Milke and Repatriation Commission
[2007] AATA 1534
•11 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1534
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600835
VETERANS' APPEALS DIVISION ) Re PETER MILKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr B.H. Pascoe, Senior Member
Dr K.J. Breen, AM, MemberDate11 July 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) B.H. Pascoe
Senior Member
VETERANS’ – application for special rate of pension – voluntary redundancy – not prevented from undertaking remunerative work by reason of war-caused incapacity alone – contributing factor only
Veterans’ Entitlements Act 1986 s 24
Fry v Repatriation Commission (1997) 47 ALD 776
REASONS FOR DECISION
11 July 2007 Mr B.H. Pascoe, Senior Member
Dr K.J. Breen, AM, Member
1. This is an application to review a decision of the respondent to refuse an application for pension at the special rate pursuant to s 24 of the Veterans’ Entitlement Act 1986 (the Act).
2. At the hearing the applicant, Mr P. Milke, was represented by Mr A. Larkin of counsel. The respondent Repatriation Commission was represented by Mr K. Rudge, an advocate with the Department of Veterans’ Affairs. Evidence was given by Mr Milke, Mr K. Costolloe, a former supervisor of Mr Milke, and Dr W. Glaser, a consultant psychiatrist.
3. From 9 November 1986, Mr Milke had left sensori-neural deafness with tinnitus as an accepted war caused condition. From 10 January 2003 post traumatic stress disorder was accepted. From 8 June 2005 the additional conditions of:
· Sensori-neural hearing loss of the right ear
· movement induced dysequilibrium due to noise exposure and
· tinnitus
were accepted as war caused conditions. Pension was assessed at 90 per cent of the general rate from 24 December 2003 and 100 percent from 8 June 2005. Also, from that later date, his degree of incapacity was determined as 70 percent. Prior to this, the degree of incapacity was assessed at 55 per cent.
4. Mr Milke, who was born on 13 June 1942, served with the Royal Australian Navy and the Army from August 1961 to September 1982. After working for various employers he commenced work with Robert Bosch (Australia) Pty Ltd (Robert Bosch) in November 1990. Initially his role was Material Planning Manager. After becoming Distribution Manager he transferred to being the Material Flow Project Manager in June 1995. He said that, in September 1998, he was advised that the position was being terminated. Mr Milke maintained that he was not given a reason for the termination and believed that it was the result of performance issues because of his difficulties in concentration leading to delays in projects he was managing. Mr Milke then took up a position as Industrial Engineer (Material Flow) at a reduced salary. He worked under a supervisor, Mr Costolloe.
5. In December 2003, Mr Milke was offered and accepted a redundancy package. He said that he was the only employee in the industrial engineering section to be offered redundancy and believed that he was targeted by the company as he was not coping adequately with the work. Mr Milke maintained that he accepted the package because of his recognition of having difficulty coping as a result of his disabilities. He said that, if it had not been for those disabilities, he would not have accepted redundancy and continued working to age 65.
6. Mr Milke said that he enrolled with Centrelink in October 2004 seeking work as an industrial engineer. Also in October 2004 and in 2005 and 2006 he attended three interviews with a Job Access consultant. In these interviews he disclosed his accepted war-caused disabilities. He looked for positions in newspapers and approached some suppliers he had dealt with seeking some part time work. He did not attend any actual job interviews. Mr Milke said that he had loved his work and would have liked to continue but now accepts that he is unable to work.
7. Mr Milke accepted that there were no criticisms made of him in his role as Material Flow Project Manager. He accepted also that the annual appraisals disclosed in the employment records of Robert Borsch were positive and there was no record of any criticism of his performance prior to his redundancy.
8. Mr Costolloe gave evidence that he was the supervisor of Mr Milke in the industrial engineering section of Robert Bosch for his last three and a half years of work with the Company. He said that Mr Milke invariably started work early but in the latter years increasingly requested permission to leave early due to difficulty concentrating. He noted that Mr Milke often went to his car at lunch times rather than remaining in the office and believed this was to take a break and rest to assist in his concentration later in the day. Mr Costolloe believed that Mr Milke’s work started tapering off, particularly later in the day and intervention became increasingly required during situations of stress. He said that Robert Bosch experienced a drop in the market and offered some 60–70 redundancies factory wide. Mr Costolloe said that he suggested to Mr Milke that he apply for a redundancy package as he foresaw that his problems were worsening and may lead to performance issues. He said that he was anxious to avoid a situation where discipline and performance management may be needed. Mr Costolloe acknowledged that Mr Milke’s performance appraisals were always positive, that there had been no direct criticism of his performance nor discussion of his performance with any senior person in the company and, even in 2003, he was among the top performers in the section. Mr Costolloe acknowledged that he regarded Mr Milke as a friend.
9. Mr Milke’s treating general practitioner, Dr J. Mackay, stated in a letter dated 29 July 2003 that his tinnitus had worsened over recent years and it affected his ability to concentrate and his ability to interact with people. In a report to the respondent dated 14 January 2004, Dr Mackay stated that tinnitus, hearing loss and post traumatic stress disorder (PTSD) reduced Mr Milke’s capacity to work to 20-30 hours per week. In a letter dated 12 November 2004 he considered that work capacity was then less than the 20-30 hours per week. In his report to the respondent of 10 October 2005. Dr Mackay stated that Mr Milke was unable to work as a result of his movement induced dysequilibrium and PTSD.
