Martin and Repatriation Commission
[2001] AATA 346
•30 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 346
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/1014
VETERANS' APPEALS DIVISION )
Re RAYMOND JOHN MARTIN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Hon. CR Wright QC, Deputy President Brigadier IRW Brumfield, Member Dr JB Morley, Member
Date30 April 2001
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant RAYMOND JOHN MARTIN is entitled to be paid disability pension at the Special Rate with effect from 11 September 1997.
(Sgd) CR WRIGHT
DEPUTY PRESIDENT
CATCHWORDS
VETERANS' AFFAIRS – special rate pension – whether accepted disabilities caused the applicant to cease work – time at which the incapacity is to be assessed – time at which loss is to be assessed – intention of the legislature.
Veterans' Entitlements Act 1986 ss 24
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
30 April 2001 Hon. CR Wright QC, Deputy President Brigadier IRW Brumfield, Member Dr JB Morley, Member
This was an application to review a decision of the Repatriation Commission dated 16 June 1998, as affirmed by the Veterans' Review Board on 26 August 1999.
This matter was heard by a Tribunal as constituted above in Brisbane on 4 April 2001. At the hearing the applicant was represented by Mr D O'Gorman of Counsel, instructed by Messrs Gilshenan and Luton and the respondent was represented by Mr B Williams, Departmental Advocate. The following documents were taken into evidence:
Exhibit 1 "T" Documents
Exhibit A1 Statement of Raymond Martin dated 6.6.00
Exhibit A2 Statement of Karen Lee Robins dated 28.9.00
Exhibit A3 Report of Dr R Troup dated 15.5.00
Exhibit A4 Report of Dr R Troup dated 24.7.00
Exhibit R1 Report of Dr W Kingswell dated 8.1.00
Exhibit R2 Report of Dr W Kingswell dated 10.10.00
Exhibit R3 Tax Return documents of Raymond Martin
The applicant veteran, Raymond John Martin was born on 24 November 1934. He served 25 years with the RAAF and was discharged in 1976. He was on active service in Vietnam from October 1970 to June 1971. During that period he experienced several traumatic events which were detailed in comprehensive reports by Dr Rosalie Troup which were presented in evidence both before the Veterans' Review Tribunal and this Tribunal.
After discharge from the RAAF the applicant undertook various employment which was fully described in his evidence in Statement Exhibit A1 before the Tribunal. This will be referred to later. Following his tour of duty in Vietnam, the applicant developed a number of disorders which were subsequently accepted by the Repatriation Commission as related to his war service. There were:
(a) Sensori-Neural Deafness
(b) Post Traumatic Stress Disorder
(c) Gastro-Oesophageal Reflux Disease
(d) Chronic Bronchitis and Emphysema
(e) Psychoactive Substance Abuse or Dependence Involving Alcohol.
On 4 September 1998 the Repatriation Commission increased the applicant's disability pension to 100% of the General Rate with effect from 11 September 1998. When this assessment came under review by the Veterans' Review Board, the Board took the view, correctly in our opinion, that the Commission's delegate had properly assigned appropriate impairment ratings to the applicant's accepted conditions, resulting in an assessment of his degree of incapacity at greater than 70%, thereby meeting the preliminary criteria for a Special Rate of pension under Section 24 of the Veterans' Entitlements Act 1986.
During the hearing before the Tribunal, the respondent contended that notwithstanding the Commission's acceptance of post traumatic stress disorder as one of the components of the applicant's war-caused disabilities, we should reject that assessment and find, on the basis of expert psychiatric evidence given by Dr William Kingswell, that the applicant did not, and does not, suffer from this disorder.
It became apparent during Dr Kingswell's evidence that the principal reason for his reaching this conclusion was his assessment that the applicant had not exhibited "avoidance" behaviour of a kind or degree to qualify him for such a diagnosis. Whilst Dr Kingswell was able to demonstrate certain areas, such as family relationships, in which no overt breakdown or friction had become manifest, it was clear on close examination of the evidence of the applicant, his daughter, Karen Lee Robins and Dr Rosalie Troup, that family cohesion had been maintained despite his avoidant behaviour largely because of the sympathetic forbearance and understanding of the applicant's wife, his daughter and son-in-law. It was also apparent that, notwithstanding the applicant's participation in some activities with the Vietnam Veterans' Association, he was generally troubled and distressed by recalling his war experiences.
