Masters and Repatriation Commission - [2001] AATA 927

DECISION AND REASONS FOR DECISION [2001] AATA 927

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/246

VETERANS' APPEALS DIVISION       )
           Re      Barry John Masters
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr G A Mowbray

Date9 November 2001
PlaceCanberra

Decision      The Tribunal varies the decision under review of the Repatriation Commission of 28 April 1999 and determines that the Applicant, Mr Masters, is entitled to a disability pension payable at the special rate with the date of effect being 19 December 1998.
  ........G A Mowbray (sgd).................
  Member
CATCHWORDS
VETERANS' AFFAIRS – entitlements – special rate of pension – Post Traumatic Stress Disorder – tinnitus and bilateral perceptive deafness – whether totally and permanently incapacitated – whether war-caused incapacity alone preventing from undertaking remunerative work – whether other reasons for ceasing remunerative work

Veterans' Entitlements Act 1986 ss 19, 24, 28, 120(4)

Repatriation Commission v Smith (1987) 74 ALR 537
Forbes v Repatriation Commission [2000] FCA 328
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 26 AAR 93
Banovich v Repatriation Commission (1986) 69 ALR 395

REASONS FOR DECISION

9 November 2001 Mr G A Mowbray

This is an application by Mr Barry John Masters for review of a decision of the Repatriation Commission of 28 April 1999 that increased Mr Masters' disability pension to 100 percent of the general rate, but refused him a pension at the special rate. The decision of the Commission was affirmed by the Veterans' Review Board on 18 May 2000.
At the hearing on 5 October 2001, Mr Masters was represented by Mr Gary Corr of Counsel and the Commission by Mr Stephen Modder, a departmental advocate.
Background
Mr Masters was born on 2 February 1939 and joined the Regular Army in August 1956 serving until August 1976. He saw operational service in Vietnam between May 1968 and May 1969. Following his retirement from the army Mr Masters had a number of jobs before taking up a management position at the Tuggeranong Valley Rugby Union and Amateur Sports Club (the Club). He ceased work with that club on 18 December 1998.
Mr Masters has a number of disabilities which have been accepted for the purposes of the Veterans' Entitlements Act 1986 (the Act)
·     chronic cholecystitis with cholelithiasis and cholecystectomy
·     bilateral perceptive deafness
·     spondylosis cervical and lumbar spine
·     tinnitus
·     post traumatic stress disorder (PTSD)
·     chronic solar skin damage

The most relevant for the purposes of this application are bilateral perceptive deafness, tinnitus and PTSD. Mr Masters has no rejected disabilities.

