May and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2588

May and Repatriation Commission (Veterans' entitlements) [2017] AATA 2588 (24 November 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/2564
Re:Ronald May
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Mr D. J. Morris, Member
Date:24 November 2017
Place:Melbourne

The reviewable decision dated 12 April 2016 is affirmed.
........................................................................
D. J. Morris, Member
VETERANS’ ENTITLEMENTS – application for increase in pension – special rate of pension – whether veteran prevented from war-caused conditions alone from continuing to undertake remunerative work – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Veterans Entitlements Act 1986, ss 23, 24, 104
Cases
Leane v Repatriation Commission [2004] FCAFC 83
Redden and Repatriation Commission [2015] AATA 273
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond (2014) FCAFC 124
Smith v Repatriation Commission (2014) 220 FCR 452
REASONS FOR DECISION
Mr D. J. Morris, Member
24 November 2014
BACKGROUND

The Applicant, Mr Ronald May, receives a disability pension under the Veterans Entitlement Act 1986 (the ‘VEA’). On 3 July 2012 Mr May made entitlement claims for alcohol dependence and depressive disorder and an application for an increased rate of pension. On 19 September 2012 Mr May’s entitlement claims were refused by the Repatriation Commission (the ‘Commission’) and his pension was assessed as 80 per cent of the General Rate.
The Respondent’s Statement of Facts and Contentions stated that on 6 December 2012 Mr May applied for review by the Veterans’ Review Board (the ‘VRB’). On 17 April 2014 the VRB affirmed the entitlement decisions and on 9 December 2014 the VRB assessed pension at 100 per cent of the General Rate with effect from 3 July 2012.
On 11 August 2014 Mr May applied to the Administrative Appeals Tribunal (the Tribunal) for review of these decisions. On 28 April 2015 Senior Member Handley made an order under section 42C(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) that alcohol dependence and depressive disorder were war-caused diseases with effect from 3 April 2012 and that Mr May did not suffer from post-traumatic stress disorder (PTSD). The Tribunal remitted assessment of the rate of pension to the Respondent. On 11 June 2015 a delegate of the Commission decided that Mr May’s disability pension is to be continued at 100 per cent of the General Rate. On 17 June 2015 Mr May sought review of that decision by the VRB.
On 12 April 2016 the VRB set aside the Commission’s decision and substituted a decision that Mr May’s pension continue at 100 per cent of the General Rate until 2 February 2014 and then at 100 per cent with the Extreme Disablement Adjustment (EDA) Rate, with effect from 3 February 2014.
Mr May applied to the Tribunal for review of the VRB’s 12 April 2016 decision and contended that his pension should be increased to the Special Rate. The hearing was held on 10 and 11 August 2017. Ms Fiona Spencer of counsel appeared for the Applicant. Mr Ken Rudge, an advocate from the Department of Veterans’ Affairs, appeared for the Commission. Documents were submitted by the Repatriation Commission in accordance with section 37 of the AAT Act (‘T-documents’).
It was not contested that Mr May has accepted war-caused disabilities, namely: alcohol dependence, major depression, otosclerosis, lumbro-sacral disc injury, solar keratosis, bilateral tinnitus and erectile dysfunction.
The Commission advised that Mr May had served in the Royal Australian Navy from 9 July 1963 until 8 July 1983. The Applicant’s Statement of Facts and Contentions states:
Following discharge from the RAN the Applicant obtained employment in the areas of Catering Manager and Secretary/Manager. He joined the Merchant Navy in 1985 and ultimately obtained employment with Woodside Australia Energy as Chief Steward. His duties fundamentally were to manage accommodation and catering on board its vessel. The crew which to [sic] he provided services numbered approximately 50 on average but the vessel accommodated up to 80. The Applicant was required to supervise cooks and stewards. Although he did undertake some light hands-on tasks, his duties were primarily managerial.
THE LAW
The matter before the Tribunal is whether Mr May satisfies the requirements of section 24(1) of the VEA and thus qualifies for the Special Rate of pension.
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.
To be eligible, Mr May must have lodged a claim or application for pension at the Special Rate. In the T-documents (T3) was Mr May’s application, signed on 18 June 2012 and lodged with the Department of Veterans’ Affairs on 3 July 2012. I find that Mr May therefore satisfies this threshold question. Mr May was born on 21 September 1947 and was therefore aged 64 on 3 July 2012, the date of his application. As he was under the age of 65 years when he made his application, the Tribunal finds he also satisfied section 24(1)(aab) of the VEA.
Sections 24(1)(b) and 24(1)(c) of the Act are the two key provisions in contention between the parties in this matter:
(a)Section 24(1)(b). For this section to be satisfied, Mr May must be totally and permanently incapacitated, meaning that his war-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. This section is amplified by section 28 of the Act, which provides that the only factors a decision-maker shall have regard to in determining the kind of remunerative work the Applicant could reasonably undertake, is:
(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).