We are clearly of the opinion that the evidence justifies the conclusion that the applicant suffers from war-caused post traumatic stress disorder and that the acceptance of this by the Repatriation Commission and the Veterans' Review Board was appropriate and correct. It is the conclusion to which we have also come on the basis of the evidence given at the hearing before the Tribunal.
A more contentious issue appeared to be the applicant's claim that he is entitled to a pension at the Special Rate pursuant to the provisions of Section 24(2)(a) and/or (b) of the Act. His claim for Special Rate was rejected by the Veterans' Review Board and it is against that rejection that he brought the present application for review to the Tribunal. The respondent argues that the Board's approach was correct and should be upheld.
At paragraph 7 of its decision, the Veterans' Review Board observed -
"The Act provides that a person's incapacity from war caused or defence caused conditions shall be assessed throughout the whole of the assessment period which is defined as starting on the application day and ending when the claim or application is determined. In the present case, the application day was 11 December 1997. As the Board is reviewing the matter, the assessment period ends on the date when the Board makes its determination."
and in conclusion, after determining that the applicant did satisfy the criteria set forth in Section 24(1)(b) of the Act, the Board continued:
"28. However, the veteran must also satisfy the criteria of Section 24(1)(c) which requires that as a result of his incapacity for remunerative work he has lost earnings on his own account. Financial statements which comprise part of the veteran's taxation records for the financial years ended 30 June 1993 to 1998 were before the Board. These indicated that the veteran's earnings from his businesses were as follows:
1993 Advance Life Foods ($1318)
1994 ($ 479)
1995 Craft Supplies ($1177)
1996 ($1191)
1997 ($ 235)
1998 ($ 81)
29. Clearly from the above, during the assessment period, the veteran made a loss of $81 from the craft supply business and in fact, at no time in the period 1993 to 1998, did the businesses he conducted from home make a profit. While the 1993 tax return indicates that the veteran's taxable income was $16,925, this was apparently income from sources other than earnings on his own account. While it may be the case that the veteran was prevented from engaging or continuing to engage in remunerative work as the result of incapacity from his war caused disabilities, it cannot be said that his cessation of remunerative work as the result of that incapacity was productive of a loss of earnings on his own account.
30. The Board was therefore reasonably satisfied that the veteran did not meet the requirements of section 24(1)(c) of the Act and thus, was not eligible for payment of pension at the Special Rate. The Board therefore affirmed the decision under review."
The Tribunal takes the view that it is erroneous to look only at the so-called "assessment period" in determining whether or not an applicant is eligible for Special Rate pension. The test propounded by Section 24(1)(c) is whether or not the veteran has been prevented by the war-caused injury alone from undertaking remunerative work of the kind which he "was undertaking". The Act does not specify the time at which the previously remunerative employment (including self-employment) is to be considered but it certainly does not suggest that it is at some time between the lodgement of the application and the consideration of that application by the appropriate authority. A moment's reflection will reveal any such suggestion as this to be absurd. The need for an application for Special Rate cannot arise until after the loss of the relevant remuneration has actually occurred.
In our opinion, the effect of Section 24(1)(c) is to ensure that an applicant for Special Rate must be able to demonstrate that before the onset of incapacity caused by war injury or disease he was more or less regularly utilising his earning capacity to produce some measurable reward for his work.
This was a view shared by the Full Federal Court in the case of Starcevich v Repatriation Commission (1987) 18 FCR 221. Fox J concluded at page 225 of his judgment:
"…A veteran's entitlement to a pension under s24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether."
Obviously, circumstances may vary from case to case. Some people will cease work completely upon incapacity from a war-caused disease or injury. Others will be incapacitated for the work they have predominantly undertaken through their working life, but will find some other working activity to keep them busy. This may be in another profession entirely or be work provided by friends or family, which is in effect "sheltered employment". The latter scenario appears to be the case with this veteran.
