Magill and Repatriation Commission
[2001] AATA 614
•2 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 614
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/759
VETERANS' APPEALS DIVISION )
Re ROY PETER MAGILL
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr K L Beddoe (Senior Member)
Date2 July 2001
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the following decisions therefore: (a) post traumatic stress disorder and psychoactive substance abuse or dependence are accepted as war caused conditions within section 9 of the Act; (b) the said conditions be accepted with effect from 28 March 1998; (c) disability pension is payable at 100% of the general rate with effect from 28 March 1998; and (d) the matter is remitted to the respondent to give effect to the terms of the decision.
(Sgd) K L Beddoe
Senior Member
Decision No: 614/2001
CATCHWORDS
VETERANS' AFFAIRS – disability pension- post traumatic stress syndrome and substance abuse – whether 'alone' test satisfied – voluntary early retirement
Veterans' Entitlements Act 1986 s 24, 31
Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Smith (1987) 74 ALR 537
Flentjar v Repatriation Commission(1977) 26 AAR 93 at 95
Gauntlett v Repatriation Commission (1991) 24 ALD 79)
REASONS FOR DECISION
2 July 2001 Mr K L Beddoe (Senior Member)
By a decision notified on 23 June 1998 the respondent determined that the claim for post traumatic stress disorder and psychoactive substance abuse or dependence was refused. By letter dated 6 July 1998 the applicant sought a review under section 31 of the Veterans' Entitlements Act 1986 ("the Act"). By letter dated 6 August 1998 a Review Officer notified a decision not to conduct a section 31 review. By a further letter dated 19 August 1998 the Review Officer again refused to conduct a section 31 review.
It seems the applicant sought review by the Veterans' Review Board on or about 28 September 1998 but such a document is not before me. If 28 September 1998 is the correct date then the application was made more than three months after notification of the Respondent's decision. By a decision notified on 30 June 1999 the Board affirmed the Respondent's decision. The applicant lodged an application for review in this Tribunal on 14 July 1999. The matter was heard at Townsville on 21 March 2001.
At the hearing the Respondent conceded that:
(a)post traumatic stress disorder and psychoactive substance abuse or dependence should be accepted as war caused conditions within section 9 of the Act;
(b)the said conditions should be accepted with effect from 28 March 1998;
(c)it should also be accepted disability pension is payable at 100 per cent of the general rate with effect from 28 March 1998; and
(d)paragraph 24(1)(a) and 24(1)(b) of the Act should be accepted as having been satisfied at all relevant times.
Paragraph 24(1)(c) provides that section 24 will apply to a veteran if the veteran is, by reason of incapacity from war caused injury and/or disease alone, prevented from undertaking remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of remuneration that the veteran would not be suffering if the veteran were free of the said incapacity.
There are two important qualifications to the application of paragraph 24(1)(c). These are contained in sub-section 24(2). The effect is that:
(a)a veteran shall not be taken to be suffering a loss of remuneration by reason of the said incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than the said incapacity; or
(ii)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; and
(b)if there is satisfaction that the veteran's said incapacity is the substantial cause for the veteran's inability to obtain work 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.
At the hearing Mr Lafferty appeared for the applicant and Mr Stoner appeared for 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 further documents tendered were marked as exhibits. Oral evidence was given by the applicant.
I make the following findings of fact. In doing so I have taken into account the concessions made by the Respondent making it unnecessary to consider the entitlement issues. The applicant was born on 14 March 1935 and was 62 years of age at the date of claim. He enlisted in the Royal Australian Air Force on 12 May 1958 and was discharged on 19 September 1978 due to "on request after 20 years pensionable service". Mustering was as a RAAF policeman.
The applicant served at Ubon, Thailand, from 19 March 1966 to 12 September 1966. That service was operational service and the applicant also had eligible defence service from 7 December 1972 to 19 September 1978.
The applicant's accepted disabilities now are:
(a) Right Ingual Hernia
(b) Hiatis Hernia
(c) Duodenal Ulcer
(d) Solar Skin Malignancy
(e) Osteoarthrosis of the left knee
(f) Bi-lateral Sensori-Neural Hearing Loss
(g) Chronic Solar Skin Damage with Malignant Change
(h) Post Traumatic Stress Disorder(i) Psychoactive Substance Abuse or Dependence
The applicant's non-service related disabilities are:
(a) Torn Medial Meniscus Left Knee
(b) Refractive Error
(c) Tendonitis of the Left Shoulder
(d) Osteoarthrosis of the ankles
(e) Recurrent Bronchitis
In relation to the applicant's service at Ubon there is a serious conflict as to the facts in the material before the tribunal. I am unable to resolve that conflict from the material before me. I make no findings of fact about the applicant's service at Ubon.