(b)Section 24(1)(c). This section of the Act is often referred to as the ‘alone test.’ Pursuant to section 24(2) of the Act, Mr May would not satisfy the alone test if he ceased to engage in remunerative work for reasons other than his war-caused incapacity, or was incapacitated or prevented from engaging in remunerative work for some other reason.
Intermediate Rate
Eligibility for a pension payable at the Intermediate Rate is provided for at section 23 of the Act, which has the same eligibility criteria as section 24, except that the veteran has a capacity for more than eight but no more than 20 hours work per week. As required by section 23(1)(d), however, it is necessary to consider eligibility for the Special Rate first, before turning to the Intermediate Rate. In effect, Section 23 only applies if section 24 or 25 does not apply to the veteran.
To qualify for the Intermediate Rate, a veteran must be rendered incapable of undertaking remunerative work other than on a part-time or intermittent basis. If the veteran is capable of undertaking work of a particular kind for 50 per cent of the time ordinarily worked by persons engaged in work of that kind on a full-time basis, or for 20 hours or more per week, they do not qualify.
Temporary Payment at Special Rate
The special rate of pension can be paid on a temporary basis under section 25 of the Act if the veteran is incapacitated to such an extent that they can meet all of the tests within section 24 except that instead of requiring that the incapacity be permanent (section 24(1)(b)), it is only temporary. Section 25 of the Act provides that:
Temporary payment at special rate
(1) Where the Commission is satisfied that:
(a) a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and
(b) if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;
the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
(2) Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate that would have been applicable under subsection 24(4), (5), (5A) or (6) if section 24 applied to the veteran.
(3) The Commission may, under this section:
(a) determine a period that commenced before the date on which the determination is made; and
(b) determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.
Standard of proof and assessment period
In accordance with section 19(9) of the Act, the assessment period for Mr May’s eligibility commenced on 12 June 2014, which is the date he lodged his application for an increase in pension, and continues until determination of this matter by the Tribunal. Under section 120(4) of the Act, the standard of proof for assessment or reassessment of the rate of pensions is ‘reasonable satisfaction,’ which is also referred to as the ‘balance of probabilities.’ Beaumont J (Northrop and Spender JJ concurring), explained in Repatriation Commission v Smith (1987) FCR 327 (at 335) that the Tribunal should ask itself:
‘...whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other…’
Another issue which the Tribunal must consider for the purposes of s 24(1)(c) is whether the ameliorating terms of section 24(2)(a) apply as a result of the veteran being unable to continue remunerative work for reasons other than war-caused incapacity. Section 24(1)(c) has two limbs: 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; the veteran 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”. In that sense, there is a nexus between section 24(1)(b) and section 24(1)(c) of the Act. The tests require that Mr May’s loss of employment results from his accepted war-caused disabilities pursuant to section 24(1)(b), and that his subsequent inability to engage in remunerative employment does not result from other non war-caused incapacity. Relevantly, in Smith v Repatriation Commission (2014) 220 FCR 452, Rares J said at [8]:
‘…Once the effect of the war-caused injury on the veteran suffices to satisfy s 24(1)(b), the effect of his or her incapacity must then be assessed under s 24(1)(c). The latter section has these elements:
·the veteran is prevented by reason only of the effect of his or her injury found under s 24(1)(b) from continuing to undertake remunerative work;
·that preventative effect alone causes him or her to suffer a loss of income; and
·the veteran would not be suffering from that loss if he or she was not affected by the war-caused injury.’
Mr May must therefore satisfy each of the relevant criteria in section 24 of the VEA to qualify for a pension at the Special Rate. In addition, these criteria must be met at some time during the “assessment period” which, in this case, runs from the date of Mr May’s claim and concludes when this application is determined by the Tribunal.
The Respondent’s Statement of Facts and Contentions submitted that “as all time limits applicable to applications for review have been complied with the earliest date of effect of a decision increasing pension would be 3 April 2012.”
Ms Spencer submitted that Mr May was unfit for any form of employment and has been for a considerable period of time. She contended that he was unable to return to work because of war-caused conditions alone. She urged the Tribunal to draw a distinction between why a person left their last job and why they have been unable to return to work.
Ms Spencer requested the Tribunal to consider the decision of Deputy President Alpins in Redden and Repatriation Commission [2015] AATA 273 and how it may apply in Mr May’s case.
Mr Rudge submitted that Mr May did not satisfy the “alone” test set out in section 24(1)(c) of the VEA. The Respondent cited Repatriation Commission v Richmond (2014) FCAFC 124 where the Full Court held, at [58]:
The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused injuries alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.
And at [63]:
The Full Court in Hendy at [37] per Whitlam, Emmett and Stone JJ explained:…The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act.
At [65]:
While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.
The Respondent submitted that Mr May had other medical conditions that contributed to his incapacity for work: his right shoulder and cervical spine conditions, sleep apnoea, lack of recent work experience and time out of the workforce. The Respondent submitted that age and incapacity from a work-caused illness are also contributing factors.
