McLaughlin and Repatriation Commission

[2008] AATA 246

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 246

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 2006/606

VETERANS' APPEALS DIVISION		)
Re		BRIAN McLAUGHLIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott RFD, Senior Member

Date28 March 2008

PlaceBrisbane

Decision I set aside the decision under review and substitute a decision that the veteran is entitled to receive a pension at the Intermediate Rate under s23 of the Veterans’ Entitlements Act 1986, this decision to have effect from 18 May 2005.

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

Senior Member

CATCHWORDS

VETERANS’ APPEALS – Veterans’ entitlements – disability pension – application for special rate of pension – applicant’s war caused injuries or diseases the cause alone, of his being unable to work – post traumatic stress disorder  – decision under review set aside, veteran granted a pension at the intermediate rate

Veterans’ Entitlements Act 1986 ss 19, 23, 24

REASONS FOR DECISION

28 March 2008 Dr P McDermott RFD, Senior Member   

INTRODUCTION

1.      Mr Brian McLaughlin, a veteran, has sought the review of a decision made by the Veterans’ Review Board that he was not eligible to be paid a pension at the special rate. I have to decide whether the veteran meets the eligibility criteria for the payment of an “earnings-related” rate of pension under the Veterans’ Entitlements Act 1986 (the Act).

SERVICE AND ACCEPTED DISABILITIES

2.      Mr McLaughlin (the veteran) joined the Australian Army in 1961. In 1973 he was discharged with the rank of sergeant.  During his service with the Australian Army, the veteran received a number of promotions. Upon his discharge he was given an honourable discharge.

3.      The veteran has operational service in Vietnam from 23 January 1967 until 8 June 1967. He also has eligible defence service as a member of the Defence Forces from 7 December 1972 until 3 January 1973.

4.      The veteran has been diagnosed with Post Traumatic Stress Disorder condition which has been recognised as service related. He has been assessed as eligible for payment of a pension at 70% of the General Rate.

ISSUES AND LEGISLATION

5.      Section 19(5C)(a) of the Act requires the rate of a pension is to be determined  during the “assessment period”. That term is defined in s19(9) of the Act to mean, in relation to a claim or application relating to a pension, the period starting on the application day and ending when the claim or application is determined. The application day in this case was 18 August 2004 and the assessment period runs from that day.  I will consider the entitlement of the applicant during the whole assessment period.

6.      An “earnings-related” rate of pension may be provided to a veteran provided that the applicant meets the requirements of s 24 of the Act.  I refer to some relevant provisions from that section.

7.      The veteran must be under 65 years of age at the date of the claim: s 24(2) (b). This requirement is not in contention.

8.      The degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, must be determined under s 21A to be at least 70% or has been so determined by a determination that is in force: see s 24(1)(a)(i). The veteran meets this requirement as he is in receipt of a pension at 70% of the General Rate.

9.      There is also a requirement that the veteran must be 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 eight hours per week: see s 24(1)(b). This requirement is in issue.

10.     In addition to satisfying the requirement of s 24(1) (a) and s 24 (1) (b) of the Act, the veteran must also, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, be 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: see s 24(1)(c).

MEDICAL CONDITIONS OF VETERAN

11.     A number of medical witnesses gave evidence on the medical conditions of the veteran.

12.     Dr Anthony Balkin, a consultant physician in psychiatry, was called by the veteran. Dr Balkin has been the treating psychiatrist of the veteran. The veteran last attended Dr Balkin on 13 April 2006.  Dr Balkin remarked in evidence that he is no longer the treating psychiatrist of the veteran. In evidence before me were reports of Dr Balkin of 7 October 2004[1]; 17 May 2006[2]; and 20 March 2007[3]. In his reports Dr Balkin has opined that Mr McLaughlin has suffered from Post Traumatic Stress Disorder since his Vietnam service and that his disorder renders him totally and permanently incapacitated for any kind of remunerative work.

[1]T4, fols. 50-54.

[2] T4, fols. 96-97.

