Matthews and Repatriation Commission
[2004] AATA 314
•25 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 314
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/394
VETERANS' APPEALS DIVISION ) Re BARRY MATTHEWS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier R D F Lloyd, Member Date25 March 2004
PlacePerth
Decision The decision under review is affirmed.
..............(sgd R D F Lloyd)..................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – ex RAN – post service employment: prison officer then courier/driver – claims pension at Special Rate – whether ceased work and prevented from continuing to undertake remunerative work by reason of incapacity from accepted war caused disabilities alone – s 24(1)(c) the only issue – decision affirmed
REASONS FOR DECISION
25 March 2004 Brigadier R D F Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Mr Barry Matthews (“the applicant”) for a review of a decision of the Veterans’ Review Board (“the VRB”) of 13 September 2002 affirming an earlier decision by the Repatriation Commission (“the respondent”) dated 27 June 2001. That decision rejected the applicant’s claim that pension should be paid at the Special Rate and continued his disability pension at 100% of the General Rate.
2. The applicant attended the hearing with his advocate Mr C Hammal and the respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition the following documents were taken into evidence:
(a) At the request of the applicant’s advocate:
·Exhibit A1: Copy of letter from Mr Hammal and Mr Matthews to the Executive Director Prisons Division, dated 30 January 2003.
·Exhibit A2: Letter from David Young, Manager FOI Unit of Department of Justice, dated 13 February 2003, and attachment.
·Exhibit A3: Letter from Centrelink to Mrs Matthews dated 21 May 2003.
·Exhibit A4: Letter from Centrelink to Mr and Mrs Matthews dated 26 May 2003.
·Exhibit A5: Centrelink Printout – Historical Documents List: 10 January 1994 to 10 December 2001.
·Exhibit A6: Centrelink Payment Summary for July 2000
·Exhibit A7: Centrelink Printout – Pensions Payment History: 1993/94
·Exhibit A8: Centrelink Printout – Document History: February to May 2003
(b) At the respondent’s request:
·Exhibit R1: Service Pension Claim – Invalidity Details: Mr B Matthews – DVA Form D512, dated 14 April 1994.
·Exhibit R2: Medical Report – Permanent Incapacity for Service Pension Purposes – Mr B Matthews – completed by Dr T A Costley, dated 14 April 1994.
3. The applicant gave oral evidence at the hearing, but with some difficulty at times - which was understandable. His recollection of events and circumstances was somewhat hazy – as was to be expected. However, he answered questions posed by the Tribunal in a relatively forthright manner and overall I regarded him as an honest witness. In addition his wife gave oral evidence, which was helpful to the Tribunal, and I regarded her also as a credible witness – providing information concerning relevant domestic matters, some of which were obviously difficult and distressing for her to describe.
4. The applicant’s post RAN employment was as a prisons officer for 18 years. He left that at his own request (health) in 1989 and subsequently became a contract courier for a Perth courier firm for a short time – until March 1990, when he maintained he again needed to cease that employment for health reasons. He has not worked since.
5. The applicant’s recognised disabilities are as follows:
(a) Accepted as Service-related and for which he, as a consequence, currently receives disability pension as determined by the respondent at 100% of the General Rate:
§Lumbar Spondylosis
§Bilateral Sensorineural Hearing Loss and Tinnitus
§Impotence
§PTSD
§Major Depressive Disorder
§Psychoactive Substance Abuse or Dependence Involving Alcohol
(b) The following disabilities have been rejected as being Service-related:
§Osteoarthritis of Both Hips and Left Knee
§Right Meniscectomy
§Peripheral Vascular Disease
§Osteoarthrosis of the Right Knee
§Scleroderma
§Cervical Spondylosis
§Osteoarthrosis of the Left and Right Knees
§Osteoarthrosis of the Left and Right Hips
(c) He has also been diagnosed as suffering additional conditions, including the following:
§Amputated Left Index Finger
§Ischaemic Changes to Fingers of Right Hand
§Cartilage Removal Right Knee
§Prolapsed Disc in Lumbar Spine – L4/5
§Raynaud’s Disease
6. It was common ground that Mr Matthews has incapacity from his accepted disabilities that should be rated at not less than 100% of the General Rate. Based on the evidence before it, the Tribunal is also satisfied that this is so. The applicant is currently 64 years old, having been born in July 1939, and has been receiving disability pension at 100% of the General Rate since 1997.
