McCann and Repatriation Commission

[2004] AATA 464

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 464

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/616

VETERANS’ APPEALS DIVISION		)
Re		JOHN McCANN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date23 April 2004 

PlaceBrisbane

Decision For reasons given orally the decision under review is affirmed.

..................(Sgd).......................

MJ Carstairs
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – rate of pension – special rate – applicant did not cease work as a result of his war-caused disabilities alone – extreme disablement adjustment rate – applicant does not have a lifestyle rating of 6 – pension payable at 100% of the general rate

Veterans’ Entitlements Act 1986 ss 22 and 24

Forbes v Repatriation Commission (2000) 171 ALR 131
Cavell v Repatriation Commission (1988) 9 AAR 534
Hall vRepatriation Commission (1994) 33 ALD 454

Hendy v Repatriation Commission [2002] FCA 602

WRITTEN REASONS FOR ORAL DECISION

12 May 2004  Ms M Carstairs, Member   

1.      This is an application by John McCann (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) affirming a decision of a delegate of the respondent that the applicant was not eligible to be paid pension at the special rate. 

2. On 23 April 2004, the Tribunal gave an oral decision in this matter, affirming the decision under review. On 29 April 2004, the applicant requested the Tribunal to provide written reasons for its decision pursuant to s43(2A) of the Administrative Appeals Tribunal Act 1975.  The following are the Tribunal’s written reasons for its oral decision.

3.      This application for review was heard by the Tribunal on 21 April 2004.  At the hearing the applicant was represented by Mr D O’Gorman of counsel instructed by Len Marks Solicitors.  Mr M Smith represented the respondent. 

4. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 (numbered T1-T6) as well as exhibits marked A1-A3 for the applicant.

BACKGROUND

5.      The applicant is aged sixty-five.  He was called up for National Service in 1958 and later joined the Regular Army, serving until 1982 with a short break to his continuity in 1972.  During the course of his Army career he served in Malaysia (1964) and in Vietnam (April 1967 until March 1968).  When he left the Army in 1982 he took up employment with Queensland Teachers Credit Union (QTCU), a position which lasted until 1990 and was full-time.  He then worked for Kinross Nursing Home on a casual basis carrying out maintenance duties.  He ceased that employment in 1992.  He has not worked in paid employment since that time.

6.       The applicant has several conditions that have been accepted as due to war or defence service.

§  Sensori-neural deafness

§  Osteoarthritis right knee

§  Solar skin damage

§  Hallux rigidus with metatarsalgia left foot

§  Gastro-oesophageal reflux disease

§  Lumbar spondylosis

§  Thoracic spondylosis

§  Diabetes mellitus

§  Aortic atherosclerotic disease

§  Post traumatic stress disorder

7.      On 3 November 2000 he lodged an application to have his rate of pension increased.  He had previously had a claim for special rate of pension rejected by the respondent, a decision affirmed by the VRB on 12 April 1999. The applicant sought further review of the rejection of his claims and the VRB second panel rejected the claim on 29 April 2003.  The applicant then sought review by this Tribunal on 21 July 2003.

8.      The issues for the Tribunal at the hearing were:

(a)was the applicant qualified for special rate of pension; and

(b)was he qualified for extreme disablement adjustment?

EVIDENCE

9.      In a written statement dated 20 November 2003 (Exhibit A1), the applicant referred to his attempt to sustain employment in civilian life in 1971-72, and said that he came to realise that he could not work in a setting where there was no code of conduct.  He returned to Army life.  When he ultimately resigned from the Army at the age of 44 in 1982 he said he had numerous offers of employment, but settled on a position in the Graphics Department at QTCU. He said that he worked successfully in the position, working long hours to achieve the results that he did.  He set out in the written statement that there were some interpersonal frictions but that these were managed.  He referred in his statement to an otherwise testing relationship, however it was workable.  He referred also to his concerns that another staff member was not carrying their weight, but he stated that there was some improvement when the building supervisor resigned. He stated that he became increasingly irritated with the inadequate work performance of others, and he decided that the only solution was to resign.  He acknowledged in cross examination however that he was not in the habit of having quarrels with people in the workplace.