[3] Exhibit C.

13.     Dr Janis Carter, a consultant psychiatrist, was called to give evidence by the veteran. Dr Carter had written three letters which were admitted into evidence: these letters were written on 10 May 2007[4]; 17 May 2007[5]; and 23 May 2007[6].  Dr Carter had advised that she had not written a medico-legal report. Dr Carter remarked that she had been directly contacted by the veteran to provide him with a report as if he was a solicitor. Dr Carter, presumably for ethical reasons, declined to directly provide the veteran with a report. Dr Carter said that the conduct of the veteran was difficult. The veteran was referred to Dr Carter for an opinion as to the management of his Post Traumatic Stress Disorder condition.

[4] Exhibit D.

[5] Exhibit E.

[6] Exhibit F.

14.     In her letter of 10 May 2007[7], Dr Carter, quite frankly, remarked: “Multiple psychiatric conditions abound about his condition”. In that letter[8], Dr Carter also commented that the veteran would benefit from more specific treatment for Post Traumatic Stress Disorder and mentioned a number of programs. The veteran does not appear to have availed himself of the treatment that was recommended by Dr Carter.

[7] Exhibit D at 1.

[8] Exhibit D at 1.

15.     In her letter of 17 May 2007[9], Dr Carter made reference to a report of Dr Phillip Morris of 20 November 2006 in which Dr Morris concludes that the veteran does not suffer from Post Traumatic Stress Disorder.  Dr Carter in that letter opined that the veteran does suffer from “all the symptoms of PTSD Criteria A-E”[10]. In particular, Dr Carter differed from the opinion of Dr Morris that the veteran does not suffer from avoidance phenomena or hyper vigilance. Dr Carter in her letter remarked: “From the history given to me and the examples both given and demonstrated at interview these symptoms are all still present and demonstrable even at interview”[11].

[9] Exhibit E, at.1.

[10] Exhibit E, at 1.

[11] Exhibit E, at 1.

16.     In her letter of 23 May 2007[12], Dr Carter referred to the opinion of Dr Philip Morris that the veteran could work 10-15 hours per week. In her letter Dr Carter has concluded: “It is my clinical opinion that his symptoms of PTSD have caused him major problems in interpersonal relationships, and has been exclusively responsible for his inability to obtain paid work”[13]. 

[12] Exhibit F, at 1.

[13] Exhibit E, at 1.

17.     Dr Philip Morris was called by the respondent to give evidence. Dr Morris provided a report dated 20 November 2006 which was admitted into evidence: together with a letter of instructions to that practitioner[14]. Dr Morris opined that the veteran suffers from anxiety disorder NOS and that for a period of time he suffered from alcohol dependence and abuse that was also related to his war service. The alcohol dependence and abuse are in remission. Dr Morris also considers that the veteran suffered from nicotine dependence during his army career and later until 1985.

[14] Exhibit K.

18.     Dr Morris considers that “his anxiety disorder NOS made a partial contribution to his leaving work in 1993 in that he was having difficulties with chronic irritability and anger problems, as well as a negative attitude towards his work”. Dr Morris also stated: “I do not consider that these problems were the major reason for his leaving work”[15].

[15] Exhibit K at 7.

19.     Dr Morris considers that the veteran could work 10-15 hours paid work per week in suitable (restricted) duties. Dr Morris considers that the veteran could work on his own in outdoor pursuits (nursery, pest control and garden maintenance) or in fitting and turning jobs or technician work.

CONSIDERATION OF THE ISSUES

Is the veteran prevented from undertaking remunerative work for periods aggregating more than 8 hours per week?

20.     The first matter that I should consider is whether s 24(1)(b) of the Act applies to the veteran. This provision imposes a requirement that the war-caused injury or disease should prevent the veteran from undertaking remunerative work for periods aggregating more than 8 hours per week.