Prior to Mr Masters lodging a claim on 17 July 1998 for an increase in his pension, he had been receiving a pension at 50% of the general rate. The Commission in its decision of 28 April 1999 increased Mr Masters pension from 50% to 100% of the general rate from and including 17 April 1998 and continued pension at 100% of the general rate from and including 16 December 1998. However the Commission refused to grant a pension at the special or intermediate rate. Mr Masters sought review from the Veterans' Review Board which affirmed the Commission's decision on 18 May 2000. On 10 July 2000 Mr Masters lodged an application for review with the Tribunal.
The Legislation
The relevant provisions of the Act are as follows
"19 Determination of claims and applications
(1) Where a claim or application is submitted to the Commission in accordance with subsection 17(2), the Commission shall:
(a) consider all matters that, in the Commission's opinion, are relevant to the claim or application; and
(b) subject to this section, determine the claim as provided by subsection (3); and
(c) subject to this section, determine an application under subsection 15(1) under subsection (5D); and
(d) subject to this section, determine an application under subsection 15(2) as provided by subsection (5).
(2) Without limiting the generality of paragraph (1)(a), the matters that the Commission may consider include:
(a) the evidence and documents that were submitted with the claim or application in accordance with subsection 17(3);
(b) any evidence subsequently submitted to the Commission in relation to the claim or application; and
(c) any evidence, documents or other material furnished to the Commission under section 32.
(3) The Commission shall determine a claim for a pension as follows:
(a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:
(i) the incapacity of a veteran from war-caused injury or war-caused disease, or both; or
(ii) the death of a veteran that was war-caused;
(b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D).
…
(4A) The Commission must deal with an application under subsection 15(1) in accordance with subsections (5A), (5B) and (5C) and determine the application under subsection (5D).
…
(5A) If:
(a) paragraph (3)(b) applies in respect of a claim; or
(b) subsection (4A) applies in respect of an application under subsection 15(1); or
(c) paragraph (5)(b) applies in respect of an application under subsection 15(2);
the Commission must assess the matters set out in subsection (5C).
(5B) The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case.
(5C) The matters that the Commission must assess are:
(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b) subject to subsection (6), the rate at which the pension is payable.
(5D) After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed.
(5E) Pension is payable from the date of effect of the determination made under:
(i) in the case of a claim—subsection (3); or
(ii) in the case of an application made under subsection 15(2)—paragraph (5)(a); or
(iii) in the case of an application made under subsection 15(1)—subsection (5D).
(5F) A determination under:
(a) subsection (3), in respect of a claim; or
(b) subsection (5), in respect of an application under subsection 15(2); or
(c) subsection (5D), in respect of an application under subsection 15(1);
takes effect from the date on which the determination is made or on such later or earlier date as is specified in the determination.
(6) Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.
…
(9) In this section:
application means an application made in accordance with section 15.
application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a) the day on which the claim or application was received at an office of the Department in Australia; or
(b) if subsection 20(2) or 21(2) applies to the person—the day on which the claim or application referred to in paragraph 20(2)(a) or 21(2)(a) was so received.
assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
…"
"24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(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; and
(d) section 25 does not apply to the veteran.
(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.
…"
"28 Capacity to undertake remunerative work
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, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable 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;
(b) the 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)."
"120 Standard of proof
…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…"

Documentary Evidence

The Tribunal had before it following documents which were taken into evidence
· Exhibit T1-T17 - the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
·     Exhibit A1 - Applicant's Statement of Facts and Contentions dated 2 October 2001
·     Exhibit A2 - statement of Mr Martin Peisley dated 26 September 2001
·     Exhibit A3 - letter from Employment National to the Vietnam Veterans Federation dated 16 December 1999
·     Exhibit A4 - letter from Mr Jim Shonk, former President and continuing Board Member of the Club to Gary Robb and Associates dated 5 February 2001
·     Exhibit A5 - letter from the Vietnam Veterans Counselling Service to Gary Robb and Associates dated 16 March 2001
·     Exhibit R1 - Respondent's Statement of Facts and Contentions dated 3 October 2001
·     Exhibit R2 - report from the Vocational Capacity Centre dated 16 January 2001, including two attachments
·     Exhibit R3 - letter from the Tuggeranong Valley Rugby Union and Amateur Sports Club to the Commonwealth Department of Veterans' Affairs dated 10 January 2001, including five attachments
·     Exhibit R4 - letter from Mr Terry Crane, former President of the Club to the Department of Veterans' Affairs dated 10 January 2001, including one attachment
·     Exhibit R5 - medical report from Dr John Saboisky to the Department of Veterans' Affairs dated 19 February 2001
·     Exhibit R6 - clinical notes from Dr Phillip Greehalgh.

