MICHAEL McMAHON and REPATRIATION COMMISSION
[2010] AATA 146
•26 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 146
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1121
VETERANS' APPEALS DIVISION ) Re MICHAEL McMAHON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date26 February 2010
PlacePerth
Decision The Tribunal affirms the decision under review.
...........[sgd S D Hotop]........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – rate of disability pension – special rate – applicant suffers from war-caused conditions including post traumatic stress disorder (PTSD) – applicant also suffers from lower back condition which is neither war-caused nor defence-caused – applicant’s incapacity from PTSD of such nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 8 hours per week – applicant’s lower back condition and other factors contributing to his being prevented from undertaking remunerative work – applicant not prevented from continuing to undertake remunerative work by reason of incapacity from war-caused conditions alone – applicant has not been genuinely seeking to engage in remunerative work – applicant’s incapacity from war-caused conditions not the substantial cause of his inability to obtain remunerative work – applicant not eligible for special rate of pension – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 24(1) and s 24(2)
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
26 February 2010 Deputy President S D Hotop Introduction
1. Michael McMahon (“the applicant”) served in the Australian Army from 1969 to 1975 and rendered “operational service”, within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), in Vietnam in 1971. He is presently 59 years of age.
2. The applicant has been receiving a disability pension pursuant to the VE Act and, on 30 November 2007, he applied for an increase in the rate of his disability pension.
3. On 24 June 2008 a delegate of the Repatriation Commission (“the respondent”) decided that the rate of the applicant’s disability pension be increased to 100% of the “general rate” pursuant to s 22 of the VE Act, with effect from 20 August 2007. That decision was affirmed by the Veterans’ Review Board (“VRB”) on 11 February 2009.
4. On 17 March 2009 the applicant applied to the Tribunal for review of the VRB’s decision.
The Issue and the Tribunal’s Determination
5. The issue for the Tribunal’s determination is whether the applicant is eligible for payment of his disability pension at the “special rate” pursuant to s 24 of the VE Act.
6. For the reasons which follow the Tribunal has determined that the applicant is not eligible for the “special rate” of pension.
The Evidence
7. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T27) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1 – A4 tendered by the applicant; and
· the oral evidence of the applicant and of Graham Bloomfield.
The Legislation
8. The VE Act relevantly provides:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss 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 Applicant’s War-Caused Injuries or War-Caused Diseases
9. The applicant suffers from various war-caused injuries or war-caused diseases, within the meaning of the VE Act, including (relevantly) post traumatic stress disorder (“PTSD”), alcohol abuse, irritable bowel syndrome, and chronic bronchitis.
The Applicant’s Recent Employment History
10. It appears from the T Documents that:
· the applicant was employed by Iluka Resources Limited (“Iluka”) from May 1996 to July 2007;
· the applicant’s usual occupation at Iluka was that of a plant operator, including truck driving and operating front-end loaders, bobcats and forklifts;
· the applicant suffered a work-related injury to his lower back on 18 September 2004;
· the applicant last performed the duties of his usual occupation on 20 March 2005;
· the applicant participated in a graduated return to work rehabilitation program in which he performed clerical, administrative duties, including computer-based activities, for up to 12 hours per week from 19 September 2005 to March 2006;
· the applicant last actively attended any work duties in March 2006. (T26, pp137–40)
The Specialist Medical Evidence
Mr Peter Bath
11. Mr Bath, Consultant Orthopaedic Surgeon, prepared a report, dated 26 June 2006, regarding the applicant following a clinical assessment on 21 June 2006 (T12). That report states (inter alia):
“ HISTORY:
Work History:
Mr McMahon stated that having left school at the age of 15, he worked as a demolition contractor doing general labouring and then joined the Army in 1969 aged 19. He was with the SAS until 1975 and during that time was a rifleman but also did some educational training to the level of ACE II and some clerical work as well. On leaving the Army Mr McMahon was self-employed as a roadhouse operator for 18 months and then worked as a labourer in a flocculant plant at a mine site at Eneabba for 12 months. He then worked as an assistant purchasing officer at the Parmelia Hotel, then as a fruit salesman and buyer at the metropolitan markets which was followed by a six-year stint as fresh produce manager for Coles. From then on, Mr McMahon worked for 11 years as a self-employed irrigation installer and worked both in the physical and the administrative aspect.
His final and most recent job was as an operator for amine site at Capel for Iluka Resources. He had been with that firm for 10 years.
