Miller and Repatriation Commission
[2005] AATA 972
•4 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 972
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/420
VETERANS’ APPEALS DIVISION ) Re DAVID MICHAEL BROOKS MILLER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal JG Short (Member)
Dr E.Eriksen (Member)Date4 October 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review ..............................................
JG Short
(Member)
CATCHWORDS
VETERANS’ ENTITLEMENTS - disability pension - rate of pension payable - special rate – applicant not suffering a loss of wages or earnings due to war-caused incapacity alone - applicant not prevented from continuing to undertake remunerative work by war-caused incapacity alone - applicant not entitled to special rate
Veterans’ Entitlements Act 1986 s 24(1)(c) and s 24(2)(b)
Flentjar v Repatriation Commission (1987) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Hendy [2002] 76 ALD 47
Forbes v Repatriation Commission (2000) 101 FCA 50
REASONS FOR DECISION
4 October 2005 JG Short (Member)
Dr E. Eriksen (Member)Introduction
1. Mr Miller is a Vietnam Veteran and his accepted disabilities are Post Traumatic Stress Disorder (PTSD); contact dermatitis; impotence and bilateral sensory neural hearing loss. His rejected disabilities are cervical spondylosis; anal fissure; spina bifida; lumbar spondylosis and chronic bronchitis (nif).
2. On 27 February 2003 Mr Miller lodged an informal claim for an increase in his rate of pension. A formal claim was lodged on 16 March 2004. By decision dated 25 March 2004 the Repatriation Commission (the Commission) refused to increase Mr Miller’s rate of pension beyond 100 percent of the general rate. On 22 November 2004 the Veterans’ Review Board (VRB) affirmed the Commission’s decision. On 9 December 2004 Mr Miller lodged an appeal to the Administrative Appeals Tribunal (AAT).
3. Mr Miller was represented by Mr C Swan, Solicitor. The Commission was represented by Mr A Crowe, an advocate. At the outset of the hearing Mr Swan and Mr Crowe were able to agree that in respect of his application for an earnings related rate of pension, Mr Miller satisfied ss24(1)(a) and (b) of the Veterans’ Entitlements Act 1986 (the VE Act). It was also conceded by Mr Swan that during the assessment period, Mr Miller had not sought employment.
Issue For Determination
4. Mr Miller’s entitlement to an earnings related rate of pension is to be considered under s24 of the VE Act. I have noted the matters agreed by the parties and find that Mr Miller satisfies the first criterion under s24 (a determination of entitlement to a pension at a rate higher than 70 percent of the general rate), and the second criterion (an incapacity from war caused conditions of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). The remaining issue for the Tribunal to determine is whether Mr Miller satisfies s24(1)(c) of the VE Act. That is:
·Whether he is, by reason of incapacity from war caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
·Whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free from that incapacity.
Legislation
5.Section 24(1)(c) and s24(2)(a) of the VE Act provide as follows:
“24(1) This section applies to a veteran if
…
(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
…
(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; …”
Background and Evidence
6. Mr Miller told the Tribunal that prior to, and after his army service which included operational service in Vietnam he had worked as a fisherman. Particularly, after his army service he obtained qualifications as a skipper and operated his own cray fishing boat out of the port of Robe in the South East of South Australia. He eventually ceased work in February 2002 however his license agreement for the use of cray pots did not expire until about March 2003.
7. Mr Miller explained that in addition to his accepted disabilities, he also suffered from what he described as neck, shoulder and lower back conditions. Dr Peter D Byrne, a general surgeon, in a report dated 21 July 1999 ascribed percentages from the fifth edition of the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) as 10 percent under Table 3.3.1 for Mr Miller’s cervical spine, 10 percent under Table 3.3.1 for Mr Millers thoraco lumbar spine and 15 percent under table 3.3.2 for Mr Miller’s lumbar spine. Mr Miller also referred to an injury to his right shoulder. Mr Miller explained that this injury, at least in the past, had caused quite a lot of pain and required him to take anti inflammatory medication along with analgesic medication. It is also clear from the material before the Tribunal that Mr Miller has also developed diabetes mellitus; hypertension, oseophagitis and a heart condition.
8. Mr Miller said that he had managed to continue skippering his boat not withstanding his physical conditions, by taking analgesic medication, usually in the form of Panadol but sometimes Panadeine Forte. He said that he now takes Nurofen and added that he didn’t need as much medication now he was not working and aggravating his physical conditions.
