Linning and Repatriation Commission
[2004] AATA 871
•20 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 871
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/198
VETERANS' APPEALS DIVISION )
Re IAN LINNING Applicant
And
REPATRIATION COMMISSION
Respondent
INTERIM DECISION
Tribunal Senior Member KL Beddoe
Dr KP Kennedy OBE, MemberDate20 August 2004
PlaceBrisbane
Decision The Tribunal decides:
(a) the decision under review is set aside;
(b) the applicant satisfies the terms of section 24 of the Veterans’ Entitlements Act 1986; and
(c) the date of effect will be decided in the light of written submissions of the parties lodged within 14 days from the date of this interim decision.
..................[Sgd].....................
K L Beddoe
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – rate of pension – special rate of pension – applicant made redundant – his war-caused conditions made him no longer employable - applicant’s war-caused conditions alone prevented him from working – the requirements of section 24 satisfied - entitled to pension at the special rate – decision set aside - date of effect to be determined on basis of written submissions
Veterans’ Entitlements Act 1986 ss 24(1), 24(2), 120(4)
REASONS FOR DECISION
20 August 2004 Senior Member KL Beddoe
Dr KP Kennedy OBE, Member1. The applicant seeks review of a decision of the respondent to continue Disability Pension at 100% of the General Rate. That decision was subsequently affirmed by the Veterans’ Review Board.
2. Paragraph 24(1)(c) of the Veterans’ Entitlements Act 1986 (“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;”
3. There is acceptance by the respondent that the other terms of section 24(1) [other than paragraph (c)] have been satisfied.
4. On the facts of this case paragraph 24(2) of the Act is also relevant. It 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. Sub-section 120(4) of the Act requires the Tribunal to decide this matter to its reasonable satisfaction.
6. When this matter was listed for hearing on 17 July 2003, the Tribunal granted an adjournment at the request of the applicant so that a claim for cardio-vascular conditions could be determined.
7. At the resumed hearing on 24 February 2004, the applicant applied for a further adjournment. The adjournment sought was refused but the Tribunal deferred commencement of the hearing for three hours.
8. At the hearing Mr York represented the applicant and Mr Stoner represented the respondent.
9. 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 further documents were tendered and marked as exhibits. Oral evidence was given by the veteran’s wife.
10. The applicant was born on 7 August 1950, being 48 years of age when he applied for increase of his disability pension on 19 April 1999 (T4/16-24).
11. The disability pension has been paid in respect of the following accepted medical conditions:
(a)generalised anxiety disorder;
(b)post traumatic stress disorder;
(c)psychoactive substance abuse or dependence (alcohol);
(d)hypertension and cardiomyopathy; and
(e)bilateral sensori-neural hearing loss with tinnitus.
12. Non-accepted medical conditions included:
(a)sleep apnoea;
(b)gastric ulcer;
(c)aortic aneurysm;
(d)left knee condition;
(e)cervical spondylosis; and
(f)partial blindness.
13. Mr Stoner told us that the following conditions have been accepted as service-related with effect from 11 June 2003:
(a)aortic aneurysm;
(b)atril fibrillation;
(c)cerebrovascular disease; and
(d)ischaemia.
14. As to why these conditions were accepted as service-related is not before us. We do know from Mrs Linning’s evidence that the applicant suffered a stroke as a consequence of heart surgery.
15. The applicant was employed as a Process Operator by Incitec Ltd from 20 June 1988 to 12 February 1999 when he was made redundant. The employer’s explanation is that the applicant was made redundant due to a loss of business at the Pinkenba site where the applicant was employed.
16. The employer also explained in a letter dated 29 May 2001 (Exhibit 2), that the applicant’s health problems reduced his flexibility to carry out all tasks required of operators in a restructured workforce and this contributed to the employer’s decision to make the applicant redundant. Specifically, the employer denied that a whiplash injury in 1993 had any bearing on the decision to make the applicant redundant.
17. An employment separation certificate by Incitec Ltd, dated 17 March 1999, indicates that the applicant’s employment was terminated because of “Restructure” and not because of unsuitability for work, unsatisfactory work performance or misconduct. The applicant did not cease work voluntarily. The certificate shows that the applicant received payments for leave amounting to $39,466.68 with the final net payment being $43,105.47.
18. Copy medical certificates in the “T” Documents show that the applicant suffered a number of work-related injuries. The most serious appears to be a cervical spine injury suffered in a motor vehicle accident on 20 October 1993 while travelling to work. Other injuries said to be work-related include injury to the left thigh, soft tissue injuries and crush injury to right ring finger.
19. On 19 April 1999 (Exhibit 1), the applicant applied for an income support pension (invalidity service pension) because he was permanently incapacitated for work because of:
(a)cardiomyopathy;
(b)whiplash;
(c)cervical spondylosis;
(d)post traumatic stress disorder;
(e)aortic aneurysm; and
(f)sleep apnoea.
20. In response to the question “How does your injury/illness affect your ability to undertake your usual work or work for which you are skilled?”, the response given is:
“Shortness of breath, limited exertion, cannot lift cannot associate with other people, difficulty in following orders, falling asleep, lapses in concentration.”
21. That explanation needs to be understood in the context that the applicant had been employed as a Weighbridge Operator which we infer is a relatively sedentary type of employment and which the applicant’s wife describes as “light duties”.