21.     There is a clear difference of medical opinion on whether s 24(1)(b) of the Act applies to Mr McLaughlin. Certainly, Dr R Jabs, his general practitioner, and Dr R Balkin, who has been the treating psychiatrist, consider that the veteran is unable to work. This opinion is shared by Dr Carter as well as Dr Bruce Lawford in his report of 15 October 2007[16]. Dr James Wright, psychiatrist, was “reluctant to comment on his ability to work more than eight hours per week, as he has not been doing so for some time”[17]. On the other hand, Dr Morris has come to the conclusion that the veteran can work more than eight hours per week in certain positions.

[16] Exhibit B.

[17] Exhibit L.

22.     The respondent has contended “on the basis of the report from Prof. P Morris dated 20 November 2006, that the applicant does not satisfy s 24(1)(b)”.[18]

[18] Respondent’s Statement of Facts and Contentions (29 November 2007), contention 5.1.

23.     I prefer the opinion of Dr Morris who I consider has fairly reported on the capacity of the veteran. I accept his evidence that the veteran is able to perform work for 8 hours a week.  Dr Morris has examined the medical condition of the veteran and carefully given consideration to whether he is able to perform the duties of certain occupations. The veteran himself has acknowledged that since his redundancy he was capable of part-time work. The veteran has remarked that after his redundancy “there was further scope for employment”[19]. In 1998 the veteran is reported as “been working as a fitter and turner on a casual basis doing work for an agency”[20]. The veteran considered that at that time his work had dropped off due to a lack of computer skills[21].

[19] Exhibit J, at 21 (3 August 2006).

[20] Report of Dr James Wright, 3 November 2000 cited in Exhibit J, p. 6 (3 August 2006).

[21] Report of Dr James Wright, 3 November 2000 cited in Exhibit J, p. 6 (3 August 2006).

Veteran not entitled to pension at the Special Rate.

24.     In the circumstances I cannot be reasonably satisfied that s 24(1)(b) of the Act applies to this veteran. It is for this reason I consider that the veteran is not qualified to receive a pension at the Special Rate.

Whether the veteran is entitled to pension at the Intermediate Rate.

25. Mr Jarro, of counsel, has made a submission that I should consider whether the veteran is entitled to a pension at the intermediate rate. For the veteran to be qualified to receive a pension at the intermediate rate it is necessary that each criteria in s 23(1) (aa) to (d) apply to the veteran. These criteria are not to be read disjunctively in view of the presence of the word “and” after each criteria from the criteria in s 23(1)(aa) to (c).

26. This veteran satisfies the requirements of s 23(1)(aa) of the Act as he has made an application for an increase in the rate of pension that he is receiving.

27. The veteran also satisfies the requirements of s 23(1)(aab) of the Act as the veteran had not yet turned 65 when the application was made.

28. The degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, must be determined under section 21A to be at least 70% or has been so determined by a determination that is in force: see s 23(1)(a)(i). The veteran meets this requirement. He has been assessed as eligible for payment of a pension at 70% of the general rate.

Veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently.

29. I must next examine whether the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. This test is imposed by s 23(1)(b) of the Act.

30. I have taken the view that this veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently: see s 23(1)(b). I am reasonably satisfied that s 23(1)(b) of the Act applies to this veteran in view of the evidence of Dr Morris, which I accept, who has reported that the veteran can undertake part-time work in suitable (restricted) duties.

31. I also mention that Dr Morris considers that the veteran can work up to 15 hours per week. The work capacity of the veteran does not therefore exceed the limitation in s 23(2) of the Act.

SECTION 23(1)(C)

32. I must next consider whether s 23(1)(c) of the Act applies to this veteran. This requires me to consider the following three questions:

1.What was the remunerative work that the veteran was undertaking?

2.Whether the veteran is by reason of his war-caused injury or war-caused disease prevented from continuing to undertake that remunerative work?

3.Is the war-caused condition of the veteran the only factor that prevented the veteran from continuing to undertake that remunerative work?

4.Would the veteran have continued to work if he were free of his incapacity?

What was the remunerative work that the veteran was undertaking?