9. Mr Miller said that his PTSD had worsened in the years leading up to his decision to cease work. He said that he initially employed a full time person so that the boat could still fish on occasions when he was suffering more significantly from symptoms of PTSD. Mr Miller explained that the strain of being responsible for other people’s lives in skippering a boat, being constantly alert for ropes and nets which could entangle a crew member and thereby cause serious injury, caused him to reduce his work effort. He said that he hired his then son-in-law originally to work as a deck hand but then later as a skipper on his boat. Mr Miller said that he finally hired a third person, Brenton Brooks, to act as a deck hand and that after February 2002 his son-in-law and Mr Brooks usually took out the boat without Mr Miller. On occasions when Mr Miller also accompanied Mr Brooks and his son-in law, Mr Miller would act as the skipper and the two other men as deck hands. Mr Miller explained that after 2002 he found that it wasn’t financially viable for him to continue to operate a fishing business with two employees particularly as he also had to make lease payments on his crayfish pot licence. Mr Miller said that if it were not for his PTSD he would be able to cope with his physical conditions by continuing to use pain killers and being careful in the physical tasks he performed while fishing.
10. Mr Miller said that the crayfishing season in the south east of South Australia ran from 1 October to 30 May each year. He said that during this period he would fish approximately 130 to 140 days and be able to fill his quota from that amount of fishing. He added that today fisherman are able to fill their quota with 70 to 80 days work during a season. Mr Miller said that he also held a shark fishing licence and that during the off season would often fish for shark. He said that this was a more dangerous and strenuous activity than crayfishing. He said that when crayfishing, he was normally home each afternoon having left port at about 4 am. He said that during the cray season, if the weather was fine, he may work up to 30 consecutive days. In cross examination Mr Miller said that the stress he was experiencing arising out of his business activities, primarily centred on the worry of finding money to make the lease payments and being responsible for others while fishing and finding appropriate quantities of crayfish.
11. Mr Miller explained that one of his main difficulties arose if he had a bad night. He would then not be in an appropriate state of mind to undertake his fishing duties the following day. He said that a bad night might include periods of dreams and thoughts associated with his PTSD however he also said that his physical conditions affected his ability to get to sleep. Mr Miller explained that crayfishing is a physically demanding job. He said that when he has taken friends out fishing for a day they always asked him how he manages to cope with the hard physical nature of the work. He said however that there was not a lot of physical lifting to perform as his boat had automatic pot winches. He said that the main physical stress arose out of the rough weather usually experienced in the south east of South Australia. He said that he would start fishing trips if the winds were anything below 30 knots however if, when he reached the crayfishing grounds, the winds increased to perhaps 40 knots he would remain fishing as the winds were generally tail winds on his return. It did mean however that the boat would lurch about. It was at this point that he explained that most old fisherman had back problems. Mr Miller said that he had taken analgesic medication for years. He said that it lessened the pain but did not completely take it way.
12. In cross examination Mr Miller was referred to his most recent formal claim for an increase in disability pension (particularly page T4/21) in which he indicated that he ceased work in February 2001 due to PTSD alone. He indicated in that document that he had been forced to employ his then son in law Lincoln Tomlinson to skipper his cray boat because he believed at the time that he was not mentally fit to be a responsible skipper. Mr Miller answered a question in cross examination by agreeing that whenever Mr Tomlinson and Mr Brooks accompanied Mr Miller on fishing trips Mr Miller was still in charge of the boat and would generally skipper the boat. He said however that with two other people on board it would relieve some of the stress he felt as a skipper.
13. Mr Miller was referred to the report of Dr Peter Byrne dated 21 July 1999 (T5/31) in which Dr Byrne had stated “this man can walk a horizontal distance of about two kilometres but he finds great difficulty in climbing up stairs and slopes and climbing out of low furniture. He has problems traversing rough ground.” Mr Miller said that his condition had improved since 1999 due to undertaking more walking in order to relieve his symptoms of diabetes. He said that the walking also assisted his other physical conditions.
14. Mr Miller was also referred to the report of psychiatrist Dr Shane Ryan dated 16 May 2000 (T8/44). The final paragraph on page four of that report includes the following statement “he explained that he intends to keep working for another three to four years with his cray licence. He explained that he had some superannuation and feels that he and his wife will cope after retirement. He expressed fears about stopping work and having too much time on his hands.” It was put to Mr Miller that in deciding not to renew his cray pot licence agreement in March 2003 he simply fulfilled his retirement expectation expressed in 1999. Mr Miller said that although it had been his plan to cease work he didn’t have a fixed position.
