Lewis and Repatriation Commission
[2002] AATA 1252
•6 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1252
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/267
VETERANS' APPEALS DIVISION )
Re VERDUN JOHN LEWIS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member
Date6 December 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
…….(Sgd) I R Way…..
Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – whether pension properly assessed – special rate - whether applicant ceased work solely because of his war-caused disabilities
Veterans' Entitlement Act 1986 ss 24, 28, 120
Repatriation Commission v Smith (1987) 74 ALR 537
Fry v Repatriation Commission [1997] FCA 771
Hall v Repatriation Commission (1994) 33 ALD 454
Cavill v Repatriation (1988) 9 AAR 539
Magill v Repatriation Commission [2002] FCA 744
REASONS FOR DECISION
6 December 2002 Mr I R Way, Member
This is an application by Verdun Lewis (the applicant) for review of a decision of the Repatriation Commission dated 8 August 2001, which assessed the applicant's disability pension at 80% of the General Rate. The Repatriation Commission's decision was affirmed by the Veterans' Review Board (VRB) on 26 February 2002.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
A1 Statement – Verdun Lewis dated 14 August 2002
A2 Letter of Dr Ullman dated 13 August 2002
A3 Letter of Dr Hargreaves dated 10 July 2002
A4 Q Build letter dated 26 February 2001
A5 Employment Statement dated 20 June 2002
R1 Correspondence with employers
The applicant gave oral evidence.
The issue before the Tribunal is whether the applicant's disability pension is correctly assessed at 80% of the General Rate and in particular whether the applicant's pension should be assessed at the Special Rate.
The applicant was born on 15 May 1947 and lodged his claim for disability pension on 20 March 2001, at which time he was 53 years old.
The applicant served in the ARA as a National Serviceman from 4 October 1967 to 3 October 1969, including operational service in Vietnam from 12 August 1968 to 13 August 1969.
The applicant's accepted service-related disabilities are:
Post traumatic stress disorder (PTSD)
Alcohol dependence or alcohol abuse
Bilateral Sensorineural hearing loss with tinnitus.
He has no non-service related disabilities.
The standard of proof applicable in this matter is provided for in section 120(4) of the Veterans' Entitlement Act 1986 (the Act) and pursuant to this section the matter is to be decided by the Tribunal to its reasonable satisfaction or, in other words, on the balance of probabilities (see Repatriation Commission v Smith (1987) 74 ALR 537).
The assessment period in this matter is from 20 March 2001, the date of the applicant's claim, to the present date (the relevant period).
Legislative FrameworkThe legislative framework in respect of Special Rate of pension is relevantly provided in the Act as follows:
"Special rate of pension
24(1) This section applies to a veteran, other than a veteran to whom section 25 applies, if-(a)there is in force in respect of the veteran a determination under this Act determining that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is 100 per centum;
(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.
Capacity to undertake remunerative work
28 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, the Commission shall have regard to the following matters only:(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(bthe 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)."
Applicant's Evidence
Prior to National Service the applicant worked on his father's dairy farm. On completion of his military service he returned home and worked for a short period of time for a local plumber and drainer.
In 1970 he moved to Darwin and gained employment in the oil exploration business working in the Timor Sea area for a period of approximately two years. He then worked as a harvester operator in Victoria and New South Wales for a further two years before being employed for the next ten years in the oil drilling business working for Atwood Oceanics.
It was the applicant's evidence that during this period he was employed in various overseas locations including Malaysia, Singapore, Indonesia and India. He told the Tribunal he generally worked 28 days on and 28 days off and the company was prepared to fly him to and from anywhere in the world. He said he had lived, albeit temporarily, in various locations including London, Singapore and in Canada. In his ten years with Atwood Oceanics he had progressed from being a roughneck, to derrickman to assistant driller and then driller. He said he was paid approximately US$5,000 per month. He moved to live in the Philippines in 1980 this being a lot cheaper place to live and he married a local girl in January 1983 and later in the year he left his employment at Atwood Oceanics. He said:
"During one of my drinking binges I just didn't return to Atwood and didn't really care because I knew I could get some fill-in work in Luzon. Self-employment was the only option for me because of alcoholism, bad memories and fighting. When I wanted to work I would contact Diamond Arc Drilling, a company in the Philippines, Barry Brown would give me a job until the drinking binges started again. This was how it was until my wife walked out on us, me and the two kids, I had to employ house girls to look after us, this was around 1991."
