McPhee and Repatriation Commission
[2001] AATA 447
•25 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 447
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1821
VETERANS' AFFAIRS DIVISION )
Re Roderick McKenzie MCPHEE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M J Sassella
Date25 May 2001
PlaceSydney
Decision The decision under review is affirmed.
..............................................
M J Sassella
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – application for special rate pension – was Applicant unable to work 8 hours or more – was Applicant unable to perform remunerative work by reason of accepted disabilities alone – importance of other factors reducing ability to work – relevance of ability to perform volunteer work
Veterans' Entitlements Act 1986 – ss24(1)(b), (c), s24(2)(a) and (b)
Birtles v Repatriation Commission (1991) 33 FCR 290
Banovich and the Repatriation Commission (1986) 89 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Fry v Repatriation Commission (1997) 47 ALD 776
Hanrahan and Repatriation Commission (1992) 26 ALD 766
Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986)
REASONS FOR DECISION
Senior Member Sassella
Roderick McKenzie McPhee (the "Applicant") has three accepted disabilities, anxiety disorder of the post traumatic stress disorder ("PTSD") type, irritable bowel syndrome ("IBS") and bilateral sensorineural hearing loss ("BSHL"). He had been granted a disability pension payable at 70 percent of the general rate. On 12 June 1997 the Applicant lodged a claim with the Repatriation Commission ("the Respondent") for an increase in his disability pension (T9). On 29 August 1997 the application was refused by a delegate of the Respondent (T14).
On 12 September 1997 the Applicant applied to the Veterans' Review Board ("VRB") for review of this decision (T15). On 21 September 1999 the VRB set aside the decision of the delegate and substituted a decision that the pension be assessed at 90 percent of the general rate (T2). On 3 December 1999 the Applicant lodged an application with the Tribunal for review of the decision of the VRB (T1).
At the hearing the Applicant was represented by Counsel Mr Neale Dawson who was instructed by Whyburn and Associates. The Respondent was represented by Ms Philippa Hook from the Department of Veterans' Affairs ("DVA") advocacy team.
The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (TD1) were admitted as evidence along with the following material:
Exhibit Number Description Date
A1 Statement of the Applicant 6 March 2000
A2 Statement of the Applicant 20 April 2000
A3 Report of Dr Hayes 21 March 2000
A4 Report of Dr Hayes 11 April 2000
A5 Letter, Certificate and Course Report relating to the Applicant's Appointments as an officer of the cadets in the Australian Cadet Corps 14 August 1985 and November-December 1988
R1 Report of Dr Lee 29 March 2000
R2 Report of Dr Anderson 30 March 2000
R3 Report of Professor Sambrook 31 March 2000
Applicant's background
The Applicant was born on 12 October 1949. He was adopted as a child and raised near Maclean on a dairy farm. He completed his school certificate. He worked as an apprentice carpenter and married in 1970. He had three children from this marriage who are now aged 29, 27 and 15. This marriage ended in 1992 after which the Applicant married again. This second marriage lasted only a number of years. He now lives in a defacto relationship with Ms Pattison and has done so for the last 2 and a half years.
Applicant's service history and relevant legislationThe Applicant rendered operational service in Vietnam in 1971 and 1972. In this application the issue is whether there should be a change in the rate of pension not whether the Applicant's disabilities were war caused. Section 120(4) of the Veterans' Entitlements Act 1986 ("the Act") states -
s120(4)- Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Therefore the standard of proof for assessing the claim is one of reasonable satisfaction.
The Applicant is claiming a pension at the special rate. As he is under the age of 65, s24 is the relevant section of the legislation for determining whether he meets the requisite factors. The section states:
S24(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.
The Respondent conceded that the Applicant met the requirements of s24(1)(a). However it was contended that the Applicant did not satisfy the requirements of s24(1)(b) and s24(1)(c). All applications were lodged on time, so the date of effect, if the Applicant is successful, would be 12 June 1997.
