McNeill and Repatriation Commission

[2004] AATA 594

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 594

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/121

VETERANS' APPEALS  DIVISION		)
Re		ALEXANDER McDONALD BLACKIE McNEILL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date11 June 2004  

PlaceHobart

Decision The decision under review is set aside and in substitution thereof the applicant is to receive disability pension at the Special Rate

[Sgd B W Davis]

Part-time Member  

CATCHWORDS

Veterans’ Appeals – disability pension – general rate – special rate – bilateral sensori-neural hearing loss -  bilateral tinnitus – gastro-oesophageal reflux disease – haemorrhoids – post-traumatic stress disorder (PTSD) – alcohol abuse – remunerative work – degree of incapacity – lifestyle rating – inability to work – Veterans ‘ Review Board

Legislation:

Veterans’ Entitlements Act 1986 – ss 22,23,24, 120

Guide to the Assessment of Rates of Veterans’ pensions – 5^th Edition (GARP)

Authorities:

Freeman and Defence Force Retirement & Death Benefits Authority (1985) 8 ALN 97

Easton and Repatriation Commission (1987) 12 ALD 777

Cavell and Repatriation Commission (1988) 9 AAR 534

Flentjar and Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Hendy (2002) FCA 424

Graham and Repatriation Commission (2004) AATA  208

REASONS FOR DECISION

Associate Professor B W Davis AM (Part-time Member)   

decision under review

The decision under review is against that part of a decision of a delegate of the Repatriation Commission made on 6 June 2002, subsequently affirmed by the Veterans’ Review Board on 19 July 2003, whereby the applicant’s pension was increased to 100 percent of the General Rate with effect from 18 September 2002, following acceptance of post-traumatic stress disorder (PTSD) and alcohol abuse as war-caused disabilities.

The applicant seeks pension at the Special Rate or Extreme Disablement Rate.

ISSUES

2. The issue in this case is whether the applicant is entitled to receive either of the income related rates of pension as provided for by Sections 23 and 24 of the Veterans’ Entitlements Act 1986 (“the Act”) or to the Extreme Disablement Adjustment provided for by Section 22 of the Act.

TIME LIMITS

3.        As all steps in this matter were taken within prescribed time limits, if the appeal succeeds, the earliest date for payment of adjusted pension would be 16 January 2002, being three months prior to the lodgement of claim.

STANDARD OF PROOF

4. The Tribunal must decide matters to its reasonable satisfaction and on the balance of probabilities, pursuant to Section 120 (4) of the Act.

BACKGROUND

5.        The applicant, Alexander McDonald Blackie McNeill, was born in Scotland but came to Australia with his parents at age 18, having deferred National Service intending to complete a plumbing apprenticeship.  After a year in Australia he joined the Navy as a plumber but was informed he would have to train as a seaman and await trade opportunities.  He completed nine years service on a number of vessels and would have signed on for more, except he had married eighteen months earlier and his wife did not favour long absences.  His service included some oceanographic work, but also involvement in naval boarding parties during the Indonesian confrontation with Malaysia.  He saw a number of disturbing incidents and dates his heavy drinking from that time.

6.        Having left the Navy at his wife’s insistence he tried employment as a car salesman, operating his own plumbing business and as a subcontractor to a firm which failed financially during building of the new Launceston General Hospital.  By now his wife had two children to care for, so he joined the merchant navy on a lighthouse tender ship;  it had an open honour bar system which permitted him to continue heavy drinking.

7.        He applied to become a maintenance plumber at St Vincents Hospital and served there for twelve years.  He claims he would have continued but was now experiencing severe hearing difficulties, which meant he could not understand orders;  it was embarrassing, but also dangerous, because he could not hear vehicles and was nearly killed on two occasions.

8. The veteran claims to have suffered blinding headaches at times since service and has a number of other disabilities which have been accepted as service-related. These include bilateral sensori-neural hearing loss, bilateral tinnitus, gastro-oesophageal reflux disease, haemorrhoids, post-traumatic stress disorder and alcohol abuse. He is currently granted pension at 100 percent of the General Rate, but seeks payment at the Special Rate or the Extreme Disablement Adjustment, pursuant to Sections 22, 23 and 24 of the Veterans’ Entitlement Act 1986.