33. I must initially consider what was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 23(1)(c) of the Act.

34. I find that the “remunerative work that the veteran was undertaking” within the meaning of s 23(1)(c) of the Act was his work as an engineering fitter and turner. This was the work that he did with Telecom from 1985 until 1993.

Whether the veteran is by reason of his war-caused injury or war-caused disease prevented from continuing to undertake that remunerative work?

35. The next question that I must determine in order to consider whether s 23(1)(c) of the Act applies to this veteran, is whether the veteran is by reason of incapacity from his war-caused injury or war-caused disease prevented from continuing to undertake that remunerative work.

36.     I might at this point mention that there is no issue between the parties as to whether the veteran has Post Traumatic Stress Disorder. The respondent, since the receipt of the report of Dr Morris, is still prepared to accept that the veteran has Post Traumatic Stress Disorder[22].

[22] Respondent’s Statement of Facts and Contentions (29 November 2007), contentions 5.1, 5.5.

37. I must determine whether the war-caused psychiatric condition of the veteran prevented the veteran from continuing to undertake the remunerative work that he was undertaking. This is the test under the first limb of s 23(1)(c) of the Act. This is a question of fact that has to be resolved by evidence before me. I am required under the Act to determine this question to my reasonable satisfaction.

38.     The parties have not referred to any contemporaneous evidence that might throw some light on why the veteran ceased his employment.

39.     I also consider that it is significant that Dr Morris considered that the condition of the veteran “made a partial contribution to his leaving work in 1993 in that he was having difficulties with chronic irritability and anger problems, as well as a negative attitude towards his work”.

40.     It is true that Dr Morris does not consider that “these problems were the major reason for his leaving work”. In all strictness the reason why the veteran left his employment was the fact that he was made redundant upon the privatisation of his employer. However, I consider that it is more probable than not that the accepted psychiatric condition of the veteran did prevent the veteran from continuing his employment as a fitter and turner after his redundancy. Dr Morris has recognised the “chronic irritability and anger problems as well as a negative attitude towards his work”[23]. It is significant that Dr Wright considers that the veteran was severely depressed at the time of his redundancy[24]. It is for these reasons that I consider that at the time of the redundancy the veteran was not in a position to work because of his accepted psychiatric condition.

[23] Exhibit K at 6.

[24] Exhibit L.

41.     I find that the war-caused condition of the veteran prevented the veteran from continuing to undertake the remunerative work that he was undertaking.

Is the war-caused condition of the veteran the only factor that prevented the veteran from continuing to undertake that remunerative work?

42. I must ascertain whether the war caused condition of the veteran is the only factor that prevents the veteran from continuing to undertake the remunerative work. This is made clear by the presence of the word “alone” in s 23(1)(c) of the Act.

43.     On 23 November 2007 the veteran’s statement of facts and contentions listed as a contention that the accepted war-caused condition of the veteran “is the substantial cause of his inability to obtain paid work”. The respondent’s statement of facts and contentions does not give notice of any factor which prevents the veteran from continuing to work.

44.     There is evidence from Dr Jabs[25], the general practitioner, of the veteran, as well as from Dr Balkin[26] that there is no other condition which may affect the ability of the veteran to work.

[25] Medical Examination Form, 11 February 2005, T4, fol 76

[26] Report, 7 October 2004, T4, fol 54

45.     I find that this accepted psychiatric condition was the only factor that prevented the veteran from continuing to undertake the remunerative work.

Would the veteran have continued to work if he were free of his incapacity?

46. I have to consider whether the veteran by reason of being prevented from continuing to undertake that remunerative work is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity. This question is the second limb of s 23(1)(c) of the Act.

