Merriman and Repatriation Commission
[2004] AATA 475
•14 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 475
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/552
VETERANS' APPEALS DIVISION ) Re DOUGLAS MERRIMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member Date14 May 2004
PlaceBrisbane
Decision The decision under review is set aside and in substitution thereto the Tribunal decides Douglas Merriman is entitled to pension payable at the Special Rate, with date of effect as from 1 March 2002.
....................(Sgd).....................
EK Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension - special rate – accepted service-related disabilities are a ‘substantial cause’ of inability to engage in remunerative work – alone test not met – ameliorating provisions - genuinely seeking to engage in remunerative work – pension payable at the special rate
Veterans’ Entitlements Act 1986 s 24
Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1
Jackman v Repatriation Commission [1997] FCA 564
Cavell v Repatriation Commission (1988) 9 AAR 534
Byrne v Repatriation Commission [2001] FCA 1134
Fox v Repatriation Commission (1997) 45 ALD 317
Hall v Repatriation Commission (1994) 33 ALD 454
Hendy v Repatriation Commission [2002] FCA 602REASONS FOR DECISION
14 May 2004 Dr E K Christie, Member 1. This is an application by Douglas Merriman to review a decision of the Veterans’ Review Board (“the VRB”) which determined that pension be assessed at 80% of the general rate to operate from and including 1 February 2002.
2. In reaching its decision, the VRB concluded on the evidence before it, that:
“28 The Board noted that atrial fibrillation is a condition for which the Repatriation Medical Authority has published a Statement of Principles, and accepted the evidence from Dr Rafter, that Mr Merriman’s atrial fibrillation was currently well controlled with medication and that this condition did not interfere with Mr Merriman’s capacity to continue in the work force.
29 It was apparent from the whole of the material available today, that the veteran’s atrial fibrillation, and subsequent anxiety and concern in regard to the musculo-skeletal chest pains which Mr Merriman developed after his heart arrhythmia was diagnosed, was the principle [sic] reason Mr Merriman ceased work in January 2001.
30 Further, Mr Merriman was 61 at the time he resigned, and the Board considered that the veteran’s age, and the requirement for him to increase his working hours from 38 to 42 per week were also significant factors in his decision to resign from his paid employment.” (T2, Folio 14)
3. At the hearing, Douglas Merriman was represented by Ms B Carter-Nicol of Counsel. The respondent was represented by Mr M Smith, a Departmental Advocate.
4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 – the “T” Documents (Exhibit 1) and the various documents tendered by the parties.
Facts
5. The general facts were not in dispute and may be stated briefly. Mr Merriman was born on 20 May 1939. Mr Merriman lodged a claim with the respondent on 18 November 1999 for “PTSD, Solar Skin Damage, Hearing Loss, Tinnitus”.
6. Mr Merriman served in the Australian Army for almost 25 years – from March 1958 to January 1982. He had operational service in Vietnam in 1967–1968 as a sergeant in the signals unit. On discharge from the Army, Mr Merriman had risen to the rank of Warrant Officer, Grade 1.
7. Mr Merriman has the following accepted service-related disabilities:
(i) Post Traumatic Stress Disorder (22 February 2000);
(ii)non-melanotic malignant neoplasm of the skin of various sites (22 February 2000);
(iii) bilateral sensorineural hearing loss with tinnitus (22 February 2000);
(iv) depressive disorder (22 February 2000); and
(v) right otitis media (7 July 1982).
8. Mr Merriman has the following non-accepted service-related disabilities:
(i) Solar skin damage;
(ii) Basal cell carcinoma (NSR treatment only).
Issue to be Decided
9. At the commencement of the hearing the parties agreed that the following issues were subject of dispute and central to determining whether Mr Merriman was entitled to payment of pension at the Special Rate under section 24 of the Act:
(a)Section 24(1)(a): The date the degree of incapacity could be determined to be 70% or greater;
(b)Section 24(1)(b): The date Mr Merriman became incapable of undertaking paid work for periods aggregating eight hours or more per week;
(c)Section 24(1)(c): Whether Mr Merriman accepted service-related disabilities, alone, prevented him from undertaking paid work; and
(d)Section 24(2)(b): Whether Mr Merriman genuinely sought work after the date he ceased work (21 January 2000).
