McLeod and Repatriation Commission
[2003] AATA 792
•21 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 792
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/780
VETERANS' APPEALS DIVISION ) Re RODERICK DOUGLAS MCLEOD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President, Don Muller Date21 July 2003
PlaceTownsville
Decision The Tribunal affirms the decision under review. ......................(signed)........................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
Veterans’ Affairs- whether the Applicant’s war-caused disabilities alone have prevented the applicant from undertaking remunerative work- whether the Applicant has genuinely been seeking remunerative employment
Veterans’ Entitlements Act 1986 subsections 24 (1) (c) and 24 (2) (b)
WRITTEN REASONS FOR ORAL DECISION
Deputy President, Don Muller 1. This is an application for review of a decision of the Repatriation Commission dated 11 March 2002 to continue the Applicant’s disability pension at 100% of the general rate. On 19 August 2002 the Veterans’ Review Board affirmed the decision of the Respondent and refused to grant the Applicant a special rate pension pursuant to section 24 of the Veterans' Entitlements Act 1986 (“the Act”).
2. The Applicant gave oral evidence and the Tribunal had before it the following documents:
(a)The documents provided by section 37 of the Administrative Appeals Tribunal Act 1975 , exhibit 1;
(b)Statement of the Applicant dated 4 February 2003, exhibit 2;
(c)A Wages Declaration for Kelvin Douglas Rowland dated 4 July 1997, exhibit 3;
(d)Letter by Trinity Consolidated Limited dated 12 March 2003, exhibit 4;
(e)Bundle of the Applicant’s Tax Returns from 1 July 1996 to 1 June 2003, exhibit 5; and
(f)Financial Statements provided by White Hancock for the 1996 financial year, exhibit 6.
3. The Applicant was born on 23 December 1944 and is 58 years old. He served in the Royal Australian Army for 31 years and 4 months from 31 January 1963 until he was discharged on 1 June 1993, obtaining the rank of Major. He served in Vietnam and undertook operational service from 27 May 1965 to 1 June 1966 and 18 March 1968 to 28 February 1969. The Applicant had eligible defence service from 7 December 1972 to 1 June 1993, including operational service in Somalia from January to May 1993.
4. The Applicant is in receipt of the Disability Pension at 100% of the General Rate as from 10 July 2000 for a number of disabilities which have been accepted as war-caused. These disabilities include the following:
(a)Bilateral Sensori-neural Deafness;
(b)Scar Left Cornea;
(c)Osteoarthritis Both Knees;
(d)Lumbar Spondylosis;
(e)Post Traumatic Stress Disorder (“PTSD”); and
(f)Acquired Cataract in the Left and Right Eyes.
5. The Applicant seeks an increase in his Disability Pension from 100% of the General Rate to the Special Rate pension. In order for the Applicant to receive the special rate pension he must satisfy the requirements of section 24 of the Act, which states:
“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 or 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.”
6. The Respondent’s advocate conceded that the Applicant satisfies the requirements of subsections 24(1) (a) and (b) of the Act. The issue before the Tribunal is whether subsection 24 (1) (c) is met by the Applicant. In addition, the Applicant submits that the ameliorating provisions of section 24 (2) (b) should apply because the Applicant claims that he has been genuinely seeking remunerative work and that his war-caused disabilities have been the substantial cause of his inability to obtain remunerative work.
7. It is the Respondent’s position that the Applicant does not satisfy the “alone” test in subsection 24(1)(c), nor does he satisfy the ameliorating provisions in subsection 24(2)(b) of the Act. The Respondent contends that the main reason for the Applicant’s failure to be engaged in remunerative work is his life-style choice of being retired from the work force.
8. Immediately after he retired from the Army in June 1993, the Applicant and his wife toured Australia in a caravan for about 18 months.
9. Upon completion of the caravan tour, the Applicant and his wife settled in Townsville. They bought a courier business, called Fleet and Cheap. The business was owned by the Applicant’s wife, so that any income generated would be attributed to her for tax purposes. The Applicant already had other income from the superannuation associated with his 31 years in the Army.
10. The courier business consisted of two delivery vans. The Applicant drove one and the other van was driven by his wife. His wife’s van was also the office of the business where she would take telephone orders, co-ordinate pick-ups and also do deliveries. The courier business mainly consisted of delivering spare parts for Ford.
11. The Applicant gave evidence that it was he and his wife’s intention to work hard in the courier business for ten years, from 1995 to 2005. By then they would be in their sixties and they would sell the business and retire.
12. The Applicant and his wife each worked forty hours per week in the courier business. Most of the profit was paid to Mrs. McLeod. A nominal amount of $7,500.00 per annum was paid to the Applicant.
