Moffitt and Repatriation Commission
[2003] AATA 1142
•14 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1142
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/78
VETERANS’ APPEALS DIVISION ) Re ROBERT GREGORY MOFFITT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier RDF Lloyd, Member Date14 November 2003
PlacePerth
Decision The Tribunal sets aside the decision under review and grants pension at the Special Rate with effect from 21 June 2001.
..................................................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – ex RAN – post service employment as controller/operator at oil refinery – claims pension at Special Rate – whether applicant ceased work and prevented from continuing to undertake remunerative work by reason of his incapacity from accepted war caused disabilities alone – Section 24(1)(c) of the Act.
Veterans’ Entitlements Act 1986 s24
Re Flentjar v Repatriation Commission (1997) 28 ALD1
Forbes v Repatriation Commission (2000) FCA 328
Moorcroft v Repatriation Commission (1999) FCA 862
Martin v Repatriation Commission (1987) 13 ALD 83
Hartley v Repatriation Commission (1996) 20 ALD 64
Hall v Repatriation Commission (1994) 33 ALD 458
Hendy v Repatriation Commission (2003) HCA Trans 358
Repatriation Commission v Van Heteren (2003) FCA 888
Magill v Repatriation Commission (2002) FCA 744
Leane v Repatriation Commission (2003) FCA 889
REASONS FOR DECISION
14 November 2003 Brigadier RDF Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Robert Gregory Moffitt (“the applicant”) for a review of the decision of the Veterans’ Review Board (“the VRB”) dated 23 February 2003 affirming that part of the decision of the Repatriation Commission (“the respondent”) of 11 June 2002 which continued disability pension at 100% of the General Rate.
2. The applicant attended the hearing with his advocate Ms T Spence, solicitor, and the respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition the following document was taken into evidence at the request of the applicant:
·Exhibit A1: Statement of Evidence by Robert Gregory Moffitt dated 11 June 2003, with one attachment showing leave taken from work at BP Oil Refinery by the applicant.
No additional documentary evidence was handed up by the respondent, nor were any respondent witnesses called to give evidence at the hearing. The applicant gave oral evidence, was questioned by the Tribunal and cross-examined by the respondent. He gave his evidence in a forthright manner and in the Tribunal’s opinion appeared reliable in recounting his work and health circumstances.
3. The respondent’s decision of 11 June 2002 had accepted an additional service-caused disability of Post Traumatic Stress Disorder (“PTSD”). This aspect was not an issue before the Tribunal. Prior to that decision the applicant was in receipt of disability pension at 100% of the General Rate and despite the subsequent acceptance of the PTSD condition his disability pension was continued at 100% - rather than granting him the Special Rate of pension, for which he believes he is eligible. The VRB in its decision now under review considered this aspect, affirmed the applicant’s pension at 100% and denied his eligibility for Special or Intermediate Rate.
4. The applicant’s claim is that he ceased work at the BP Oil Refinery Kwinana (“BP Oil” or “BP”) on 25 April 2000 due to his service-caused disabilities, and for the same reason has been unable to engage in any form of employment since. Mr Moffitt believes that he satisfies the relevant requirements of the Veterans’ Entitlements Act 1986 (“the Act”) in this regard and therefore is eligible for the Special Rate of pension.
5. The applicant’s recognised disabilities are as follows:
(a)Accepted as service-related and for which he, as a consequence, receives disability pension at 100% of the General Rate:
· Internal Derangement of Right Knee
· Bilateral Sensorineural Hearing Loss
· Bilateral Tinnitus
· Localised Osteoarthrosis Left Shoulder
· Chronic Solar Skin Damage
· Post Traumatic Stress Disorder
(b)The following have been rejected as being service-caused disabilities:
· Lumbar Spondylosis
· Diffuse Idiopathic Skeletal Hyperostosis
(c)He also has been diagnosed as suffering the following conditions:
· Degenerative Cervical Fusion
· Osteoarthrosis of Right Hip with Total Hip Replacement
6. It is common ground that Mr Moffitt’s incapacity from his accepted disabilities should be rated at not less than 100% of the General Rate. Based on the evidence contained in the T documents, the Tribunal is also satisfied that this is so. The applicant is currently 56 years old, having been born on 4 December 1946.