He was not employed during the period 1983 to 1989, except for some casual work as a water driller, and lived mainly off his savings from previous employment. In 1989 he took up employment with Thome Ship Management, again working as a oil driller (at A$5,000 per month) until October 1990 when he became unemployed, except for casual work as a water driller. With respect to the two periods of casual work, namely from 1983 to 1989 and from 1990 to November 2000, it was the applicant's evidence that he was mainly self-employed and worked intermittently for cash when it suited him and to supplement his savings; that occasionally he did work for Barry Brown who would give him work if he requested it and it was available. He said Mr Brown was easy going and tolerated his non-attendance; that initially he would lease a rig as required and subsequently shared a rig with another person for approximately six months in 1995. It was the applicant's evidence that he considered self-employment was the only option because of his alcoholism, bad memories and fighting. He told the Tribunal that he had a resident visa for the Philippines but did not have a work visa and this not only limited the casual work he could do but also meant he had to be paid in cash because such work was, in fact, not legal although tolerated. He said the work was not very successful and he had trouble getting paid for his efforts and that, in all, his casual work during both periods would be approximately fourteen months.
The applicant said he and his wife had two children, one born 16 November 1982 and the other 14 February 1987. He told the Tribunal that his wife left him and the two girls in June 1991 and he continued to look after them, employing a house girl to run his home.
It was the applicant's evidence that it was because of his heavy drinking that his wife left him. He said that he had found it extremely difficult to exist without alcohol ever since and including his service in Vietnam and with respect to his work in the drilling business he said:
"During these periods of my life I found it extremely difficult to exist without alcohol and I developed a need or habit for it so I could cope with the pressures and memories I was experiencing. After one of my drinking binges I didn't go back to work, I had been doing this for approximately 10 years trying to work and control an increasing drinking habit.
My home was at Angeles in the Philippines and my life consisted of alcoholism, bad memories and flashbacks of Vietnam and drunken brawls with the locals and other ex pats. I didn't know why I was like this and didn't really care except for when my wife left our girls and me.
We married in 1983 and she left in June 1991, I tried desperately to come to term with my problems and sought medical help from a doctor Dizon in Anglels city. I remember being admitted for rehabilitation but could not cope living there and not being able to have a drink or see my girls.
I left there knowing I had to get help at home and employed house girls to carry out all of the home duties as well as care for my girls aged 7 and 3.
The period from 1990-91 until November 2000 was a terrifying time in my life, meaning I new I had problems but could not control them, contrary to the VRB statement that I resigned from Atwood's as I was incapable of returning to work."The applicant returned to Australian in November 2000 stating that he did this to seek a better life and career opportunities for his two girls and to get his medical problems fixed. He said he knew he had a lot of "trouble with his head and his drinking". He said he did not come home earlier because he wanted his elder daughter to finish the course she was doing in the Philippines in computing.
On return to Australia he began looking for work once he had sorted out where he would be living and where his youngest child would be going to school. The Tribunal notes the applicant's statement (Exhibit A5) setting out the various employment services he registered with, the various positions for which he applied or about which he made enquiries and the various courses he undertook at his own expense to improve his skills base.
In February 2001, the applicant contacted DVA for assistance with the Veterans' Vocational Rehabilitation Scheme but after consideration of all of the material sent to him he did not think he would be suitable to undertake any of the suggested courses, "having trouble with his head".
The applicant said he had been unsuccessful in gaining employment stating:
"I don't know whether they perceived I had some problems; who knows with employers. I still found it difficult to stop drinking maybe that had some impact, anyway I contacted my old friends who suspected I had problems and put me in contact with Bob Richards from Advocacy for Veterans, I had no idea anything about organisations like this and the sort of help they can provide. I immediately felt some relief for the first time since returning from Vietnam that somebody might be able to help me, I will never forget that."