Examination of the Evidence
10. Mr Merriman gave oral evidence at the hearing. Dr V Venugopalan, a consultant psychiatrist, gave expert medical evidence on behalf of the applicant. During the hearing, the applicant elected to not require Dr Q Mungomery for cross-examination.
Evidence of Douglas Merriman
11. Mr Merriman gave the following description of his paid employment following his resignation from the Army:
1982-1983:Groundsman at the Borneo Barracks Golf Club for about 12 months. He resigned because he believed the work load to be excessive;
1983-1984:Petrol station supervisor for about 12 months. He left after the garage was sold and the new owner employed family members only;
1984-1985:Unemployed for about 9 months. During this period he “certainly tried” to get work and applied for jobs. However, no replies were ever received – not even to tell him that he had been unsuccessful; and
1985-2000:Groundsman at the Middle Ridge Golf Club in Toowoomba. Resigned, after 15 years continuous work, on 21 January 2000.
12. Mr Merriman provided the following explanation why he resigned from the Golf Club in January 2000. He said that he had been “pulled up” twice in relation to his work and told by his Supervisor that he was “not happy with his work capacity”.
13. He could not understand why his Supervisor had found fault with his work as he believed he had given “110%” to his work and could not give any more. Furthermore, because of his PTSD and depression at the time, he found it difficult to cope with the workplace stress being imposed on him by his Supervisor – this problem being heightened because his relationship with his Supervisor at this time “was not good”. Mr Merriman stated that he discussed the situation with his wife on the Friday night – particularly his concerns that he “could not stay any longer [at the Golf Club] or he would explode’. He then thought further about the situation over the weekend before resigning on the following Monday. He also believed that, if given a third warning from his Supervisor, he would be sacked. At this time he was working at least 38 hours per week – but found he was unable to work without becoming upset and depressed.
14. Following his resignation from the Golf Club in January 2000, he worked as a voluntary driver for Anglicare Western Region from September 2000 to June 2001. He became involved in this work in order to obtain relief from life stressors. Ultimately, he had no option other than to resign from this voluntary work as his PTSD/depression worsened to a stage where he believed his driving would place the safety of his passengers at risk.
15. Mr Merriman gave the following account of his efforts to find paid work after ceasing voluntary jobs with Anglicare:
(a)making a written application about 12 months ago for a job as a driver-storeman with a poultry firm. He was unsuccessful but had received no formal response. He said that he had found out later that all applications were destroyed after 3 months – but was unaware of this situation at the time;
(b)working for a party supply hire firm about 12 months earlier, but only for one day. He was not invited back;
(c)undertaking concreting work around Christmas 2003. This work only lasted for one day as he believed his employer felt he was not able to keep up with the work. Mr Merriman said that this job (and the party hire job) had both been found through friends; and
(d)that his previous experience in 1984/85 of unsuccessfully applying for jobs returned to represent a “very difficult” obstacle for him to deal with at this time, because of his emotional condition. This obstacle constrained him in his efforts to find paid work.
16. Mr Merriman gave the following responses during cross-examination:
(a)He acknowledged that the following statement he gave to the VRB (Exhibit R2, Transcript, p 4) described his emotional state at the time he resigned from the Golf Club in January 2000:
“Well, at that particular time, things were happening in East Timor, and a lot of troops will be sitting together, and then they showed you the happenings that had occurred in East Timor, and I became very depressed and distressed and had flashbacks to my tour of Vietnam. I was also having health problems. I thought I was having a heart attack and had to go and see a heart specialist to try and sort that problem out. I became panic-stricken because of my health problems. I was under the impression that the way things were going that I was heading for a nervous breakdown;”
(b)He acknowledged that history taken by Dr Madden at the same time also described his emotional state and the reasons for his resignation:
“His most recent resignation came after a 18 month period of dissatisfaction which he describes was due to poor management decisions on the part of his Supervisor eg there were time constraints placed on his work and poor management decisions made, especially those centred around temporary and poor quality repairs that he or the team were expected to make. He experienced considerable frustration in noting these repairs would not last and have to be redone. He resigned, in his own words ‘feeling close to a break down’”. (T4, Folio 98); and
(c)He had not pursued a request to his Supervisor for reduced working hours, given his emotional situation at this time. He had experienced great difficulty in the past to get time off (for example for medical appointments) from his Supervisor because of conflicts in completing his allocated work commitments and be given time off.