The Law – Eligibility for Special Rate of Pension
7. The requirements for Special Rate are contained in s24 of the Act and to be eligible all criteria must be met. In particular to be noted is that this applies to all three criteria in s24(1) which must be met at some time during the assessment period. In this case this is from 21 September 2001, when Mr Moffitt made his claim for acceptance for the disability of PTSD, to the present date. S24 of the Act states as follows:
“Special Rate of Pension
24. (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)... .
(2)For the purposes 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.”
8. The Act requires that the Tribunal decide this matter to its reasonable satisfaction, ie. on the balance of probabilities.
Contentions and Related Evidence
9. The applicant has properly made a claim under the relevant provisions of the Act. He has not turned 65 years of age and the degree of his incapacity from accepted service related conditions is currently assessed at 70% or more (in fact at 100%) by a determination that is in force. It is common ground, and the Tribunal agrees, that Mr Moffitt as a consequence meets the criteria of s24(1)(aa), (aab) and s24(1)(a) of the Act.
10. Both parties agree that the applicant’s incapacity from his service related disabilities results in him being totally and permanently incapacitated and that this incapacity renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The Tribunal is relevantly satisfied that there is sufficient opinion evidence in the T documents, particularly that from Dr Buters, to justify this conclusion. The requirements of s24(1)(b) of the Act are therefore also met by the applicant’s circumstances, and this is common ground.
11. It is s24(1)(c) that is the point of disagreement between the parties. The respondent, as did the VRB in the decision under review, does not accept the applicant’s contention that he ceased work in April 2000 – or in terms of the Act, that he was “prevented from continuing to undertake remunerative work that he was undertaking” – by reason of incapacity from his accepted service related conditions alone, and is consequently suffering a loss of earnings that would otherwise not be the case.
12. The Tribunal is therefore concerned only as to whether the applicant meets these requirements of s24(1)(c), and if relevant s24(2) as it effects s24(1)(c).
13. The applicant’s evidence in this respect highlights the following aspects, the detailed explanations of which are contained in his Statement of Evidence at Exhibit A1. This is a comprehensive document and will not be repeated in full in these Reasons.
(a)Prior to his ceasing work at BP Oil, in April 2000, he had been suffering considerable difficulties in managing the responsibilities associated with his role as a Control Operator. At that time he says he did not realise that as well as his then accepted shoulder and knee complaints, the difficulties he was experiencing were primarily caused by what was subsequently diagnosed as PTSD and accepted as war-caused.
(b)As a consequence of these work difficulties, some time in 1998, he sought a downgrading to the role of an “Outside Controller”, which the applicant states involved vastly less responsibility and stress. This request was granted and he was grateful for that, despite the reduction in salary from $75,000 (Grade 6) to $69,000 (Grade 4) involved.
(c)As well as the problems stated above, he also had had problems with his right hip – which is not an accepted condition. However, the hip was operated on in 1994, at which time he received a hip replacement. This, the applicant states, fixed that difficulty and he has never had any problem with the hip since soon after the operation. Similarly, he says that the conditions diagnosed as Lumbar Spondylosis and Idiopathic Skeletal Hyperostosis (both rejected as war-caused) have never caused him any significant problem.
(d)Whilst the Outside Controller work involved more physical activity, the applicant states he was able to cope with this – albeit with some difficulty due mainly to his accepted shoulder and knee conditions. The difficulty was accentuated, he believes, by PTSD which at that stage had not been diagnosed.
(e)In early 2000, his employer (BP Oil) advised that it was intended that they shed one third of their Kwinana workforce. He was interviewed in this regard and indicated at that time that he did not wish to be promoted again because of his health problems. Mr Moffitt carefully considered his financial position and on the basis that he believed if he did not accept redundancy and the associated package he would soon be required to resign anyway and in so doing would suffer a substantial loss of financial benefit.