13. Unfortunately, during Easter 1996, the Applicant’s wife was diagnosed with cancer. She died later that year.
14. The Applicant’s wife ceased work almost immediately after her diagnosis. The Applicant then tried to run the business himself. He also employed another driver. However, the payment of the wages for the second driver made the business not viable. In addition, the Applicant’s war-caused hearing difficulties (he needs hearing aids) meant that he had trouble when he was using the telephone to take delivery details.
15. The Applicant sold the courier business in August or September 1996. The reasons for the sale of the business were:
(a)The death of the Applicant’s wife;
(b)The difficulty that the Applicant had in using the telephone to take delivery details; and
(c)The lack of viability of the business if wages had to be paid to an outside employee.
16. In 1997, the Applicant made enquiries with the Department of Veterans’ Affairs and the Commonwealth Employment Service about any jobs that those Departments may have on their books as suitable for him. He prepared a Curriculum Vitae. The officers at Department of Veterans’ Affairs and the Commonwealth Employment Service could not help him. He gained the impression that they were not really interested in him because he was receiving a superannuation pension.
17. From late 1997 to mid-1998, the Applicant suffered from a depressed mood. He sought medical treatment and saw a psychiatrist, Dr. Likely in June 1998. In a report dated 29 June 1998, Dr. Likely said (among other things):
“Mr McLeod described a nine month history of progressive decompensation in his mental health. He reported a depressed mood most of the day nearly every day, associated with loss of interest in virtually all activities. In addition to this his sleep had been poor. He reported broken unrefreshing sleep throughout the night with troublesome middle insomnia in particular. He described a normal appetite, but reported he had lost a considerable amount of weight. He was unable to quantify this however. He stated that his thinking had been preoccupied with morbid themes, in particular the loss of his wife to cancer in 1996 and increasingly of late his combat experiences in Vietnam, New Guinea and Somalia. In particular Mr McLeod described intrusive memories regarding his Vietnam service. He stated that he felt guilty regarding the loss of five members of his section in a contact with the enemy. He felt guilty since he was 2km away at the time and describes feelings that he felt he ‘could have made a difference if I was there’.
Mr McLeod stated that there were times in all of his overseas service which were difficult, although he did not find it particularly traumatic at the time, feeling as though he did his job as a ‘professional soldier’.. He did not describe any features which would have been suggestive of post traumatic stress disorder, although noted that he was becoming more emotional regarding his service days with the declining of his mood.
Mr McLeod was married for many years, his wife died in 1996 from metastatic carcinoma, the primary was never identified. He has two children from this relationship, a daughter aged 27 and son aged 25. He is in regular contact with both of them and describes them as being supportive. He spends much of his time now devoted to RSL activities, having left the Army in 1993 at the rank of Major. He purchased his own truck business after that, but sold it when his wife became unwell.
IMPRESSION
Axis I Major depressive disorder
Axis II No disorder
Axis III No disorder
Axis IV Stressor of loss of wife. Stressor of retirement.
Axis V Current GAF 51-60.”
18. In mid-1998, the Applicant was talking to a friend who had heard about a job vacancy for a projectionist at the Omnimax theatre at the Great Barrier Reef Wonderland complex. The Applicant successfully applied for the job. He started on 13 September 1998 and worked there for about 11 months until 8 August 1999. He gave evidence that he worked for about two or three days per week and earned approximately $7,500 in the 11 months he worked there.
19. The Applicant gave evidence that the job suited him very well initially. He did not have to interact with people and he operated the projector from a small air-conditioned room.
20. The Applicant gave evidence that during his employment at the theatre, a new owner took over the establishment and thereafter his duties changed. He said that not only was he expected to operate the projector, but also he had to sell tickets, answer the telephone and attend to customer enquiries. He said that he could not carry on with the job because his hearing difficulties caused him to have problems with answering the telephone and understanding what the customers were asking him. He also believed customers were making complaints about him to his employer.
21. A statement by Jenny Parry, Office Manager for Trinity Consolidated Limited, then owners of the Omnimax theatre, was tendered to the Tribunal. The statement contradicts most of the Applicant’s evidence about the changed ownership, changed working conditions, alleged complaints about the Applicant and his reason for leaving. Ms. Parry said:
“I advise we took over the business on approx 1st Sept 1998 from the previous owners (Coastal Ventures) who are in receivership and no longer exist. Our records show Mr. McLeod started with us on 13th September 1998 and finished up on 9th August 1999. Mr McLeod was employed as a casual projectionist working approx 1 day per week.
We believe the ticket seller terminated at the time of the takeover as a ticket seller was never employed by us. When we commenced business, the projectionist’s duties included ticket selling as there was sufficient time to do both and this still happens today. We have no record of any complaints from customers to or about Mr. McLeod (or any of the other projectionists). When Mr. McLeod left our employ he told us it was to devote more time to duties as President of the RSL Club.”