The Applicant's evidence
In the Applicant's statement signed and dated 6 March 2000 (Exhibit A1) he detailed his work history from leaving the Army to the current time. His first job after leaving service was with a carpenter, the now deceased Mr Eddie Fisher. He said he found himself very unsettled in his employment, and argumentative towards his boss and others on cottage building sites. He left this job in March or April of 1973 and went to work with Mr Bill Attwater in Grafton for whom he was formerly an apprentice. He states he did not get on well with him or others in this job and was dismissed from this job after nine months. He states that this dismissal occurred after (at least temporally after) an incident where he broke his hand punching the wall at home whilst drunk.
The Applicant next gained employment with the firm R J Want of Grafton where he worked until 1978 when the firm closed down. Three months after this he next gained employment as a labourer and truck driver with the CSR sugar mill of Harwood Island. He stated that he remained there until 1985 and got on reasonably well with his peers though he still argued with those in authority and had a name for not working there on Friday afternoon shifts because of his drinking. He was told that he would be not be needed at this job because there was not enough work until the next cane season and would have to reapply then. He was told by a union representative that such re-employment was highly unlikely.
On 4 July 1985 his leg was broken when a crane collapsed and he was knocked off a building. He stated that he spent two years recuperating from this accident and at that time was granted a service pension. In October 1987 he received a settlement for his work related injury but remained on his service pension. In a further statement (Exhibit A2) he stated that the compensation claim came before Grafton Local Court where he was awarded $200 000. He said he was aware of the need to tell the DVA of any changes in his work habits. He said that the DVA was kept informed of his circumstances and what happened to the money.
In a letter from the Veteran to DVA dated 26 January 1987 he stated that he was working for Mr and Mrs Commerford (T4). He did that work until 6 December 1985, which was approximately 6 months after his accident. He further wrote that Mr Commerford continued to pay him compensation from 4 June until the date given above.
The Applicant said that after his injury there were restrictions on what he could do in carpentry. He had a fear of heights and was less able to lift. His return to work involved normal work and no light duties.
He stated that he does not have any paperwork relating to the compensation claim as it was lost or destroyed during his marriage breakdown in 1992. He stated that all the money he gained was gone due to two divorces and heavy drinking.
He stated that during this time he also applied for a position as a lieutenant with the Australian Cadet Corps, an Army run organisation. He was accepted on 14 August 1985 (Exhibit A5) some six weeks after breaking his leg. He said that his job included at least 6 or 7 weekend camps in the local area teaching cadets map and "campus" work [this probably should have read "compass work"]. He said that this was a fairly good part of his life. He resigned from the cadet corps in early 1989 after an argument with some of the parents and the governing body of the local unit.
The Applicant stated that between 1988 and 1992 he remained on service pension picking up odd jobs such as sugar cane planting and small renovating jobs. In about the middle of 1988 he was employed by Lahey constructions of Kempsey as a leading hand in the building of a new primary school in Yamba. This lasted for 8 weeks until he quit when he had a difference with the foreman and was demoted back to carpenter. In 1990 he was employed for 6 months as a bus driver but was stood down when the owner returned to the area. During this time period he purchased a property and ran cattle and a horse. This ended in 1992 with the failure of his marriage.
The Applicant stated that in July 1992 he obtained employment with a firm, Hannah & Edmund of Murwillumbah. He had trouble concentrating and his nerves were bad when working with other people. He was retrenched after 3 months. He was granted a 70% veteran's disability pension in that year. He continued working for himself when jobs were available doing small renovations and in 1996 picked up some casual work at John Baker funerals. In the same year he admitted himself to St Edmund's Private Hospital in Sydney where he spent a month seeking help for his drinking problems. After returning from hospital he started back with Baker funerals but after a few months was not getting any work. He believed that this was because he was attending Alcoholics Anonymous meetings and this would look bad for the business.
The Applicant stated that currently he is casually employed by Frank Summers Funerals of Yamba. This work does not exceed 8 hours a week. He stated that over the last ten years he has continually looked for jobs in his local area but has no evidence of this because this is usually by word of mouth. He stated that he thought he might find a better job if he went to the hospital but people still regard him as being a drunk. He said that there were other funeral parlours in Grafton and that he would accept work in Grafton if it was offered.