I am satisfied that I can decide the issues arising under section 24 of the Act without making findings in relation to the operational service given the acceptance by the Respondent of the related medical conditions.
Prior to joining the Air Force the applicant was in full-time civil employment as a stock clerk and also serving his obligations under the National Service Act in the Army.
He re-entered the workforce after discharge from the Air Force as a civil security guard employed by the Department of Defence at RAAF Garbutt. That was followed by employment with the Department of Social Security as a clerical assistant/field officer.
On 8 February 1981 the applicant commenced employment by the Queensland Government at the Law Courts complex, Townsville. The employment related to security of the Courts complex. The applicant said in his statement that he worked 24 hour shifts but I have inferred that he worked shifts which had a 24 hour cycle. Since 1984 he was employed as a member of the State Government Protective Security Service.
The applicant undertook increased responsibilities over the years and became the officer-in-charge of security services at the Courts complex. He said this meant that he was less physically active but he had difficulty coping with stresses engendered by his supervisory responsibilities. Those responsibilities had been increased to a point where he was concerned that he was no longer able to perform his duties to the desired standard. He attributed this to his war caused disabilities.
In particular he was aware that he was alcohol dependent with consumption of alcohol during working hours together with analgesics. The consequence was that the applicant asked to be relieved of his responsibilities as officer-in-charge of the security services but this request was refused.
Rather than relieve the applicant of responsibilities they were in effect increased by a reduction of security staff in 1997 for the Courts' complex. The result was the applicant sought and was granted a voluntary early retirement by the State Government and he ceased work in November 1997. At the time of his retirement he was not being treated by a psychiatrist.
His psychiatrist subsequently said he should not be working. Notwithstanding that advice the applicant said he sought security type work with other employers but became convinced he was hitting his head against a brick wall, he said, because of his age.
The applicant denied that his ankle and bronchitis problems did not affect his ability to work but admitted that he would be unable to chase a person.
The Medical EvidenceDocument T4/9-12 is a report by Dr Likely, consultant psychiatrist, dated 19 January 1998 and addressed to the applicant's general practitioner. Dr Likely's report proceeded on the factual base that the applicant had served in South Vietnam ("Vietnam" in the report). The applicant is reported as describing symptoms which had been present from the time of the "Vietnam" service.
Dr Likely diagnosed a chronic post traumatic stress disorder, recurrent major depressive disorder and alcohol abuse. He described three stressors:
(a) stressor of recent retirement;
(b) stressor of chronic mental ill health; and
(c) stressor of Vietnam Veterans' Reunion
Dr Likely recommended a treatment program.
In a report to the Department of Veterans' Affairs dated 4 February 1998 (Exhibit C) Dr Likely again set out a history based on service in Vietnam. I have assumed that Dr Likely thought Ubon referred to by the applicant was in Vietnam and proceeded on this basis. In other aspects the report reiterates the report to the general practitioner.
Exhibit C also includes a report by Dr Likely dated 12 April 2000 and addressed to the applicant's solicitors. It is essentially an analysis of a report by Dr Richards, Psychiatrist, dated 28 January 2000 and which is before the Tribunal as Exhibit D. Dr Likely confirmed his diagnosis of post traumatic stress disorder and that it was attributable to the applicant's service at Ubon. He also opines that the applicant was permanently unfit for appropriate labour market employment because of the "post traumatic stress disorder alone".
Dr Richards said he was unable to diagnose post traumatic stress disorder on the basis that he was not satisfied the applicant suffered a traumatic event which would be within the criteria in DSM IV. He was satisfied however that the applicant suffered alcohol abuse/dependence which first manifested at Ubon although it became apparent only after he returned to Australia.
Dr Richards notes that there was a period of alcohol abuse from the time of the service in Ubon until 1974, when hospitalisation for a gastric haemorrhage convinced the applicant to cease using alcohol from 1974 to 1978. Dr Richards reports a return to use of alcohol because of the stress of courtroom security duties. Dr Richards found co-morbid anxious and depressive symptoms are a function of the applicant's inability to cope with life without alcohol resulting in the referral to Dr Likely in 1998.
Exhibit 1 includes a copy of an assessment by Dr Grant, being a combined impairment assessment. That assessment made as at October 2000 assessed impairment points as follows:
Hiatis Hernia 10 points
(Table 6.1.4)Osteoarthrosis L knee 9 + 2 points
(Tables 3.2.1/3.6.1 and 3.4.1)Bilateral Sensorineural Hearing Loss 15 points
(Part 1, Chapter 7)Chronic Solar Skin Damage with
malignant change 5 + 2 points
(Tables 11.1 and 17.1)
Post Traumatic Stress Disorder
And Alcohol Dependence 30 points
(Tables 4.1 – 4.8)
Consideration
While I am not required to assess the applicant under the Guide for the Assessment of Rates of Veterans' Pensions, I am satisfied that the applicant's accepted disabilities had a very significant impact on the applicant's capacity to continue remunerative employment.