Medical Evidence
There are medical reports before the Tribunal from Dr Ullman, the applicant's LMO (the latest report, Exhibit A2 dated 13 August 2002 being relevant), Dr Hargreaves, Psychiatrist (Exhibit A3 dated 10 July 2002 and T4/42, dated 15 November 2001), Dr Freed, Psychiatrist (T4/24 – 32, dated 24 July 2001).
The Doctors' reports are consistent in that they all reflect the opinion that the applicant can no longer work due to his war-caused psychiatric condition.
The Tribunal notes that Dr Freed reported the applicant as saying that he thought he could manage a job if he got one. When asked about this the applicant said he now felt he honestly could not do so, even though he would like to.
The Tribunal is mindful that Dr Freed reported that the applicant had his drinking problem under control until January 2001 when "8 years of abstinence ended". The applicant when taken to this record said that he had not been totally abstemious rather than he had eased off a bit but still had the odd binge.
The Tribunal also notes that it was the applicant's evidence that he once saw a Doctor Dizon, a local GP in Angeles City at some stage after his wife left him and that he was admitted to a detoxification centre for two weeks, which he could not cope with.
SubmissionsMr Richards, for the applicant, submitted that the applicant had significant problems during the 1990s with his accepted disabilities of alcoholism and "problems in his head" related to his PTSD. The respondent said these problems were manifest while the applicant was overseas in the Philippines and his wife left him in 1991, also leaving their two children in his care. Despite his health problems he worked for others as an oil driller, and undertook self-employed casual work. His last paid work was casual work and this was in September 1999. Mr Richards highlighted the problems the applicant faced not having a work visa at this time and the limitations this placed on him in not being able to work full-time in the Philippines.
It was submitted that the applicant finally left the Philippines in December 2000 because he wanted not only to provide a better education and opportunities for his children but also to obtain treatment for his health problems.
It was also submitted that the applicant had stopped work because of his alcohol dependence or abuse and his PTSD, however on return to Australia he had genuinely sought to gain employment. It was submitted that in the medical evidence before the Tribunal, the Tribunal would be reasonably satisfied that it was because of the applicant's war-caused alcoholism and PTSD that he was not accepted by any prospective employer. In summary it was contended that the applicant has only war-caused disabilities and as a result of these difficulties, particularly alcohol abuse and PTSD that he was able to maintain employment or find employment. It was further submitted, that on all the evidence before it, the Tribunal should be satisfied the applicant meets the relevant criteria of section 24 of the Act, such that the applicant should be paid disability pension at the Special Rate.
Mr Smith, for the respondent, conceded that at all relevant times the applicant satisfied sub-section 24(1)(a) and 24(1)(b) of the Act. However, it was submitted the applicant did not satisfy the criteria of section 24(1)(c) nor did the applicant meet the ameliorating provisions of section 24(2)(b).
It was the respondent's submission the reason the applicant ceased work was that he made a lifestyle choice, having earned very good money for ten years (during the period 1973 to 1983) such that he had sufficient savings to live on without having to work very hard. It was also submitted that the applicant had been able to gain full-time employment for seventeen months in 1989 and thereby supplement his savings. And that subsequently after his last full-time job in 1990 he worked when it suited him on a casual basis as a water driller in the Philippines, such work aggregating approximately one month in every year.
It was the respondent's submission that the applicant dropped out of work for a number of reasons including reasons not related to his accepted war-caused disabilities and as such the applicant did not satisfy sub-section 24(2)(a) of the Act. Nor did the respondent consider that the applicant met the ameliorating provisions of section 24(2)(b) of the Act in that even though the respondent conceded that the applicant was genuinely seeking to engage in remunerative work, his war-caused disabilities were not the substantial cause of his inability to obtain remunerative work. As such it was submitted that the applicant did not satisfy section 24(1)(c) of the Act and therefore the decision under review should be affirmed.
With respect to its consideration of this matter the respondent and the applicant referred the Tribunal to:
Fry v Repatriation Commission [1997] FCA 771; and
Hall v Repatriation Commission (1994) 33 ALD 454.