10.     The applicant said that he told others (and himself) that he resigned because he was paying too much tax but now realised that it was as a result of his psychiatric condition. He said that when he resigned he felt that stating that the tax bracket issues were a problem was a good reason to offer to his employers.  He said that he received a DFRDB pension after his retirement from the Army.

11.     In his oral evidence the applicant said that his work situation at the time of leaving QTCU was pretty intolerable and he was close to being violent.  He said however that when he tendered his resignation he was offered a salary increase of some $6000 to induce him to stay.  However he said his work stress was showing in his home life and he did not consider that he could continue to cope in an environment interacting with others.  He said that while it was a personal decision to leave QTCU it was not a lifestyle decision, and he said that this was shown by the fact that his decision detracted from their family ambitions, including that their daughter have private schooling.

12.     Prior to leaving QTCU he had obtained a maintenance position with Kinross Nursing Home, working at weekends.  He continued with that after leaving QTCU and he said that this position did not involve interacting with others.  However he said he found that he did not want to be there, the travel bothered him as it was a distance from home and he started to have issues with a young fellow employee.

13.     He said that he took up the role of house husband while his wife worked full-time. They moved to Peregian Beach in 1995. The applicant said that he commenced a course in Fine Arts in 2000 and specialised in pottery which he found relaxing.  He said he was a full-time student and though he was concerned that he would not be able to complete the two years, he did not wish to be seen as a quitter and graduated with a Diploma in Fine Arts after two years study.  He said that his son and daughter had wanted him to sell his work through local markets; however he did not wish to do this.  He said that if he did not have his war-caused disabilities he would happily undertake work in the field of the arts.

14.     The applicant’s wife, Mrs Janice McCann, confirmed the evidence of the applicant that the stresses of his employment were placing intolerable strains on their home life at the time that he left QTCU. She confirmed also that his leaving employment affected their lifestyle adversely.  She said that if her husband did not have his disabilities he would be working now.

15.     In a letter dated 14 June 2002, Mr P Marning stated that he had been the Administrative Services Manager for QTCU in the early 1980s and had engaged the applicant to assist in the installation of an in-house printing service.  He said that the applicant became obsessive with the performance of senior management and over-protective of staff.  He said that the applicant was irritable, argumentative and quite aggressive.  He stated that he had occasion to remind the applicant not to interfere in the operations of other sections.  Mr Marning stated that he left employment at QTCU in 1989.

16.     In a report dated 11 January 2001, Dr P Bird, psychiatrist, expressed the view that the applicant’s psychiatric condition meant that he could not perform work of eight hours per week.

17.     In a report dated 11 March 2003 (T4), Ms C Bendall, psychologist, stated that  as a direct result of his PTSD the applicant could not perform in employment of more than eight hours per week.  In a further report dated 26 November 2003, Ms Bendall stated that the applicant gave himself (and others) plausible explanations at the time of his resignation including that he wanted to give his wife a chance to expand her career and that he was paying too much tax, however a more realistic reason would be PTSD symptomatology. In oral evidence she said that people with these symptoms will often be confused about their reasons.  She noted that the applicant was a perfectionist with a high work ethic, and that he would have been at risk of losing control in a work setting.  She stated in her written report that he described incidents of conflict when interacting with the general public and work associates.

CONSIDERATION OF THE ISSUES

18. The assessment period for this matter starts on the date of the application for increase in pension was lodged, which was 20 November 2000: s19(9) of the Veterans’ Entitlements Act 1986 (the Act).

19. Section 24 of the Act provides for the special rate of pension, which is one of the earnings-related pensions that a veteran may claim under the Act. Because the respondent conceded that certain parts of the qualifying conditions set by the section were met by the applicant, the issues in this matter are quite confined. The Tribunal accepts the correctness of the concession, as supported by the evidence of Dr Bird, that the applicant is unable to work eight hours per week due to the effects of his psychiatric condition: s24(1)(b).