The Applicant said that he believed he still had carpentry skills. He said that he still does small non-paying jobs for friends. However, he does not have a builder's licence so it is harder to get work. He has to rely on sub-contractors. There was also not much carpentry work in the area. He said he would take carpentry work depending on what it involved.
Ms Pattison's evidenceMs Pattison has been the Applicant's defacto wife for the last 2 and a half years. She met him through an advertisement in the paper. She said she knew of him through the RSL club. She said that she knew of his work as a pension officer at the RSL club but that he was more reluctant to do that work now. She thinks that he did enjoy the work.
Ms Pattison said that the Applicant was very quiet. She said he hid in the house when upset and was scared of crowds. She said that how he related to other people was dependent on how he felt. She said that she and the Applicant seldom went out and that the Applicant preferred her company. She said that if he could work by himself he would be fine but not in a group. Ms Pattison said that she knew of the Applicant's drinking history and was worried, when he drank now, that he may regress.
Ms Pattison said that the Applicant saw Dr Hayes every two weeks but that she would prefer he saw him every month. She said that the Applicant got stressed out in the interim. She said that the Applicant had a fear of drugs and what they would do to him if he got upset.
Medical EvidenceIn a medical report by Dr Allcock submitted to the DVA on 30 January 1987 (T5) it was noted that the medical history of the Applicant included a fracture and dislocation of the right knee. It was noted that the Applicant was permanently unemployable for heavy labouring work. It was also stated that, if the Applicant was not permanently unemployable, then he would be severely incapacitated. Dr Hope on 12 February 1996 (T8) reported on the accepted conditions of the Applicant. He did not make any comments in relation to occupational ability except to state in relation to PTSD that the Applicant was retired. Dr Hope wrote a further report on 7 July 1997 where he reported again on the accepted conditions of the Applicant. On this occasion, in relation to PTSD, he wrote that the condition affected the Applicant's occupational activities because he "can't work". There was no reference to occupation as affected by the other conditions. On 30 July 1997 audiometrist Peter Gray reported that the Applicant was suffering from a mild to moderately severe BSHL, and that the left was significantly weaker than the right (T11).
Dr Hope wrote a further report assessing the Applicant's work ability which, though undated on the document, was noted as being produced on 12 September 1997 in the T documents index (T16). When describing the effects of the war caused disabilities on his ability to work he stated that the PTSD caused an inability to concentrate, the hearing loss made it difficult to work with the public and the IBS caused frequent diarrhoea. He stated that other factors outside of the accepted disabilities that made it difficult to work were dermatitis of the hands, which affected his ability to hold anything, and conjunctivitis which made it difficult to read. He stated in conclusion that all treatments and specialists had been tried. A note by Dr Klyn dated 12 January 1998 stated that a GARP impairment rating of 30 points was still reasonable for the Applicant's PTSD (T18). Dr Hope wrote a further note on 14 September 1998 (T20) saying that the Applicant's disability had further worsened to the extent that he was admitted for treatment between 17 April and 14 May 1997. He suggested that a GARP rating of 45 points may be more appropriate for the Applicant's PTSD. Dr Hope wrote another note dated 9 November 1998 stating that the Applicant has severe incontinence and tinnitus (T21).
Dr Hayes (psychiatrist) produced a report on 25 September 1998 (T22) to the effect that the accident the Applicant suffered in 1985, which caused a fractured knee, made it very difficult for him to return to his previous employment. He further stated that whilst the Applicant's age and accident limited his ability to work in his previous career, his symptoms of PTSD, particularly irritability, impaired concentration and low grade depression, have prevented him from pursuing other occupations.
Dr Hayes produced a further report of 21 March 2000 (Exhibit A3). In the history he states that the Applicant began his drinking habits in the Army and that his heavy drinking commenced when alcohol was available in Vietnam. He stated that his diagnosis on the first meeting was alcohol dependence in remission and service related PTSD. He reports that the Applicant is handicapped by irritability, poor concentration and sleep disturbance. He reports that the Applicant does not deal with stress well and tends to isolate himself. He reports that all these symptoms, which relate to the Applicant's PTSD, limit his ability to function in the workplace.