INITIAL ASSESSMENTS

9.        Mr McNeill served in the Royal Australian Navy between January 1959 and January 1968, but the only periods of eligible service are:

(a)   17 August 1964 to 25 September 1964

(b)   12 October 1964 to 2 November 1964

(c)   19 November 1964 to 10 October 1964

(d)   17 May 1967 to 8 June 1967

10.      The veteran submitted a number of claims for pension on various dates between 1996 and 2001, but the substantive decision under review here, is an application lodged on 16 April 2002 for ‘psych condition’ which the Repatriation Commission treated as post-traumatic stress disorder and alcohol abuse.  A delegate of the Commission accepted there was a reasonable hypothesis connecting the claimed disabilities with service and the relevant RMA Statements of Principle could be used to determine pension rate.  In a decision dated 6 June 2002 the delegate determined an impairment rating of 55 and a lifestyle rating of 5, giving a combined degree of incapacity of 100 percent.

11. The delegate also considered whether Mr McNeill should be granted pension at the Special Rate or the Extreme Disablement Adjustment, but decided the applicant did not meet criteria specified in Sections 22, 23 and 24 of the Act. In stating reasons the delegate noted that Mr McNeill had retired in 1999 and had not been seeking remunerative employment as specified in the Act, nor did he possess an impairment rating of at least 70points and a lifestyle rating of at least 6, nor was he at least 65 years old, as required to qualify for the Extreme Disablement Adjustment.

12.      The applicant disagreed with this assessment and applied for review by the Veterans’ Review Board on 13 August 2002.  The hearing was conducted in Launceston on 13 June 2003 and the veteran was accompanied by an advocate, Mr R Fitz.  After hearing evidence and analysing available documentation, including a medical report by consultant psychiatrist Dr Eric Ratcliff, the Board decided to consent to withdrawal of the application for review in relation to tension-type headaches and tinea, but otherwise affirm the principal decision under review.

13.      In making this determination, the Veterans’ Review Board noted the veteran claimed he had sought employment after leaving his job at St Vincent’s Hospital, but prospective employers were reluctant to engage him, once they learned of his disabilities, especially his hearing loss.  He had sought employment in a hardware shop, but the same difficulties arose.  He had tried to obtain better hearing aids,  but he found them uncomfortable and still partially relied upon lip-reading.  Overall his disabilities were severe and the Veterans’ Review Board considered that an incapacity rating of 100 percent was appropriate, as the Repatriation Commission had found.

14.      The Board next considered whether he qualified for pension at the Special Rate or Extreme Disablement Adjustment.  Evidence from Dr Ratcliff, dated 6 May 2002, did not suggest the veteran was incapable of working eight hours per week and a report by Dr Ernst, specialist in occupational and musculoskeletal medicine dated 27 March 2003, noted the significance of hearing loss, but did not comment on the veteran’s capacity to work for more than eight hours per week.  In the absence of evidence that the veteran’s war-caused disabilities alone prevented him from working more than eight hours per week, the Veterans’ Review Board decided he did not meet the criteria for pension at the Special Rate or Extreme Disablement Adjustment and payment at 100 percent of the General Rate was appropriate.

15.      The veteran then lodged an application for review by the Administrative Appeals Tribunal on 11 July 2003.

16.      The Administrative Appeals Tribunal hearing was conducted in Hobart on 29 April 2004 Mr McNeill was represented by Mr R Benson of counsel and the respondent by Mr M Castle.

17.      After opening addresses the applicant was sworn and gave evidence about his naval career and civilian employment, focussing on war-caused disabilities and their impact on his life.  The veteran emphasised that he had sought employment in a variety of ways, but his hearing loss, post-traumatic stress disorder and alcohol dependence, as well as his age, meant few work opportunities existed and potential employers were wary of engaging his services.  While plumbing was his core trade, he could not work in confined spaces or deal with heavy work and his loss of hearing made some circumstances a hazard.