History of Injury:
Mr McMahon said he first put in a report at work regarding a sudden episode of low back pain on the date of 18 September 2004. He said there was a sudden onset of low back pain while he was driving his truck and gradually his symptoms became worse although being on shift work for four days on and four days off, he was able to settle down when he was not at work. There was no mention made by Mr McMahon with respect to his interpretation that the symptoms were related to a defective seat in the truck, as had been outlined in previous reports. With driving, he said his pain would be aggravated by the bouncing about in the truck. Over about the next three months his symptoms continued to get worse and Mr McMahon said he would do his specific job of eight hours driving per day in the truck and then, when the other workers went home, he would continue with doing cleaning up duties using a front end loader.
In March 2005, Mr McMahon said he was told or arranged by his supervisor to see his general practitioner because of the persistence of problems with back pain and right leg sciatica:
Initial/Early Treatment Received:
Mr McMahon’s general practitioner carried out X-rays and a CT scan.
Subsequent Progress/Specialist Management:
As a result of these findings, Mr McMahon was referred to Mr S Narula, Neurosurgeon, and fairly soon after that, on 19 May 2005, an operation to relieve the disc pressure on the S1 nerve root on the right was carried out and this was combined with the insertion of an interspinous spacer to help maintain height at the L5/S1 disc level.
Mr McMahon said that the operation helped him to a certain degree regarding some lessening of the pain in both his back and right leg, but not to a major degree. Post-operatively he was able to return to work on light duties at about the five-month mark. He was employed with office work doing two hours a day, three days a week and was able to drive to work as he lived virtually just around the corner. This type of work ceased about three months ago and Mr McMahon was told that there was no more work along these lines available.
Over the last three months Mr McMahon has been at home doing the cooking, ironing, using the computer and completing his movie editing which he does as a hobby. He said the physiotherapist has said that he can mow the lawn, which he does, but he cannot weed, bend over in the garden, he cannot reach up to high shelves and he cannot bend over and hold that position. He has to sit down to tie up his shoelaces and to get anything off the floor, he has to squat down. At home Mr McMahon said he cannot shovel or do any manual work. His mate comes along to chop the wood. With driving on a rough road Mr McMahon gets lumbar pain although he is able to drive his comfortable Pajero 4WD vehicle on the normal road without difficulty. He does have some symptoms with driving in small cars. Mr McMahon does not take part in any outside activities such as sport and overall he considers that his symptomatology is remaining much the same.
…
SUMMARY AND ASSESSMENT:
Mr McMahon presents with persistent symptoms of low back pain and right-sided sciatica which have apparently settled little following decompression surgery of 12 months ago. There are some mechanical signs of perhaps some of those symptoms coming from the disc or the interspinous disc insertion but there still are signs and symptoms in keeping with nerve root inflammation extending into the right leg. Currently, Mr McMahon is able to manage sedentary work only.
In reply to the specific questions in your letter of 14 June 2006:
…
13.Has the claimant made a recovery in relation to his injury and if so is such recovery either total or partial and please state your reasons for reaching such a conclusion based on your clinical findings.
On the basis of the history and the examination, it would be said that any recovery is partial. On the history by itself, it would seem that there has been very little recovery following the operative management.
14.Do you consider the claimant has recovered sufficiently from his injury to return to alternative duties on a full or part-time basis or with restriction?
Mr McMahon has worked for about 10 months, as far as it can be determined, doing office-based work of two hours a day, three days a week. With this he said he was able to cope and indeed his general practitioner had suggested that the hours be increased to three hours per day, three days a week, at the time of the lack of work ability from the company. Mr McMahon said he was involved with making a film regarding plant procedures at the time but nothing further came of that.
15.We specifically refer you to Ms Lennox’ vocational assessment report dated 9 January 2006. At page 11 of that report she identified a number of vocational options she “deemed suitable … to pursue”. These were:
· Training Development Officer
· Purchasing/Accounts Officer
· Clerical/Administrative Officer
· Sales Representative – Irrigation/Agricultural Products
· Supermarket Department Manager
· Service Station Manager – Store Manager
Do you consider the claimant has the capacity to perform the duties of the above positions …?
Training Development Officer:
Mr McMahon said he had worked at Iluka Resources along these lines when he started preparations to make movies for plant procedures. It would be reasonable to assume that he would be able to work along these lines.
Purchasing/Accounts Officer:
It is noted that Mr McMahon has worked at the Parmelia Hotel along these lines and also looked after his own business at one stage. He said he probably could do this type of work but noted that he was unable to sit for more than two hours at a time and was unable to stand for more than 20-30 minutes.
Clerical/Administrative Officer:
Mr McMahon thought he would be able to manage this sort of work.
Sales Representative – Irrigation/Agricultural Products:
Mr McMahon thought that work along these lines would involve a lot of driving and work in the field. He did not consider that he would be able to manage that.
Supermarket Department Manager:
Again, Mr McMahon thought he would not be able to be on his feet for a reasonable period of time and he also said he was not currently able to concentrate properly, something which he put down to his medication intake.