Dr Hayes concludes that the Applicant would not be able to work in a paid, structured manner for up to 20 hours a week. He said that he did believe the Applicant could work up to 8 hours a week providing that work allowed him some autonomy and did not encourage interpersonal conflicts. He stated that the Applicant would be able to carry out low key carpentry projects and that there was benefit from paid and voluntary work. He stated that the Applicant will probably never be free of his PTSD symptoms. The final GARP impairment rating given by Dr Hayes for the Applicant was 31. In a further report of 11 May 2000 Dr Hayes states that if the Applicant worked for more than 8 hours then this would be likely to lead to increased symptomatology such as irritability and nightmares with risk of relapse into his previous state of alcohol abuse. He states that where the Applicant is able to control his own stress levels more readily he would be able to work 8 to 20 hours a week for periods of time. He stated that he doubted that the Applicant would be able to sustain this and would require time periods away from work related stress.
Dr Lee (psychiatrist) submitted a report dated 29 March 2000 (Exhibit R1). In the history detailed to the doctor it was stated that the Applicant had about four skirmishes in five months. He noted one incident where the Applicant's unit was pinned down in cross fire and stated that this was the closest he came to being hurt or killed. He noted another incident where the Applicant's unit killed a nine year old child in an ambush. He said they had resisted shooting the child but that they were given orders by the platoon commander to shoot. The Applicant said he had felt sick because of thoughts of his own two and a half year old child in Australia. He noted that the Applicant was constantly anxious of stepping on a landmine and of being wounded. Dr Lee states notes that the Applicant told him that if he could find work and get on with people then he would probably work.
Dr Lee gave the Applicant a GARP impairment rating of 23. He stated that he believed the Applicant could work more than 8 hours a week and possibly more than 20 hours if motivated. He stated that the Applicant's generalised anxiety disorder with alcohol abuse would not have prevented him from working from 10 June 1997 to the present. He stated that the primary cause for the Applicant not working was his drinking and his unreliability. He stated that presently the Applicant was unable to work more than 8 hours a week because of the lack of availability of work.
Dr Anderson (occupational physician) submitted a report dated 30 March 2000 (Exhibit R2). He stated that he thought the Applicant was in a suprisingly good condition despite his history. He had taken the same history as Dr Lee regarding the Applicant's actions in Vietnam. He stated that he thought the Applicant could work more than 8 hours a week and probably more than 20 if he was so inclined. He stated that he was not convinced that Vietnam had a great deal to do with any of the Applicant's current conditions. He thought it only mildly possible that the Applicant could have developed a post traumatic stress condition when thinking back to the death of the nine year old child. He stated that the excessive drinking of the Applicant was due to a lack of discipline and self control. He did not think it was anything to do with his time in Vietnam. He stated that the IBS is most likely due to the excessive drinking rather than anything else. He assessed an overall degree of incapacity of only 30% of the general rate.
Dr Anderson stated that the Applicant was quite motivated to continue his tasks of the time. However, he said that the Applicant did not seem particularly interested in getting back into the workforce on a regular basis.
Professor Sambrook (Professor of Rheumatology) submitted a report dated 31 March 2000 (Exhibit R3). He diagnosed the Applicant with osteoarthrosis of the left knee. He stated that, although the knee condition may have presented the Applicant with some disability, it would not prevent him from undertaking remunerative work in the area of carpentry for more than 8 to 20 hours a week. He stated that this applied from June 1997 to the present. He thought the Applicant could work a full five days a week with this disability
Other EvidenceA letter from the National Employers Mutual to the DVA of 17 February 1987 (T7) indicated the rate of compensation for the Applicant was $487.20 per fortnight at its commencement on 4 June 1985. According to the form it was last increased on 1 April 1986.