17. In response to a Tribunal question whether he would be willing to accept any work, if any work could be found, from the time that he ceased work at the Golf Club in January 2000, Mr Merriman replied that this would not have been the case initially, because of his PTSD and depression. However, over the last 12 months or so he would have been willing to do so – subject to the qualification that it would be dependent on the job, in terms of his being able to cope with the pressure of the job; his biggest problem with work was that he could not accept pressure any more and this was the “biggest reason” why he did not work.
Expert Medical Evidence
18. Dr Q Mungomery prepared three reports over the period March 2000 to August 2002. Following his first consultation, Dr Mungomery stated in his report:
“Mr Merriman currently fulfils criteria for a chronic Post Traumatic Stress Disorder and mild Major Depressive Disorder…
The patient still maintains a reasonable current ability to work on a full-time basis, although of some concern is the recent emergence of Mr Merriman’s Major Depressive Disorder – which if continuing to worsen, will have a moderate to marked affect on the patient’s ability to work on a full time basis.
PROGNOSIS
The prognosis at this time is fair, given the likelihood of return to some improved level of function with active treatment for his condition. However, the likelihood of the majority of his symptoms remaining chronic is high – given the current chronicity of Mr Merriman’s symptoms and the lack of treatment to date.” (18 February 2000, T9, Folio 49).
19. In his next report, Dr Mungomery stated:
“…in the later part of 2000, we were successful in engaging him in volunteer work with Transcare (which Mr Merriman has gained some significant satisfaction from). Despite this, during the last six to nine months Mr Merriman has described continue (sic) flashbacks and significant emotional reactions to a range of traumatic events on the television and in newspapers (including a shooting in the United States of America, the Childers fire and an earthquake in India) …
Mr Merriman continues to present with features consistent with Post Traumatic Stress Disorder (chronic), a Major Depressive Episode and continues to remain unfit for any full time or part time work that would involve remuneration and regular attendance. Mr Merriman’s prognosis continues to remain guarded, although we are hoping to gain better control of his symptomatologies, with a range of alternative medications and psychotherapeutic changes in the medium term. Mr Merriman also continues to require active specialist psychiatric treatment in the form of medication and psychotherapy”. (T20, Folio 94, 11 May 2001)
20. In his third and final report, Dr Mungomery stated:
“Mr Merriman’s physical state at this point in time is at a stage of psychological stress and is of such a severity that it deprives the patient of his capacity to carry out any full-time work – related to Mr Merriman’s accepted conditions of Post Traumatic Stress Disorder and mild Major Depressive Illness. There appear to be no other significant precipitants described by the patient, that may have precipitated this worsening in his level of function currently. Mr Merriman’s level of function at this point in time and the severity of his ongoing symptoms is such that it would be unlikely that he would be able to undertake paid work for periods of up to eight hours per week. However, it is anticipated that with a further three to six months of further active treatment, that there may be some movement in his level of disability and that we may be able to return Mr Merriman to some level of function where he may be able to at least work on a part-time basis (up to twenty hours per week) or possibly back to a full-time position). Although, his prognosis at this point in time is guarded.” (T16, Folio 71; 31 August 2002)
21. Dr V Venugopalan’s examination and report considered Mr Merriman’s personal and work history – as well as his behavioural and emotional impairment at this time. He expressed the following opinion:
“It appears from his occupational history and social functioning that his mental state continued to decline since 1999. There is evidence of significant deterioration in his ability to function since Dr Mungomery assessed him in June 2000. In my opinion this deterioration is predominantly the result of a worsening of his Post Traumatic Stress Disorder.
·It is most likely that Mr Merriman will never be able to return to any form of paid employment either part-time or full time.
·Post Traumatic Stress Disorder is the predominant (around 90%) reason for his inability to work.
