") between 29 May 1959 and 20 July 1960 and between 3 October 1967 and October 1969. He served at all relevant times as a member of the Australia Army. The service with the FESR was in Malaya.
The hearing of this application was convened in Hobart. Mr Webster appeared on behalf of the applicant and Mr Castle appeared on behalf of the respondent. Evidence was heard from the applicant and Ms Montgomery, a Clinical Psychologist, with the Vietnam Veterans' Counselling Service who also provided a report found at T30.
the applicant
Mr Leonard joined the Australia Army in January 1956. He was previously an apprentice carpenter and was apparently happily employed yet was encouraged by his mother to join the army. This was to escape abuse he was then receiving from a male person with whom his mother was living and in the belief that he would be able to continue carpentry. The applicant did not obtain carpentry work but was trained as a bandsman, a rifleman, a stretcher bearer and became proficient in first aid. Mr Leonard said that he commenced to drink alcohol when in Malaya, when he was 19 years of age. He has continued subsequently to drink alcohol. He has been married on three occasions and all have ended because of his alcohol abuse. On occasions within the army he was reprimanded because of alcohol abuse. He was discharged in January 1976.
Initially Mr Leonard obtained employment in a furniture factory but was sacked after about 10 weeks because of alcohol consumption. He then obtained employment at the Royal Adelaide Hospital as a tradesman's assistant. After approximately 4 weeks the applicant was threatened with dismissal because he attended work when drunk but following Union intervention he was not dismissed but continued that employment for approximately 7 years. Nonetheless he had frequent time off work whilst drunk or when attending hotels to drink alcohol. He eventually resigned the employment when he learnt that he was about to be sacked because of alcohol consumption.
Mr Leonard then obtained employment with the Department of Transport in South Australia as a traffic checker. This required him to sit in a motor vehicle or on a footpath counting motor cars and conducting numberplate surveys. He continued to consume alcohol but was able to have his workmate drive the motor vehicle in the course of work. Mr Leonard was able to maintain this employment for 11 years but ceased work when a redundancy package was offered to him prior to this work becoming privatised.
Mr Leonard said he had the opportunity to continue to be employed but was told that there would be no more than 12 months of employment and a redundancy package would not then be offered. He said he elected to accept the package because of considerable debts and a mortgage that he then had and elected to use the monies secured to repay debts.
Thereafter Mr Leonard has not worked. He sought employment through the Commonwealth Employment Service, through newspapers and personal attendance at workplaces. He was told that he would not be employed because jobs were not available, because of his age and because of prior work inexperience.
He did attend an interview with Faulding and acknowledged that he had been drinking prior to the interview. He was not told by the person who interviewed him why employment was not offered however he inferred that the alcohol on his breath had become obvious during the interview.
Mr Leonard said he regularly attended the Commonwealth Employment Service over a period of about 3 or 4 months but was always unsuccessful. He said his wife also attempted to find work for him. In April 1995 he moved from South Australia to Hobart and continued to drink heavily. His (third) marriage ended in February 1997. Depression was diagnosed in 1997 and he had electro-convulsive therapy as part of treatment for it together with an anti-depressant "Aropax".
Mr Leonard said that he has attempted suicide on two occasions and if he does not regularly take Aropax he becomes "a basket case". He also has had the drug "Maltrexone" prescribed to assist withdrawal from alcohol from which he has abstained since December 1999.
In cross-examination Mr Leonard said that he sought work with an engineering firm in Salisbury in South Australia and as a driver with the Coca-Cola Company. On both occasions he said that his age and his inexperience prevented him from obtaining employment. So far as he is aware the only potential employer who refused him because of alcohol was Faulding.
Mr Leonard agreed that he could have continued employment as a traffic checker with the Department of Transport in South Australia for another 12 months beyond the date of acceptance of his redundancy package but elected to take the redundancy monies because of considerable debts. Mr Leonard said that he could have continued as a traffic checker notwithstanding his back and knee injuries. He said he presently wears a brace over his right knee and has treatment regularly for it and the back injury. He associated his shortness of breath with an episode of pneumonia he suffered when in service.
Mr Leonard said that he 'needs' to have relationships with females. Such relationships, he said, must have a sexual basis. If he consumes Aropax regularly, he suffers a loss of libido. Yet he acknowledged that if he ceases to take Aropax - to restore his libido – he 'goes crazy' and is incapable of any meaningful relationship. The paradox – acknowledged by Mr Leonard – is upsetting.
Joan Montgomery
Ms Montgomery is a clinical psychologist engaged by the Vietnam Veterans' Counselling Service. She said Mr Leonard first attended the service in December 1997 and later by referral from the Department of Veterans' Affairs. At or about that time he had been an in-patient of the Royal Hobart Hospital following a drug overdose and was initially engaged in counselling with respect to his alcohol abuse and depression.
Ms Montgomery said that the applicant is well known as being a binge drinker and has frequently come to the notice of Hobart police. She said he is also depressed and after he consumes alcohol he becomes angry.
Since December 1999 Mr Leonard had "settled" but when he stopped taking Aropax and Maltrexone he would "go on a binge". She said since April this year he had not consumed alcohol but when he has ceased to take Aropax he "crashes" within 3 days. She said he is now stable but affected by pressure and "crashed" in the week prior to the day of the hearing of this appeal. She said he was in need of support and said that his depression was a component of his alcohol abuse. She doubted that even if he were to regularly take his medication that he would be capable of employment. She said Mr Leonard has short term memory loss, poor organisational skills, is frequently angry and any pressure is likely to cause him to take up drinking. She thought Mr Leonard would be capable of undertaking a hobby if he did it alone and when his mood was stable.