22. After his work as a projectionist the Applicant did a few handyman type jobs and some work for a charity organisation for a short time. He also applied for a job as a building inspector but was unsuccessful (he did not disclose to the potential employer that he had any disabilities).
23. The Applicant is currently the President of the Townsville sub-branch of the RSL. He spends about 30 hours per week at the RSL. In recent times he has been able to delegate a lot of his RSL work to other members and he now spends only about six hours per week on RSL business.
24. From about 1995 the Applicant also held positions of Committee Person, Vice President and Treasurer of the RSL. The Applicant gave evidence that while he was Treasurer of the RSL he would come in every evening, spend some time at the bar and collect the money at the end of the night. He said he used to spend about 24 hours per week at the RSL.
25. The Applicant was not diagnosed with Post Traumatic Stress Disorder until 3 January 2002 when Dr. Likely amended his former diagnosis of Major Depressive Disorder. In his report dated 3 January 2003 Dr. Likely states:
“His last remunerative employment was in 1998 when he was a self employed courier driver. He had this business since 1993. At this time he was suffering from significant and serious symptoms of PTSD and depression which directly contributed to his ceasing work. It is my view therefore, that his cessation of remunerative employment occurred as a result of the service disabilities alone.
I believe that his symptoms of anxiety are sufficiently severe that if he were to attempt to return to remunerative employment he would suffer a rapid and profound decompensation in his condition. I therefore believe that as a result of his service related disabilities alone, Mr McLeod is rendered totally and permanently incapacitated from undertaking any type of remunerative employment.”
26. Dr. Likely seems to have been of the mistaken belief that the Applicant worked continuously at his courier business from 1993 to 1998, when it was in fact for about a year from 1995 to 1996. There is no mention in his report that the reasons for the Applicant’s selling of the courier business were his wife’s death, the lack of viability of the business and his deafness. Dr. Likely seems to know nothing about the Applicant’s 12 months as a part-time projectionist, about his 24 hours per week as Treasurer at the RSL, nor about his application for a job as a building inspector.
27. The Tribunal takes the view that Dr. Likely’s report is of limited value in the context of this review.
28. The case put forward for the Applicant contains many conflicting elements. They are:
(a)The Applicant would still be working in the courier business if he had not been prevented from doing so, solely because of his war-caused hearing problem. This approach accepts that his other war-caused problems would not have interfered with his ability to drive a van and do the necessary office work. It ignores the death of the Applicant’s wife and the consequential problems with employing an outsider and making the business viable.
(b)The Applicant would still be working as a projectionist at the Omnimax theatre if he had not been prevented from doing so, solely, because his war-caused hearing disabilities interfered with the changed conditions. He was expected to collect the tickets, answer the telephone and answer customer enquiries. This approach also seems to accept that his other war-caused problems would not have prevented him from working. It ignores the fact that during his time as a projectionist there was no change of ownership, nor any changes in the working conditions.
(c)The Applicant is keen to work and believes that he is capable of working. He has submitted his Curriculum Vitae in to the Department of Veterans’ Affairs and Commonwealth Employment Service. He unsuccessfully applied for a job as a building inspector. However, it is his war-caused injuries alone which have prevented him from getting a job. This approach is flawed because the Department of Veterans’ Affairs and the Commonwealth Employment Service were not interested in him, due to the fact that he was receiving a pension and the potential employer for the building inspector’s job did not know about his disabilities.
29. The fact of the matter is that in the ten years since he retired in 1993, the Applicant has worked in a full-time job for only 12 months (the courier business in 1995/96) and a part-time job for 11 months (as a projectionist in 1998/99). He claims to have ceased those two jobs, solely because of his hearing problems and that his other war-caused disabilities would not have prevented him from continuing to work.
30. The Tribunal does not accept that the Applicant’s hearing problems were the sole reason for his ceasing to work at his only two jobs in ten years, nor that his war-caused disabilities alone have prevented him from continuing to undertake remunerative work that he was undertaking. The death of his wife and then the attraction of retirement have been significant factors in his failure to continue in remunerative work.
31. In addition, the Tribunal is not satisfied that the Applicant has been genuinely seeking to engage in remunerative work since he left the Omnimax theatre in 1999. He has only applied for one position in four years.
32. The Applicant does not satisfy the provisions of subsections 24(1)(c) and 24(2)(b).
33. The decision to reject a claim for Special Rate pension is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.
Signed: .......................................................................................
C. O’Donovan, Associate
Date/s of Hearing 21 July 2003
Date of Decision 21 July 2003
Written reasons for decision 12 August 2003
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor
Respondent Mr. R. Morison, departmental advocate
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