The Respondent further submitted that, in terms of sections 24(1)(c) and 24(2)(a)(i) of the VEA, Mr May is not suffering a loss of earnings as he ceased work for reasons other than incapacity from war-caused disabilities alone because he ceased work at Woodside Energy due to a workplace dispute and incapacity from a work-caused illness.
Ms Spencer, in her written submissions, acknowledged that Mr May did have a dispute with his employer but said that the material obtained by the Respondent from his former employer, Woodside, and treating medical practitioners at that time, confirms that Mr May’s absence from work from 2002 until his employment was terminated “was due to his psychiatric illnesses (which have been accepted as war caused)”.
Ms Spencer submitted that there was evidence before the Tribunal which supported the Applicant’s contention that his age and time out of the workforce during the assessment period were not preventative factors within the meaning of section 24(1)(c).
Ms Spencer submitted that, since ceasing work, Mr May has made genuine attempts to engage in remunerative work and that but for his war caused disabilities he would be continuing to seek to engage in remunerative work and that his incapacity from those disabilities is the substantial cause of his inability to obtain remunerative work such as to satisfy the provisions of section 24(2)(b) of the VEA.
The Applicant drew the Tribunal’s attention to the unreported decision of the Full Court of the Federal Court Leane v Repatriation Commission (delivered 31 March 2004) where it was held that “seeking” to engage in remunerative work referred to in section 24(2)(b) of the VEA requires that the veteran honestly be trying to engage in remunerative work.
The Applicant’s evidence
Mr May gave evidence about his career in the Royal Australian Navy, the ships of Her Majesty’s Australian fleet on which he served, and his 1983 discharge after 20 years’ service, leaving in the rank of Chief Petty Officer. After discharge, he then worked for a time at the Naval & Military Club, the Dandenong Workers’ Club and the Mordialloc RSL. From 1985 until 2002 he served in the merchant navy.
He told the Tribunal that he had had five employers in the merchant navy including working for TT-Line on the Bass Strait ferries. He predominantly obtained positions on ships by being on a database that the Maritime Union of Australia (MUA) maintained for prospective employers to know who was available, and the skills and experience they had. He said that, while others sometimes did, he never declined a job when offered one from 1985 until he ceased work in 2002.

He told the Tribunal that he was chosen by the Maritime Union and recommended to Woodside Energy to help set up a new ship that company was acquiring, the Cossack Pioneer, as one of two Chief Stewards. His duties were being in charge of accommodation, ordering stores and food, maintaining accounts and cleaning recreation rooms. He said he also made up cabins for senior crew. His role gradually became more supervisory as the crew expanded.
He gave evidence about the health conditions he has. He said that he had been diagnosed with sleep apnoea and used a CPAP machine. He said that he had neck pain from a non-aligned jaw but did not remember having neck pain at the time he worked for Woodside. He said that he had headaches from a young age which made him feel “fuzzy” and that he got them when he became stressed. He said that he had never taken time off because of his headaches. He said that he had had a right shoulder condition and gave evidence that he underwent surgery performed by Mr Henry Byrne, orthopaedic surgeon. The injury was not as bad as initially thought and after extensive physiotherapy he said he was much improved. When asked if he thought his right shoulder condition would prevent minor lifting or cleaning duties (such as he had as a Chief Steward), Mr May said he did not think there would be any continuing effect as the shoulder was fully healed.
Mr May was asked about the events at Woodside that led him to stop working in 2002. He told the Tribunal that he had been working for the company since 1996. The job had steadily become more complex and he was finding it “difficult to keep up with the work – it was demanding. They put 30 to 40 more on a day without extra staff and made cabins out of containers” to accommodate additional people on-board.
He said they had to provide three main meals a day on ship, plus morning and afternoon tea. He told the Tribunal that this work had not been agreed to initially and “it got hard to cope with the duties…I didn’t know how to cope. I had to negotiate. It is a pretty hard process when you are finding it difficult.”
Mr May was asked about his alcohol consumption at this time. He said no alcohol was allowed on the ship but he did drink when ashore and when he got home. He was asked about his sleep patterns. He said it has been the same since he left the RAN and he experiences disturbed sleep because of his work pattern. He said he had never been a good sleeper and also had recurring bad dreams relating to Navy experiences. He said the dreams occurred throughout the time he was at Woodside, but not all the time. They came and went.
Mr May said he took Panadeine Forte and Temazepam, he said as a relaxant, which he told the Tribunal was prescribed by a doctor employed by Woodside around 1996, but he only took it for two years.
In terms of his drinking off the ship, Mr May said he would drink “a couple of cases a week – 24 cans, mainly beer”. He said sometimes he would drink wine, port and, when younger, sherry.
Mr May told the Tribunal that he said that he had a performance assessment from Woodside in 2002 and he didn’t agree with the contents of that review. This turned out to be a pivotal event. Mr May said that Woodside management would not let him go back to the Cossack Pioneer unless he signed the assessment. He refused to do so. After a very acrimonious meeting with management, he went to stay in a hotel. It was ANZAC Day and Mr May remembered he could not go to the march and felt suicidal. He was away from his family who were back at home in Victoria. Initially Mr May was not cleared to fly, but then a doctor authorised him to fly home.