In his application for an increase in disability pension the Applicant wrote that he ceased work on 30 September 1993 and the reason for this was because the job had finished and all employees had been stood down (T9). The Applicant filled out a lifestyle questionnaire, which was signed and dated 19 August 1997 (T13). In this form he stated that because of his PTSD he had become withdrawn and tense. In this form he wrote that he stopped working in 1989 and that he was unable to work after a work accident. He also stated that his PTSD and hearing disabilities caused stress in his profession as a carpenter.
SubmissionsIt was submitted for the Applicant that the test was whether the Applicant could work, not whether there was work available. The Federal Court case of Birtles v Repatriation Commission (1991) 33 FCR 290 was cited as authority for this principle. It was pointed out that the Applicant had returned to work after his accident in 1985.
Submissions were made regarding the reports of Dr Hayes on 25 September 1998 (T22) and 21 March 2000 (Exhibit A3). It was pointed out that at T22, p68 the doctor commented that the Applicant could not seek work in other occupations due to his PTSD. This was reiterated in the report of 21 March 2000. The Tribunal finds this submission a little difficult as that point is not at all clearly reiterated in the second report. It was submitted that Ms Pattison's evidence about the Applicant's need for isolation when working meant that the Applicant could not work because of an accepted condition.
It was submitted for the Applicant that Dr Lee's comments about the Applicant being able to work 8 to 20 hours a week if motivated was support for the findings of Dr Hayes. The Tribunal notes, however, that this comment of Dr Lee is a response to a question as to whether the Applicant could continue work as a carpenter. Hence it does not state whether or not the Applicant could perform other types of employment. It merely states that he could continue work as a carpenter.
It was submitted that the report of Professor Sambrook (Exhibit R3) stated only that a musculo-skeletal condition does not prevent the Applicant from working. This does not negate the fact that the psychiatric condition does prevent it. It was then submitted that the evidence of Professor Sambrook and Dr Lee showed that the Applicant could work eight but not twenty hours a week. It was submitted that the evidence of Ms Pattison showed that the Applicant could not work with others. It was also submitted that the work available to the Applicant would require working with a boss and others. It was then submitted that one could not expect the Applicant to become self-employed. The Applicant could do some funeral work, but not much, as it had a deleterious effect on him. He could not work any more than he does.
It was submitted for the Respondent that the requirements in s24(1)(b) had not been met on the balance of probabilities. The Applicant was not totally and permanently incapacitated as a result of his war caused injuries alone. It was submitted that this conclusion was supported by Dr Anderson, Dr Lee and Professor Sambrook. It was submitted that there was no distinction between paid and volunteer work.
Dr Anderson's report (R2) was said to be evidence that the Applicant could work 8 hours a week if he wished. The Applicant has ceased volunteer work but this was not the case on 3 March 2000. The comments by the doctor on the Applicant's attitude to work were highlighted. It was submitted that in cross examination the Applicant stated he would take more funeral work. The report of Professor Sambrook was evidence that the work potential of the Applicant was only hindered by his work related injury, and that the main limitation on his working was a lack of available work.
Submissions were made drawing on Dr Lee's report. It was submitted that though the Applicant saw his reputation as a town drunk and his inability to get on with people as the reasons he could not work, in actual fact he was still working for the RSL club and enjoying it.
The Respondent submitted that s24(1)(c) was not met, nor was the related ameliorating provision of s24(2)(b). The Respondent said that there was insufficient evidence that the Applicant has sought work and that s24(2)(b) was not satisfied. It was submitted that other causes had prevented the Applicant from working in the assessment period, and that there was no inability to work because of the accepted conditions. It was submitted that the Applicant spent a length of time out of the workforce because of the work injury. Other factors preventing work were the Applicant's lack of a building licence, a lack of subcontracting work, a lack of suitable available work, and the effects of dermatitis and eczema. It was submitted that the Applicant may have been trained in carpentry, but that the RSL work, and life with his wife, were acceptable to the Applicant. It was submitted that he lived a retirement lifestyle.