10. Mr Milke was examined on behalf of the respondent by Dr G. Kernutt, a consultant psychiatrist in May 2003. Dr Kernutt diagnosed post traumatic stress disorder PTSD and noted that it caused moderate interference with functions in everyday situations and that more sick days had been taken at work in the past three years including 15 in the past year.
11. A further examination of Mr Milke was conducted by Dr J. Gelb, a consultant psychiatrist on behalf of the respondent. In his report of 9 April 2004. Dr Gelb was of the opinion that the tinnitus, hearing loss and PTSD had deteriorated to the extent that Mr Milke was no longer able to continue at work and that he was totally and permanently incapacitated for remunerative employment of greater than eight hours per week, due to his accepted disabilities alone. In a subsequent report Dr Gelb concluded:
In essence, Mr Milke’s severe tinnitus causes severe stress which exacerbates his Post-Traumatic Stress Disorder symptoms and, in a vicious cycle, the increase in his PTSD symptoms increases his awareness of his tinnitus and worsens its negative impact on him. Rather than argue about the exact percentage of relative contribution of his tinnitus and PTSD, it appears to me to be more logical to reach a finding that they are so closely inter-related and both so intractable, that to all intents and purposes, they are both contributing in a major way to his total and permanent incapacity for remunerative employment.
12. Mr Milke was examined by Dr W. Glaser on behalf of the respondent on 13 February 2007. He diagnosed mild PTSD which, in itself, was not sufficient to prevent Mr Milke from working. From the history given by Mr Milke, Dr Glaser was of the view that, if not for the voluntary redundancy, Mr Milke would have continued working albeit with some restrictions on work capacity. He noted that PTSD can impact on some physical disorders and that it was likely that Mr Milke would demonstrate his psychiatric condition through an emphasis on physical difficulties.
13. Section 24 of the Act provides (insofar as is relevant to this matter):
(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.
14. It was submitted for the respondent that as at December 2003, and for a substantial period thereafter, Mr Milke did not satisfy the requirements of s 24(1)(b). While it was conceded that he did satisfy s 24(1)(b) at some point after his claim in September 2005 for acceptance of further disabilities, it was submitted that he did not satisfy s 24(1)(c).
15. Pursuant to s 120 of the Act, the Tribunal is required to decide this issue to its reasonable satisfaction. It is clear from the evidence that, as at December 2003, Mr Milke did not satisfy the requirements of s 24(1)(b) of the Act. Immediately prior to that date he was working regularly some 45 hours per week. In January 2004, Dr Mackay was of the opinion that he was capable of working 20-30 hours per week. While it is accepted on the evidence that Mr Milke was having some increasing difficulties in concentration due to his war-caused disabilities, Mr Costolloe still regarded him as one of the top performers in his section. There had been no formal criticism or suggested performance management program in respect of any shortcomings in his work. Mr Costolloe was firm that Robert Bosch had good personnel practices and always sought to manage employees through any difficulties and provide them with support. While Mr Costolloe may have been concerned that such management might have been needed at some future time, no suggestion of such need was present prior to the redundancy. We are satisfied that, while his disabilities may have been some influence on the decision of Mr Milke to accept the redundancy package, it was primarily the acceptance of that package which resulted in his ceasing work in December 2003. The Act requires that it be those war-caused disabilities alone which prevented him from continuing in his employment. At best, they were a factor but not the cause of his ceasing employment.
16. In relation to s 24(1)(c), it was the application for and acceptance of the redundancy package at age 61 which prevented Mr Milke from continuing to undertake remunerative work that he was undertaking and not the war-caused injuries alone.
17. As Mr Milke ceased to engage in remunerative work for reasons other than his war-caused incapacity the provisions of s 24(2)(a) cannot assist him. In Fry v Repatriation Commission (1997) 47 ALD 776, it was said that the ameliorating provisions of s 24(2)(b) cannot apply where there is no entitlement to the special rate because of the effect of s 24(2)(a)(i) as applies here. Even if it could be said to apply here we cannot be satisfied that s 24(2)(b) applies to Mr Milke. Firstly, while he registered with Centrelink and had some Job Search interviews we cannot accept that he has been genuinely seeking to engage in remunerative work. His evidence indicates a somewhat half hearted somewhat desultory effort in enquiring for work. By June 2005 when he made application, Mr Milke was 63 years of age and out of the work force for 18 months. It is unlikely that, irrespective of any war-caused disability he would have been successful in obtaining remunerative work.
18. As a result of the foregoing, the decision under review should be affirmed.
I certify that the eighteen (18) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member and
Dr K. Breen, AM, MemberSigned: Dianne Eva
ClerkDate/s of Hearing 1 June 2007
Date of Decision 11 July 2007
Counsel for the Applicant Andrew Larkin,
Solicitor for the Applicant Williams Winter
Solicitor for the Respondent Ken Rudge, Department of Veterans' Affairs
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