Mr May told the Tribunal he initially took 70 days’ sick leave and then availed himself of salary continuance arrangements where he was paid 70 per cent of his salary. After a period of time, Woodside terminated his employment, which he said he expected.
When asked whether he sought clearance to go back to sea, he said that he wanted to but his treating general practitioner, Dr Vanessa Haller, would not give him clearance. He said that the rules require that a merchant mariner needs such a clearance from both the person’s regular general practitioner and then also from a navigation doctor, to then be cleared to go to sea.
Mr May said he had had a number of offers to return to sea “but have had to knock them back”. He said he had had offers in 2002, 2003, then 2005 and as late as 2009. In terms of other employment, he said that he had considered starting up a bed and breakfast business in Harrietville around 2006 and also looked at buying a motel at Harrietville with his family in around 2012-13, but that his children were not too keen. Mr May told the Tribunal that in terms of the bed and breakfast idea, he did not pursue it because of financial reasons; in terms of the motel, he said his children thought he would be unable to cope. He said he looked at job advertisements “from about 2008 onwards” but mostly they were for more junior catering jobs. He said he was offered a position as a cook at the Berwick RSLA but it was only for one day a week, and he did not want that.
Evidence of Dr Haller
The Tribunal heard evidence from Dr Vanessa Haller, who said she had been the general practitioner for Mr and Mrs May and their family for about 27 years, until Mr and Mrs May recently moved from Melbourne to Harrietville.
Dr Haller told the Tribunal that in her opinion Mr May had underlying depression which is the reason he couldn’t manage the dispute he had with Woodside management. She said that his nightmares and dreams were “more Naval issues” and that the Applicant had suicidal thoughts before the incident at Woodside. She said that once Mr May returned to Melbourne from Western Australia his depressive condition improved but that a continuing financial dispute he had with Woodside made it “linger on”.
Dr Haller opined that the Woodside dispute caused a major upheaval in what she termed Mr May’s baseline depression and, after it was resolved in his mind, he went back to a baseline depressive condition. There was, however, no clear evidence before the Tribunal of any diagnosed “baseline depression”. Dr Haller agreed that Mr May’s depression was diagnosed 13 years ago but said that was a date of diagnosis, not a date of onset.
In cross-examination, Mr Rudge contended that Mr May was diagnosed with Major Depressive Disorder in 2002. Dr Haller said that was when he was first treated for it and that date of that diagnosis may be accurate but she remained of the view that he had baseline depression before that time.
Dr Haller was asked about other medical conditions of Mr May. She said she knew he had sleep apnoea but was unaware that he had obtained a CPAP machine. She did not have information on Mr May’s shoulder and did not know he had a shoulder operation. She was aware of his neck condition and said it is common to have wear and tear on facet joints in the neck. She did not have any notes about Mr May having headaches. In her view she felt the shoulder condition, if the operation was successful, would usually require 12 months’ physiotherapy. She considered that provided the Applicant could move his head around and there was no shooting pain, it should not affect his ability to work, and nor should his sleep apnoea, if controlled with a CPAP machine.
Evidence of Mrs May
The Tribunal heard from Mrs May, who has been married to the Applicant since 1986. At that time he was Secretary/Manager of the Workers’ Club at Dandenong. Mrs May said that her husband had enjoyed his service in the RAN and so returned to sea and served on a number of ships before joining Woodside’s Cossack Pioneer.
She told the Tribunal that Mr May had a severe drinking habit, consuming upwards of one dozen cans of beer a day when home, as well as wine. She said he was a binge drinker. In terms of Mr May’s temperament, she told the Tribunal that he had always been strong-willed “the rest of the world is wrong, and he is right”. She said that he could be argumentative when depressed, and that he had arguments when employed at the Workers’ Club and by TT-Line. She said he “quit on a weekly basis” at the Dandenong RSL.
Mrs May was asked about the events surrounding the performance assessment undertaken by Woodside. She said that she did not think the review was particularly bad, and that it was her view that Mr May overreacted at the time.
When asked whether Mr May has tried to return to work, Mrs May said he went to stop working meetings at the MUA where positions on ships were often discussed. She said he kept in touch with union officials. Mrs May said they looked at buying a motel but decided it would not work because of Mr May’s alcoholism. This was a more explicit reason than that proffered by the Applicant. She said they also looked at buying a bed and breakfast business at Harrietville but decided Mr May would not be able to cope.
In cross-examination, Mrs May said she and the Applicant had gone to a credit union to explore the purchase of a motel at Harrietville but they concluded it was too much of a financial risk, so did not proceed further with the idea. In answer to a question from Ms Spencer about whether the decision not to pursue the bed and breakfast business was due to financial risk or Mr May’s medical conditions, Mrs May responded that she gave the two factors equal weight in the decision they came to.