·His disability is likely to be permanent.” (T26, Folio 125; 1 March 2002)
Consideration of the Issues
22. The object of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Veterans’ Entitlements Act 1986 (“the Act”).
Statutory Framework
23. In considering the parties’ submissions, it is useful to consider the scope of the legislation itself. Section 24 specifies three criteria that a veteran must meet in order to be entitled to the Special Rate of pension. Section 24(1)(a)(i) of the Act requires that the veteran’s degree of incapacity, assessed in accordance with GARP, must be a minimum of 70%.
24. Under section 24(1)(b) the veteran’s incapacity – and the incapacity alone - must be responsible for the veteran being unable to work. In the case of the Special Rate pension, the inability to work must be “for periods aggregating more than eight hours per week”.
25. Section 24(1)(c) requires that it is the veteran’s war caused injury or disease which has not only led to the veteran not being able to work – but has also meant a loss of salary, wages or earning for the veteran.
Legal Principles
26. The Tribunal has considered the following case law authorities to the central issues to be decided under section 24 of the Act.
27. The following approach was used in Forbes v Repatriation Commission (2000) 101 FCR 50 at 52 and 53 by RD Nicholson J, to interpret and to apply the provisions of subsection 24(1)(c):
“That approach [ss 24(1)(c)] is best understood by dividing it into its two limbs and relating those limbs to the relevant portions of what follows in s 24(2).
The first limb of s 24(1)(c) reads:
‘(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…’
That limb must be read subject to the application of s 24(2)(b) which reads:
‘(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 second limb of s 24(1)(c) reads:
‘(c) …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’
This is to be read in conjunction with s 24(2)(a) which provides:
‘(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 reasons 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; …’”
28. With respect to the requirements of sub-section 24(1)(c), Nicholson J referred to the decision of the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at pages 4-5 where the Court said that the issues before the Tribunal were:
“1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, 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?”
29. The above matters must be satisfied to the reasonable satisfaction of the Tribunal in accordance with the standard in sub-section 120(4). That meant, as Tamberlin J noted in Jackman v Repatriation Commission[1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’.”
30. The question of a combination of war service conditions and non-war caused conditions and undertaking remunerative work, was also considered by Nicholson J in Forbes v Repatriation Commission (supra) at page 57:
“The applicant’s case requires the Tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the Tribunal in the light of the words used in the first limb of s 24(1)(c). The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptional environment identified in the applicant’s case. Furthermore, it is consistent with the application by a Tribunal of a common sense approach ‘with an eye to reality’.
As in the case of the present applicant, it is possible that the war-caused condition will be far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made. To date, the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration.” [Tribunal emphasis]
31. With respect to the third question identified in Flentjar’s case, Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 agreed with the following statement by the Tribunal, in terms of it clearly revealing an application of the statutory test, in an unexceptional manner, to the material in evidence before the Tribunal:
“That it followed from the use of the word “alone” in s.24, that any factor having employment consequences which played a part in the applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant’s case for pension at the special rate.”
32. Section 24(2)(b) has long been interpreted as an ameliorative provision specifically included in the Act to deal with a veteran who does not come within the provisions of section 24(1). Compliance with this sub-section would excuse a veteran from having to meet the alone test as provided in sub-section 24(1)(c). To come within section 24(2)(b) an applicant must be under the age of 65 and have been genuinely seeking to engage in remunerative work, and the war-caused incapacity must be the substantial cause of the inability to obtain remunerative work.
33. In Rendell v Repatriation Commission [2001] FCA 1881, French J made the following observations on the operation of section 24(2)(b):
“…it cannot have been intended that veterans under the age of 65 who have ceased work by reason of incapacity from war-caused injury or war-caused disease, or both, alone, are required to actively pursue remunerative work before they cane be entitled to payment of the Special Rate. Section 24(2)(b) is ameliorative of s 24(1)(c) and is to be applied where the Tribunal is satisfied that the veteran has been genuinely and actively pursuing remunerative work in the sense of looking to obtain work and that war-caused incapacity is the substantial cause of his inability to obtain it.”
