Maurice and Repatriation Commission
[2003] AATA 647
•26 June 2003
DECISION AND REASONS FOR DECISION [2003] AATA 647
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/324
VETERANS' APPEALS DIVISION ) Re IAN MAURICE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member Date26 June 2003
PlaceBrisbane
Decision The decision under review is set aside and in substitution thereto the Tribunal decides that Mr Maurice is entitled to disability pension paid at the Intermediate Rate. The earliest date of effect is 19 May 2002.
(Sgd) Dr E K Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS - benefits and entitlements – pension - special rate – intermediate rate – whether the applicant’s accepted disabilities alone prevented him from working – ameliorative provision – whether accepted disabilities were the “substantial cause” for the applicant being unable to obtain or to continue in remunerative work
Veterans’ Entitlement Act 1986 ss 23, 24, 120(4)
Re Starcevich and Repatriation Commission (1986) 10 ALD 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50Fox v Repatriation Commission (1997) 45 ALD 317
WRITTEN REASONS FOR ORAL DECISION [2003] AATA 647
8 July 2003 Dr E K Christie, Member 1. This is an application for review of a decision of the Veterans’ Review Board made on 26 February 2002 that decided that Mr Maurice was entitled to disability pension at 100% of the General Rate. In this application, Mr Maurice seeks payment of the Disability Pension at the Intermediate Rate or the Special Rate.
2. Mr Maurice has the following accepted service-related disabilities:
(a)Adjustment Disorder
(b)Bilateral Sensorineural Hearing Loss with Tinnitus
(c)Malignant Melanoma of the Skin
3. Mr Maurice does not have any non-service related disabilities.
4. At the start of the hearing the parties agreed that the following issues were to be decided by the Tribunal:
(a)Whether Mr Maurice, by reason of incapacity from his accepted disabilities “alone”, was prevented from continuing to undertake paid work that he had been undertaking [sections 23(1)(c); 24(1)(c)]; and
(b)Whether Mr Maurice is capable of undertaking paid work for 20 hours or more per week [section 23(1)(b)] or undertaking paid work aggregating 8 hours or more per week [section 24(1)(b)]; and
(c)Whether Mr Maurice’s accepted disabilities are the “substantial cause” of his inability to obtain paid work in which to engage [the second limb of section 23(2)(b); section 24(2)(b)].
5. The Respondent has conceded that Mr Maurice has been genuinely seeking to engage in paid work. That is, the first limb of section 23(2)(b), section 24(2)(b) is satisfied.
Consideration of the Issues
6. The objective of the Tribunal is to review administrative decisions not only on their merits, but in accordance with the law at all times.
7. The issues in dispute must be satisfied to the reasonable satisfaction of the Tribunal in accordance with the standard in subsection 120(4): Re Starcevich and Repatriation Commission (1986) 10 ALD 202; Re Doyle and Repatriation Commission (1986) 47 ALD 187. That meant, as Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT has to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an 'eye to reality’..”
Issue 1: Whether the war-caused injuries were the only factors preventing Mr Maurice from continuing to undertake paid work? That is, whether the “alone” test in section 23(1)(c), section 24(1)(c) of the Act is satisfied.
8. The question of a combination of war service conditions and non-war caused conditions in relation to undertaking remunerative work, was considered by Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50, where (at page 57) His Honour stated:
“As in the case of the present applicant, it is possible that the war-caused condition will be 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 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 in s 24(2)(b), to which reference has been made.”
9. In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J stated (at 539) that:
“…it follows from the use of the word ‘alone’ in section 24, that any factor having employment consequences which played a part in the applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant’s case for pension at the special rate.” (Tribunal emphasis)
10. Applying these legal principles to the evidence before the Tribunal, the Tribunal concludes that the “alone test” is not satisfied. Mr Maurice’s accepted disabilities, alone, were not the only factors preventing him undertaking paid work that he had been undertaking. His employment with Queensland Transport, from January 1979 to March 1999, ended when he accepted a redundancy. In addition, his casual employment with the Ipswich Show Society, from April 2000 to May 2002, ended when the permanent employee, whose position he had been filling, returned to resume his position.
11. Accordingly, the Tribunal finds that neither section 23(1)(c) nor section 24(1)(c) are satisfied.
12. Because of this finding the Tribunal considers the application of section 23(3)(b) and section 24(2)(b) to Mr Maurice’s factual circumstances. Section 23(3)(b) and section 24(2)(b) have long been interpreted as ameliorative provisions, as compliance with either subsection would excuse a veteran from having to meet the “alone” test as provided in section 23(1)(c) and section 24(1)(c).