Consideration
If the Tribunal is satisfied that Mr May was prevented from returning to work because of war-caused conditions alone, then his claim may succeed. If, however, other preventative factors are found to have contributed to him not returning to work, then these other factors, even if of secondary importance and even if they, together, do not combine to prevent a veteran engaging in remunerative work, Mr May’s application for Special Rate cannot succeed.
The Respondent submits that Mr May’s right shoulder condition contributes to his incapacity to work. The evidence was that Mr May suffered a mechanical injury to his shoulder in a domestic incident and that Mr Henry Byrne performed corrective surgery. After intensive physiotherapy, the shoulder healed. Mr May’s evidence about his duties as Chief Steward were that they were largely supervisory and involved extensive paperwork, recording and ordering stores, and so on. He said that he did clean and make up cabins for some senior crew but that was his choice because he wanted them to be done well. On the medical evidence before the Tribunal and on this account of his duties, I am not satisfied that Mr May’s shoulder injury would, by itself, necessarily be a preventative factor in him returning to work.
In terms of Mr May’s sleep apnoea, the evidence of the Applicant was that it was well managed now that he has a CPAP machine which he said he had been using since April 2015. There was scant other evidence on this condition and Dr Haller was unaware of it but, on the whole, I am not satisfied that this condition is a preventative factor in Mr May returning to work.
Age and time out of the workforce were also submitted by the Respondent as factors. Evidence was given to the Tribunal that there is no age limit for merchant navy crew. In particular, the statement (Exhibit A5) of Mr Michael Doleman, International Executive Officer, Maritime International Federation, dated 10 April 2017 is relevant. He states:
For many years there has been no age discrimination in the industry. Quality seafarers (such as Ron) who are fit and meet the medical requirements are able to obtain employment regardless of their age or when they last previously worked.
The Tribunal also had before it a statement (Exhibit A4) of Mr John Higgins, former National President of the MUA, dated 4 April 2017 who states that he was, at the time of making the statement, serving on a bulk carrier:
Specifically, I do not believe that Ron’s age or the fact that he last undertook work in the early 2000s would prevent him from obtaining employment in the Merchant Navy to the current date. He has a very good reputation in the industry which would have continued to hold him in good stead and, aside from his reputation, his qualifications and experience continue to be in demand in the Merchant Navy. Furthermore, I am older than Ron and remain employed in the industry.
Having considered these statements and noting that the Respondent did not attempt to rebut the contentions that there is no upper age limit in the merchant navy, I am not satisfied that Mr May’s age by itself at the time of his claim contributes to his incapacity to work in the work he formerly did.
In regard to time out of the workforce, while I accept the written statements of Mr Doleman and Mr Higgins about Mr May’s experience as a Chief Steward (which was not in question in this hearing), I am not persuaded that such a long period away from his previous employment, and not in fact engaged in any employment, is not a contributing preventative factor. It may not be a significantly contributing factor, but it is a factor that nevertheless a prospective employer might consider as relevant. In coming to this conclusion I take into account Mr May’s own comments that he was finding some of his duties at sea more challenging with changes in practices on ship.
The Tribunal must now consider, essentially, whether Mr May’s incapacity stems from war-caused conditions (in the Applicant’s submission) or from a work-caused illness (in the Respondent’s submission).
The Tribunal had before it a medical report by Dr Robert Gillett (Exhibit R3, p 13), a consultant occupational physician, who assessed Mr May on 24 October 2002 at the request of Woodside Energy after the incident where the Applicant refused to sign a performance review and was not permitted by the company to return to sea because of that. Dr Gillett wrote:
“Mr May indicated to me that the genesis of his current medical situation was in February of this year when he advised his supervisor that he was unhappy with the results of his performance review. This apparently resulted in some heated clashes to the extent that Mr May refused to sign the review. Mr May also indicated that there had been some incidents (unspecified) which had been ‘building up for some time’.”
Dr Gillett recorded that Mr May denied to him any previous episodes of anxiety and depression in his life and that his health was good until the Woodside events.
Dr Norman Rose, psychiatrist, saw Mr May on 23 October 2002 and provided a report dated 29 October 2002 (Exhibit R3, p 17). He stated:
Mr May is a 55 year old chief steward on the Woodside Cossack Pioneer who has not worked since 23 April 2002. He told me he started working on the ship in August 1995 and from that time he found the vessel to be volatile with intolerable conflict between management and unions. He alleged that the company had kept changing strategies and accused management of being ‘fascist’. He alleged that he was under pressure of intimidation and threats and stated he is now taking legal action. He stated, however, that there had been no charges or accusations against him. He stated that he was simply upset by the level of conflict at work. He alleged that the company continually winged [sic] about the cost of travel to and from the ship. He stated that he was continually made to meet new targets and that at the age of 55 this has been difficult for him. He also stated that he had to learn protocols and management systems in his own time.