That a veteran desires to keep himself busy and attempts to work, although incapacitated, does not prevent the Tribunal from assessing that he was in fact incapacitated from working in a real sense at some earlier time in his work history.
After quitting the Air Force the applicant sought and obtained civilian employment which he described in Exhibit A1 in the following terms:
"4.I have had problems with alcohol ever since my service in Vietnam. I was able to get away with this problem in the RAAF because drinking was part of the culture.
5.My lung capacity is greatly reduced. I get puffed out from the slightest bit of exercise. For much of my life I was a very fit person I've always felt that fitness was important. I played Rugby League until I was about 34 years of age and other sports after that. Because of my lung condition I haven't been able to exercise as I would have liked. I am now overweight and not in a proper physical condition to be doing manual work.
6.After discharge from the air force my first job was as a Real Estate Agent with Peters Realty. This was in May 1976. The job only lasted two weeks. I finished there after two weeks. The secretary had told me that I had to go to a meeting. I asked her what would happen if I didn't go to the meeting and she said that I'd be sacked if I didn't go. I told them they could stick the job.
7.The next job was a Real Estate Salesman with Ray Jackson Real Estate. I did this job between 1976 and 1978. I ended up getting the bullet from that job. By the time I finished I was spending more time at the pub that at work. The boss told me one day to bring the books in as he had someone else arranged to take over the job. For a while I tried to get work without success. I applied for various jobs at Queensland Rail, Ipswich City Council and Jordan's Furniture. Those places had jobs going for drivers and storeman.
8.My next job was a Storeman/Driver with Evans Deacon Industries. This job lasted for about five years between 1979 and 1984. I continued drinking heavily over those years. I also had a number of altercations and arguments at work. These were with managers and with fellow employees. One altercation resulted in me holding a fellow up against wall with my hand gripping his shirt. I didn't officially get sacked from this job. I was simply put off by the boss without him giving me a reason. I asked my boss at Evans Deacon for a reason why I was being put off and for a reference. They didn't give me a reason and he told me that the company didn't give references.
9.A few weeks before I finished one of the Manager, John Brown, said to me that he wanted to change my job from storeman/driver to simply storeman. This involved a minor pay cut of about $5.00 a week. I wouldn't accept this change. I told him that I was employed as a storeman/driver and that is what I intended to continue to do.
10.After I got put off I went in an registered at the CES but couldn't get work that way.
11.At this stage I owned flats down at Palm Beach. Between 1980 and 1988 I used to go down there and do maintenance on the flats one day per fortnight or sometimes weekly.
12.Because I couldn't get a real paid job I did what I could to keep my head above water financially and also to stay active. Between 1987 and 1994 I was employed on a voluntary basis by my daughter and son-in-law. I used to work approximately five half days per week. I didn't receive money for that work. I was paid by way of fuel and maintenance repairs on my cars. At first the business was a service station. I received about $40.00 per week in fuel and monthly servicing of both my wife and my cars plus repairs to the cars. Monthly servicing was worth approximately $80.00 (for both cars) and parts. In the late 80s or early 90s that business closed down and reopened as a mechanical repair shop. I was re-employed but this time I did mainly cleaning duties. I also did little jobs like changing tyres or repairing flat tyres. This arrangement continued in the same way as previously. That is, I used to get paid in fuel and through mechanical repairs. On one occasion the shop rebuilt the engine of my car. This was worth $500.00 plus parts. On another occasion the shop changed the gear box on the car. This was worth approximately $260.00. On one occasion I was going on a holiday to Cairns and my daughter and son-in-law gave me a cheque for $500.00 for my work efforts.
13.When I was working at the service station I had difficulties dealing with the public. In the early days my job brought me into contact with the public. I would get very upset with customers. For one thing, it was my job to pour fuel for customers and it would annoy me greatly if a customer would insist on doing it themselves. I used to become very stressed in the course of the day. To deal with the stress I'd have at least a couple of stubbies before I went home and would then continue drinking as soon as I got home. I used to retreat totally into myself and either ignore the family or have some argument with them. There were heaps of arguments with my wife in those years.
