Maurice Chopping and Repatriation Commission

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[2013] AATA  362

Division VETERANS' APPEALS DIVISION

File Number

2011/5050

Re

Maurice Chopping

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Senior Member K Bean
Professor P Reilly
Date 31 May 2013
Place Adelaide

The Tribunal:

(a)affirms the decision under review insofar as that decision determined that Mr Chopping was not eligible for pension at the special rate; and

(b)remits to the respondent the question of whether Mr Chopping is entitled to the extreme disablement adjustment provided for in s 22 of the Veterans' EntitlementsAct 1986.

.......................[Sgd].................................................

Senior Member K Bean

CATCHWORDS

VETERANS' AFFAIRS - Veterans' entitlements - Rate of disability pension - Special rate - Whether factors other than accepted disability contributed to veteran being prevented from continuing to undertake remunerative work - Veteran suffering arthritis in knees and shoulders - Veteran carried out a variety of different forms of employment in the period before ceasing remunerative work - "Alone test" not satisfied - Ameliorating provision also not satisfied - Decision under review affirmed.

LEGISLATION

Veterans' Entitlements Act 1986, s 24

CASES

Repatriation Commission v Hendy (2002) 76 ALD 47

Jackman v Repatriation Commission, (Unreported, Federal Court, Tamberlin J, 30 June 1997)
Smith and Repatriation Commission (2012) 131 ALD 63
Thorpe and Repatriation Commission [2011] AATA 491
Repatriation Commission v Connell (2011) 123 ALD 440

REASONS FOR DECISION

Senior Member K Bean
Professor P Reilly

31 May 2013

INTRODUCTION

  1. The applicant, Mr Chopping, served in the Australian Army from 26 March 1968 to 25 March 1971.  His service included operational service in Vietnam for approximately ten months, in the course of which he underwent a number of extremely traumatic experiences. 

  2. After struggling with the symptoms of the condition for many years, Mr Chopping was finally diagnosed as suffering from Post-Traumatic Stress Disorder (PTSD) in approximately 2003, and this has subsequently been accepted as a war-caused disability.  Mr Chopping also has a number of other war-caused disabilities, including lumbar spondylosis, and is currently in receipt of a disability pension at 100 per cent of the general rate.

  3. Notwithstanding the effects of his war-caused conditions, Mr Chopping returned to work after his Vietnam service, and continued to work for many years thereafter, running a highly successful farming operation and a number of other successful businesses.  However, commencing in approximately 2003, his PTSD symptoms began to become more debilitating, and over the ensuing few years he gradually reduced his employment activities, ultimately selling his farm, located in Western Australia, in 2006.  Since that time, Mr Chopping has not worked, other than in a part-time job, for a relatively short period.

  4. In light of the effects of his accepted conditions and the fact that he had ceased remunerative work, on 10 December 2009 Mr Chopping lodged an application for an increase in his pension.[1] However, the Repatriation Commission decided that he did not meet the requirements for payment of pension at the special rate,[2] and that decision was affirmed by the Veterans’ Review Board (VRB).[3]

    [1] T4/13.

    [2] T5/31.

    [3] T3/9.

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Details
Case
[2013] AATA 362
Decision Date

CaseChat Overview and Summary

Maurice Chopping sought a review of the decision of the Repatriation Commission to deny him the special rate of pension for veterans. The issue at the heart of the dispute was whether the arthritis in Mr Chopping’s knees and shoulders contributed to his inability to continue working, thereby disqualifying him from the special pension rate. The evidence presented indicated that Mr Chopping had arthritis in his knees and shoulders, but he maintained that this did not prevent him from working, including in physically demanding jobs like farming and trucking. The court had to determine whether Mr Chopping’s arthritis, combined with his PTSD, was the sole reason for his inability to continue working, or if other factors played a role.

The court examined the evidence and found that while Mr Chopping’s PTSD was a significant factor in his inability to work, it was not the sole reason. The court was not persuaded that Mr Chopping’s PTSD alone prevented him from continuing his employment, as he had engaged in various forms of work after ceasing his farming and trucking activities. The court also found that Mr Chopping did not satisfy the “alone test” as his PTSD condition was not the only reason he was unable to continue working. The court further considered whether Mr Chopping satisfied the ameliorating provision, which allows for the special pension rate if the veteran’s war-caused incapacity is the substantial cause of their inability to engage in remunerative work. The court concluded that while Mr Chopping had made efforts to find work, his war-caused incapacity was not the sole reason for his inability to secure employment.