It was submitted that, applying s24(1)(c), even if the Applicant was genuinely searching for work the Applicant's condition must be the cause of the inability to work. The Respondent pointed to other factors such as the lack of available work and the effect of the work related injury.
It was submitted in reply for the Applicant that it is very important to note that the Applicant could return to work after his work related leg injury. Even joining the cadet corps was evidence of this. The case of Banovich v Repatriation Commission (1986) 69 ALR 395 was cited. In particular the passage on page 402 where it is stated –
It follows that member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity – and by that incapacity alone – from continuing in that field of remunerative activity.
The case of Birtles (supra) was referred to for the Applicant. It was submitted that the principle in paragraph one of the head note referred both to s24(1)(c) and 24(2)(b). The Tribunal assumes that this relates to the concepts of "alone" as used in s24(1)(c) and "substantial" as used in s24(2)(b). This meant that the Applicant was both incapacitated alone from his accepted disabilities and substantially affected by his accepted disabilities, in relation to "relevant" remunerative work. It was submitted that it was clear from the medical evidence that the Applicant was unable to work. He has attempted to work and would like to do more but the evidence of Dr Hayes and Ms Pattison would indicate that he could not cope with more work. It was further submitted that there was nothing in the law to equate voluntary work with paid work. It was reported by Dr Hayes that the best the Applicant could do was 20 hours a week.
It was submitted that the comments of Dr Anderson were inconsistent with the 30 percent rating he judged. It was also submitted that he was not a trained psychiatrist. It was submitted that Dr Lee provided an assessment about the Applicant's psychiatric disorder even though he mentioned no symptoms of PTSD.
It was submitted that the Applicant's and Ms Pattison's evidence was straight forward and genuine. There was nothing to suggest that the Applicant gave anything other than honest answers.
Findings on material questions of fact with reference to the evidence and other relevant materialFor the Applicant to be granted a special rate pension the Tribunal must be satisfied that s24(1)(b) and (c) of the Act are met . Section 24(1)(b) requires that the veteran must be sufficiently incapacitated by the war caused disease alone to be incapable of performing more than 8 hours a week of work. As highlighted by counsel for the Applicant, the work to be performed is a "reference to the type of work the member previously undertook" (Banovich (supra) p403). The Applicant was trained in carpentry. It had been submitted for the Applicant that the evidence of the inability of the Applicant to get on with others showed the Applicant could only work in isolation. The Tribunal views this as an oversimplification of the Applicant's circumstances. He has shown an ability to perform work with others in the cadet corps. In fact, this work involved working with young people in circumstances similar to the Army. The Tribunal does not doubt the genuineness of the Applicant's trauma associated with being part of the killing of a Vietnamese boy. However it has apparently not limited him to the extent that he could not perform the cadet corps supervision.
From the Applicant's evidence, the main restriction on his working seems to be that he may not be able to work directly under another person. As his own oral evidence shows, his difficulties mainly arise with his supervisors. It had been submitted that the Applicant could not possibly be self-employed. However, it would seem to the Tribunal that much of the work he does at present in the form of carpentry is on his own.
The evidence from the various medical experts is conflicting as to whether the Applicant could work for more than 8 hours a week. According to Dr Hope he could not, whilst Dr Hayes has given a qualified "yes". Both Dr Lee and Dr Anderson state that he could quite easily work more than 8 hours a week.
Dr Hayes' report of 11 May 2000 states (Exhibit A4):
I believe that Mr McPhee could work less than 8 hours a week, in a paid capacity as a result of his psychiatric condition alone…working 8 hours or more are likely to lead to increased symptomatology, such as irritability and nightmares, with risk of relapse of his previous alcohol abuse.
On a volunteer basis, where he is able to control his own stress levels more readily, he may be able to work 8-20 hours, for periods of time. I doubt he would be able to sustain this, requiring periods away from any work related stress.Dr Hayes indicated that the Applicant could work on a volunteer basis for more than 8 to 20 hours. This could be interpreted in a number of ways. One view is that if the Applicant could work alone if and when he chose then he would be able to work for more than 8 hours a week. Although the Applicant does perform work alone as explained above, it would be unreasonable to suggest that he could simply move in and out of work as he pleases. To make a sustained living and be committed to gaining an income he would have to commit to regular work. This would conflict with the requirements as seen by Dr Hayes.