47.     I consider that it was more probable than not that the veteran would have continued to work if he had not been free of his incapacity caused by his war-caused condition. He had been made redundant at a time which would have been when he had his prime earning capacity. Dr Carter has mentioned in her report of 23 May 2007 that the veteran “could have been able to be employed by someone after 12 years in the Engineers in the Military where he was a Sergeant on discharge, and had worked for Telecom as a Metal Tradesman for almost 9 years”[27]. Like Dr Carter, I consider that it is significant that he did not gain employment with another employer. Dr Wright considers that he was severely depressed at the time of his redundancy[28]. The fact that he has undertaken some casual work after his redundancy is indicative of the desire of the veteran to continue to work and is inconsistent with any notion that the veteran has retired. 

[27] Exhibit F.

[28] Exhibit L.

48.     I find that the veteran by reason of being prevented from continuing to undertake his remunerative work is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity.  

Subsection 23(1)(d)

49. For the sake of completeness I mention that s 23(1)(d) of the Act applies to the veteran as neither s 24 or s 25 of the Act apply to the veteran. The veteran is not entitled to a pension at the special rate under s 24 of the Act. Nor is the veteran entitled to the temporary payment of pension at the special rate under s 25 of the Act.

Whether the ameliorating provisions of the Act apply.

50.     I have considered the application of the ameliorating provisions of the Act (s 23(3)(b); s 24(2)(b)).  These ameliorating provisions are relevant in an application for a pension at the intermediate or special rate.  I have thought that I should express my conclusion that an ameliorating provision of the Act does not apply to this veteran.

51.     I have carefully reviewed the evidence before me. I have already mentioned that the application day in this case was 18 August 2004 and the assessment period runs from that day.

52.     I certainly accept that the veteran has submitted more than 300 job search applications. After reviewing the material before me I have concluded that this job search activity occurred well before the assessment period.  There have been a number of statements given by the veteran as to his job search activity. On 3 December 2004 the veteran was asked about whether he has been seeking other employment since ceasing his last employment. The veteran answered: “During the period 1993-2001 over 340 positions allied to or directly involved in the metal engineering/manufacturing industries were applied for”[29]. On 21 September 2006 the veteran completed a statement, verified by a statutory declaration, in which he states: “In all over the period 2 Sept. 93 – 12 May 98 I submitted over 300 job applications receiving 12 interviews”[30].  This statement does not accord with the recently filed statement of the veteran of 10 December 2007 in which the veteran remarked that he searched for work “during the entire period of July ‘93 and September ‘05”[31].

[29] T4, fol 70.

[30] T2, fol. N.

[31] Statement, 10 December 2007, Exhibit G.

53.     Having regard to the differing dates in the statements referred to in the previous paragraph, I cannot  be reasonably satisfied that the veteran was genuinely seeking to engage in remunerative work during the assessment period.

54.     The fact that the veteran commendably cares for his mother, who has had what the veteran described as a “sudden degeneration” of her eyesight, would in my view preclude any job search activity.

55.     Since 1998 the veteran has received a carer’s allowance for his assistance to his mother. At the hearing the veteran has quite honestly remarked that he would be concerned for the care of his mother, who lives close to him in a granny flat, if he was not with her. He was concerned that no one was caring for his mother at the hearing. In 2006 the veteran stated “I had to bear in mind that given my responsibilities towards Mum, that I couldn’t really go anything long-term, so most of the work that was offered to me was basically short-term and for that reason I couldn’t see any point for that – the relatively small amount of money involved, upsetting the apple cart, as it were, at home, and upsetting my mother. But I take your point, sir, that there is - there was further scope for employment there”[32].

[32] Exhibit J at 21 (3 August 2006).

56.     I accordingly consider that the veteran is entitled to receive a pension at the intermediate rate.

Decision

57. I set aside the decision under review and substitute a decision that the veteran is entitled to receive a pension at the intermediate rate under s 23 of the Veterans’ Entitlements Act 1986, this decision to have effect from 18 May 2005.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

Signed:         .....................[Sgd]...........................................................
  Research Associate

Date/s of Hearing  22 February 2008
Date of Decision  28 March 2008
Counsel for the Applicant         Mr N Jarro
Solicitor for the Applicant          Sciaccas Lawyers
Respondent  Mr M Smith, departmental advocate