The Law – Eligibility For Special Rate of Pension
7. The requirements for Special Rate are contained in s24 of the Act and to be eligible all criteria must be met. In particular, to be noted, this applies to the three criteria of s24(1) – all of which must be met at some time during the assessment period. In this case this is from 21 June 2001, when Mr Matthews made his claim, to the present date. The Act, in s24, states as follows:
“Special Rate of Pension
24.(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 had 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 veterans’ 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)…
(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.”
8. The Act requires that the Tribunal decide this matter to its reasonable satisfaction, i.e. on the balance of probabilities.
Contentions and Related Evidence
9. The applicant has properly made a claim under the relevant provisions of the Act. He has not yet turned 65 years of age (July 2004) and the degree of incapacity from his accepted Service-related conditions is currently assessed, as is required by the Act, at 70% or more (in fact 100%), by a determination that is in force. It is common ground, and the Tribunal agrees, that Mr Matthews as a consequence meets the criteria of s 24(1)(aa), (aab) and s 24(1)(a) of the Act.
10. Both parties agree that the applicant’s incapacity from his Service-related disabilities results in him being totally and permanently incapacitated and that this incapacity renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The Tribunal is relevantly satisfied that there is sufficient opinion evidence in the T documents and from the oral evidence given at the hearing to justify this conclusion. The Tribunal finds that the requirements of s 24(1)(b) of the Act are therefore also met by the applicant’s circumstances.
11. It is s 24(1)(c) that is the point of disagreement between the parties. The respondent, as did the VRB in the decision under review, does not accept the applicant’s contention that he ceased work – finally in March 1990, or in terms of the Act that he was “prevented from continuing to undertake remunerative work that he was undertaking”, by reason of incapacity from his accepted Service-related conditions alone, and is consequently suffering a loss of earnings that would otherwise not be the case.
12. The Tribunal is therefore concerned only as to whether the applicant meets the requirements of this one outstanding section – s 24(1)(c), and if relevant s 24(2) as it affects s 24(1)(c).
13. The applicant’s evidence in this respect highlights the following aspects, as summarised:
(a)It was only in the final year or so of his time as a prisons officer that he had difficulties. He became short tempered with his fellow officers and with the prisoners. He consulted doctors once or twice per week, but to no avail. He felt “sick in the head”.
(b)By 1988/early 1989 Mr Matthews states he was having to force himself to go to work. Particularly the shift work was proving more and more difficult for him to cope with. Although he initially was managing once he got to work, it didn’t last and his feelings of anger and shortness of temper increased as the shift went on.
(c)He maintains that he didn’t want to leave the prisons job early, after 18 years, and without the benefit of his full superannuation, but in the end (1989) he ceased that employment. He did so at his own request – believing that, with his behaviour as it was on the job, he may “…strike a prisoner or even a fellow officer…” in a fit of temper. In his oral evidence he also gave the additional reasons of being “…sick of work…” and being “ sick of everything”. He says he now believes that he was at that time unknowingly suffering some of the symptoms of the conditions of PTSD and Depression which were not formally diagnosed until later (1997).
(d)Mr Matthews went on unemployment benefits and attempted several courses to fit him for work that would be less stressful than in the prisons. Initially he was not successful in getting such employment and he now maintains that this was because he was regarded by potential employers as being too old.
(e)In the end result however, later in 1989, he managed to obtain employment as a contract courier with a Perth courier firm. He was required to have his own vehicle for this and so purchased a utility with his “super money and by selling…”. He drove this vehicle himself and worked alone. The job, he says, was not stressful and he was managing quite well.
(f)However in 1990 he developed a gall bladder problem and was hospitalised for its removal. According to the evidence available to the Tribunal, the operation was successful and without complication. However the applicant states that it was at this stage that his doctor informed him that he was, from then onwards, not to lift any item more than 15kg in weight. There is no documented evidence before the Tribunal to substantiate or explain this related restriction. The information generally available on gall bladder problems and its removal indicates no likely adverse post operative effects or need for long term restrictions in activity.