…
Apparently the matter culminated with what he regarded as a bad incident in Perth. He had had a six week break from the vessel and was going to return to it. He had previously questioned the last year’s performance review. He had a meeting with management in Perth and he believed that at that meeting management terrorised him and told him he was not going to go off shore again. He alleged that at the meeting he felt belittled and harassed. He alleged that although the managers knew he was unwell they did not want him to challenge them. He stated that during arguments in the meeting he could not focus without getting excessively emotional and angry.
…
It is of note that early in his Naval care [sic] Mr May was the witness to a number of horrible events. He remembered ships turning over and he recalled bodies floating around in Hong Kong harbour after cyclones. Some of his mates were killed in accidents but not in front of him. Once when he was in Sydney he saw the body of a man who had fallen into a dry dock. Now he has horrible dreams of ships turning over and of helicopters overhead.
Dr Rose recorded that there was no past history of psychiatric illness. He recorded:
I consider that Mr Ronald May has been suffering from a Major Depressive Disorder. This appears to have gradually arisen, especially over the last two years, in relation to conflict and difficulties at work. There appears to be no past history of psychiatric illness and no past history of life events which in themselves would stop Mr May from working. However he was exposed to certain traumatic events whilst serving in the Royal Australian Navy and his dreams reflect a renewed preoccupation with some of these events. Despite this, one cannot state that he is suffering from a Post-Traumatic Stress Disorder. Essentially, his Major Depressive Disorder is of recent origin and related to current conflict as well as perhaps a pre-existing predisposition to depression.
The Tribunal also had before it (Exhibit R7, p 36) a medical letter to Dr Haller from Dr Geoff Hogan, consultant psychiatrist. Dr Hogan saw Mr May in February 2003. Dr Hogan wrote:
Mr May told me that his difficulties began in Perth in the 18^th May last year when he was called to a meeting to discuss his work performance. The appraisal was negative and he was told that he would not work offshore again. Mr May insists that the negative work appraisal is spurious and that it was contrived because of reasons of management style, personality and matters ideological. He said that the overseas managers of the company concerned were cutting staff and disliked unions, and he believed he had been selected to be squeezed out. He said he was chief steward on the ship and would complain to management that certain things could not be done when they were cutting staff, and he felt that they had no idea of the realities in the workplace. He said that prior to the appraisal he had put a harassment complaint to management. This had followed someone writing derogatory remarks on his hard hat, and after being unhappy with how his complaint was handled by his supervisor he had gone to a manager with whom he had then had an altercation. Subsequent to the appraisal he had been directed to work in an office, which he was very unhappy with. On the 22^nd April he had broken down in a supermarket with a panic attack and tearfulness. He said that there had been a prior panic attack at sea….
Dr Hogan concluded:

I thought that Mr May was presenting with an adjustment disorder with depressed mood attributable to stressors in his employment situation. There is considerable anger and a desire for justice. He does not believe that his employer will accept him back to work should he recover from his current symptoms.
The Tribunal notes that Dr Haller gave an opinion that Mr May suffered from “baseline depression” which she felt was exacerbated by the Woodside events in 2002. The Tribunal had copies of the patient notes from Dr Haller at that time (Exhibit R5). She saw Mr May on 2 May 2002 and recorded (all sic):
meeting at work no off shore work had to work in office working c a guy who harassed him break down sb doc who yold him to go home to family sb work doc told not allowed on plane due to duty of care left in hotel for 2 days felt suicidal depressed tearful not suicidal since returning home thought he was being hounded anzac day could not march Diagnosis: Depression – Reactive
Dr Haller prescribed Effexor and Murelax at this consultation.

Dr Haller again saw Mr May on 11 July 2002 and recorded (all sic):
beed to Harrietville for a few weeks relaxing less stress cooking cleaning does not want to return to work c this company ever again as feeling he had been harassed both on and off the ship feeling very overwhelmed was told he would never return to ship had not received the offer of returning to the ship in a lesser role had enormous hatred for the company as feels he was treated as an imbicile best to accept a redundancy union was told not entitled to long service until next april was on insurance salary continuance 104 weeks lesser pay at present on normal pay sick leave run out 29-6 cert 12-7--8-8-02 does not feel confident about returning to any type of employment Diagnosis: Depression - reactive
The Tribunal finds that these contemporary notes are to be preferred to Dr Haller’s later view at the hearing that Mr May had a baseline depressive condition. They illustrate her view then was that Mr May was suffering from a depressive condition reactive to an external event, that external event being the acrimonious workplace dispute. The Tribunal also prefers the opinion of Dr Rose, who has specialist psychiatric qualifications and who was, unlike Dr Haller, undertaking a psychiatric assessment. Dr Rose found that Mr May’s major depressive disorder was of recent origin with perhaps a pre-existing disposition to depression. He related it to the conflict Mr May was having with his employers at that time.