14.I also experienced difficulties with this job because of my hearing problem. When I am one on one talking with another person I can make myself understood and understand what's being said. However, as soon as I am in a small group of people I simply can't hear what people are saying.
15.Over these years I never lost my desire to be doing real work and to earn real money if I could. In 1991 an opportunity came up for me to be self-employed in multi-level marketing. This was with Advanced Life Foods. My understanding of this business is that it is based on a pyramid structure. It is, however, a legal pyramid scheme. It involved me demonstrating food and selling the idea to other people. I tried my best to get as many people involved as I could I don't think I was cut out for this sort of work as it was not a success but I was determined however to do what I could to make a living. I did nearly three years with Advanced Life Foods but never really managed to get sufficient people involved to make a success of it. I constantly found that I had difficulties dealing with people. This was the only job I could find otherwise I wouldn't have done it.
16.In 1990 and 1991 I had a contract with the Ipswich Softball Association to mow the grounds and mark the diamonds. This involved seven hours per week mowing time and five hours per week marking the diamonds. I was paid $32.00 for the mowing and $30.00 to make the diamonds.
17.My wife worked at the Army canteen at Amberley. Through her I was able to get casual employment with the Army and Air Force canteen doing stocktake. I didn't have to apply for the job. I wouldn't have got the job if it hadn't been for my wife. I did this for a number of years starting in 1991 and finishing in about 1995. We used to walk around the storeroom with one person counting out the inventory which I would then write down. I used to do this job for about one day every three to six months. I am not sure why I didn't get any more work with the canteen after about 1995. I think that the canteen may have changed hands at about that time.
18.In February 1995 my daughter and some friends of hers bought a craft shop. I had been an Apprentice Air Craft Engine Fitter and so I knew how to use my hands quite well. I decided that I would try and make a living making craft products. I set up a workshop at the back of my house in a shed and got to work. I used to make all sorts of things. For example, I used to make bed lamps, mirrors, teddy bears, baskets, book ends, CD boxes. You name it, I had a go at making it. I was drinking a lot of alcohol at the time. I would go down to the shed of a morning at about 9.00 am with plans to put in a full day in making craft supplies but usually had my first beer by 9.30am and would drink steadily for the rest of the day. The beer didn't cost me much as I was making home brew at the time. The job was much better for me in some ways than marketing. For one thing I didn't have to deal with people anymore like I had with multi-level marketing. I much preferred being on my own down in my shed working at my own pace.
19.One day in late 1997 I was at a friends place and the topic of Vietnam came up. My friend noticed that I was upset by the mention of Vietnam and that I got a terrible headache. He suggested that I go and see a psychiatrist. I went and saw a GP at my local doctor's surgery. He gave me a referral to see Dr Freed, Psychiatrist. After leaving the surgery I tore up the referral. At that state I didn't believe there was anything wrong with me and I didn't want to see a psychiatrist. Sometime latter I was seeing my local GP, Dr Goldston and he suggested that I really should go and see a psychiatrist. He gave me a referral to see Dr Troup. I eventually saw Dr Troup, Psychiatrist early the next year. Dr Troup urged me to stop working as she felt that it was greatly effecting me.
20.When I went and saw a financial adviser in 1994 I wasn't planning for retirement from the work force in an immediate sense. I was planning my long term future. I was eligible for the service pension on the grounds of age in that year. The adviser helped me to fill the application in. At that stage I still wanted to keep working for as long as I could. I did actually keep working making craft supplies because this was the only work I could get."
It is clear from this chronology of events, and from the evidence of Dr Troup, that the applicant resisted acknowledging the developing problems which he was experiencing and was in a state of virtual denial until late 1997. During the period from 1976 – 1997 it is plain enough that his earning capacity was slowly going downhill until it was virtually non-existent. The cause of this gradual decline was obviously the war-caused injury.
To us, it is abundantly clear that if the applicant were free of his war-caused condition which was, alone, the source of his incapacity to undertake remunerative work, he would be able to undertake paid employment and it is accordingly true to say he is suffering a loss of salary, wages or earnings on his own account as required by Section 24(1)(c).