In cross-examination Ms Montgomery said that she knew of no anti-depressant which would not cause impotency or loss of libido. It was her understanding that the applicant had consumed alcohol to allow him to cope with his anxiety and his depression but she was unsure whether his alcohol abuse was responsible for his depression or whether he was depressed which precipitated alcohol abuse.
She doubted that the applicant was capable of any employment and whilst acknowledging that medication would help to control his moods she said they would not be eliminated.
submissions
Mr Webster submitted that the applicant should be found to be entitled to the Special Rate pension by reason of s24(2) of the Veterans' Entitlements Act 1986 ("the Act"). He said that the applicant did not cease to engage in remunerative work voluntarily but rather the work was taken away from him because of the redundancy. He said the applicant had subsequently attempted to secure employment but has been unsuccessful.
Mr Castle said that the applicant became unemployed because he voluntarily accepted a redundancy package. He said the applicant could have continued in employment for at least another 12 months but he chose not to. He also submitted that the applicant was incapacitated because of depression which was not a war-caused disability. He said there was no medical evidence which connected the depression to alcohol abuse.
Mr Castle also submitted that any incapacity was by reason of the depression because on the applicant's evidence his alcohol dependence was apparently controlled by Maltrexone.
conclusion and reasons for decision
The applicant impressed me as a person who is deserving of the Special Rate pension.
I note that the applicant enlisted in the Australia Army as a young man. Despite a reference in his proof of evidence to being at risk of abuse from a male person with whom his mother was then living, the applicant appears to have been a stable contented person who was engaged in full-time employment as an apprentice carpenter. Having chosen to join the Army he was then capable of being trained as a bandsman, stretcher-bearer, infantryman, and rifleman and learnt first aid. He apparently became proficient as a cornet player in the Army Band. He was selected to be a member of the Far Eastern Strategic Reserve and had 2 tours of Malaya. All of this suggests to me that the applicant was a person who was stable, keen to learn and apparently fulfilling or at least meeting the expectations of his superiors.
Nonetheless, whilst in Malaya the applicant took up drinking and has subsequently abused alcohol. The abuse has been spectacular. It has apparently cost him 3 marriages. He has lost jobs because of alcohol abuse and has been unsuccessful obtaining employment because of alcohol. His alcohol consumption has been a dominant part of his life, as have the effects of excess consumption.
It was put on behalf of the respondent that Special Rate pension should be denied because the applicant does not satisfy the "alone" test under s24. It was argued that the applicant voluntarily agreed to leave employment when offered a redundancy package. It follows – as was submitted – that the applicant could not demonstrate incapacity by reason of war-caused injuries when he had the opportunity for continuing employment. Additionally, it was submitted that any incapacity was by reason of depression which was not war-caused indeed had not even been claimed.
I have concluded that the applicant maintained his employment at the Royal Adelaide Hospital for 7 1/2 years despite continuing alcohol abuse only by reason of protection from relevant Union personnel. The applicant apparently left that employment when he learnt that his employment was to be terminated and could no longer secure the assistance or support of his Union colleagues.
Eventually he obtained employment with the Department of Transport in South Australia for 11 years as a traffic checker. It is hard to imagine how he was able to maintain this employment for as long as he did other than to assume that he was away from the gaze of his superiors. There was evidence that the applicant apparently drank to such an excess during the working day that a colleague was required to drive the motor car in order for the applicant and his colleague to maintain their ordinary work duties.
The applicant's acceptance of a redundancy package cannot be said to be voluntary and of free will, faced with the financial dilemmas to which he was then exposed and the certainty that employment would end within 12 months, without a redundancy package.
Nonetheless the applicant did actively seek employment through the Commonwealth Employment Service for many months, he attended workplaces and had interviews and was also assisted by his wife in his pursuit of employment. He was always unsuccessful and apparently in frustration left South Australia and took up residence in Tasmania.
I am unimpressed by the submission that the applicant's incapacity is by reason of depression which is not accepted as war-caused.
In September 1998 Ms Montgomery wrote a report to the respondent which described the applicant as being "distressed and depressed" and that he had been attending for weekly counselling "with the emphasis on treatment for alcohol abuse and depression". Indeed the applicant was referred to Ms Montgomery by the respondent's office in Hobart.
This report was known to the respondent before the primary decision in this application was made.
Dr Roffe in a report of 29 April 1999 (T40) describes the applicant as having a long history of depression, antisocial behaviour, chronic alcoholism, periodic aggression and previous suicide attempts. He described the applicant as being "very vulnerable to what most of us would regard as minor stressors and this usually manifests as a drinking outbreak". Dr Roffe on a number of occasions within his report connects alcohol abuse with depression.
For my part I would regard the depression as being part of an overall vulnerable personality of the applicant which includes alcohol dependence. Both Dr Roffe and Ms Montgomery associate depression with the alcoholism. There is no warrant in my view to distinguish both conditions. I am satisfied, having read the reports of Dr Roffe and read the report of Ms Montgomery and heard her evidence that the depression is a direct sequel to the alcohol abuse and both conditions combine to cause the applicant's incapacity.
Relevantly, s.24(2)(b) of the Veterans' Entitlements Act 1986 says-
"….
(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."
Having regard to the above provision, I am satisfied and find as a fact-