Service Station Manager – Store Manager:
Again, the above considerations would apply to this work suggestion and also Mr McMahon said his general practitioner had restricted him to lifting any more than 5kg.
15.1:The above job descriptions, where deemed applicable, would most likely be able to be commenced on a part-time basis as although Mr McMahon has been back at work for a fair period of time, he had only worked for two hours per day, three days a week, and these types of hours would need to be increased on a gradual and progressive basis.
…”
Dr Brian Dare
12. Dr Dare, Consultant Occupational Physician, prepared a report, dated 2 April 2007, regarding the applicant following a clinical assessment on that date (T26, pp141 – 147). In that report Dr Dare (inter alia):
· noted that the applicant continued to experience “constant low back pain radiating into his right leg” and to have “restrictions with walking, repetitive bending, twisting and lifting”;
· opined that the applicant had made “only a partial recovery” from his work-related injury of 18 September 2004;
· opined that the applicant had “recovered sufficiently to perform alternative duties on a full-time basis”.
In answer to the question whether he was of the opinion that the applicant had the physical capacity to perform the following roles on a full-time basis, namely:
· Training and Development Officer
· Purchasing/Accounts Officer
· Clerical/Administrative Officer
· Sales Representative – Irrigation/Agricultural Products
· Supermarket Department Manager
· Service Station Manager – Store Manager
Dr Dare opined as follows:
“ Yes, I do consider he would have the capacity to perform the occupations outlined above provided those occupations do not require significant manual handling work. … he needs to avoid occupations which require moderate to heavy manual handling tasks and he needs to find work where he can move around and sit and stand as required. I therefore consider managerial or administrative type work as being suitable provided there is not significant manual handling tasks involved.”
Dr John Kemp
13. Dr Kemp, Consultant Psychiatrist, gave oral evidence. He said that he has been treating the applicant since February 2005 and that the most recent consultation was on 5 January 2010. He confirmed that he had prepared a report, dated 26 July 2006, in which he expressed the following opinions:
“ In my opinion Mr McMahon at present has incapacitating symptoms of Post Traumatic Stress Disorder which impact upon his capacity for work such that he is unfit for employment of more than eight hours’ per week on a permanent basis. It is noted that he has a significant work related back injury and there have been attempts to rehabilitate him from this back to employment.
…
In my opinion the prognosis is poor. Mr McMahon has had steadily escalating symptoms of Post Traumatic Stress Disorder and Alcohol Abuse over many years. Despite psychiatric intervention and the introduction of psychotropic medication there has only been modest improvement in his condition and he still remains quite socially and occupationally incapacitated. I expect that he will continue to be permanently disabled by ongoing symptoms of Post Traumatic Stress Disorder.” (T3, p 9)
14. In his oral evidence Dr Kemp opined that it was “probably in mid 2006” that the applicant’s PTSD became so severe that it rendered him unfit for employment of more than 8 hours per week.
15. Dr Kemp also confirmed that he had provided a letter, dated 21 November 2008, to the Department of Veterans’ Affairs which states as follows:
“ This is to confirm that I am currently treating Mr Michael McMahon who has been consulting me since early 2005.
It is my opinion that due to Mr McMahon’s ongoing symptoms of Post Traumatic Stress Disorder alone, he ceased his employment with Iluka in March 2006 and has been permanently unfit for any work of any kind since.” (T26, p 149)
Rehabilitation Reports
16. Three progress reports from Advanced Personnel Management (“APM”), which had been engaged by Iluka’s insurer, GIO Australia Ltd, to provide rehabilitation services to the applicant, are in evidence (T11).
17. In a report dated 27 June 2006 it was noted that the applicant was currently deemed fit to return to restricted duties for 12 hours per week but that he was not currently at work. The report stated (inter alia):
“ …
APM was contacted by GIO in May 2006, and advised to recommence rehabilitation activities with Mr McMahon. GIO directed APM to commence canvassing for suitable work placements external to Iluka. APM contacted Mr McMahon shortly thereafter, and convened a meeting with him at his residence in Capel to discuss potential work opportunities.
APM travelled to Capel on 12 May 2006 in order to meet with Mr McMahon. During this meeting, Mr McMahon revealed that he wished to explore the option of study by correspondence, in the field of web design. He explained that his physical capacity for work remained low and that he wanted to identify an area of work in which he could ‘earn an income from home’.
Mr McMahon went on to state that his physical incapacity was not appealing for any potential employer, and that his car remained in ‘poor condition’ which restricted his ability to travel to and from any work place. He also advised that he could not be placed in a position whereby he would be confronted with any level of stress due to his PTSD, as identified and recommended by treating specialists.