Section 24(2)(a) simply accentuates this "stand alone" test and Section 24(2)(b) makes provision for a veteran who has never before been engaged in remunerative work so long as he is genuinely looking for employment.
Section 24(1) and (2) apply to the applicant as he was not yet 65 years of age when he made his application.
The Acting Minister's Second Reading Speech introducing the Repatriation Legislation Amendment Bill 1985 referred to the purpose behind Section 24 as follows:
"…the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. It would be in only very rare cases that any veteran beyond the normal retirement age could be eligible for this pension."
Section 24(2A), which was introduced in 1994, was designed to give further effect to the intention expressed above. It has no application to the present case as the applicant was under 65 at the date of the application. However, it is of interest to note that the assessing authority under that Section is enjoined to consider the paid work which the veteran was "last" undertaking before making a claim.
The Section does not suggest that "last paid work" is synonymous with "paid work being undertaken immediately before the date of the application", although Section 24(2A)(f) makes it clear that the last paid work must have been undertaken after the veteran's 65th birthday in the case of a veteran who is over 65 when he applies.
No minimum level of lost remuneration is specified anywhere in Section 24. The case of Starcevich v Repatriation Commission (supra) suggests that the loss must be real, but it encompasses both the actual loss of earnings and the loss of the opportunity to work and earn money.
There is an obvious inference from the structure of the Section that the legislative intent is to provide an income supplement to those veterans who suffer war-caused incapacity prior to their normal retirement age of 65 years. If that supplement is to be secured after the veteran has reached 65 years of age, he must be able to show that he was earning income beyond his 65th birthday [Section 24(2A)]. Subsection (2A) appears to have had its legislative genesis in Parliament's response to the Federal Court decision of Starcevich v Repatriation Commission (supra).
All of this seems to us to be not only sound policy, but also good sense. There is no warrant for concluding that some measurable residue of income earning capacity must be extant at or immediately before the time the relevant application was made in the case of a veteran who is under 65. It seems entirely appropriate, however, that a veteran who applies when he is beyond the normal age for retirement must be able to show that he was actually earning after that birthday. It is noteworthy, however, that even in these circumstances there is no requirement that he must still be working when he makes his application.
In either case, the amount of pension supplement actually received by the veteran will be limited by the retrospectivity provisions contained in Section 21.
In our opinion these considerations combine to support our view that an applicant under Sections 24(1) and (2) need only show that by reason of his war-caused injury or disease alone he has been prevented from doing work which he has previously done and from which he derived monetary reward.
There is no provision in the legislation which specifies a time at which this analysis must be carried out. In some cases it will be soon after the disabling event. In others the disabling event may not be productive of relevant loss for many years.
It is the Tribunal's view that the applicant has been incapacitated by his relevant disabilities for working more than eight hours per week in any remunerative work in the competitive workforce since 1984 when he ceased full-time employment with Evans Deakin. He is still incapacitated by his relevant disabilities to this extent.
The other activities undertaken by the applicant were opportunities to work with family or friends or on his own where his conditions would be understood and compensated for by others. He was not in any way employable on the "open market" as a result of his accepted conditions.
That incapacity to work, resultant upon his relevant disabilities, is alone productive of his financial loss. The applicant lost his ability to earn a full-time wage in 1984 when he left Evans Deakin. His ability to earn any type of income has significantly decreased over the years as his capacity to undertake any type of remunerative work, even with family, was lost altogether.
The difficulty of finding new work by men of and beyond middle age has nothing to do with the present problem once it is accepted that the war-caused injuries are themselves responsible for his incapacity and that there are no other causes.
In our opinion the application to review should succeed and the applicant declared eligible for Special Rate pension. It is noted that the parties have agreed that in the event of the applicant's success, the date of effect is 11 September 1997.
The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant is entitled to be paid disability pension at the Special Rate with effect from 11 September 1997.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Hon. CR Wright QC, Deputy President, Brigadier IRW Brumfield, Member and Dr JB Morley, Member
Signed: Emma Oettinger
AssociateDate/s of Hearing 4.4.01
Date of Decision 30.4.01
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Messrs Gilshenan and Luton
Solicitor for the Respondent Mr B Williams, Departmental Advocate
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