(f)Mr Moffitt states that in this period he had been taking a considerable amount of time off work, the main cause he maintains being due to headaches, stress, inability to get adequate sleep when off shift, and also some drinking problems. This he believes was largely due to PTSD which was not formally diagnosed until later.
(g)The applicant contends that although his ceasing work was in a sense voluntary, in fact he would have had to go anyway because of his health. The redundancy offer provided him with a sensible means of handling what was inevitable. He states that he would have continued to work at BP if he had been able to do so, even at the lower Outside Controller rate. He realised he would lose money by accepting redundancy despite it being a reasonable package, however he saw no alternative when his belief was that his safety and that of his workmates would be at stake if he continued on.
(h)As a result of the above, it is contended by Mr Moffitt that he was unable to continue to undertake the remunerative work he was undertaking at BP Oil because of this then accepted war-caused conditions and his subsequently recognised and accepted PTSD. As earlier indicated he maintains that this PTSD condition had been affecting him for some time whilst still working, although he hadn’t realised it. This is supported by Dr Kemp’s opinion evidence at T18 page 87.
(i)Consequently the applicant maintains that, although he had other physical ailments these were not at all disabling, and the accepted conditions at that time as well as PTSD were the sole cause, or at least the dominant cause, of him having to cease work. The redundancy offer simply provided a favourable avenue for him to do so.
(j)The applicant’s evidence is that he has been unable to seek and obtain work subsequent to April 2000 due to his accepted disabilities and in particular the PTSD. This is supported by medical opinion evidence by Dr Buters at T28 page 139 who states “.... in my opinion, his accepted DVA disabilities are sufficiently severe to prevent him ever returning to gainful employment.” And also by Dr Kemp at T26 page 136 who states “... Because of Mr Moffitt’s psychiatric condition [PTSD] I do not think that [he] would be able to work in a general workplace environment ... I am of the opinion that Mr Moffitt is permanently incapacitated from remunerative work [due to his accepted disabilities]”.
14. The respondent is of the opinion that if a person who seeks or accepts voluntary redundancy as a way out when faced with illness that incapacitates that person from reasonably continuing to work, this does not mean that the voluntary redundancy itself is the cause of the loss of earnings resulting from ceasing work. The Tribunal agrees with the respondent in this regard and notes that that scenario appropriately fits the applicant’s situation when ceasing work at BP Oil.
15. The respondent nevertheless contends that the applicant does not meet the criteria in s24(1)(c) of the Act. It is contended that he had significant disabilities other than those accepted as being war-caused that also affected his ability to work. The Tribunal was pointed to a number of references in the T documents which it is said supported that contention. These include comments by treating medical practitioners, eg Dr Buters at T6 page 27, a psychologist P Philp at T14 page 59 and also the applicant himself at T4 page 19. These contain references to problems of the applicant’s hip, lower back, and neck (cervical spine calcified and fused at the first three or four vertebrae). It is acknowledged by the respondent that the hip condition (not an accepted disability) may have been corrected by replacement, but neither the lower back or neck are accepted conditions either. Dr Buters on 14 May 2002 at T19 page 99 states that “... [Mr Moffitt] can’t bend his back or neck for any prolonged period ....” and finally the same doctor in January 2003 at T28 page 139 states “.... [Mr Moffitt] is unfit to return to the workplace for the following reasons: ... Degenerative Cervical Fusion, L5-S1 Disc Degeneration, [as well as the accepted conditions of] Depression and PTSD, Sensory Neural Deafness and Tinnitus, Left Shoulder Osteoartheritis”.
16. The respondent’s position in this regard is that the medical opinion evidence, contrary to the applicant’s present evidence, indicates that there were problems at the relevant time from these non-accepted ailments and that they resulted in more than an inconsequential impairment of the applicant’s physical condition. The respondent cites several cases, in particular Forbes v Repatriation Commission (2000) in which Nicholson J states in part as follows:
“... it is possible that the war-caused condition will be by 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 an 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 of S24(2)(b) ...”.