The Applicant's Evidence

In his oral evidence to the Tribunal, the Applicant, Mr Barry Masters, provided background information on his time in the Australian Regular Army including service under fire in Vietnam, his employment prior to joining the Club in 1982 and his work at the Club. Mr Masters had been employed by the Club in a number of management positions and had a number of promotions and demotions. The positions had also undergone a number of name changes.
Mr Masters had worked hard at the Club and rarely had any time off sick. Until about 1993 he had been working up to 80 hours per week. He had also been involved in a number of industry bodies, although this had arisen from his contacts in the industry and not through nomination by the Club.
Mr Masters had found work at the Club satisfactory until his last few years there. During 1997 and 1998 he began to experience difficulties coping with the job
·     he was moved around at the Club
·     his health was becoming progressively worse: he was often irritable and impatient, he was easily upset and would flare up, he was not able to handle stress and was depressed, and he suffered increased difficulties with his hearing
·     he also was subject to criticism from the Board with which he found himself in conflict. He would often argue with the directors
·     he consequently sought counselling from the Vietnam Veterans Counselling Service and saw Dr Brian White.
In September 1998 Mr Tony Mathew was appointed General Manager of the Club. Mr Masters found himself in conflict with Mr Mathew who took responsibilities away from him leaving him with very little work to do. Following a meeting in Mr Masters' office with the President of the Club, Mr Terry Crane, and another Club official, Mr Masters was offered a redundancy package which he accepted, ceasing employment with the Club on 18 December 1998. Mr Masters testified that
·     he approached neither the Club nor its General Manager seeking to negotiate early termination of his employment contract
·     rather the redundancy package came up in a range of options discussed at the meeting with Mr Crane
·     the redundancy was not really 'voluntary' but was to assist him 'get out'
·     he did not know whether the Club was planning a restructure at the time he left - 'the directors held their cards close to their chest about what they were doing'
·     his rating as 'satisfactory' in the performance appraisals in 1997 and 1998 (Exhibit R3) failed to tell the full story. These ratings were arrived at after considerable friction, argument and stress. Mr Masters' rating of 'satisfactory' (or 2 on a scale of 1 to 4, with 1 being the lowest) was 'one of the worst in the Club'.
If it had not been for his illness Mr Masters said that he would have continued working. As it was he continued to look for work in the club industry and in human resource management
· he had spoken to the sales manager of a leading industry firm, registered with Employment National with whom he had a number of pre-interviews, and tried to obtain work with a teaching organisation, but none of these had proved successful
· Mr Masters had also registered an ABN in the hope of obtaining contract work or part-time teaching, but this had also been unsuccessful.
However Mr Masters said that he would not be able to work as a full-time employee

he suffers from shakes, gets very depressed, and has flashbacks from Vietnam
he is unable to hear when there is background noise and can not cope with physical work
he does not believe that he could work for two days work per week, nor for three mornings per week. He would find this too stressful.

Mr Masters was adamant that a heart attack that he had suffered in 1991 had no bearing on his ability to undertake work. His heart condition had never subsequently restricted his activities.
Mr Masters impressed the Tribunal as an honest witness. He did not seek to overstate his case and where apparent contradictions were pointed out to him in cross-examination, he provided frank and plausible explanations.
Mr Martin Peisley's Evidence
Mr Peisley gave oral evidence and also provided a witness statement to the Tribunal (Exhibit A2). He said that he had known Mr Masters for the past 16 years whilst the applicant was employed by the Club. Mr Peisley had been on the Board of the Club for 10 of the last 11 years. He had found Mr Masters an honest and hard-working person up until the last 12 months of his employment with the Club. In that last 12 months Mr Masters displayed mood swings and became depressed and withdrawn. His attitude and character changed and he became aggressive to staff and directors. He struggled with his work performance.
The Board became concerned with Mr Masters' performance and various strategies were developed to remove him from office. The General Manager, Mr Mathew, was entrusted by the Executive to find a means for this removal. A redundancy package was selected as the best way to proceed as the Board was particularly concerned to ensure that Mr Masters' departure did not look like a 'wrongful dismissal' – the Club had recently been involved in a dispute over the departure of another employee.
Mr Peisley himself wanted to see that Mr Masters was treated properly. He told the Board that he was not happy with Mr Masters' proposed departure. Mr Masters had shown loyalty to the Club and deserved better. However he was certain that the Board would have taken more drastic action if Mr Masters had not taken the package. He was aware that Mr Masters' performance had been rated as satisfactory but this was at the lower end of the scale and a bare minimum in any staff review – 'at the time the feeling was that Mr Masters was satisfactory but only just satisfactory'. Mr Peisley said that he could not remember anyone being given an unsatisfactory rating (1 on the rating scale of 1 to 4).
The Medical Evidence
Dr Brian White
Dr Brian White, a psychiatrist, first saw Mr Masters on 20 October 1998. In his report of 21 October 1998 (Exhibit T7) Dr White outlined Mr Masters' symptoms including limited sleep, a variable concentration, limited social interaction, flashbacks to events in Vietnam and a recent inability to cope with work. He diagnosed chronic PTSD related to Mr Masters' service in Vietnam, with associated depression. This was also partly related to be his hearing loss and tinnitus and had been worsened with the stresses of heart disease.
Dr White again saw Mr Masters on 9 December 1999 (attachment to Exhibit T16 at 76). He found Mr Masters still had distressing intrusive memories of Vietnam, his concentration was poor, he was forgetful, he was easily distressed and his sleep remained unsettled. Mr Masters' mood was quite depressed. Dr White confirmed his earlier diagnosis of chronic PTSD related to Mr Masters' service in Vietnam and an associated Major Depressive Disorder worsened by his hearing loss and tinnitus. His PTSD would continue for the foreseeable future, although the severity would fluctuate.