Issue 2: Whether Mr Maurice’s accepted disabilities are the “substantial cause” of his inability to obtain paid work in which to engage.
13. The meaning of the term “substantial cause” was considered in Fox v Repatriation Commission (1997) 45 ALD 317. Kiefel J noted that his term:
“requires that, if the incapacity is not of itself productive of an inability to obtain work, it is nevertheless the operative factor which, more than any other explains it. That something might be a ‘substantial cause’ has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as ‘substantial’…” (Tribunal emphasis)
14. The Tribunal has carefully considered all of the expert medical evidence and lay evidence and information before the Tribunal and makes the following conclusions:
(a)That it was common ground between Dr Kingswell and Dr Freed that Mr Maurice’s psychiatric condition was “Adjustment Disorder with an Anxiety Mood”;
(b)However, both psychiatrists had divergent viewpoints as to the relevant stressor triggering the psychiatric condition;
(c)Both psychiatrists agreed with the Tribunal’s proposition that the “DVA application stressor” was a “single event stresssor” in which the symptoms would be expected to improve within 6 months following the cessation or removal of this stressor. That is, this stressor resulted in an “acute” Adjustment Disorder condition;
(d)Moreover, both specialists recognised that some stressors could be continuous and that the symptoms of such stressors could have enduring consequences. That is, such stressors resulted in a “chronic” Adjustment Disorder condition;
(e)Based on Dr Kingswell’s and Dr Freed’s evidence to the Tribunal, the Tribunal concludes that Mr Maurice is subject to a stressor that is continuous and which has enduring consequences i.e. a “melanoma stressor”. As a consequence, the Tribunal concludes that Mr Maurice’s Adjustment Disorder/Anxious Mood Condition will persist based on the following factual evidence related to his accepted service-related disability – malignant melanoma of the skin. The following evidence, is relevant in this regard:
§Dr Suliman’s Report (T4, Folio 1)
(i)Removal of a level 1 malignant neoplasm from the left arm in 1978;
(ii)Excision of a level 3 superficial spreading malignant melanoma in 1997;
(iii)A significant family history of metastatic melanoma;
(iv)Excision of the red border of the lip in 1999 (occasionally a pre-cancerous condition);
(v)Medical opinion that estimates Mr Maurice’s chances of a 5 year survival in the region of 60%.
§Mrs Maurice’s evidence that her husband was now paranoid of “spending time in the sun” (Exhibit A13)
§Dr Freed’s oral evidence to the Tribunal that Mr Maurice was pre-occupied with his health and that the possible consequence of an awful premature death were with him and that this upset him. Dr Freed described Mr Maurice’s future outlook as one much the same as the average man with two excisions of high malignancy grade lesions and who was very worried about dying. Dr Freed further stated that Mr Maurice’s dominant worry was fear of melanoma recurrence metastasis – or a third melanoma (Exhibit A11);
(f)Dr Kingswell’s acknowledgment, in his oral evidence, that “melanomas” were notorious for emerging over time is a relevant consideration; and
(g)Mr Maurice’s psychiatric condition had deteriorated over time and it had been necessary to counter balance this with a changing medication regime, since February 2001, as provided by Dr Freed.
15. Given the above conclusions the Tribunal finds that the relevant stressor for the ongoing symptoms of Mr Maurice’s psychiatric condition is the “melanoma stressor” arising from his accepted disability – and not the “DVA stressor”. The “melanoma stressor” is enduring – the “DVA stressor” is finite. This distinction has significant consequences for him being able to undertake paid work.
16. Furthermore, applying the reasoning in Fox’s case the Tribunal concludes that the “melanoma stressor” linkage to Mr Maurice’s Adjustment Disorder Anxious Mood condition is the operative factor which more than any other explains his inability to obtain paid work in which to engage. In this regard, the Tribunal prefers the opinion evidence of Dr Freed Maurice following the hearing being adjourned on 27 November 2002 [Exhibit A11, 14 June 2003] as he has fully addressed this stressor in his evidence. In contrast, Dr Kingswell’s opinion was that, at the time of his consultation with Mr Maurice, the most important stressor was the “DVA application” stressor.
17. Consequently, the Tribunal finds Dr Freed’s conclusions in relation to Mr Maurice’s ability to obtain, or to engage in, paid work to be particularly relevant. Moreover, Dr Freed stated, in his oral evidence, that the symptoms of Mr Maurice’s Adjustment Disorder would result in him being an unpredictable and unreliable employee
18. Furthermore, Dr Kingswell’s observations on the specific problems Mr Maurice would have undertaking paid work are also relevant: difficulty functioning because of considerable anxiety, sleeplessness, poor concentration, fatigue and depression.