18.      Under cross-examination Mr McNeill said he and his wife had moved to George Town, hoping to find employment or start of business there, but it was a relatively small community and he was unsuitable for employment at nearby industries such as TEMCO or the Bell Bay aluminium plant.  In any event, if he had to drive to work his alcoholism would prove a problem and he would get extremely tense, so in practice his wife did nearly all the driving.

19.      Dr Eric Ratcliff, consultant psychiatrist, was affirmed and stated that Mr McNeills many war-caused disabilities contributed to a situation where he was incapable of undertaking remunerative work.  Even if employment was achieved, it was likely his anxiety and hearing loss could lead to hazardous situations.  Dr Ratcliff cited a number of hypothetical situations in the plumbing trade to illustrate just how difficulties could arise and emphasised that the veteran’s alcoholism further complicated the situation, even if Mr McNeill resorted to alcohol only as an intended stress relief.

20.      Under cross-examination Dr Ratcliff conceded there could be a few vocations where the applicant could work a few hours per week, but it was obvious he would not have consistent focus on the job, could not drive or handle heavy loads and because of his disabilities be considered a reliable employee.

21. In closing submissions counsel for the applicant said it was clear from the medical evidence his client met provisions of Section 24(1)(c) of the Act, in that his disabilities alone prevented remunerative employment.  He had resigned from work at St Vincent’s Hospital not of free choice, but because he could no longer tolerate causing problems for others, as well as risks to himself.  He had been diligent in seeking further employment, but disabilities and circumstances were against him and given the weight of evidence he now qualified at the Special Rate.

22. Counsel for the respondent conceded Mr McNeill had faced employment difficulties once his hearing loss, post-traumatic stress disorder and alcohol abuse were recognised, but the principal query was whether his search for employment was persistent and wise-ranging; there was only limited evidence on that score and the Tribunal would have to consider how closely or otherwise the circumstances met those prescribed in the Act. It would not be appropriate to set aside the existing decision if the Tribunal found in favour of the applicant, but merely to vary the order.

ANALYSIS

23.      This is a de-novo investigation and the Tribunal is required to stand in the shoes of the original decision-maker, considering all evidence anew, noting statutory provisions and any relevant case determinations.

24. The relevant legislation is Sections 22, 23 and 24 of the Veterans’ Entitlement Act 1986. Section 22 sets out provisions for the general rate of pension and Extreme Disablement Adjustment (EDA); Section 23 outlines criteria for the Intermediate Rate of pension and Section 24 with the Special Rate.

25. In order to qualify for the Extreme Disablement Adjustment an applicant must be at least 65 years old, have a disability rating of 100 percent, with an impairment rating of at least 70 points and a lifestyle rating of at least 6 points and not be receiving a pension provided for by Sections 23, 24 or 25 of the Act.

26.      In order to qualify for the Intermediate Rate of pension, the applicant must be under 65 years of age, with a degree of incapacity of at least 70 percent and the veteran incapable of undertaking remunerative work other than on a part-time basis, or intermittently, or else suffering a loss of wages that the veteran would be earning if free from incapacity.

27.      In order to qualify for the Special Rate the veteran must be less than 65 years old when the claim or application was made, with a degree of incapacity of at least 70 percent and incapable of undertaking remunerative work for periods aggregating more than eight hours per week, or suffering a loss of salary or wages that the veteran would earn if free of that incapacity.  The Special Rate is not payable if it can be demonstrated that the veteran ceased to engage in remunerative work for reasons other than incapacity of war-caused injury alone.

28.      In considering whether pension at the special rate should be granted, considerable emphasis is placed on the phrase ‘of itself alone’, requiring clear demonstration that war-caused disabilities are the sole and principal cause of loss of employment or earning capacity.  See, for example, Freeman V DFRDB (1985) 8 ALN 97;  Easton V Repatriation Commission (1987) 12 ALD 777, or more recent cases such as Flentjar V Repatriation Commission (1997) 48 ALD 1 or Repatriation Commission V Hendy (2002) FCA 424.