Dr Rasanjali Ratnayake, consultant psychiatrist, examined Mr May on 8 September 2004 on behalf of the Commission. In a report of 16 September 2004 he wrote:
Mr May said that he began to feel low in mood after experiencing pressure at work while he was living in Perth. In approximately 1995, having left the Navy, Mr May was working for Woodside Oil as a chief steward (catering). He said that he was the head of the catering department and had three other staff members. They had to work long shifts, which went on for 12 hours. He was also under pressure from the company to cut costs. He felt isolated because was separated from his family and was living in Western Australia. He said that he was living in a hotel room away from his wife and children, who were at that time living in Melbourne. He began to feel low in mood in approximately 1996 and his energy levels became low….
He said that he first became depressed in the context of pressure of work when he was working for Woodside Oil in Perth. He said at the time he felt suicidal, but was unable to get leave from his place of employment.
Dr Ratnayake diagnosed Mr May as suffering from: Major Depressive Disorder, single episode, specified chronic and Alcohol Abuse. He was of the opinion that the conditions were temporary in nature. His report contained the following two questions and responses:
In your opinion, is there a probable causal relationship between the condition(s) diagnosed above, and the military employment?
Mr May claimed that there is a relationship between Alcohol Abuse and his military employment. There is however no causal relationship between Major Depressive Disorder and his military employment.
In your opinion, would the member have suffered from the condition(s) regardless of the military employment?
It is possible that Mr May would have commenced abusing alcohol regardless of his military employment. His Major Depressive Disorder was precipitated by the difficulties at work while was employed by Woodside Oil, and has not been precipitated by his military employment.
The weight of evidence from specialist medical professionals, together with Mr May’s own contemporary evidence to Dr Gillett, Dr Rose and Dr Hogan (Exhibit R7), leads me to conclude that the medical condition that saw him leave the employment of Woodside had its genesis in the disputes he was having with management of that company at that time over some four years, culminating in their refusal to allow him to return to sea until he had signed a performance assessment that he regarded as unfair. This is essentially what Mr May told Dr Gillett and Dr Ratnayake when they examined him.
Ms Spencer urged me to have regard to the Tribunal’s decision in Redden and Repatriation Commission [2015] AATA 273. In Redden, Deputy President Alpins stated, at [133]:
Based on the evidence before the Tribunal, considered in its totality, I am satisfied that in fact the only reason Mr Redden left the workforce was because he was incapacitated by war-caused conditions, particularly those of a psychiatric nature. Put simply, his working life was cut short by them.
Each of these matters must be considered on the individual circumstances. I find that Mr May’s circumstances may be distinguished from Mr Redden’s. Mr May left the workforce because of a Major Depressive Disorder that manifested in 2002 and which was precipitated by a series of workplace disputes. In the view of several psychiatrists who assessed Mr May, those workplace disputes were the catalyst for this condition and in the contemporary clinical notes of Mr May’s treating general practitioner, it was her view that he suffered reactive depression because of what happened at Woodside.
The Tribunal is satisfied that Mr May is incapable of undertaking remunerative work for periods aggregating more than 8 hours a week because of his medical conditions but not that this incapacity comes about from war-caused injury or war-caused disease alone (section 24(1)(c) of the VEA).
After careful consideration, the Tribunal finds that the alone test as stipulated in section 24(1)(c) of the VEA is not satisfied in the Applicant’s case. Mr May has a psychiatric condition with a diagnosis that relates directly to a build-up of events during his work on the Cossack Pioneer which the Applicant himself states had commenced “about four years” earlier (Exhibit R7, p44), with the first of what became a series of incidents on board the ship.
The Tribunal accepts the evidence of the Applicant and Mrs May about the events which immediately followed his office dispute with Woodside management over the performance assessment which he refused to sign. It was obviously a traumatic time. However, the Tribunal is not satisfied, on the balance of probabilities, that incapacity from a war-caused injury or war-caused disease alone have prevented Mr May from continuing to undertake the remunerative work he was undertaking. Other factors are clearly evident: a series of disputes with management and, to a smaller extent, with fellow workers which he said had spread over four years; changes in work practices at sea, and a work-caused illness, Major Depressive Disorder, which has endured and has had, on both the objective medical evidence, and the evidence at the hearing from the Applicant and Mrs May, a significant and detrimental effect on him.
It is not necessary for me to make a determination about whether there was a base-line depressive condition (as is the opinion of Dr Haller) or whether Mr May had a constitutional predisposition to depression (as posited by Dr Rose and to some extent supported by the lay evidence of Mrs May), because it is clear to the Tribunal on the consistent psychiatric evidence that Mr May’s Major Depressive Disorder was precipitated because of his experiences when an employee for Woodside Energy, and does not stem from his prior service in the RAN. Mr May had 20 years’ service in the Navy and then a succession of positions, initially on land and then in Australia’s merchant fleet. It is fair to say that Mr May seems to have made a general success of each of the chapters of his career (noting some evidence about minor conflicts arising), until the series of events which occurred when he was employed by Woodside Energy on the Cossack Pioneer.