15. The Tribunal referred Mr Miller to a letter from Richard J Oakley of Oakley Shipping addressed to Mr Miller and dated 7 April 2003 (T32/197). This letter refers to Oakley shippings acceptance of the termination of Mr Miller’s lease with effect from 4 March 2003. The letter concludes by saying “you advised that due to continual illness you could not continue with the third year of the agreement. In our discussion you also advised you had not been able to fish your boat in recent months and that a skipper had been employed incurring additional expenses.” Mr Miller told the Tribunal that his reference to continual illness was a reference to a combination of physical and psychiatric conditions. Mr Miller later told the Tribunal that he could have continued fishing with his physical problems if he did not also have symptoms of PTSD.
16. Mr Miller was then referred to a letter from his local medical officer, Dr David P Senior dated 4 May 2004. This letter expressed the opinion that what finally prevented Mr Miller from continuing work as a fisherman was the depression and anxiety associated with PTSD which had prevented sleep and were manifest by irritability, excessive alcohol consumption, hyper vigilance and chronic anxiety. The letter also referred to Mr Miller having suffered a number of injuries that have “caused him pain and being worsened by his cray fishing”. The letter went on to say that Mr Miller refused to take time off as a result of his physical injuries and “toughed it out” to continue working on his boat.
17. In reference to his shoulder condition, Mr Miller said that he had been given three or four cortisone injections to his shoulder and that surgery had been planned approximately two to three years ago but didn’t proceed. Mr Miller said that he feels some pain when extending his right arm above shoulder height and that he experiences a decrease in strength when lifting away from his body. He said that his neck also causes headaches but that this has been much better since a cervical spine fusion operation. He said however that he still gets some pain down his right arm and that his right arm is a bit weaker.
18. In relation to his lower back condition Mr Miller said that it had not been too bad recently but that in the past he had experienced pain radiating down his left leg along with a restriction in movement. He said that his lower back condition did cause problems in sleeping. Mr Miller said that his lower back caused him to feel uncomfortable after walking for approximately 30 minutes and that after driving approximately 100 kilometres he would have to stop his car to get out and move about. Mr Miller said that his diabetes was controlled by medication.
19. Mr Miller said that he still suffered from PTSD although he has not taken any medication for this condition for the last six months. He said that he sees a counsellor occasionally and his local medical officer if needed.
20. Mr Miller said that his hypertension was treated with aspirin and other medication in order to counter the effects of a narrowed artery.
21. Mr Miller said that he takes Nurofen Plus for his physical problems. He went on to say that it was his PTSD rather than his physical problems which interrupted his sleeping pattern in 2002. He said that he could manage his physical problems by lying on his belly. This would ease the pain. He confirmed that in 2002 he still had some shoulder problems. He then said that his physical problems did have some effect on his ability to get to sleep although it was his psychiatric problems which kept him awake.
22. Mr Adrian Munyard, orthopaedic surgeon, was called to give evidence. Mr Munyard referred to his report dated 13 May 2005 (Exhibit A2). Mr Munyard expressed the opinion that Dr Byrnes’ findings of a restriction in movement of Mr Miller’s upper and lower spine appeared to be of a greater restriction than discovered by Mr Munyard on examination in May 2005. Mr Munyard said that the apparent improvement may have been because the range of movement had been restricted by pain and that since Mr Miller was no longer fishing the pain had declined and consequently the range of movement may have improved. Where Dr Byrne had ascribed 10 percent, 10 percent and 15 percent in respect of cervical, thoracic and lumbar spine respectively, Mr Munyard thought that the appropriate ratings under the GARP tables were five, ten and ten percent respectively for these conditions. Mr Munyard said that in his opinion Mr Miller’s physical conditions would not of themselves have been enough to prevent him fishing. He concluded by saying that he would not pass Mr Miller as fit for all duties but would consider him fit for lighter type duties.
Submissions
23. Mr Crowe suggested that it was a combination of Mr Miller’s accepted disability of PTSD and his other physical conditions (which are not accepted as war caused) which resulted in Mr Miller being no longer able to work as a skipper of a cray fishing boat. Mr Swan said that Mr Miller would not have been able to work as a deck hand because of his physical conditions but that he could have continued to work as a skipper had it not been for his experience of PTSD.