19. The Tribunal considers significant that Dr Kingswell acknowledged that lack of motivation was not an issue in relation to Mr Maurice’s ability to undertake paid work.
20. The Respondent has submitted to the Tribunal that the following statement of “Employment Plus” should be given weight in any consideration of the question of “substantial cause” in Mr Maurice’s case (Exhibit A7, 7 October 2002):
“Ian does possess skills in various areas but we have found it very difficult to place Ian into full time employment. Barriers such as accepted war caused disabilities (hearing loss, melanoma), lack of current work history and out of date skills make Ian difficult to place.”
21. However, the Tribunal concludes that it cannot be adduced from the latter two factors contained in this statement (“lack of current work history” and “out of date skills”) that these represent a “substantial cause”. The “Employment Plus” statement was made only five months after Mr Maurice ceased work with Ipswich Show Society and so its comment on “a lack of current work history” cannot be reconciled with MR Maurice’s factual circumstances. Moreover, the Tribunal concludes that the comment that he has “out of date skills” cannot be reconciled with his work experience (Exhibit A2).
22. The Respondent further submitted that the failure of Mr Maurice to succeed in finding employment in circumstances in which he did not disclose his accepted services disabilities was indicative of a situation that factors, other than his accepted disabilities, contributed to the “substantial cause” for Mr Maurice failing to find paid work.
23. The Tribunal considers that such an inference is mere speculation.
24. In relation to the common law evidentiary principles for inference, the following statement is relevant:
“There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.” Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169.
25. Accordingly, in the absence of positive proved facts by the Respondent, the Tribunal can make no finding other than to conclude that the Respondent’s arguments on these issues are speculative.
26. Given the above findings, the Tribunal finds that Mr Maurice’s enduring “melanoma stressor” and the associated chronic condition of Adjustment Disorder with Anxious Mood arising from his accepted disability (malignant melanoma of the skin) is the “substantial cause” of his inability to obtain paid work in which to engage. As the Respondent has conceded that Mr Maurice has been genuinely seeking to engage in paid work [see para. 5], the Tribunal concludes that section 23(3)(b) and section 24(2)(b) of the Act are both satisfied.
Issue 3: Whether Mr Maurice is capable of undertaking paid work for 20 hours per week or, alternatively, capable of undertaking paid work aggregating 8 hours per week.
27. The Respondent has conceded that Mr Maurice is incapable of undertaking paid work for 20 hours per week.
28. The Tribunal concludes that Mr Maurice is capable of undertaking paid work aggregating 8 hours per week, because:
(a)Dr Knight (an Occupational Physician) has qualified his opinion (Exhibit R2, 16 July 2002) with respect to the hours of paid work Mr Maurice could undertake with the following statement:
“I must reiterate however I think that an independent Psychiatric assessment should be sought in this case due to its complexity from the psychological stand point and also perhaps a significant potential for deteriorating or decompensation in the situation Mr Maurice finds himself."
(b)Accordingly, Dr Freed undertook a subsequent assessment of Mr Maurice following the hearing being adjourned on 27 November 2002 [Exhibit A11, 14 June 2003]; and
(c)Dr Freed’s oral evidence at the hearing, as his treating psychiatrist, that if Mr Maurice could choose the hours worked per week, he could manage work for most weeks, if it did not take him outdoors.
29. Counterbalancing Dr Freed’s opinion with Dr Kingswell’s professional opinion on Mr Maurice’s capability of undertaking 8 hours work [Exhibit R3, 26 March 2003], the Tribunal concludes that Mr Maurice is capable of undertaking paid work aggregating 8 hours or more per week. Accordingly, the Tribunal concludes that section 24(1)(b) of the Act is not satisfied. However, section 23(1)(b) is satisfied.
30. For all of the above reasons, the Tribunal finds that the statutory requirements for eligibility for payment of the disability pension at the Intermediate Rate have been satisfied at the requisite level of proof.
31. Accordingly, the Tribunal decides to set aside the decision under review and, in substitution thereto, decides that Mr Maurice is entitled to payment of the disability pension at the Intermediate Rate. The earliest date of effect is 19 May 2002.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: .......................................................................................
AssociateDates of Hearing 27 November 2002 and 26 June 2003
Date of Decision 26 June 2003
Date of Written Reasons 8 July 2003For the Applicant Mr Richards, Advocacy for Veterans
For the Respondent Mr Kelly, Departmental Advocate
0
5
0