The court affirmed the decision of the Repatriation Commission, finding that Mr Chopping did not qualify for the special rate of pension. The court found that Mr Chopping’s arthritis and other factors, including his age and temperament, contributed to his inability to continue working. The court held that the “alone test” and the ameliorating provision were not satisfied, thereby affirming the decision under review. The orders of the court confirmed the denial of the special rate of pension to Mr Chopping.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Therefore the main issue in dispute between the parties is whether the arthritis in Mr Chopping’s shoulders and knees made a contribution to him ceasing to undertake the work he had undertaken in the past, such that he does not qualify for the special rate of pension. Our discussion of the evidence will accordingly focus on that issue.The evidence In his statement, Mr Chopping said:“I have minor arthritis in my bilateral shoulders and bilateral knees. There have been no specific events that have caused trauma to those areas and I have not received any medical treatment on either my knees and shoulders.My shoulders and knees do not prevent me from working.”[8] [8] Exhibit 2, [12]-[13]. In his oral evidence, Mr Chopping said he felt he had had arthritis for about thirty years and it had become somewhat worse as he had grown older. He said his arthritis would occasionally flare up but that it did not affect him working. In particular, he said it did not affect him in carrying out farming or trucking work as he was able to do all of the physical activities necessary to carry out this work. He also said his arthritis had not affected him in carrying out work associated with the mine, as this took very little effort on his part. In the course of his evidence, Mr Chopping was asked about the following paragraphs of the report of Dr Mary Wyatt, Consultant Occupational Physician, dated 28 March 2012:“In discussing ceasing his work, Mr Chopping said there had been a misunderstanding about his physical ailments and whether they contributed to him ceasing work. The treating general practitioner does say in the documentation that Mr Chopping had ceased work because he was not physically capable of working, in addition to his mental impairment. Mr Chopping said he had been embarrassed about admitting his mental health issues, so he lied to the doctor about his physical problems.With respect to his physical problems, Mr Chopping said he has ongoing soreness of his knees and shoulders. He said he made a series of devices to lessen his physical work on the property. He did not have to lift truck tyres, and made a range of devices so he did not have to do a great deal of manual handling. He also changed what he did on the property; namely, doing less maintenance and planting less wheat.Mr Chopping advises that physically he does not have significant problems. The soreness in the knees and shoulders does not cause him problems. He said the shoulders are a little sore after activity, but it does no stop him doing anything these days. Mr Chopping said he has not had any treatment for his knee or shoulder problems, nor is he having any current treatment.”[9][9] Exhibit 4, page 3. In response to this report, Mr Chopping acknowledged that he had accentuated his physical problems in talking to his general practitioner because he was embarrassed about his PTSD condition. He also acknowledged that he had had soreness in his knees and shoulders for years, but said this was minor. He further acknowledged that he had made devices to help him carry out the physical work on the farm, but said “that’s how farming goes”. He said when he had free time he liked to manufacture things to make life on the farm easier as it helped to keep him busy.