…
In regard to his current physical symptoms, Mr McMahon reports no change in back pain, with persistent aching and physical restrictions. He explained that his pain is constant and that it seemed to be deteriorating. He described activities such as bending, lifting and dressing as causing discomfort, and his driving tolerance as very poor.
Mr McMahon uses anti-inflammatory medication as well as analgesia to control his symptoms, and is not currently receiving any formalised treatment. …
…” (T11, p 76)
18. In a report dated 1 August 2006 it was noted that the applicant was currently deemed “unfit for work” by his general practitioner, Dr Munroe, on 3 July 2006. The report stated (inter alia):
“ …
APM met with Mr McMahon on 6 July 2006. Mr McMahon advised that his symptoms have not changed to date and he continues to experience limited functional capacity. He further advised that Dr Munroe, General Practitioner, has placed him on new medication. He informed APM that he is not managing very well with the new medication as he feels ‘zonked’ and ‘unstable’, including experiencing a loss of balance and light headaches. Mr McMahon reported that Dr Munroe informed him to expect these symptoms from the medication and he anticipates they will pass within approximately one month’s time. Mr McMahon conveyed that he feels unsafe whilst driving and making decisions whilst on the medication.
…” (original emphasis) (T11, p 72)
19. In a report dated 5 September 2006 it was noted that (inter alia) the applicant was currently deemed “unfit for work” by his general practitioner, Dr Munroe, and that he had been referred to a pain specialist whom he expected to see in October 2006 (T11, p 68)
The Lay Evidence
20. There are, in evidence before the Tribunal, two statements written by former work colleagues of the applicant.
21. A statement from John Wright, dated 20 June 2008, reads as follows:
“ I have been approached by Michael McMahon to state my understanding of why Iluka Resources chose not to employ him in alternative duties after an incident at work in late 2004 when he injured his back and could not resume his normal duties.
Michael had requested alternative employment within the company. The Department that I was employed in (the Capel Dry Plant), was always in need of someone to manage or source Training Modules, carry out various Clerical work etc. This person had to have a sound knowledge of the Dry Plant’s operational procedures. Michael had this knowledge, capabilities and desire and was in fact doing these tasks when he was sent home by his Supervisor.
I have had conversations in the past with Michael’s colleagues and the general consensus is that Michael was prone to sudden angry outbursts which couldn’t be tolerated in any workplace. In all fairness to Iluka and their policies and to Michael’s workmates, something had to be done.
I had been made aware that Michael has been diagnosed with PTSD, attributed to his time in Vietnam and my true belief is that his condition is the real reason that he was not given alternative employment within Iluka. I don’t think Iluka could take any chances with him once they found out about his PTSD but I don’t think they could have legally got rid of him because of this, mind you; I doubt very much that they would admit it.
…” (T18, p105)
22. A statement from Graham Bloomfield, dated 7 August 2009, reads as follows:
“ I have recently been requested by Mike McMahon to give a personal account of the situation regarding Mike’s employment with Iluka Resources and his associated Return To Work plan (RTW). To this end I base the following statements on my own ability to recollect circumstances in this regard.
I was employed by Iluka Resources circa 2001/2002, first as contract labour to the Day Services at Capel Dry Plant. This involved working with all members of the crew including Mike who stood out from the other Service members as he tended to work alone. I frequently had morning tea with Mike as at the time I smoked and it was necessary to be outside in Gazebo area. This is where Mike always had his meal breaks and preferred to be outside and seemed ambivalent as to whether the other team members joined him or not.
Mike had a clear way of deciding or assessing a situation. As an example, if a safety issue arose, Mike felt quite strongly in regards to the definition of the legislation and felt it could not be compromised in any way. Mike also had a clear aversion to making changes to any current workplace situations/rules and or (sic) procedures. Mike appeared very black and white with his decision making and would not accommodate alternative suggestions or ideas from other quarters. To this end Mike tended to alienate himself further from the crew as time progressed.
Mike’s nature at this time appeared very much introspective and only involved himself in conversation when there was something he felt he did not agree with and to this end he would tend to make outbursts which on the surface were short, sharp and combative in nature and, from the outside, appeared aggressive and hostile in nature.
Given the environment of the workplace, and the changing values at Iluka, moving toward a more inclusive and Team based work environment Mike appeared continually frustrated with the way the place was evolving.
During this time Mike was heavily involved in process mapping and this required Mike to work alone and develop process maps using 4TQ software. Mike was happier doing this as there was little involvement by other personnel or Supervisors, in fact everyone seemed happier, as Mike could just get on with his work and the Team could get on with theirs. There was markedly less friction in the workplace during this time, I think circa 2001-2002.
After this Mike was returned to normal duties and was assigned the tr~ick (sic) work more often than not, perhaps it required less interaction with the work team members.