20. The issues arise in s24(1)(c) which relevantly provides as follows:

“This section applies to a veteran if:

…

(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; …”

21. In regard to s24(1)(c), there are two limbs to the section that must be met: Forbes v Repatriation Commission (2000) 171 ALR 131. In the first limb, the applicant must be prevented from continuing to undertake remunerative work that the veteran was undertaking, or, relatedly, must be deemed to be incapacitated from continuing to undertake remunerative work, as provided for in s24(2)(b). Section 24(2)(b) provides:

“For the purpose of paragraph (1)(c):

…

(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.”

22.     In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, the Federal Court said:

“This is not to say, of course, that a paraphrase may not throw light into a dark corner of a statutory prescription. But the phrase used by the tribunal, to which objection is taken, involves an almost scholastic insistence upon analysis of the concept of singularity.  The tendency of that is to distract the tribunal from its true task – to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well.  It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”

23.     In Forbes v Repatriation Commission (2000) 171 ALR 131, the Court said that any factor having employment consequences which played a part in the applicant’s inability to work or to retain and hold remunerative employment is sufficient to displace the applicant’s case for pension at the special rate.

24.     Mr O’Gorman submitted that the applicant’s honesty and forthrightness in giving his evidence was beyond question.  He submitted that the evidence of the applicant and his wife confirmed that the decision to leave employment was not in the family’s interests and it was not correct for the respondent to assert that the applicant left work for personal and lifestyle reasons. He referred the Tribunal to the Court’s decision in Hall v Repatriation Commission (1994) 33 ALD 454 at 461 as authority for the point that s24(2)(b) does not require the charade of attempts at seeking remunerative work if it is clearly the case that the applicant is prevented from seeking such work because of accepted disabilities. This was the case here, he submitted. He said the evidence showed that the applicant would gladly have accepted work if he was able to engage in it.

25.     In regard to the alternative entitlement to extreme disablement adjustment after the applicant turned sixty five, Mr O’Gorman submitted that the applicant’s statement about his condition and the assessment by Dr Newbold supported a rating of 6 for lifestyle effects. 

26. Mr Smith submitted that while other parts of s24 were met by the applicant, s24(1)(c) was not. Mr Smith submitted that while the applicant’s PTSD impacted on his decision to resign there is no evidence that he was unable to continue working at that time. He said that this is a case where the applicant was much later diagnosed with PTSD and realised after the event the medical condition was the source of his problems in the workplace. He submitted that s24(1)(c) provides an “alone” test, not a “but for” test. He said that in this case there were other reasons impacting on the applicant’s ceasing to engage in remunerative work. He said that he ceased work for a number of reasons and referred to the applicant’s comments in regard to the travel to his employment at Kinross Nursing Home that you weigh these things up and decide that it is not worth it.

27.     In regard to any entitlement to extreme disablement adjustment, Mr Smith submitted that it could not be paid as the evidence did not support a rating of 6 for lifestyle effects which is the necessary level of rating to qualify for that payment. 

28.     The Tribunal reached its decision taking into account the oral and written evidence and the submissions. The applicant has a range of skills and the remunerative work that properly is to be considered includes his skills in graphic design as well as the general maintenance skills that he employed when at Kinross.  In addition he has achieved qualifications in pottery and fine arts though the evidence was that he has not used these as the basis of remunerative activity, and his evidence was that his pursuit of these activities was therapeutic. He did acknowledge however that his family had urged him to sell his pottery and he said that if a job in fine arts had come up he would have grabbed it.  Fine arts (as distinct from graphic design) has not formed a part of remunerative work for the applicant however.

29.     The Tribunal noted that much of the evidence and submissions were directed at the applicant’s reasons for leaving work at QTCU in 1990.  The Tribunal took into account the applicant’s evidence and accepts that he was having difficulty coping with the stresses of the workplace and that these impacted on his home life in ways that concerned both him and his wife.  The Tribunal derived little assistance from the report of the psychologist, Ms Bendall.  Her oral and written evidence was expressed in very general terms, derived from her experience of PTSD cases generally.  She was not treating the applicant at the time he left employment.  She spoke of incidents of conflict with the associates and the general public. However this was not the thrust of the applicant’s evidence to the Tribunal. His evidence was that he was not quarrelsome at work, though clearly work troubled him.  The Tribunal also gained little assistance from the statement of Mr Marning, who left QTCU before the applicant and whose statement set out only the usual irritations of a workplace.