Consideration
In considering Special Rate of pension the Tribunal is mindful of what His Honour Justice Burchett stated in Cavill v Repatriation (1988) 9 AAR 539:
"To distract the Tribunal from its true task – to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon any philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
It is common ground in this matter that the applicant satisfies section 24(1)(a) and 24(1)(b) of the Act and in view of this and on the material before it the Tribunal so finds.
Turning then to the question as to whether the applicant satisfies section 24(1)(c) of the Act.
In the matter of Magill v Repatriation Commission [2002] FCA 744 the Federal Court recently addressed the approach that must be taken in the application of the provisions of section 24(1)(c) of the Act. A summary of what His Honour Justice Drummond said is set out below:
"Section 24(1)(c) consists of two limbs, each of which must be satisfied.
The first limb of the sub-section provides 'the veteran is, by reason of incapacity of that war-caused injury or war-caused disease, or both alone, prevented from continuing to undertake remunerative work that the veteran was undertaking'…."
This must be read with sub-section 24(2)(b).
The facts in respect of a particular veteran may be such that this first limb is clearly satisfied. However, there may be circumstances where a veteran's war-caused incapacity, while not being the sole cause of his inability to obtain work, nevertheless is the substantial cause, and sub-section 24(2)(b) provides for these circumstances. It is an ameliorating provision which sets out criteria which, if satisfied, allows the veteran to meet the alone criteria of sub-section 24(1)(c).
In summary, sub-section 24(2)(b) allows the veteran to meet the alone test if the veteran has been genuinely seeking to engage in remunerative work, that the veteran but for his war-caused incapacity would be continuing to seek to engage in remunerative work, and the veteran's war-caused incapacity is the substantial cause of his inability to obtain remunerative work in which to engage.
The second limb of sub-section 24(1)(c) which must also be satisfied, requires the veteran to suffer a loss of salary or wages or earnings that the veteran would not be suffering if he were free of his war-caused incapacity.
The loss referred to in this section may be caused by a loss of existing employment or by an inability to obtain employment.
This second limb must be considered with sub-section 24(2)(a). This sub-section, that is sub-section 24(2)(a), narrows the second limb in that a veteran will not satisfy that limb if, though suffering a loss of wages, salary or earnings that may be causally related to the veteran's war-caused injury or disease, there are other reasons that are also causally related to the veteran having ceased to engage in work or related to the veteran being prevented from engaging in work.
With respect to the first limb it is contended that the applicant satisfies the "alone test" pursuant to section 24(1)(c) or the test pursuant to the ameliorating provisions section 24(2)(b). In so contending the applicant has referred the Tribunal to what His Honour Justice Spender held in Hall v Repatriation Commission (supra) namely:
"(iv) The question of whether a veteran has been 'genuinely seeking to engage in remunerative work, [and] that he or she would, but for that incapacity, be continuing to so seek…' in s 24(2), had to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans were permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seemed to involve something of a charade. While it might be that H was advised to pursue his attempts at seeking employment through the CES, by advice which focused on any realistic prospect that such work might be obtained, the report by the CES did not seem to cast doubt on H's willingness to accept work if any might be found for him. For those reasons, H's appeal against the tribunal's decision, not to increase his pension rate, should be allowed."
In this matter, the respondent has accepted that the applicant, at the relevant time, was genuinely seeking to engage in remunerative work, and on the evidence before it, the Tribunal is reasonably satisfied that this is so.
As such, what the court said in Hall is of little assistance in considering this matter.
Whether or not the applicant satisfies the first limb of section 24(1)(c) will therefore depend on whether he meets the "alone test" in its full rigour; or, given the above finding, whether his war-caused incapacity is the substantial (or operative and predominate) cause of his inability to obtain remunerative work, thereby bringing him within the first limb of section 24(1)(c).