34. In Byrne v Repatriation Commission [2001] FCA 1134, Gyles J (at par 10) made the following observations as to the proper application of section 24(2)(b):
“The issue is not limited to the question why the incapacitated is in fact unable to obtain employment in the particular place [Kempsey], although that may be relevant. In order to judge the effect of the relevant incapacity, it is necessary to compare the position of the applicant as he is with the position he would be without the relevant incapacity. In the present case, that requires the formation of an assessment of the work prospects of the applicant as a fifty-one year old man with his characteristics and abilities, who had never suffered from PTSD, bilateral sensorineural hearing loss, osteoarthritis of right and left knees or sleep apnoea and who is probably not living in Kempsey. That process enables the true effect of war-caused incapacity upon the ability of the applicant to obtain work to be assessed.”
35. The meaning of the term “substantial cause” was considered in Fox v Repatriation Commission (1997) 45 ALD 317. Kiefel J noted that this term:
“…requires that, if the incapacity is not of itself productive of an inability to obtain work, it is nevertheless the operative factor which, more than any other explains it. That, something might be a ‘substantial cause’ has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as ‘substantial’...”
36. In Hendy v Repatriation Commission [2002] FCA 602, Madgwick J considered the application of the phrase, “genuinely seeking to engage in remunerative work”, as prescribed in section 24(2)(b), by direct reference to the following conclusion of Spender J in Hall v Repatriation Commission (1994) 33 ALD 454 (at 461):
"It seems to me that the question of whether a veteran has been `genuinely seeking to engage in remunerative work’, that he or she would, but for that incapacity, be continuing to so seek' has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade.” [Tribunal emphasis]
His Honour, Madgwick J, then made the following conclusion:
“His Honour [Spender J] also observed that evidence which shows that a veteran who may not be able to seek employment but indicated a willingness to accept work if any could be found, would be enough to satisfy the "genuinely seeking" requirement of s 24(2)(b).” [Tribunal emphasis]
37. In Hendy v Repatriation Commission [2002] FCA 602, Madgwick J also considered the question of a veteran engaging in remunerative work in relation to factors such as the veteran’s age, time out of the workforce and war service conditions. Madgwick J stated (at par 40):
“It seems clear however that it is not in the intendment of the legislation that decision-makers might resort, under the rubric of labour market factors, to the mere consequences of a veteran’s service-related disability for the purpose of defeating the veteran’s claim. Among other things, if a service-related condition incapacitates a veteran for particular work, it will be more or less true in every case that, as time goes by, the veteran’s ability to re-enter the workforce will tend to be impaired on account of lack of recent experience of that work, absence from the workforce generally and, for older veterans, their increasing age. There would have been little point in providing for a work incapacity pension if the direct consequences of the incapacity could defeat the right to the pension.”
Application of Facts to the Law
38. In terms of satisfying the requirements of section 24(1)(a), the Tribunal concludes that Mr Merriman’s degree of incapacity, assessed in accordance with GARP, was 70% as from 26 April 2001, as determined by the Veterans’ Review Board. The Tribunal considers that the Emotional and Behavioural Assessment Impairment relied upon by the VRB is the appropriate assessment, given that it combines his impairment from PTSD and depression with his other service-related disabilities.
39. the Tribunal finds the following opinion evidence to be relevant in its consideration of section 24(1)(b) of the Act:
(a)There is little dispute that Mr Merriman’s accepted conditions of PTSD and depression have deteriorated over time, since March 2000 and, in turn, have precipitated a worsening in his level of functioning.
(b)In February 2000, Dr Mungomery’s opinion was that Mr Merriman “still maintain[ed] a reasonable current ability to work on a full-time basis”. However, he acknowledged the recent emergence of a major depressive disorder, which if worsened over time, would have a moderate to marked effect on his ability to work on a full-time basis.
(c)In May 2001, Dr Mungomery gave a “guarded prognosis” that Mr Merriman “remained unfit for any full-time or part-time work that would involve remunerative and regular attendance”.
(d)In August 2002, Dr Mungomery’s opinion was that Mr Merriman “would be unlikely to undertake paid work for periods of up to eight hours per week – subject to the qualification that he ‘may’ be able to return to part-time work (up to twenty hours/week) or ‘possibly’ a full-time position”. However, Dr Mungomery acknowledged this prognosis at “this point in time” to be “guarded”.
(e)Dr Venugopalan’s opinion in March 2002 was that Mr Merriman would never be able to return to any form of paid employment, either part-time or full-time, because of a worsening of his PTSD (the predominant reason) - and that his disability was likely to be permanent.