Dr White was of the view that as a result of these war service related medical conditions Mr Masters was permanently unfit for work of more than eight hours a week. He 'recommended' that Mr Masters was permanently unfit for any full or part-time employment for which he was suited by education, training or experience and that he should be on a TPI pension. Due to his poor concentration he was unfit for any significant retraining.
In his oral evidence Dr White confirmed the details of his written reports. In particular, Mr Masters suffered from a significant degree of disability which Dr White initially estimated at GARP 40 but later increased to GARP 44. This had serious implications for his fitness for work. Dr White testified
·     complete resolution of Mr Masters' condition was rarely if ever seen
·     as he would not cope well with any stress, even minor pressures, he was not able to work
·     it was characteristic of patients with PTSD, especially ex-military persons, that they tended to present better than they functioned. They may not present as dysfunctional but do not in fact function well at all
·     although Mr Masters' heart disease and the drug problem of his stepson would exacerbate his PTSD, PTSD was the critical issue for him, not heart disease nor the drug problem
·     he would not be able to cope with two days per week work, nor three mornings per week, or even eight hours per week
·     the maximum he could undertake would be voluntary work for two to three hours, two or three times per week and the work would have to be 'very forgiving'.
Dr John Saboisky
On 19 February 2001 Dr Saboisky, a consultant psychiatrist, reported on his examination of Mr Masters on 21 December 2000 and 19 January 2001 (Exhibit R5). Dr Saboisky was not called to give oral evidence. The report indicates that Mr Masters' problems at work began in 1993 when a new president reorganised the Club. It was then that Mr Masters was told that he was unsociable, irritable and argumentative. Matters became much worse in September 1998 when a new general manager was appointed.
Dr Saboisky agreed with Dr White that Mr Masters had symptoms of PTSD which were chronic with an 'Adjustment Disorder with depressed mood which appears to be inextricably linked to difficulties in his work place'. Dr Saboisky further stated that

although Mr Masters' PTSD symptoms were chronic, they were not any more of a problem immediately prior to his departure from the Club
there was no real relationship between problems at work and his PTSD
Mr Masters' primary symptoms were not that of PTSD but that of major depression related to significant difficulties at home and his relationships with certain people at work. He was depressed, frustrated and angry about his treatment by management
Mr Masters would have preferred to have stayed in employment were it not for the deterioration in his relationship with his immediate superior
Dr Saboisky's assessment of Mr Masters' GARP rating was 19
the PTSD symptoms would not have prevented Mr Masters from working more than 20 hours per week.
The Vocational Capacity Centre

Exhibit R2 consisted of a summary report of 16 January 2001 from the Vocational Capacity Centre and attached Medical Assessment and Vocational Assessment Reports dated 8 December 2000. The Centre concluded
"At present it is considered Mr Masters is not able to function effectively in the workforce. This is on the basis of psychological issues related to his accepted condition of Post Traumatic Stress Disorder. He has great difficulty concentrating, solving problems, completing basic clerical tasks and when he becomes stressed, attempts to avoid the problem and then reacts angrily and may leave the situation. If his condition significantly improves he may be able to return to the workforce in less demanding roles such as a filing clerk, mail officer or product assembler. However at present it is unlikely that Mr Masters would consider such positions as being acceptable."