It is also clear that the Applicant had been performing volunteer work to a reasonable capacity. It had been submitted for the Respondent that there was no difference between voluntary work and paid work. This was refuted by counsel for the Applicant who stated that nothing in the law equated paid and voluntary work. The law as it stands in relation to "remunerative work" suggests that there must be at least some form of reward. In the Tribunal decision of Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986) (the then) Senior Member McMahon stated that the term is used to "distinguish activities from private or domestic work or from voluntary non-profit activities". It is quite clear that the voluntary activities of the Applicant would fall into the latter category. Hence they could not be a consideration in judging his potential for remunerative work. This would work in two ways. Firstly, he could not claim a pension to supplement his inability to do the work, and secondly, it could not be argued that he can perform 8 hours of remunerative work simply because he has done some amount of volunteer work. Taking the above considerations into account it is clear that, under Dr Hayes' definition of work capability, the Applicant would satisfy s24(1)(b) of the Act.
It is true that the medical experts remain evenly balanced on whether or not the Applicant satisfies sub-section 24(1)(b) of the Act. However Dr Hayes was the only trained psychiatrist of the four doctors. Therefore his opinion should carry more weight as regards the effects of PTSD. On this basis, the Applicant would satisfy section s24(1)(b) on the balance of probabilities.
Section 24(1)(c)As regards s24(1)(c) the Tribunal must consider whether the Applicant was unable to continue working due to any factors other than his accepted disabilities, and whether the Applicant has been genuinely seeking work. Although the Applicant was initially trained in carpentry, for the last two years he has done work with two funeral companies. He has stated that it is his adverse reputation that has reduced the work he can attract in his geographic area. The Tribunal does not see this as related to his accepted conditions. Further, if his PTSD arises due to circumstances of war, it seems that its effect has not deterred him from working in a profession associated with death. However, it must be noted that in Fry v Repatriation Commission (1997) 47 ALD 776 the majority stated that the remunerative work that the veteran cannot undertake need not be the last paid work of the veteran. Hence for the Applicant in this matter it would still relate back to the work undertaken as a carpenter before he started working in the funeral business.
As regards the carpentry trade, it is clear from the Applicant's own evidence that there are several factors other than his accepted conditions that limit his ability to work. These factors included not having a subcontractor's licence, his reputation as a drunk, and a general lack of suitable work. The Federal Court case of Cavell v Repatriation Commission (1988) 9 AAR 534 indicates that the decision maker must look to practical considerations. The test is certainly not absolute and depends on common sense. In the Tribunal decision ReHanrahan and Repatriation Commission (1992) 26 ALD 766 it was held that a bricklayer was prevented from working due to factors such as non-accepted disabilities, low employment and a long time out of the workforce. Although Mr McPhee is not claiming that his employment is restricted by his non-accepted disabilities, he certainly has very restrictive employment opportunities. However it would not be necessary to expect him to have to start his own business at this point merely because he does not have a sub-contracting license. Further, he has made significant efforts to combat his reputation for drunkenness and this should assist him in his application. What goes against the Applicant is the fact that he has performed work activities in a group in all his voluntary efforts. It would be contradictory for the Tribunal to then say that he is finally unable to work at all because he simply cannot work with others. As he has no licence and, it would seem, no intention of becoming self-employed, this is the final consideration.
Conclusion
It is on this basis that the Tribunal considers that the Applicant fails to qualify under s24(1)(c) of the Act. He is not unable to perform remunerative work due to his accepted disabilities alone and therefore the reviewable decision is affirmed.
Decision
The decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Sassella
Signed: .....................................................................................
AssociateDate/s of Hearing 20 October 2000
Date of Decision 25 May 2001
Counsel for the Applicant Mr Neale Dawson
Solicitor for the Applicant Whyburn & Associates
Representative for the Respondent Ms Philippa Hook
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