During 2003 due to my experience as a Workplace Safety Representative and Volunteer Ambulance Officer (Frontline Emergency Service), I was employed into a new position within the Safety Department for Iluka Southwest Operations.
During the period of October 2004, I was made aware that Mike had sustained a work place injury, and to this end was placed onto a return to work program almost a year later. This was facilitated by the newly appointed Injury Management Coordinator. My recollection here is that prior to this year the injuries were managed by the Human Resources Department/Advisor.
With my role of Emergency Management Specialist, I was consulted by the Injury Management Coordinator as to what, if any, productive work could Mike (sic) be involved in, as I had worked with Mike and had an understanding of his capabilities. I had some project work for developing training packages/videos which Mike would have been able to conduct, as he had spent some time training himself on computer graphic software. It was something I felt would benefit Mike as it required him to work at his own pace.
From this I had minimal input/consultation as the Injury Management Coordinator at the time was also supporting the Human Resources Advisor, and they worked closely together on all workplace issues. To my surprise, Mike had been informed, eventually, that there were no alternative duties to match his skill set and he would be offered a termination package. This information I received via a third party and I played no part in the decision made or the period of consultation.
I am now employed by Rio Tinto as a Safety and Health Advisor at Yandicoogina PT Operations and my role requires me to be accredited as an OHS Practitioner, (Dip) and to provide advice and be accredited in Injury Management in the workplace.
Given my current level of qualifications and the benefit of hindsight my perception of events regarding Mike’s situation is as follows:
·Mike’s angry outbursts remained constant throughout his time at Iluka and were known throughout the operations, but were never acknowledged professionally.
·Mike found it extremely difficult to consult others in workplace matters without it ending up in a confrontational situation.
·Mike’s outbursts would go as quickly as they developed. It was as if a switch was turned off and on.
As an example, Mike would appear very angry. This was noted by a sudden colour change which suggested a rapid rise in blood pressure. However, if key words were spoken, such as ‘I agree Mike, however we need to look into this further’, Mike would suddenly see reason and calm down immediately.
My recollection is that in this situation Mike would not openly apologise for his outburst, though you could see by the way he then spoke, that he did appear embarrassed. It seemed as if he could not control himself, and perhaps mentally chastised himself.
Given my work and experience with St John, and dealing with individuals with challenging behaviours, I feel Mike’s outbursts are an output of underlying ingrained issue(s), and would not easily be rectified. To this end, again with the benefit of hindsight, Mike’s case could have been placed with a specialised vendor working in the field of PTSD, as part of the return to work program. This could have assisted the process and benefited Mike as an individual.
My feeling as a workplace professional is that Mike’s behaviour would have presented a challenge to any personnel attempting to deal with a workplace injury which would have been the focus of the Injury Management Coordinator at the time.
I have no doubt that Mike’s history of aggravation and confrontation in the workplace over a long period of time, would have been the most significant factor in the decision to terminate his employment.
Mike’s demeanour never changed or modified throughout the 5 – 6 year period that we were both employed at Iluka.” (Exhibit A1)
23. Mr Bloomfield gave oral evidence. He confirmed that he had prepared the abovementioned statement and that its contents are true and correct.
24. Mr Bloomfield said that he first met the applicant in 2001 and that he last worked with him in October 2003. He confirmed that he was “surprised” when he heard that the applicant’s employment had been terminated by Iluka. He added that there would have been enough suitable work available at Iluka that the applicant, with his skills, could have done on a full-time basis following his rehabilitation, such as clerical and management duties, and that the applicant’s back condition would not have been a factor in his doing such work. He said that he could not think of any reason – other than the applicant’s workplace behaviour, including angry outbursts and confrontations with other employees, and the difficulties which that presented for management – that the applicant’s employment would have been terminated.
The Applicant’s Evidence
25. The applicant confirmed that he had prepared a statement, dated 26 November 2007, regarding the reason for his ceasing work at Iluka and that its contents are true and correct. That statement reads as follows:
“ I was injured at work (Iluka Resources Ltd) on 18 September 2004 and am receiving Workers Compensation payments at this time.
During the period of my convalescence I was assessed as being fit for alternative duties with my employer on a number of occasions. I requested employment in any area for which I was qualified but this request was refused. I believe because of the behaviour I displayed due to my PTSD.
My Supervisor, Mr Terry Springhall, said to me on a number of occasions that my behaviour and attitude was unacceptable. (Iluka terminated my employment on 31 July 2007).