The Medical Assessment Report estimated that Mr Masters had an overall combined impairment rating of 50 points. It also found that Mr Masters had no physical problem which would prevent him from working, while noting that this did not cover psychiatric problems.
The Vocational Assessment Report found that on a general adjustment scale Mr Masters gained a score in the extremely severe range for stress and anxiety and a score in the normal range for depression. Mr Masters' score on the PTSD checklist was consistent with his diagnosis of PTSD. This Report concluded that

it was likely that Mr Masters' PTSD, deafness and tinnitus would prevent him from working for eight hours or more per week
his accepted disabilities were the substantial cause of his inability to work for eight hours or more per week
although Mr Masters had previously made some attempt to gain employment, at the time of assessment he did not appear to be genuinely seeking work across the full spectrum of occupations, although this was a tentative view based on less than full information
Mr Masters' PTSD symptoms would have prevented him from working since July 1998 for more than eight hours per week
it was not possible to identify a suitable occupation for Mr Masters involving 20 hours or more per week
as Mr Masters presented at the assessment, the assessor did not accept that he would be able to function effectively in the workforce.

Discussion and findings

The Tribunal notes that in making any determination, decision or assessment it must decide the matter to its reasonable satisfaction (section 120(4)). This standard of proof equates to satisfaction on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
Furthermore eligibility for the special rate of pension must be assessed throughout the assessment period, ie the period starting on the day the application is received (17 July 1998) and ending on the day the application is decided (section 19). Thus the Tribunal may determine the rate of pension for which the applicant is eligible at any time between the date of the application and the date of the Tribunal's decision and the applicant must comply with the eligibility criteria in section 24 at some time during this period (Forbes v Repatriation Commission [2000] FCA 328, paragraph 18).
Findings on uncontentious matters
The Tribunal makes the following findings on various uncontentious matters

on 17 July 1998 Mr Masters made an application under section 15 of the Act for an increase in the rate of pension that he was receiving (section 24(1)(aa))
his date of birth being 2 February 1939, he had not turned 65 when this application was made (section 24(1)(aab))
Mr Masters' degree of incapacity from war-caused injury had been determined to be 100 percent by a determination which was in force (Exhibit T11) (section 24(1)(a))
there is no evidence that section 25, which relates to periods of temporary incapacity, applies to Mr Masters (section 24(1)(d)).
Is Mr Masters totally and permanently incapacitated?

Under section 24(1)(b) Mr Masters' war-caused incapacity, and that incapacity alone, must be responsible for him being incapable of undertaking remunerative work for more than eight hours per week. In deciding this the only matters which may be considered are

Mr Masters' vocational, trade and professional skills, qualifications and experience
the kinds of remunerative work which a person with his skills, qualifications and experience might reasonably undertake
the degree to which Mr Masters' condition has reduced his capacity to undertake these kinds of remunerative work (section 28).

In applying a similar 'alone' test in section 24(1)(c) Justice Burchett said that the Tribunal's task was
"… 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 nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide." (Cavell v Repatriation Commission (1988) 9 AAR 534, 539)(emphasis added)