30.     The issues surrounding the applicant’s resignation from QTCU and leaving the employment at Kinross Nursing Home are of relevance but must not supplant the test under the legislation which must be applied in the assessment period which dates from the time the applicant claimed in 2000.  At that time the applicant had been out of the workforce for some eight or nine years. The Tribunal accepts that the applicant gave an honest and factual account of his circumstances, and accepts that he now considers that the difficulties he experienced in the workplace became more understandable once his condition of PTSD was diagnosed.  However he was clearly a valued employee and his ability to perform successfully in the workplace despite his disability is reflected in the employer attempting to retain him by offering him increased remuneration.  

31.     It seems more likely than not that in the early nineties the family was weighing up their overall circumstances and making decisions about their lifestyle that took into account a range of options, which would have included the applicant’s access to pension entitlements and his wife’s ability to undertake employment.  By the time of the claim in 2000 the applicant and his family had relocated their home and the applicant had undertaken new directions in his life, including full-time study, that did not entail remunerative work.  At the claim he was already in his early sixties, at a stage in life that is well recognised as being more difficult to achieve employment.  Added to that factor was the amount of time out of the workforce. As the case of Cavell points out, a commonsense approach must be taken. The Tribunal was reasonably satisfied that the combination of time out of the workforce and age prevent the applicant being able to satisfy s24(1)(c). The Tribunal was satisfied that it was not incapacity from war-caused injury or disease that was the direct cause of the applicant being out of the workforce at that time or at any time in the assessment period : Hendy v Repatriation Commission [2002] FCA 602.

32. In regard to s24(2)(b) there was no evidence that the applicant was seeking to engage in remunerative work. The Tribunal takes into account that consideration must be given to the limitations imposed by the accepted disabilities in making those efforts at all (Hall) and the evidence that the applicant gave that he would have liked to work if the right work was available.  Balanced against this was the evidence that he was able to undertake and complete the fine arts course full-time.  The Tribunal finds that the applicant was not seeking to engage in remunerative work, certainly by the time the family moved to Peregian Beach in 1995, and finds that it was not incapacity alone that was the substantial cause of inability to obtain remunerative work.

33. In regard to the question of payment at the rate under s22(4), that section provides as follows:

“Where:

…

(c) the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions; …

the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).”

34. Taking into account the applicant’s evidence that he has improved relationships with his children, gets on well with one of his neighbours, who help by mowing their nature strip, that he and his wife attend the Coolum Surf Club, the movies and have occasional visitors at home, the Tribunal accepts the respondent’s submission that a lifestyle rating of 3 for Personal Relationships is appropriate. Taking into account the applicant’s answers in A2 and his evidence that he often requires two walking sticks about the home, and his problems arising from PTSD in driving (it being noted that both physical and psychiatric impairments must be taken into account), the appropriate rating is 4 for mobility. That rating takes into account that the applicant can use public transport (with some difficulty and does not like doing so). He is able to drive, and is not confined to mechanical devices such as a wheelchair or prevented from using public transport. The rating for recreational and community activities is 4 as the applicant is now limited to less physical activities such as painting in oils, and he can no longer undertake his preferred sports. The Tribunal accepts the respondent’s submission that the rating for domestic and employment activities is 5, as the applicant’s evidence was that he is limited to very light household duties and has organised his life to accommodate his limited abilities. The Tribunal was satisfied that the requirements of s22(4) were not met in that an overall Lifestyle rating of 6 is not met, averaging out these scores under Chapter 22 of the Guide to the Assessment of the Rate of Veterans’ Pensions.

35.     For these reasons the applicant cannot be paid pension at the extreme disablement adjustment rate or the special rate.  Pension remains payable therefore at 100% of the general rate.

DECISION

36.     The decision under review is affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M Carstairs, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  21 April 2004
Date of Oral Decision                23 April 2004
Date of Written Reasons          12 May 2004

Counsel for the Applicant         Mr D O'Gorman
Solicitor for the Applicant          Len Marks Legal Practice
For the Respondent                  Mr M Smith, Departmental Advocate