40. Accordingly, the Tribunal concludes that it is “reasonably satisfied” (Jackman’s case) the continued deterioration of Mr Merriman’s PTSD condition, together with the persistence of his depressive disorder, have continued to make him incapable of undertaking any remunerative activity for periods aggregating more than eight hours per week as from 1 March 2002.
41. In making this finding, the Tribunal prefers the opinion evidence of Dr Venugopalan in this regard, given that he has been Mr Merriman’s treating psychiatrist since July 2001. From this point in time, including his evaluation of Dr Mungomery’s report in February 2000, to the time of his report (20 February 2002), Dr Venugopalan has observed a “significant deterioration” in Mr Merriman’s ability to function, due predominately to his PTSD. Such an opinion is given in the context of the treatment regime applied by Dr Venugopalan and so is preferred to the opinion and “guarded prognosis” that could be offered by Dr Mungomery in the circumstances of his consultations. Moreover, Dr V Madden (T20, 15 February 2001), an occupational physician, acknowledged that Mr Merriman would only be able to obtain paid employment if there were a “significant improvement in his PTSD and depression conditions” (T20, Folio 101). However this has not been the case for Mr Merriman.
42. the Tribunal has applied the principles in Cavell’s and Forbes’ cases in relation to section 24(1)(c). On all of the evidence and information before it, the Tribunal is reasonably satisfied that it was not Mr Merriman’s accepted service-related disabilities, alone, that prevented him from continuing work of the kind that he was previously undertaking.
43. The evidence before the Tribunal is that Mr Merriman had cardiac problems, specifically episodic atrial fibrillation. An outcome of this condition was episodic giddiness on several occasions which required Mr Merriman to lie down flat on the ground in order to recover (Dr L Rafter T23, 24 August 2001, 5 September 2001). Whilst, Dr Rafter expressed the opinion that he “did not believe” that atrial fibrillation affected Mr Merriman’s work capacity, Mr Merriman’s evidence to the VRB makes it quite clear that at the time of his resignation from the Golf Club in January 2000 he was having “health problems” related to his psychiatric conditions (flashbacks of his tour of Vietnam) as well as his concerns over cardiac problems requiring consultation with a cardiac specialist. The effect of both these conditions was that he believed he “was heading for a nervous breakdown” and that in this emotional state he resigned.
44. Accordingly, the Tribunal concludes that, on all of the evidence before it, the requirements of section 24(1)(c) are not satisfied. Other factors, namely concerns over the state of his cardiac health, had employment consequences that have combined with Mr Merriman’s accepted service-related disabilities to play a part (Forbes’ case) in preventing him from continuing work as a groundsman at the Golf Club – work that he had been previously undertaking.
45. The Tribunal has already noted that the legislation contains provisions to ameliorate section 24(1)(c) by section 24(2)(b) of the Act. In Mr Merriman’s circumstances, given that he was under 65 at the time of his application, “substantial cause” may be substituted for the “alone” test – provided that the other pre-conditions of section 24(2)(b) are met.
46. Applying the reasoning in Fox’s case, the Tribunal concludes that based on the expert evidence before the Tribunal and the Tribunal’s earlier findings, the accepted service-related conditions in themselves – but particularly the PTSD and depressive disorder conditions - are the “operative factors”, that are the substantial cause of Mr Merriman’s inability to obtain remunerative work in which to engage. There is no dispute that his PTSD condition has worsened over time and that his depressive disorder has persisted. Moreover, Dr Venugopalan’s opinion, as Mr Merriman’s treating psychiatrist, is that Mr Merriman’s PTSD “is the predominant (around 90%) reason for his inability to work”.
47. The Tribunal has not considered Mr Merriman’s age as a factor in relation to the question of engaging in remunerative work. In this regard, the Tribunal has relied on the reasoning of Madgwick J in Hendy’s case.
48. Next, the Tribunal has adopted the approach in Byrne in order to access the true effects of war-caused incapacity, on Mr Merriman’s ability to obtain work. Consequently, the Tribunal has considered the work prospects of a 60 year old man (at the start of the assessment period) with his characteristics and abilities who has never suffered from PTSD, depressive illness disorder, right otitis media, bilateral sensorineural hearing loss with tinnitus and non-melanotic malignant neoplasm of the skin at various sites.