The question then is whether Mr Masters is incapable of undertaking remunerative work for more than eight hours a week and if so, whether that incapacity is attributable solely to Mr Masters' war-caused disabilities.
In his Contentions Mr Masters asserted that the great majority of the evidence suggested that his war-caused incapacity, particularly his PTSD, 'of itself alone' rendered him incapable of work (Exhibit A1). His Counsel, Mr Corr, relied in particular on the conclusion of Vocational Psychologist, Mr Taylor, that 'Mr Masters' PTSD symptoms would have prevented him from working since July 1998' (Exhibit R2).
The Repatriation Commission contended that on the balance of probabilities Mr Masters was not totally and permanently incapacitated by his accepted disabilities alone. The Commission relied on the evidence of Dr Saboisky that Mr Masters' PTSD symptoms would not have prevented him from working more than 20 hours per week (Exhibit R5) and the report of the Consultant Rehabilitation Physician, Dr Bowers, that Mr Masters had no physical problem which would prevent him from working (Exhibit R2). The Commission also referred to the evidence of Mr Mathew, General Manager of the Club, that Mr Masters' performance was satisfactory as reflected in his 1997 and 1998 performance appraisals (Exhibit R3) and that of the President of the Club at the time, Mr Crane, that Mr Masters' performance had always been satisfactory (Exhibit R4). At the time of his leaving the Club in December 1998 Mr Masters could not then have been totally and permanently incapacitated.
The Tribunal finds that Mr Masters is incapable of undertaking any remunerative work for periods aggregating more than eight hours per week, and that this is solely attributable to his war-caused disabilities of PTSD, deafness and tinnitus. Indeed, on the evidence of Dr White, Mr Masters would be lucky to be able to undertake two to three hours voluntary work two or three times a week. Only Dr Saboisky's evidence suggests otherwise. The Tribunal prefers the evidence of Dr White, Mr Masters' treating psychiatrist, whose written reports were consistent with that of the Vocational Capacity Centre and were confirmed in his oral evidence. It is true that Dr Bowers stated that Mr Masters had no physical problem which would prevent him from working. However he expressly disavowed any expertise with psychiatric problems.
In view of the finding that Mr Masters is incapable of undertaking any remunerative work for more than eight hours per week, it is unnecessary to look at Mr Masters' skills, qualifications and experience, and the kinds of remunerative work which he might reasonably undertake.
Is Mr Masters' war-caused incapacity alone preventing him from working and thereby causing a loss in salary, wages or earnings?
Section 24(1)(c) requires that it is the veteran's war-caused injury which has not only led to the veteran not being able to work, but has also resulted in a loss in salary, wages or earnings for the veteran. In particular it focuses on whether there are reasons other than war-related injuries which caused the veteran to cease working or prevent the veteran from working.
In Flentjar v Repatriation Commission (1997) 26 AAR 93, 96 Justice Branson, with whom the other members of the Court agreed, held that section 24(1)(c) required answers to four questions
"1.       What was the relevant "remunerative work that the veteran was undertaking" within the meaning of section 24(1)(c) of the Act?
2.        Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.        If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.        If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?"

Mr Masters through his Contentions and his Counsel submitted that

during 1998 he was having real difficulties coping with his employment and by December 1998 was no longer able to cope
his removal from his job at the Club was only in a formal sense a 'voluntary redundancy'
the 'voluntary redundancy' was in fact a face saving means for Mr Masters to be removed from the workplace and also for the Club to avoid the possibility of unfair dismissal litigation
his employment at the Club was terminated because of his war-caused disabilities
if the Tribunal were to accept that Mr Masters' removal from the Club was not solely due to his war-caused disabilities, his ongoing unemployment certainly was
Mr Masters had genuinely sought employment but has been unable to obtain this
the cause, not just the substantial cause, of his failure to obtain employment was his war-related injuries.

The principal submission of the Commission was that Mr Masters did not satisfy section 24(1)(c), as qualified by section 24(2)(a)

the evidence was that Mr Masters accepted a voluntary redundancy in December 1998 after he advised that he was interested in negotiating early termination of his employment contract because he could not adjust to the new management style in the Club
the Club was able to offer Mr Masters a redundancy package as the area of the Club in which Mr Masters was employed as a manager was being restructured
the evidence supported the view that Mr Masters was capable of undertaking work at the time he left the Club: he was doing all the duties required of him, his previous performance reviews had been satisfactory, and he sat on a number of peak bodies. This was all despite some dissatisfaction from the Board.