(g)Nevertheless, despite pointed questioning by the Tribunal, the applicant is adamant that it was because of this gall bladder operation and the related lifting restriction that he ceased work with the courier firm in March 1990, and has not worked since. The gall bladder condition was/is not Service-related.
(h)It is relevant that the Tribunal note at this point that in his submissions at the hearing, the applicant’s advocate commented on this aspect of the applicants’ contention concerning the reason for his ceasing work as a courier. Mr Hammal advises that it was his view, based on his dealings with the applicant, that the gall bladder/weight lifting reasoning by Mr Matthews was to ‘cover up’ his unwillingness to admit his psychiatric problems and the effects these had on his ability to cope with continuing work and on his general/domestic behaviour.
(i)The Tribunal notes Mr Hammal’s lay assessment in this regard and puts due weight on it, but at the same time also bearing in mind the applicant’s own evidence to the contrary and other associated evidence before the Tribunal.
(j)The applicant states that he then took unemployment/sickness benefits. Subsequently he became aware of the Service Pension system that was available to him, and in 1994 he applied for and was granted that pension on the grounds of ‘permanent incapacity’. The applicant’s claim for Service Pension is at Exhibit R1 and the relevant parts, completed by him on 14 April 1994, state as follows:
§The illnesses or injuries which made him unable to work were said by him to be osteoarthritis starting in 1979 and Raynaud’s Disease starting in 1992
§He stated he had trouble standing and walking for any length of time, and that he had lost a finger
§He stated that he last worked in March 1990.
(k)On medical examination for the Service Pension, the applicant’s local doctor (Dr Costley) in his report dated 14 April 1994 (Exhibit R2), indicated that the applicant’s major medical problems were peripheral vascular (arterial) disease and long standing degenerative arthritis of both knees. The doctor reported that the applicant’s minor medical problems were lumbar spine and hip osteoarthritis and cholecystectomy. He also reported the amputation of left index finger (1994), with evidence of ischaemic changes to fingers of the right hand as well – and the probability of requiring further amputation of fingers. Dr Costley also opined that:
“[Mr Matthews is] not fit for full time work. Not fit for manual work at all and not trained for professional or clerical work.”
The Tribunal notes that, with the exception of lumbar spondylosis, none of the other ailments recorded by Dr Costley are accepted as being Service-related conditions.
(l)Mr Matthews later consulted a rehabilitation specialist – Dr PC Anderson, and his report dated 20 August 1997 is at T4 pages 8 and 9. Dr Anderson noted that he had impairment of: the cervical spine, with restriction of movement; of the right shoulder with pain and stiffness; of the lower limbs and particularly the right knee; and peripheral vascular disease attributable to scleroderma with loss of the left index finger, as well a segment of the right index finger and with the right middle finger presenting problems with incipient gangrene. Dr Anderson also commented on the applicant’s lumbar spondylosis and resultant incapacity as being significant. It is noted that with the exception of this latter condition, none of the other ailments/disabilities as listed above are conditions accepted as Service-related.
14. Despite this substantial evidence of disabilities other than those accepted as Service-related, the applicant’s advocate contends (on Mr Matthews’ behalf) that it was the major ailments of PTSD, Depressive Disorder and Alcohol Abuse/Dependence that were the real reason for him ceasing work – finally in March 1990 – and which continue to prevent him from working. All three of these conditions are accepted as being Service-related. It is contended by the applicant that the other conditions such as knees, hips, scleroderma and upper spine were ‘minor players’ and had it not been for those three psychiatric type conditions the would not have ceased work and would probably still be working today. Hence it is contended by the applicant that he should be regarded as meeting the requirements of s 24(1)(c) of the Act.
15. The respondent, on the other hand, contends that the applicant does not meet the s 24(1)(c) requirements, i.e. the ‘alone test’. It is the respondent’s view from the evidence that the problems during the relevant time from the applicant’s non-accepted disabilities resulted in more than an inconsequential impairment, in addition to that of his accepted disabilities – even if one were to accept that the latter had an effect as early as the applicant suggests, i.e. some 7 years prior to their being formally diagnosed.