17. The respondent’s further contention is that the applicant does not meet the requirements of s24(2) because he has not been genuinely seeking to engage in remunerative work – since stopping work with BP Oil. It is contended that this is not due to his incapacity from war-caused conditions only, and also why he has not obtained remunerative work. Nor is it these war-caused conditions only that lead to Mr Moffitt’s loss of earnings. Consequently the respondent’s opinion is that the applicant is not able to be assisted by s24(2) and thus the situation remains that he does not qualify under s24(1)(c) of the Act. He therefore is not eligible for the Special Rate of pension.
18. The applicant’s contention on the other hand in this respect is that in Re Forbes it was a matter of the combined effect of war-caused and non war-caused conditions being in play. However in Mr Moffitt’s case there is no such combined effect because the conditions of the hip and back did not in fact cause him problems as at April 2000, and his neck only little. These did not prevent him from continuing to work. The basis was said to be purely the PTSD, the shoulder and to a lesser extent the knee.
19. The applicant’s advocate opined that should the Tribunal not accept this contention, then as far as s24(2)(b) is concerned Mr Moffitt was not seeking to obtain work, post his cessation with BP Oil, on the advice to this effect of his doctors – due in the main to his accepted PTSD condition. Hence it is contended he does qualify under s24(2) and thus s24(1)(c). In this respect the applicant’s advocate cited Martin v Repatriation Commission (1987), Hartley v Repatriation Commission (1996) and Hall v Repatriation Commission (1994).
Tribunal Findings and Conclusions
20. As previously stated the Tribunal is satisfied that the applicant satisfies s24(1)(aa), (aab), (a) and s24(1)(b) in relation to eligibility for Special Rate. It is therefore only s24(1)(c) that is at issue and s24(2) if relevant.
21. In considering whether Mr Moffitt’s situation satisfies s24(1)(c), the Tribunal is mindful of the method set out in Flantjar v Repatriation Commission (1997) – which was also cited by both parties. In that case, Branson J for the Full Federal Court said that a proper consideration of s24(1)(c) required responses to four questions:
(a)What was the relevant remunerative work that the veteran was undertaking within the meaning of s24(1)(c) of the Act?
(b)Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(c)If the answer to question (b) 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?
(d)If the answers to questions (b) and (c) 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?
22. From the material before it, including oral evidence given by Mr Moffitt, clearly the remunerative work that he was undertaking, and which he ceased in April 2000, was as an operator at BP Refinery Kwinana. Initially he was a “Control Operator” (indoors) and then an “Outside” operator. Question 21(a) above refers.
23. In relation to Question 21(b) above, from all the evidence before it the Tribunal as a consequence finds that, whilst other ailments were present at the time and a redundancy situation applied, the reason Mr Moffitt was prevented from continuing to undertake his work at BP was his war-caused disabilities. In this regard the Tribunal is satisfied, based on the medical evidence available, as well as that from Mr Moffitt, that he was at that time suffering the effects of PTSD albeit this condition was not formally diagnosed and accepted by the respondent until later.
24. As to the third question (21(c) above) and the “alone” test, not only were the parties in contest but the evidence before the Tribunal is to a degree conflicting – as earlier indicated in these Reasons. Clearly there were factors, other than the applicant’s war-caused conditions, involved in preventing him from continuing his employment with BP Oil.
(a)The “voluntary” redundancy could be regarded as one such factor, however the Tribunal finds from the facts presented in evidence that it was a logical avenue provided for Mr Moffitt in his circumstances at the time and he rightly took it. Hence the Tribunal finds that this was not a factor in conflict with the “alone” test.
(b)He had had hip problems, but after a successful hip replacement operation Mr Moffitt’s evidence is that it was “as good as new” and that he had no further problems with his hip at work or since. The Tribunal accepts this and therefore that this condition, which is not an accepted one, is also not one in conflict with the “alone” test.