I do not believe that HR at Iluka will admit that my termination was due to symptoms of PTSD displayed at work as I would be able to challenge the termination on the grounds of unfair dismissal. However, I have no doubt that this is the reason I was terminated.” (T5, p 28)
26. The applicant also confirmed that he had prepared a statement headed “Disabilities preventing me from seeking employment”, dated 26 November 2007, and that its contents are true and correct. That statement reads as follows:
“ Urgency of motion makes it difficult to work in any environment. I have sometimes fouled my underwear and this is extremely embarrassing to say the least.
Shortness of breath due to emphysema makes any physical work difficult, if not impossible.” (T5, p 29)
27. The applicant’s oral evidence may be summarised as follows:
· before he injured his back in 2004 he was a plant operator at Iluka;
· his pre-injury work duties predominantly involved driving trucks, front-end loaders and the like, but they also included some clerical, computer, and supervisory duties;
· after sustaining his back injury he was not off work for any great length of time and continued to work until March 2005 when he went off work and then commenced to receive workers’ compensation payments;
· he subsequently commenced a graduated return to work program which involved clerical work, making training movies and similar duties;
· he enjoyed that work but found it stressful because he could not concentrate;
· he participated in the return to work program until March 2006, at which time he was working 12 hours per week, and he was then told by his supervisor to go home because there was no further suitable work for him to do;
· he was surprised to be told this because he had already been “lined up” to work on a history of the company and to do further movie-making;
· the work he was then doing was “ongoing” and there was work for him to do and which his back condition would not have prevented him from doing;
· his employment was formally terminated by Iluka on 31 July 2007;
· he was “devastated” because he wanted to keep working for another 10 years and he “would have carried on” if he had been allowed to;
· he subsequently applied for a “couple of jobs”, namely, a reticulation job (he had “previously done that sort of work”) with the City of Armadale, and a fire officer position with the City of Bunbury, but his applications were unsuccessful and he was not given any reason;
· in the last 12 months his back condition has improved and he can now do some gardening but his PTSD has deteriorated and Dr Kemp has recently doubled his medication dose.
Additional Material
28. The applicant also tendered in evidence the following documents:
· a document headed “CV – Michael McMahon – May 2008” which was submitted by him with an application for the position of “Irrigation Fitter” with the City of Armadale (Exhibit A2);
· an application by the applicant, dated 15 January 2008, for the position of “Ranger – Fire Control Officer” with the City of Bunbury (Exhibit A3).
29. A copy of a letter from the Manager Human Resources, City of Bunbury to the applicant, dated 6 March 2008, is contained in the T Documents. That letter reads as follows:
“ RANGER/FIRE CONTROL OFFICER
The selection process for the above position at the City of Bunbury has been completed and I regret to inform you that on this occasion you have been unsuccessful.
At the City of Bunbury we are committed to ensuring that selection processes are fair and objective, and to this end I would be happy to provide you with some selection feedback. Constructive feedback from the selection panel on your written application and/or interview performance may assist you to improve your competitiveness with future employment. Should you wish to do so, I would encourage you to contact the undersigned on …
May I take this opportunity to thank you for your application and wish you every success in your future employment endeavours.” (T18, p107)
30. A copy of a letter from a Human Resources Assistant, City of Armadale to the applicant, dated 27 May 2008, is also contained in the T Documents. That letter reads as follows:
“ RE: VACANCY – IRRIGATION FITTER
Thank you for your interest in the above position.
I regret to inform you that, after careful consideration, you have not been successful on this occasion.
I would like to take this opportunity to thank you again for your interest and wish you all the best for your future endeavours.” (T18, p108)
Analysis
31. It is common ground that paras (aa), (aab), (a) and (d) of s 24(1) of the VE Act are satisfied in this case. As regards para (b) of s 24(1), the respondent does not dispute that that provision is also satisfied in this case. On the basis of Dr Kemp’s evidence – there being no contrary medical evidence – the Tribunal is satisfied, and finds, that the applicant’s incapacity from war-caused injury or war-caused disease, namely, PTSD, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Paragraph (b) of s 24(1) of the VE Act is, accordingly, also satisfied in this case.
32. The critical matter for the Tribunal’s determination is whether para (c) of s 24(1) of the VE Act is satisfied in this case.
33. The first matter to be determined, for the purpose of s 24(1)(c) of the VE Act, is the nature of the “remunerative work that the [applicant] was undertaking”, within the meaning of that paragraph.
34. The expression “remunerative work”, by s 5Q(1) of the VE Act, “includes any remunerative activity”.
35. It appears from the evidence before the Tribunal that, since his discharge from the Army in 1975, the two most recent and substantial periods of employment undertaken by the applicant were:
· his self-employment as an irrigation/reticulation installer for 11 years;
· his employment by Iluka as a plant operator from May 1996 to July 2007.
The nature of the work performed by the applicant in the latter occupation was generally described by Iluka’s Human Resources Manager as “moderately manual” and “semi-skilled” (T26, p138). The Tribunal is prepared to infer that that general description is also apposite in the case of the applicant’s work as an irrigation/reticulation installer.