Consideration
24. In considering the application of s24(1)(c) of the VE Act the Tribunal considered the questions posed by the Full Court of the Federal Court in Flentjar vs Repatriation Commission (1997) 48 ALD 1. In that case Her Honour Branson J said that the proper consideration of s24(1)(c) required responses to the following four questions.
“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 account that he would not be suffering if he were free of that incapacity?”
25. The Tribunal reminds itself that under s120(4) of the VE Act it must decide these questions to its reasonable satisfaction, a standard which it equates to proof on the balance of probabilities; Repatriation Commission v Smith (1987) 15 FCR 327.
26. As regards the first question in Flentjar the Tribunal finds on the evidence that the type of work previously undertaken by Mr Miller was as a skipper of a fishing boat.
27. The second question in Flentjar requires a factual decision. In Mr Miller’s case, Mr Crowe has conceded, and the Tribunal finds, that Mr Miller, by reason of his war caused conditions is prevented from continuing to undertake work as a skipper of a fishing vessel.
28. The third question in Flentjar refers to the “alone” test in s24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and Forbes v Repatriation Commission (2000) 101 FCR 50, the word “alone”, in the absence of ambiguity, should not have substituted for it other words. The word “alone” as it appears in s 24(1)(c) requires a practical decision as to whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well. Any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran’s case for pension at the special rate.
29. Mr Crowe referred the Tribunal to the decision of Repatriation Commission v Hendy [2002] 76 ALD 47. At paragraph 37 the Federal Court said:
“The consideration of what a veteran would probably have done, absent the
service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the
Act directs attention to the question of whether incapacity from the relevant
condition alone prevents a veteran from continuing to undertake remunerative
work. The provision does not contemplate that other factors are only to be taken
into account if they, of themselves, prevent the veteran from working. The
decision-maker is required to take into account any factor that plays a part or
contributes to a veteran’s being prevented from continuing to engage in
remunerative work. If a period of time elapses after a veteran ceases
remunerative work and before the commencement of the assessment period, lack of
recent work experience, time out of the workforce and increasing age will be
relevant for consideration under s 24(1)(c) of the Act. The decision-maker is
required to consider the effect, contribution to, and relative weight to be attached
to any or all of those factors during the assessment period. So long as the tribunal
performs this exercise, the conclusions drawn from the assignment of the relative
impact the various factors on the ability of the veteran to continue in
remunerative work is not reviewable, except in exceptional circumstances.
Moreover, having considered any or all of the factors which may have
contributed to a veteran’s incapacity, the tribunal is then required to determine
whether it is the veteran’s war-caused injury or war-caused disease, or both, alone
which prevent the veteran from continuing to undertake remunerative work.
Error on the part of the tribunal is determining whether the veteran’s war-caused
injury or war-caused disease is the sole determinant in the prevention of
continued remunerative work is, similarly, not open to review.”
In relation to this third question described in Flentjar, the Tribunal has had regard to all the medical evidence and to the oral evidence provided by Mr Miller. The Tribunal is satisfied, particularly in the light of the reports of psychiatrist Mr Shane Ryan and also in the light of the evidence provided by Mr Miller that the effects of his PTSD, particularly the interruption to his sleeping pattern and the difficulties he experienced in managing his responsibilities as a skipper of a Cray boat and also in ensuring his business made a profit did significantly impact on Mr Miller’s ability to work as a Cray boat skipper. The Tribunal has also had regard however to the report of general surgeon, Dr Peter Byrne dated 21 July 1999 which clearly, in the Tribunal’s view, indicated a finding of significant incapacity arising out of Mr Miller’s physical conditions. While Mr Adrian Munyard said that Mr Miller’s physical conditions had improved to some extent, nevertheless Mr Munyard said that he would not pass Mr Miller fit for any type of work but rather fit only for lighter type duties. It is in the light of this evidence together with all of the other evidence in this case that the Tribunal has concluded that conditions other than Mr Miller’s accepted disabilities did significantly impact on his ability to work and consequently the Tribunal answers the third question or test posed by Flentjar in the negative, that is the Tribunal is reasonably satisfied that Mr Miller’s war caused conditions were not the only factor preventing him from continuing to undertake work as a skipper of a Cray boat. The Tribunal consequently affirms the decision under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of J G SHORT
Signed: .....................................................................................
AssociateDate/s of Hearing 22 August 2005
Date of Decision 4 October 2005
Counsel for the Applicant Mr C. Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr A. Crowe
Solicitor for the Respondent DVA
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