In making this finding, I do not detract from Mr May’s consistent reporting of bad dreams consequent on traumatic things he said he experienced in the RAN, and the fact that the VRB had accepted depression as a war-caused condition. However, there is no doubt to me on the psychiatric evidence that Mr May’s Major Depressive Disorder is a separate, and, importantly, separable, condition which was caused by issues arising from his civilian employment at Woodside Energy. As a consequence, the ‘alone’ test requirements of the Act are not met and the Tribunal finds that the Applicant does not satisfy section 24(1)(c) of the VEA in relation to his claim for Special Rate pension.
The Ameliorating Provisions in the Act
Ms Spencer submitted that, in the alternative, the Tribunal should find that the Applicant has satisfied section 24(2)(b) of the VEA. Mr May said he had work offers in 2002, 2003, 2005 and 2009. Mr Higgins said in his statement he had effectively made “numerous” offers of work to the Applicant, none of which were taken further. Mr May said he went to MUA stop work meetings from 2004-03 “about once a month” and later said he “went to three or so a year”. At these meetings discussions are held about opportunities to get back into the workforce.
Mr Higgins wrote in his statement of 4 April 2017:
I became aware that Ron ceased employment with Woodside Energy in the early 2000s. Thereafter I rang him on numerous occasions effectively offering him positions in the Merchant Navy as a Chief Steward….On the occasions when I tried to recruit him for a shipping company he simply told me that he was not fit to return to work. He told me that his unfitness to work was the reason that he ceased with Woodside Energy. He never went into precise details regarding his ill health but I was aware that he suffered a bad back and hearing problems and thought they might be factors causing him to be unfit. I always believed that there was more to Ron’s situation than the back and the hearing. He seemed down in the dumps when I spoke with him and I suspected that he suffered depression. I never specifically asked him why he was unfit for work because I thought to do so was intruding on his privacy. I am not surprised to hear that his reason for ceasing with Woodside Energy and not working thereafter was depression.
I regard Mr Higgins’ statement as truthful. He offered jobs to Mr May but none of these offers was taken up. He did not know why, other than the Applicant told him he was “unfit for work”. Mr May said he had looked at some job advertisements “since about 2008” but did not give any evidence that he had applied for any positions. In regard to the two business propositions at Harrietville, they did not come about because of a range of factors, which included Mr May’s accepted health conditions, but also included additional factors such as financial risk and the views of Mr May’s children.
The Tribunal accepts that the practices of the merchant navy mean that, often, positions are obtained by word of mouth, but even so I am not satisfied that there was sufficient evidence before me, on the balance of probabilities, of active pursuit by the Applicant of remunerative work of the type he was undertaking before he ceased to work. He did not say he had applied for a single job since 2002. Although the two nascent family ideas of businesses at Harrietville would have involved similar skills to those Mr May has, apart from one visit to a credit union, nothing substantive ensued from those.
The Applicant’s Statement of Facts and Contentions notes that Rares J in Smith noted that the word “genuinely” in section 24(2)(b) of the VEA referred to the subjective intention of the veteran. In the same case, Buchanan J held that “a veteran may demonstrate genuine attempts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of inability to obtain work.”
The “incapacity” referred to in section 24(2)(b) must be that incapacity caused by a war-caused injury or war-caused disease (see section 24(2)(a)). I am not satisfied that the fact that Mr May has not returned to work has, alone, been caused by war-caused conditions. His Major Depressive Disorder, which I have found stemmed from a workplace dispute, plays a significant part. So do other factors including a war-caused condition of alcoholism and a lengthy time out of a changing maritime workforce. The Tribunal acknowledges that Mr May’s accepted medical conditions have had a significant effect on him and his family, and to that end compliments Mrs May on the frankness of her evidence and her clear and unreserved support for her husband through his health challenges.
The VRB addressed the question of the EDA Rate and as the Tribunal has found that the Applicant is not eligible for the Special Rate, the Tribunal must also review this part of the reviewable decision. The EDA takes into account the medical impairment and lifestyle effects of a disability, but does not have regard to whether or not a veteran is employed, or any regard to income or assets. On the evidence of medical impairment in medical reports before the Tribunal and the evidence on Mr May’s lifestyle from the Applicant and Mrs May, which was not disputed by the Commission, the Tribunal finds that the Applicant satisfies the requirement for EDA.
After carefully considering the specific circumstances of Mr May’s case, the Tribunal believes that the continuation of Mr May’s pension at 100 per cent of the General Rate with the Extreme Disablement Adjustment from 3 February 2014 is the correct decision.
DECISION
The reviewable decision of 12 April 2016 is affirmed.

84. I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Morris, Member

........................[sgd]................................................
Associate
Dated: 24 November 2017

Date of hearing: 10-11 August 2017

Counsel for the Applicant: Ms Fiona Spencer

Solicitors for the Applicant: Williams Winter

Advocate for the Respondent: Mr Ken Rudge

Date of hearing:	10-11 August 2017
Counsel for the Applicant:	Ms Fiona Spencer
Solicitors for the Applicant:	Williams Winter
Advocate for the Respondent:	Mr Ken Rudge