the applicant has not attained the age of 65 years and

ii) he has not been engaged in remunerative work and

iii) he has been genuinely seeking to engage in remunerative work and

iv) he would, but for incapacity be continuing to seek to engage in remunerative work and

v) the incapacity is the substantial cause of his inability to obtain remunerative work.

For the purposes of this analysis I am satisfied that the applicant's incapacity is by reason of his alcohol dependence and depression. Whilst the applicant apparently does have knee and back injuries, little is known of them other than the fact that the applicant wears a knee brace from time to time and also from time to time attends a doctor. The conditions apparently did not interfere with his ability to work for the Department of Transport for 11 years or with the Adelaide Hospital for 7 years.
It follows, having regard to the above and for the purpose of s24(2)(b) that the applicant should be treated by reason of his incapacity as being prevented from continuing to undertake remunerative work that he was undertaking.
I am satisfied that the "substantial cause" of the applicant's inability to obtain remunerative work is his war-caused disabilities. I am not satisfied that the features relied on by the respondent, namely acceptance of a redundancy package and depression explain the applicant's inability to work nor amount to such a significance as to cause those features to be "the substantial cause" of the inability to obtain remunerative work (refer discussion by Kiefel J in Fox v Repatriation Commission 1997 45 ALR 320). The war-caused disabilities are, in my view, so significant and overwhelming of the applicant that they achieve far greater significance than his back and knee injuries, his shortness of breath, his rejected disabilities and the acceptance of a redundancy package. Put another way, his war-caused accepted disabilities are the substantial cause of his inability to obtain remunerative work.
Although I am satisfied that the applicant has not sought employment since he left South Australia in 1995 the provisions of s24(2) continue to apply. I am satisfied the applicant has genuinely sought remunerative work. There is nothing to indicate that the applicant – or any other veteran – must continue to seek employment within the assessment period. The language of the sub-section includes the word "been" as opposed to the word "is". (Refer discussion re Hornery and Repatriation Commission 1998 52 ALD 317 particularly at 332). Further, the words 'but for that incapacity, be continuing so to seek to engage ….' suggest seeking work has ended because of the incapacity.
In all of the circumstances I am satisfied that the applicant meets the provisions of s24(1)(a) and (b). The applicant is receiving a pension greater than 70%, he is totally and permanently incapacitated (refer reports of Ms Montgomery and Dr Roffe) by reason of his war-caused injury or disease, alone, and is incapable of undertaking remunerative of work for periods aggregating more than 8 hours per week. Having regard to the beneficial operation of s24(2)(b) I am for the above reasons satisfied that the applicant is prevented from continuing to undertake remunerative work that he was last undertaking and for the purposes of s24(1)(c) the applicant is suffering a loss of salary or wages or of earnings on his own account that he would not be suffering were he free of that incapacity.
For the purposes of s24(2)(b) the applicant is not confined only to the work he was last undertaking (refer Banovitch v Repatriation Commission 1986 69 ALR 195 and Starcevich v Repatriation Commission 1987 14 ALD 160).
The applicant is to be commended for the recent achievements in abstaining from alcohol. He continues however to be vulnerable, in need of counselling and therapy and medication.

He remains totally incapacitated for employment and is deserving of special rate of pension.
I am satisfied that the decision under review should be set aside and in substitution for it the applicant be entitled to special rate pension at all relevant times.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Carolyn Irons    ............................................
                 Secretary
Date of Hearing  12 September 2000
Date of Decision
Solicitor for the Applicant         Mr R Webster
Solicitor for the Respondent    Mr M Castle