49. Moreover, the Tribunal concludes, in Mr Merriman’s case, that:
(a)he had an excellent past work ethic, from the time he left the Army, to his resignation from the Golf Club in January 2000 that indicted a willingness to accept work if any work could be found;
(b)he had a PTSD condition that was of such a magnitude that it was by far the predominant reason that he could not work;
(c)his continuing depressive disorder resulted in ongoing anxiety and agitation in relation for paid work;
(d)Dr Mongomery’s opinion, in May 2001, is particularly relevant. That is, the nature of Mr Merriman’s psychiatric conditions were such that “he would be unfit for any form of work that would involve remunerative and regular attendance”. Consequently, the outcome of voluntary work undertaken by Mr Merriman is significant;
(e)he attempted to address the constraints imposed by his PTSD and depression on his capacity to work by undertaking voluntary work, as a driver, from September 2000 to June 2001. Dr Madden saw the positive benefits in such work for Mr Merriman (Para 5, T20, Folio 100) and concluded “that voluntary employment which is contributing to an improvement overall of his PTSD, Depression and self esteem should be encouraged” (at Folio 101). However, the Tribunal accepts Mr Merriman’s evidence that he had to cease this voluntary work because he believed his psychiatric conditions affected his driving and so jeopardised the safety of his passengers;
(f)he accepted jobs offered to him through friends. However, these opportunities in the work force, that is “labouring work”, did not extend into longer employment; and
(g)he made quite a number of informal (mainly) and formal attempts to find work. The Tribunal accepts Mr Merriman’s evidence that the interaction between his ongoing psychiatric conditions and his unsuccessful attempts in the past to obtain work successfully, represented a significant obstacle for him to deal with finding paid work.
50. The approach in Byrne has also been combined with the reasoning in Rendell “in the sense of [Mr Merriman] looking to obtain work and that war-caused incapacity is the substantial cause of his inability to obtain it”. In this regard, the Tribunal concludes that it is reasonably satisfied that Mr Merriman’s PTSD and depressive disorder conditions resulted in his failure to find work is correlated with Dr Mungomery’s opinion that “he would be unfit for any form of work that would involve remuneration and regular attendance” – as well as his inability to continue his voluntary work.
51. The Tribunal has also adopted the approach in Hall to address the issue in a “realistic way” and to consider any “evidence which shows that a veteran who may not be able to seek employment but indicated a willingness to accept work if any could be found”. That is, for the period following his resignation from the Golf Club in January 2000. The Tribunal accepts Mr Merriman’s responses (see para 17) as an open and honest assessment of his situation. Moreover, the Tribunal concludes that Mr Merriman had used a range of means – formal and informal, to find work in his local area, in regional Queensland, which, together with his past work ethic, indicates a willingness by Mr Merriman to accept work if any could be found.
52. Given the Tribunal’s conclusions related to Byrne, Rendell and Hall, the Tribunal is reasonably satisfied, that in the context of the true effects of these findings, there were objective signs that Mr Merriman had genuinely and actively pursued remunerative work opportunities which were consistent with the limitations imposed by his accepted service related disabilities – in particular his PTSD and depressive disorder conditions, and where his symptoms had worsened or had persisted over time.
53. It is not in dispute between the parties that Mr Merriman suffered a loss of salary or wages or of earnings. The Tribunal further concludes, given the above findings in relation to the first limb of sub-section 24(1)(c) and sub-section 24(2)(b), that sub-section 24(2)(a) of the Act is also satisfied.
54. For all of the above reasons, the Tribunal sets aside the decision under review and in substitution thereto decides that Mr Merriman is entitled to a pension at the Special Rate. The earliest date of effect is 1 March 2002, the date when all pre-conditions of section 24 of the Act were first satisfied.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: Sarah Oliver
AssociateDate of Hearing 5 April 2004
Date of Decision 14 May 2004
Counsel for the Applicant Ms B Carter-Nicol
Solicitor for the Applicant Madden and Company
For the Respondent Mr M Smith, Departmental Advocate
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