Before considering this issue further the Tribunal is of the view that it is appropriate in this case to consider whether the applicant satisfies the second limb of section 24(1)(c). In so doing the Tribunal is mindful that the respondent has contested this matter principally on the ground that the applicant does not meet the loss of earnings test as provided for in section 24(1)(c) and 24(2)(a). With respect to this issue the respondent referred the Tribunal to Fry v Repatriation Commission [1997] FCA 771 where His Honour Justice Spender in the penultimate paragraph of that decision said:
"As to the final ground of appeal, the AAT in my view did not err in its application of section 24(2)(b) of the Act. In paragraph 51 of the reasons for decision set out above, the AAT indicated that even if the ameliorating provision of section 24(2)(b) is applied to section 24(1)(c), the applicant was not entitled to the Special Rate of pension because of the effect of section 24(2)(a)(i), which provides that a veteran shall not be taken suffering loss of salary or wages if the veteran ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or disease or both. That the AAT so found appears from paragraph 50 of its reasons."
The Tribunal accepts the applicant's submission that the circumstances in Fry differ to those in this matter. However the approach to applying the provisions of the Act in Fry is entirely consistent with what was said in Magill and in effect means that unless the applicant meets the earnings test, his application for Special Rate must fail.
The applicant shall not be taken to be suffering a loss of salary or wages or earnings on his own account, by reason of his war-caused 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;"
After consideration of all of the material before it and the submissions of both parties the Tribunal is reasonably satisfied that the applicant has ceased to engage in remunerative work for reasons other than his incapacity from war-caused injuries or war-caused disease.
In arriving at this conclusion the Tribunal is mindful that Dr Ullman, Dr Hargreaves and Dr Freed have all expressed the view that the applicant is currently unable to work as a result of his war-caused PTSD and alcohol abuse, and furthermore that the cause of these conditions is rooted in the applicant's service in Vietnam. However all of these medical opinions are based on examinations of the applicant since his return to Australian in November 2000.
Apart from the applicant's evidence of seeing a local GP in the Philippines on one occasion after his wife left him there is no medical evidence with respect to consultations, diagnoses or treatments for either his PTSD or alcohol abuse prior to his return to Australia. Nor has there been any evidence put before the Tribunal with respect to the applicant's accepted hearing loss with tinnitus.
The effects of the applicant's war-caused PTSD and alcohol abuse post Vietnam and prior to his return to Australia need to be considered in the light of the applicant's work history during this period.
In the fourteen years following his service in Vietnam, the applicant has clearly demonstrated an ability to not only engage in arduous and rewarding employment but also to take increasing responsibilities. The Tribunal is satisfied that it is of his own volution that the applicant ceased work with Atwood Oceanics at the end of this fourteen years, moved to the Philippines, a low cost of living area, married a local girl and used his savings to meet living costs. The fact that the applicant then engaged in some casual water drilling (for cash) when it suited him and in 1989, some six years after ceasing full time employment, again successfully took employment as an oil driller for seventeen months also needs to be taken into account in assessing the effects of the applicant's war-caused incapacity at that time.
Furthermore, the Tribunal notes that although the applicant's wife left him in 1991, after some eight years of marriage, the applicant successfully continued to maintain a home and care for his children and indeed the applicant's desire to provide better opportunities for his children has been, on his own evidence, a significant factor in his returning to Australia.
While the Tribunal has accepted that the applicant satisfies section 24(1)(b) of the Act, that is, that the applicant's war-caused incapacity, of itself alone renders the applicant incapable of undertaking remunerative work, the Tribunal accepts the respondent's submission, that, in essence, the applicant made a lifestyle choice of ceasing to engage in remunerative work while he was in the Philippines and he cannot now come home to Australia and bring himself within all of the provisions of section 24 of the Act.
For the forgoing findings and reasons the Tribunal is reasonably satisfied that pursuant to section 24(2)(a)(i) of the Act the applicant has ceased to engage in remunerative work for reasons other than his war-caused incapacity and therefore the Tribunal finds that the applicant does not satisfy the criteria of section 24(1)(c) of the Act. That being so the Tribunal is satisfied that further consideration of section 24(2)(b) of the Act is not necessary.
With respect to the applicant's rate of pension of 80% of the General Rate, there is no material before the Tribunal to indicate that this rate of pension should be varied and on the material before it, the Tribunal is satisfied that the applicant's rate of pension is correctly assessed at 80% of the General Rate.
The Tribunal affirms the decision under review.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate of Hearing 23 October 2002
Date of Decision 6 December 2002
For the Applicant Mr Richards
For the Respondent Mr Smith
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