36. The last work that the applicant undertook, however, was the work he performed in the course of the graduated return to work program in which he participated at Iluka from September 2005 to March 2006. The nature of the work performed by the applicant in that program was generally described by Iluka’s Human Resources Manager as “clerical” (T26, p139).
37. The next mater to be determined, for the purpose of s 24(1)(c) of the VE Act, is whether the applicant is, by reason of incapacity from relevant war-caused injuries or war-caused diseases alone, prevented from continuing to undertake remunerative work that he was undertaking. That test – the “alone test” – will not be satisfied if some factor, other than incapacity from war-caused injury or war-caused disease, “plays a part” in or “contributes to” the applicant’s being prevented from continuing to undertake remunerative work: Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
38. It is common ground that the applicant suffers from a lower back injury which he sustained in the course of his employment with Iluka on 18 September 2004 and which is, therefore, not war-caused or defence-caused for the purposes of the VE Act. If, as submitted by the respondent, the “remunerative work that the [applicant] was undertaking”, within the meaning of s 24(1)(c) of the VE Act, is the “moderately manual”, or moderate physical, kind of work which he was undertaking when he was performing his normal duties as a plant operator from May 1996 to March 2005, it is clear, having regard to the relevant medical evidence before the Tribunal – in particular the reports of Mr Bath and Dr Dare set out in paragraphs 11 and 12 above – that the “alone test” in s 24(1)(c) of the VE Act is not satisfied because the applicant’s incapacity from his lower back injury – an injury which is not “war-caused” – has at all material times played a significant part in, or contributed significantly to, his being prevented from continuing to undertake that work.
39. If, on the other hand, as submitted by the applicant, the “remunerative work that the [applicant] was undertaking”, within the meaning of s 24(1)(c) of the VE Act, is the “clerical”, or administrative, kind of work which he was last undertaking when he was participating in a graduated return to work program from September 2005 to March 2006, the answer to the question whether the “alone test” in s 24(1)(c) of the VE Act is, or is not, satisfied is more problematic.
40. According to the applicant’s evidence his participation in the return to work program (which he commenced in September 2005) ceased in March 2006 when he was told by his supervisor to go home because there was no further suitable work for him to do. He subsequently remained off work and his employment with Iluka was formally terminated on 31 July 2007.
41. Two Department of Veterans’ Affairs forms relating to the cessation of the applicant’s employment with Iluka, completed by Garry Green, Human Resources Manager, are in evidence before the Tribunal, namely:
· “HR Section – Employment Report”, dated 19 December 2007, in which it is stated that the period of the applicant’s employment was 15 May 1996 to 31 July 2007, the applicant’s trade was “Operator”, and the reason for the termination of his employment was that he “could not perform the inherent requirements of his position and there were no other suitable positions at Iluka” (T6, p 42);
· “Supervisor – Employment Report”, dated 19 December 2007, which includes the following questions and answers:
“ …
2. Were you aware of the reason that the veteran ceased work? If ill health, please be as specific as you can.
Yes, I am aware – settlement under Deed of Termination and Release – terms are confidential
3. Please describe the effects of any illness that impacted on the veteran’s ability to do all of the duties required by the position.
Work related injury that occurred on 18.9.04.
4. Please describe any disciplinary or behavioural problems that the veteran experienced.
(‘Behavioural problems’ might include aggressive or confrontational attitude, poor concentration, anxiety, depression, excessive alcohol/drug use etc).
Nil
5. If the veteran was unable to continue in his/her usual position, please describe any efforts made to place him/her in a more suitable position.
After some trial duties during a return to work program there were no suitable positions identified.
6. Please give details of any negative issues raised at the veteran’s performance reviews or any other significant events such as demotion.
Nil
…” (T6, p 44)
The Tribunal notes that Mr Green was not called as a witness by the respondent; nor was he required for cross-examination by the applicant.
42. The Tribunal notes the evidence of John Wright and Graham Bloomfield (set out in paragraphs 21–24 above) to the effect that it is their belief that there were alternative suitable duties available for the applicant at Iluka and that the real reason for the termination of the applicant’s employment by Iluka was his workplace behaviour, including angry outbursts and confrontations with fellow workers, which they attributed to his condition of PTSD. The applicant gave evidence to the same effect. That evidence is, of course, inconsistent with the information provided to the Department of Veterans’ Affairs by Garry Green, Iluka’s Human Resources Manager in the forms referred to in paragraph 41 above. In the Tribunal’s opinion it is appropriate that greater weight be given to the information provided by Mr Green than to the abovementioned evidence of the applicant, Mr Wright and Mr Bloomfield. The abovementioned information provided by Mr Green was provided by him, in apparent good faith, in his capacity as Iluka’s Human Resources Manager to the Department of Veterans’ Affairs following a request by that Department. The abovementioned evidence of the applicant, Mr Wright and Mr Bloomfield is, in the Tribunal’s opinion, based on their subjective beliefs, opinions or suspicions and cannot reasonably be regarded as disproving the truth of the information provided by Mr Green.