16. The respondent cites the Federal Court in Forbes v Repatriation Commission [2000] FCA 328, in which Nicholson J states in part as follows:
“…it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such an effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provisions of s 24(2)(b)…”
17. The respondent contends that the applicant’s circumstances result in him not meeting the requirements of s 24(2). He emphasises that there is the matter of not genuinely seeking to engage in work post March 1990 and also that it is not the war-caused conditions only that lead to loss of earnings.
Tribunal Findings and Conclusions
As previously stated, it is common ground and the Tribunal is relevantly satisfied that the applicant satisfies s 24(1)(aa), (aab), (a) and s 24(1)(b) in relation to eligibility for the Special Rate. It is only s 24(1)(c) therefore that is at issue.
18. In considering whether Mr Matthew satisfies s 24(1)(c) the Tribunal not only referred to Forbes v Repatriation Commission as cited by the respondent, but also took account of the relevant content of Flantjar v Repatriation Commission (1997) 48 ALD 1 and that of Moorcroft v Repatriation Commission [1999] FCA 862. The Tribunal’s essential findings in this respect are:
(a)Symptoms of the applicant’s conditions of PTSD and Depressive Disorder – whilst not formally diagnosed (and accepted as war-caused) until 1997, are likely to have started earlier than that and this is supported by the evidence of both the applicant and his wife. How much earlier, the Tribunal is unable to firmly establish from the evidence available.
(b)However it is clear from the material before it, including the evidence of the applicant, that there were other major health conditions of significance involved in his ceasing work – initially in 1989 and finally in 1990. The Tribunal is prepared to accept that some of his reasons for ceasing work in 1990 as a courier may be being purposely ‘camouflaged’ by the applicant using his stated belief concerning the gall bladder operation and the alleged associated lifting of weights restriction, as has been suggested by Mr Hammal. Nevertheless, based on the evidence before it, the Tribunal is unable to be reasonably satisfied that it was predominantly his accepted disabilities (i.e. his psychiatric conditions not to be formally diagnosed for another 7 years) that were the reason for his ceasing work. His accepted lumbar spondylosis is said by him to be of little concern (c.f. Dr Anderson’s comment) and the other accepted conditions are not relevant.
(c)The Tribunal finds that by 1994 his major ailments were as set out by the applicant and the examining doctor in the claim for Service Pension. They were of a magnitude that led to his being granted that pension on the grounds of ‘permanent incapacity’. As summarised in paragraph 13(k) of these Reasons, they did not include any of his psychiatric conditions (which did not receive even a mention by the applicant or the doctor – see Exhibits R1 and R2) and in the main comprised conditions which were subsequently rejected as being Service-related or were not claimed as such.
(d)Furthermore, based on the evidence, the Tribunal finds that these conditions are not minor ailments. They are in fact major disabilities, not accepted as Service-related and which, together with those that are, prevent the applicant from continuing to obtain remunerative work. By his own evidence in this respect his knees are a major problem – his right knee in particular. He has been using crutches since 1997, had a knee operation in 1998 and indications are that he will have to have further operations. The knees are rejected as being Service-related, as are his hip problems which continue to limit his mobility also.
19. Based on these findings, the Tribunal is unable to be reasonably satisfied that it is the incapacity from the applicant’s war-caused disabilities alone that prevents him from continuing to undertake remunerative work. In this respect the Tribunal is not relevantly satisfied that the applicant’s non-accepted disabilities provide only such an inconsequential impairment as to enable them to be ‘disregarded’ by the Tribunal in comparison with the accepted disabilities when deciding on the ‘alone test’.
20. In this instance, the Tribunal finds that the totality of the evidence requires it to follow the view of s 24(1)(c) taken in Forbes v Repatriation Commission by Nicholson J. Consequently it finds that the circumstances of Mr Matthews do not meet the requirements of that section.
21. For the reasons as outlined, the Tribunal is reasonably satisfied that the full requirements of s 24 of the Act are not met and hence the applicant is not eligible for the Special Rate of pension. He is not at this stage eligible for the Extreme Disablement Adjustment (EDA) and his disability pension is to continue at 100% of the General Rate.
Decision
22. Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to affirm the VRB decision under review of 13 September 2002.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member
Signed: ..........(sgd V Wong)........................................
AssociateDate/s of Hearing 2 March 2004
Date of Decision 25 March 2004
Advocate for the Applicant Mr C Hammal
Advocate for the Respondent Mr C Ponnuthurai
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