29.      As Deputy President Jarvis said in Graham and Repatriation Commission (2004) AATA 208, following analysis of Federal Court decisions such as Flentjar and Repatriation Commission (1997) 48 ALD 1 and Cavell and Repatriation Commission (1998) 9 AAR 534

“The word ‘alone’ as it appears in s24(1)(c) requires a practical decision as to whether the veterans loss of remunerative work is attributable to his or her service related incapacities and not to something else as well;  and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran’s case for pension at the special rate.”

30.      Turning more directly to Mr McNeill’s situation, he was born on 19 August 1937 and thus was just under 65 years of age at the date (16 April 2002) that he lodged a claim for ‘psych condition’ (PTSD and alcohol abuse) and was granted pension at 100 percent of the General Rate on 6 June 2002.  At that time his impairment rating was 55 and lifestyle rating of 5 points.  It was on this basis the delegate of the Repatriation Commission decided he was not eligible for the Extreme Disablement Adjustment or pension at the Special Rate.

31.      In reaching its determination the Veterans’ Review Board noted medical reports by Dr A Ernst, Occupational Specialist, and Dr E Ratcliff, Consulting Psychiatrist, concerning Mr McNeill’s physical and mental condition and employment prospects.  In a report dated 27 March 2003 Dr Ernst considered various employment scenarios and concluded that at that time there was a credible case the veteran’s major hearing loss was the cause of his resignation from St Vincent’s Hospital and that it would constitute a significant handicap to employment generally.  Dr E Ratcliff’s report dated 6 May 2002, indicated Mr McNeill’s situation met criteria specified in the Statement of Principles concerning alcohol abuse or dependence (Instrument 76 of 1998) and Post-Traumatic Stress Disorder Instrument 3 of 1999.  Dr Ratcliff considered the veteran’s occupational disability was a rating of 5 points and subjective distress impairment rating of 6 points.

32.      the Tribunal has noted these assessment and other evidence which supports the applicant’s contention he only resigned the post of maintenance plumber at St Vincent’s Hospital because of safety considerations and personal embarrassment that his disabilities were creating problems for other people.  The primary causes were his major hearing loss and other war-caused disabilities which limited his capacity to perform assigned duties.  PTSD and alcohol dependence were subsequently recognised as contributing factors.

33.      The applicant claims that once he had left hospital employment and sought alternative situations, his age, the limited labour market in the area he resided, but more especially his mental and physical condition made prospective employers reluctant to engage him, particularly as he was not in a position to drive vehicles or deal with heavy loads.  The Tribunal accepts this as a realistic assessment, despite the limited documentary evidence of attempts to gain employment at the time.  In a report dated 19 January 2004 Dr E Ratcliff noted that although the applicant might not be totally incapable of some work, his hearing loss and general anxiety, as well as some balance problems, rendered him incapable of working for periods aggregating more than eight hours per week.  In further evidence given to the Tribunal, Dr Ratcliff expressed an opinion that the veteran was now incapable of returning to work at an economic level.  His disabilities were not reduced, but getting worse.

34. Having examined this and other evidence anew, the Tribunal has decided on the balance of probabilities that the applicant, Alexander McDonald Blackie O’Neill, has war-caused disabilities which meet criteria specified in Section 24 of the Veterans’ Entitlements Act 1986 and is therefore entitled to disability pension at the Special Rate.  The decision under review dated 6 June 2002 is therefore varied by setting aside the words ‘100 percent of the General Rate’ and substituting the words ‘payment at the Special Rate’.

35.      The Tribunal is not persuaded that payment should occur at the Intermediate Rate or Extreme Disablement Adjustment rate, because the applicant does not meet the specified criteria for such rates.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  29 April 2004
Date of Decision  11 June 2004
Counsel for the Applicant         Mr Raymond Benson
Solicitor for the Applicant          Ogilvie Jennings
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Department of Veterans' Affairs