22. The explanation is also inconsistent with the Lifestyle Questionnaire signed by the applicant on 9 June 1999. In that document the applicant responded to the question “Do you have any problems walking?” by describing his problems as follows:
“1. Chest pain, Shortness of breath, Palpitations of the heart.
2.Whiplash constant pain in neck and spine, numbness in L arm and finger.
3.Injured left knee, Cartledge (?) Pain, Gives way.”
23. As to point 1, it was said to occur all the time; as to point 2, it was said to occur most of the time and as to point 3, pain was said to occur all of the time (and presumably) the other symptoms were said to occur some of the time.
24. We accept the evidence of the applicant’s wife that he looked for work after ceasing employment at Incitec. We also accept her evidence as to why the applicant is no longer able to provide documentary evidence of this search for work. We accept that the applicant sought work, in particular at a firm of commercial printers (Exhibit B).
25. We also accept that, by 9 June 1999, the applicant had abandoned his quest for further employment (T4/35).
The Medical Evidence
26. Dr Levien is a consultant psychiatrist who has provided three reports in relation to the applicant dated respectively 9 October 1998, 22 April 1999 and 7 June 2000.
27. The applicant had been referred to Dr Levien by his general practitioner on 7 May 1998 and was seen on a regular basis thereafter. Dr Levien said that the applicant presented with symptoms of:
(a)depression;
(b)general anxiety;
(c)longstanding insomnia; and
(d)alcohol abuse, together with over-reliance on Phenergan and Panadol.
28. Dr Levien initially found generalised anxiety disorder, alcohol abuse with tolerance withdrawal and symptoms of post traumatic stress disorder, though symptoms had been somewhat masked by the alcohol abuse and reliance on sedatives.
29. After the applicant had ceased work Dr Levien made a further report dated 8 April 1999, much of which repeated the earlier report. Dr Levien noted a general improvement in the psychiatric range of symptoms.
30. He noted that the applicant reported improving satisfaction with his workplace prior to being made redundant but Dr Levien was of the opinion that it was unlikely the applicant would be able to return to gainful employment. He referred to fatigability lassitude and poor concentration by virtue of sleep apnoea syndrome with depression.
31. In a further report dated 7 June 2000 Dr Levien was of the opinion that the applicant was totally and permanently disabled by virtue of:
(a)post traumatic stress disorder;
(b)anxiety disorder;
(c)sleep apnoea disorder;
(d)cardiac disorders; and
(e)general lethargy and malaise due to the above together with side effects of medication.
32. Three reports by Dr McEniery, cardiologist, dated 21 December 1998, 6 February 1999 and 13 March 1999 satisfy us that the applicant had dilated cardiomyopathy with a bicuspid aortic valve and had undergone aortic root replacement. Dr McEniery described mild coronary disease with a moderate stenosis and a small distal branch of the right coronary artery.
33. Dr Nielsen is a consultant orthopaedic surgeon who reviewed the applicant at the respondent’s request. In his report dated 14 April 2000 Dr Nielsen sets out the history of the left knee condition, notes other medical conditions and expresses the following opinion in relation to the left knee symptoms:
“I do not believe they are causing him significant disability at this point in time, and I certainly do not believe they are preventing him from working.”
Consideration
34. The respondent conceded at the hearing that paragraph 24(2)(b) of the Act was satisfied.
35. As to paragraph 24(1)(a) we are satisfied that the applicant ceased his employment at Incitec because he was made redundant, there being no suitable position for him when the business was re-organised.
36. We are also satisfied that there was no suitable position for the applicant in the re-organised business because his health problems reduced his flexibility to carry out all the tasks required of operators in the restructured workforce. In coming to that decision we accept, as the employer says, in Exhibit 2, that the whiplash injury suffered in the motor vehicle accident had no bearing on the decision to make the applicant redundant. We note that injury was the subject of a successful worker’s compensation claim.
37. We are satisfied from the evidence of Dr Nielsen that the left knee condition was not a significant disability which would prevent the applicant working.
38. We are also satisfied that the applicant’s remaining health problems were the cause of him being made redundant so that, in effect, his employment was terminated on the grounds of ill health, being his war-caused disabilities.
39. In some cases the fact of being made redundant will prevent a veteran satisfying the terms of paragraph 24(1)(c) but this is not such a case. We are satisfied that he was made redundant because his war-caused conditions alone made him no longer employable whether by Incitec or any other employer.
40. We have not overlooked the diagnosis of sleep apnoea. We take the view that it is more likely than not that the condition is a manifestation of one or more of the accepted conditions.
41. It follows, in our view, that the applicant is by reason of his accepted conditions prevented from undertaking remunerative work that he was undertaking and is, only because of those accepted conditions, suffering a loss of remuneration that he would not be suffering if he were free of the accepted conditions.
42. For these reasons the decision under review will be set aside and there will be a decision that the applicant satisfies the terms of section 24 of the Act.
43. The Tribunal requires the parties to make submissions in writing as to the date of effect of this decision. Such submissions should be made within 14 days of the date of these reasons for decision.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe and Dr KP Kennedy OBE, Member
Signed: S Oliver
Associate
Dates of Hearing 17 July 2003 and 24 February 2004
Date of Decision 20 August 2004
Solicitor for the Applicant Mr W York, Sciacca's Lawyers
For the Respondent Mr J Stoner, Departmental Advocate
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