The main point of contention therefore was whether Mr Masters sought a redundancy package and was voluntarily retired or whether the retirement package was just a face saving means for ensuring the termination of Mr Masters' employment. The Commission in asserting the former referred to written evidence of the General Manager of the Club (Exhibit R3) and of the President of the Club at the time (Exhibit R4).
However under cross-examination Mr Masters vigorously denied that he approached the General Manager seeking to negotiate early termination. The redundancy package, he said, came up in a range of options discussed at a meeting with the Club President. Mr Peisley supported Mr Masters' version of the events, noting that the Board would have taken more drastic action if Mr Masters had not retired. The package was selected as 'the best way to proceed'.
The Tribunal accepts the evidence of Messrs Masters and Peisley and is more than satisfied that the voluntary redundancy package taken by Mr Masters was a strategy adopted by the Board to achieve its aim of removing Mr Masters whose performance was no longer satisfactory because of his war-caused disabilities. Both Messrs Masters and Peisley proved credible witnesses whose testimony stood up in cross-examination.
The Commission also suggested that another material reason for Mr Masters leaving the Club was the general state of friction and unhappiness at the Club at that time. Furthermore it was said that Mr Masters' heart condition was a factor in his departure and in also preventing him continuing to work. The weight of evidence does not support either of these submissions and the Tribunal rejects them.
The Tribunal now turns to the questions that the decision in Flentjar requires to be answered. In question 1, the phrase "remunerative work that the veteran was undertaking" does not refer to any particular job that the veteran had but to the type of work that the veteran previously undertook (Banovich v Repatriation Commission (1986) 69 ALR 395). The Tribunal finds that in Mr Masters' case this was club management with a particular emphasis on human resource management and training (see for example Exhibits T3 at 16 and R2).
For the reasons given in considering whether Mr Masters is totally and permanently incapacitated for the purposes of section 24(1)(b) (see paragraphs 31 to 37 above), taken with the reasons above, the answer to question 2 is yes. The Tribunal finds that Mr Masters is, by reason of his war-caused injuries, prevented from continuing to undertake club management work.
The answer to question 3 is also yes. In practical terms (see Cavell) taking the evidence as a whole it is clear that the sole reason for Mr Masters' loss of employment was his war-caused disabilities. It is also the only reason why Mr Masters is prevented from engaging in remunerative work. The Tribunal therefore is reasonably satisfied that Mr Masters' war-caused disabilities of PTSD, deafness and tinnitus are the only factors preventing him from continuing to undertake club management work.
The answer to question 4 is yes. Despite attempts to obtain work Mr Masters has not been engaged in any remunerative employment since he left the Club. He has clearly suffered a loss in income that he would not have suffered if he were free of his disabilities. In the Tribunal's view Mr Masters would have continued to work in the club industry during the assessment period had he been free of these war-caused disabilities. For the reasons given above section 24(2)(a) does not apply to disqualify Mr Masters as his loss of employment and inability to obtain remunerative work were solely attributable to these disabilities.
The test set out in Flentjar having been satisfied, the Tribunal finds that Mr Masters' war-caused incapacity alone prevented him from continuing to undertake the remunerative work that he had been undertaking and thereby caused a loss in income that he would not have suffered if he had been free of that incapacity.
Conclusion
Mr Masters has satisfied all the conditions set out in section 24(1) at the time he ceased employment with the Club on 18 December 1998, a date which falls within the assessment period. He is therefore entitled to a disability pension payable at the special rate. The parties agreed that in these circumstances the date of effect would be 19 December 1998.
Decision
The Tribunal varies the decision under review of the Repatriation Commission of 28 April 1999 and determines that the Applicant, Mr Masters, is entitled to a disability pension payable at the special rate with the date of effect being 19 December 1998.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:         ..........Trevor Mobbs (sgd)................................
  Associate
Date/s of Hearing  5 October 2001
Date of Decision  9 November 2001
Counsel for the Applicant        Mr Gary Corr
Solicitor for the Applicant         Gary Robb & Associates
Counsel for the Respondent    Mr Stephen Modder
Solicitor for the Respondent    Advocacy Section, Dept of Veterans' Affairs

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Citations

Masters and Repatriation Commission [2001] AATA 927

Cases Citing This Decision

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6

Statutory Material Cited

0

Wright v Repatriation Commission [2005] FCA 7

Repatriation Commission v Smith, M.J [1987] FCA 432

Forbes v Repatriation Commission [2000] FCA 328