(c)This leaves the question of Mr Moffitt’s evident low back, neck and other skeletal ailments – all of which are rejected disabilities – to be addressed. There is sufficient evidence before the Tribunal for it to be satisfied that at the time of his ceasing work, the lumbar spondylosis condition was causing very little difficulty – and he says none. The neck and other skeletal areas were ailments that were present and were causing him some pain problems, albeit according to the applicant it was minor. However they created no real work difficulties. Clearly from the evidence it was his then undiagnosed PTSD condition that was dominant and affecting not only his capacity for work but also these other lesser physical problems.
25. In considering this question of whether it is Mr Moffitt’s accepted conditions only that prevent him from continuing work, the Tribunal notes a number of Federal Court decisions in this regard and refers in particular to the Decision and Reasons in Moorcroft v Repatriation Commission (1999). In regard to the question stated in paragraph 21(c) above concerning s24(1)(c) of the Act, Dowsett J in that case indicates two possible interpretations of the words “accepted conditions only” involved, as follows:
“(a)that the words look to the extent of the war-caused conditions to ascertain whether it is actually preventing the veteran from working in his previous employment; or
(b)they are designed to exclude a claim where, notwithstanding such a condition, other factors (including other medical conditions) prevent such employment ...:.”
Dowsett J concludes that the second interpretation (sub paragraph (b) above) would leave little or no room for the operation of s24(2). That Section, he is of the view, is intended to deal with factors other than the war-caused condition(s), and that s24(1)(c) is not concerned with those matters.
26. Despite the rather contrary view to this taken in Forbes v Repatriation Commission by Nicholson J, in the particular circumstances of Mr Moffitt’s ceasing work, the Tribunal is of the opinion that the Dowsett J interpretation of s24(1)(c) is more applicable in this case. In this respect the “other factors” involved in the applicant’s situation (ie. the other medical conditions) in the Tribunal’s opinion resulted in relatively inconsequential impairment to his ability to work, and this continues to be so. The Tribunal finds, from the overall evidence before it, that these are not “supervening causes” – ie. they were/are not factors preventing Mr Moffitt from continuing work. As a result, the Tribunal is of the opinion that the answer in his case to the question posed in paragraph 21(c) of these Reasons is "Yes" - that is the only (relevant) factors actually preventing him from continuing the work he was undertaking (at BP Oil), was, and continues to be, Mr Moffitt’s war-caused conditions. The Tribunal is therefore satisfied that the applicant’s circumstances meet the requirements of s24(1)(c) of the Act.
27. Additionally, in terms of the fourth question posed in Flentjar – as set out in paragraph 21(d) above, the evidence before the Tribunal is that, as a consequence of the applicant having to cease working due to his war-caused incapacity, he is suffering a loss of earnings that he would otherwise not be suffering.
28. The Tribunal is also of the opinion, based on the evidence before it, that even if the above conclusion in regard to s24(1)(c) had been found not to be so, the applicant would nevertheless satisfy the ameliorating provisions of s24(2) of the Act, and thence as a result satisfy s24(1)(c). In this regard, the Tribunal notes that he has not sought work since April 2000 because, as the evidence shows, he has not been capable (at least thus far) of undertaking remunerative work – due substantially to his accepted war-caused condition of PTSD. This is the evidence provided by his doctors, who have advised him accordingly and to the effect that should he try to undertake employment it could result in work safety issues.
29. For the reasons stated, the Tribunal is reasonably satisfied that the applicant satisfies the requirements of s24 of the Act and hence is eligible for the Special Rate of pension. Because the matter arose out of a disability claim, the effective date, in accordance with the provisions of the Act, is 21 June 2001.
Decision
30. Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to set aside the VRB decision under review of 23 February 2003 and grants pension at the Special Rate with effect from 21 June 2001.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier RDF Lloyd, Member
Signed: ....................................................
AssociateDate of Hearing 9 October 2003
Date of Decision 14 November 2003
Counsel for the Applicant Ms T Spence
Solicitor for the Applicant Hammond Worthington
Counsel for the Respondent Carl Ponnuthurai
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