Decision

Reasons for decision

We note that in his written submissions filed after the hearing, Mr Floreani relied on the decision in Thorpe in support of a contention that we should conclude that Mr Chopping satisfied s 24(1)(c) on the basis of having ceased his farming work by reason of his PTSD condition, alone, and we could disregard the subsequent work he did in Darwin.[36] However for the reasons given above, we are not persuaded that it is sufficient for a veteran to have ceased one form of work by reason of their war-caused condition, alone. Further we are not satisfied that Mr Chopping ceased farming work by reason of his PTSD condition, alone, in any event.[36] Further submissions of the applicant received on 28 March 2013.Conclusion It follows that Mr Chopping does not satisfy the alone test as we are not satisfied that during the assessment period his PTSD condition, alone, was the reason for him being prevented from continuing to undertake remunerative work of the kind he had previously undertaken, including work as a truck driver, as an employee on a farm, or as part of the crew on a small cruising vessel. In light of this conclusion, it is accordingly necessary for us to address the issue of whether Mr Chopping nevertheless satisfies the requirements of s 24 with the assistance of s 24(2)(b).DURING THE ASSESSMENT PERIOD, DID MR CHOPPING SATISFY THE AMELIORATING PROVISION? On behalf of Mr Chopping, it was submitted that even if he did not satisfy s 24(1)(c) without reference to the ameliorating provision, he nevertheless satisfied the requirements of s 24 when regard was had to s 24(2)(b). It was submitted that Mr Chopping satisfied this provision as, during the assessment period, he had been genuinely seeking to engage in remunerative work, and his war-caused incapacity was the substantial cause of his inability to engage in remunerative work. As to his efforts to find work, Mr Chopping said that since moving to Darwin he had applied for truck driving jobs and work as a handyman, but been unsuccessful. He said he had also sought work assisting a tradesman to re-fit engines, but this had not eventuated as the tradesman was directed to seek assistance from staff of the company he was working for. As we have alluded to above, Mr Chopping said he had also asked someone he knew about driving delivery trucks for an ice works in Broome, but there was no work available. He said he also wrote to the son of one of his cousins who runs a large property in Western Australia, seeking work on the farm. However he was advised that he was considered unsuitable as he would not “fit into the team”. He said he was not sure exactly what this meant, but it may have been at least in part a reference to his age. He said that another potential employer had told him that his attitude and temperament did not seem suited to the work on offer. He also acknowledged that some of the other potential employers he had approached had probably thought he was too old. Mr Chopping also said that he had regularly enquired about work at the Francis Bay Mooring Basin in Darwin, known as “the Duck Pond”, and that if “something came up” he would “still do it”. He said although he was not as fit as he used to be, he thought he was physically “still in quite good nick”. Although he did not consider he would be able to do the heavier forms of physical work which were available at the Duck Pond, he said work became available there from time to time which was within his physical capacities. Mr Chopping said he had most recently enquired about work at the Duck Pond two weeks prior to the hearing.

Ratio Decidendi

Legal Principle Established

He concluded:“It was clear from the history as recorded above that he had become unfit to work over the past four to five years, such that he had to cease farming even after restricting himself to that activity (in the wake of selling his trucking rigs). He had tried to get jobs and had done a couple of short jobs on a charter boat, and then he became involved with arguments with the harbor[sic] official.Taking the history in total, I find his PTSD has deteriorated and he is significantly disabled by poor concentration and poor memory, irritability and the tendency to be argumentative, and the need for social isolation and intolerance of people, together with chronic internal restlessness and discontent which has not been helped significantly by various life style changes which constitute and attempt to externalize his problem and to avoid accepting the real nature of it (as an internal issue).…In summary, he is unfit to work, and compared with his clinical state in 2003, he is more disabled now than he was then. In my opinion he has been unfit to work since 2006, and is certainly unfit [for] work at present or at any time in the future.”[25][25] Exhibit 5, page 3.Consideration In light of this evidence, we have found the question of what factors contributed to Mr Chopping being prevented from continuing to undertake the remunerative work he was undertaking a difficult one. The factors which complicate this question include the range of different forms of employment undertaken by Mr Chopping, and the fact that whilst Mr Chopping ceased most forms of employment prior to 2006, he worked again in 2008 and 2009, and of course the assessment period commences from when he lodged his application for an increase in pension, on 10 December 2009. In these circumstances, in order to ensure that we have addressed all relevant issues, we propose to discuss each relevant form of employment in turn. Having regard to the relevant authorities, we consider it appropriate that we address both the reasons for Mr Chopping ceasing each relevant form of employment, and the reasons for him being prevented from continuing in that employment after 10 December 2009. Taking the relevant types of employment in chronological order of cessation, it appears on the evidence before us that the first type of work that Mr Chopping relinquished was his trucking business which he apparently sold off “in parts in around 2003/2004”.[26] The evidence before us as to the reasons for selling this business is relatively limited. However in light of the evidence which is available, including the report of Dr Risbey, we are satisfied that Mr Chopping’s PTSD condition was the only reason for him ceasing to operate that business, and that by the time he sold that business he had become unfit to run the business, or engage in truck driving, by reason of his PTSD condition. [26] Exhibit 2, [21]. However that still leaves the question of whether, as at and from 10 December 2009, Mr Chopping was prevented from engaging in truck driving work of the kind he had previously undertaken, by reason of his war-caused incapacity alone. In relation to that question, we consider it relevant that after he moved to Darwin, Mr Chopping said he continued to seek work as a truck driver, including work driving a delivery truck for an ice works in Broome. He said he had applied for the Broome job before he started work for Sunset Cruises, in approximately 2008. However he also stated in the course of his evidence that he had since stopped looking for work as a truck driver, as he considered his reflexes and judgement were no longer good enough for him to safely work as a truck driver.[27][27] See our discussion below of Mr Chopping’s attempts to seek work following his move to Darwin.