43. The Tribunal also notes Dr Kemp’s letter of 21 November 2008 (T26, p 149) in which he expressed the opinion that:
“ due to Mr McMahon’s ongoing symptoms of Post Traumatic Stress Disorder, he ceased his employment with Iluka in March 2006 …”.
The Tribunal, however, attaches little weight to that letter because the opinion expressed therein is inconsistent with the undisputed fact that the applicant ceased participating in the return to work program at Iluka in March 2006 because (as he stated in his own evidence) he was told by his supervisor to go home because there was no further suitable work for him to do, and it is also inconsistent with the applicant’s own evidence that he would have continued to do that work had he been allowed to do so. If, on the other hand, Dr Kemp was seeking to imply that the applicant’s supervisor discontinued the return to work program because of the applicant’s behaviour due to his PTSD condition, the Tribunal likewise attaches little weight to such implication because it is inconsistent with the abovementioned information provided by Mr Green, the truth of which has not been disproved to the Tribunal’s reasonable satisfaction, and Dr Kemp is not in a position to gainsay that information.
44. Accordingly, having regard to the abovementioned information provided by Mr Green, the Tribunal is not reasonably satisfied that the applicant was prevented form continuing to undertake the clerical, administrative work which he was undertaking in the course of his return to work program from September 2005 to March 2006 by reason of incapacity from war-caused injury or war-caused disease – in particular, PTSD – alone, for the purpose of s 24(1)(c) of the VE Act. The Tribunal is, instead, reasonably satisfied that other factors at least played a part in, or contributed to, his being prevented from continuing to undertake that work – in particular, a management determination within Iluka that there was no further suitable work available for the applicant to undertake. Accordingly, the “alone test” in s 24(1)(c) of the VE Act is not satisfied in these circumstances.
45. The applicant sought to rely on the “ameliorative provision” in s 24(2)(b) of the VE Act for the purpose of s 24(1)(c) of that Act. He relied, in particular, on two applications for employment which he made in January 2008 and May 2008 (see paragraphs 28–30 above). In the Tribunal’s opinion, however, the requirements of s 24(2)(b) of the VE Act are not satisfied in the applicant’s case. In the first place, the Tribunal is not satisfied that the applicant, since he ceased to be engaged in remunerative work at Iluka, has been “genuinely seeking to engage in remunerative work”, within the meaning of s 24(2)(b), because each of the two abovementioned employment applications related to an occupation which the applicant must have known would necessarily have involved the performance of some duties requiring manual or physical work of a kind which, according to the abovementioned reports of Mr Bath and Dr Dare, was beyond his physical capacity having regard to his lower back condition, and there is no evidence before the Tribunal that the applicant has applied for employment involving sedentary clerical or administrative work of the kind which he was performing in the return to work program at Iluka and which, according to the reports of Mr Bath and Dr Dare, he has the physical capacity to perform. Secondly, the Tribunal is not satisfied, on the basis of the evidence before it, that the applicant’s incapacity from war-caused injury or war-caused disease is “the substantial cause of his … inability to obtain remunerative work”, within the meaning of s 24(2)(b), because, although he disclosed (inter alia) his PTSD and lower back conditions in his application for employment as an Irrigation Fitter with the City of Armadale (Exhibit A2), and his PTSD condition in his application for employment as a Ranger – Fire Control Officer with the City of Bunbury (Exhibit A3), no reason was given to him in the letter he received from each of those employers informing him that his application had been unsuccessful (T18, pp107,108). Accordingly, the Tribunal cannot be reasonably satisfied that incapacity from war-caused injury or war-caused disease – in particular, PTSD – was the “substantial cause” of his failure to obtain either or both of those positions, for the purpose of s 24(2)(b) of the VE Act.
Conclusion
46. The Tribunal concludes, therefore, that para (c) of s 24(1) of the VE Act has not been satisfied at any time since the commencement of the relevant “assessment period”, for the purpose of s 19 of the VE Act (namely, 30 November 2007), and is presently not satisfied, in the applicant’s case, and that, accordingly, the applicant is not eligible for the “special rate” of pension.
Decision
47. For the above reasons the Tribunal affirms the decision under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 8 February 2010
Date of Decision 26 February 2010
Representative of the Applicant Mr R Wood
Representative of the Respondent Mr C Ponnuthurai
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