As the applicant said in his oral evidence he would be unable to chase a person if that was required of him as a security officer.
The difficulty with this case is that, on the applicant's own evidence, he became dissatisfied with his employment at the Courts' complex because of increasing responsibility. That was before the diagnosis and treatment of his Post Traumatic Stress Disability. That is not to say the condition did not play a part in the applicant's decision to accept the offer of early retirement from employment in the Courts complex. But it remains a fact that he did not seek medical assistance for the condition until after his retirement.
Dr Likely makes it clear in his report of 12 April 2000 (Exhibit C) that the pre-existing anxiety state and the self medication with alcohol were to be explained by the post traumatic stress disorder. In my view that is a reasonable explanation for the applicant's behaviour pattern and I accept Dr Likely's explanation.
The applicant said, and I accept, that he was averse to accepting additional responsibility in his work hence his decision to accept the offer of early retirement. That decision to accept early retirement to avoid the additional responsibility would preclude a finding that paragraph 24(1)(c) was satisfied unless the decision can be attributed to the accepted disabilities.
Paragraph 24(1)(c) refers to "remunerative work that the veteran was undertaking". In Banovich v Repatriation Commission (1986) 69 ALR 395 the Full Court said that the phrase was to be read as a reference to the type of work which the veteran previously undertook and not to any particular job. In Repatriation Commission v Smith (1987) 74 ALR 537 a different Full Court followed the dicta of the Full Court in Banovich. That the Courts were referring to type of work rather than a particular job was made clear in Flentjar v Repatriation Commission(1977) 26 AAR 93 at 95.
It follows, in my view that the fact of the applicant not wanting to continue in the particular position at the Courts complex because of increasing responsibility is not the answer to paragraph 24(1)(c). The applicant said that he wished to continue working as a security officer but without supervisory responsibility but his employer did not make this option available. The employer offered early retirement and the applicant accepted that offer.
While I am satisfied that the applicant made desultory enquiries about other security work, I am not satisfied that he pursued these enquiries and preferred to retire from the workforce. It follows that I am not satisfied that paragraph 24(2)(b) applies on the facts of this case. In particular the applicant's evasive answers in response to questions by Mr Stoner left me with the impression of a desultory effort to obtain remunerative employment after his early retirement. That was the situation at the date of application and nothing has changed since.
By his own evidence the applicant was able to engage in remunerative work. His doctor told him not to do so but the applicant said he could continue if he did not have the additional responsibilities of supervision.
In the result, I am satisfied, on the balance of probabilities, that the applicant decided to accept the offer of early retirement from his employment by the Queensland Government and also decided to retire from the workforce unless employment to his liking became available. I accept that the applicant made enquiries about employment but I am not satisfied that those enquiries extended beyond that, ie they were simply enquiries which do not satisfy me that the applicant was genuinely seeking to engage in remunerative work.
Further the offer of voluntary early retirement accepted by the applicant cannot be ignored when considering the alone test in paragraph 24(1)(c). There is no evidence that it was the undiagnosed condition of post traumatic stress disorder together with, or without, the other accepted disabilities that alone prevented the applicant continuing to undertake remunerative work. The offer of early voluntary retirement at age 62 is, by itself, a relevant causative factor brought about by the applicant's desire to avoid increased responsibilities. The war caused disabilities were also, as between them, factors of varying importance in the decision to accept early retirement and the decision to seek to avoid the additional responsibilities.
I am not satisfied however that it was the war caused disabilities alone, which prevented the applicant undertaking remunerative employment. He had maintained employment for many years with those disabilities. By January 1998 there was the concomitant factor of the acceptance of early retirement which has satisfied me that the alone test in paragraph 24(1)(c) was not satisfied at the time of application (cf Gauntlett v Repatriation Commission (1991) 24 ALD 79).
The decision under review will be set aside and the following decisions substituted therefore:
(a) post traumatic stress disorder and psychoactive substance abuse or dependence are accepted as war caused conditions within section 9 of the Act;
(b)the said conditions be accepted with effect from 28 March 1998;
(c)disability pension is payable at 100% of the general rate with effect from 28 March 1998; and
(d)the matter is remitted to the respondent to give effect to the terms of the decision.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 21 March 2001
Date of Decision 2 July 2001
For the Applicant Mr Lafferty of Counsel
For the Respondent Mr Stoner, Advocate
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