Moles and Repatriation Commission

[2006] AATA 861

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 861

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/187

VETERANS' APPEALS  DIVISION		)
Re		KERRY GORDON MOLES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date6 October 2006

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - General Rate - Special Rate - post traumatic stress disorder (PTSD) - alcohol abuse - peptic ulcer disease - lumbar spondylosis - degree of incapacity - lifestyle rating - inability to work - Veterans' Review Board

Veterans' Entitlements Act 1986, Sections 22, 23, 24, 120

Guide to the Assessment of Rates of Veterans' Pensions (GARP), 5th Edition 1998

Easton and Repatriation Commission (1987) 12 ALD 777

Flentjar v Repatriation Commission (1997) 48 ALD 1

Cavell v Repatriation Commission (1998) 9 AAR 534

Repatriation Commission v Hendy (2002) FCA 424

Hendy v Repatriation Commission (2003) HCA 358

Re Graham and Repatriation Commission (2004) AATA 208

REASONS FOR DECISION

6 October 2006 Associate Professor B W Davis AM (Part-Time Member)   

Decision Under Review:

1.      The decision under review is a decision made by a delegate of the Repatriation Commission on 3 March 2005, subsequently varied by a senior delegate of the Repatriation Commission on 28 June 2005, whereby the applicant’s disability pension was increased to 100 percent of the General Rate with effect from 21 December 2004.   The decision was subsequently affirmed by the Veterans’ Review Board on 30 November 2005.

Issue:

2. The issue is whether the applicant is entitled to be paid disability pension at the Special Rate under Section 24 of the Act.

Legislation:

3.      The relevant legislation is the Veterans’ Entitlements Act 1986, Sections 22, 23, 24 and 120. Note also the Guide to Assessment of Rates of Veterans’ Pensions (GARP), 5^th Edition 1998.

Standard of Proof:

4. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal, as provided for in Section 120(4) of the Act.

Date of Effect:

5.      Should the appeal succeed the date of effect will be 21 December 2004, being the date of lodgement of the claim for an increase in disability pension.

Background:

6.      The applicant, Kerry Gordon Moles, was born on 23 May 1949 and conscripted into the Australian Army as a private from August 1968 to August 1970, serving in Vietnam from January to August 1970.  Following discharge from the army he was employed in a variety of relatively unskilled trades, including truck driver, factory hand, HEC linesman and manual labourer for the Burnie Council until back pain caused him to cease work in mid 1998.

7.      Medical reports from Dr Frank Reynolds dated 5 October 1998 and 7 November 2000 indicate although there was no trauma to the back at the time, the applicant would be unfit for work indefinitely, possibly on a permanent basis, due to chronic lower back pain.

8.      Mr Moles describes his Vietnam experiences as depressing and making him feel a coward.  He admits he was a heavy drinker on return from Vietnam, but reduced consumption some ten years later, only to resume substantial intake after he ceased work and his first wife died in 1993.  He first applied for disability pension on 13 August 1998 and was granted 80 percent of the General Rate with effect from 13 May 1998, his accepted disabilities being post traumatic stress disorder (PTSD) and a peptic ulcer.

9.      Mr Moles sought an increase in pension in 2002, which was refused by the Repatriation Commission and subsequently affirmed by the Veterans’ Review Board on 4 September 2003.  A claim to have alcohol abuse accepted as a disability was agreed on 17 June 2003.  Mr Moles again sought review of his pension rate and it was increased to 90 percent of the General Rate on 8 March 2005 and 100 percent of the General Rate on 28 June 2005, with effect from 21 December 2004.   The applicant then sought pension at the Special Rate via a Veterans’ Review Board (VRB) hearing on 30 November 2005, but the VRB affirmed the decision of the Repatriation Commission at 100 percent of the General Rate on 7 December 2005.   Mr Moles then lodged an application for de-novo review by the Administrative Appeals Tribunal on 19 December 2005.

The AAT Hearing:

10.     The AAT hearing was conducted in Burnie on 22 September 2006.  The veteran attended the hearing and gave evidence, being assisted by his representative Mr G J Ralph of the RSL (Ulverstone Sub-Branch).   The respondent Repatriation Commission was represented by Mr Michael Castle.

11.     Following brief opening submissions the applicant was sworn and responded to a number of questions put by Mr Ralph, dealing with his disabilities, employment experiences and medical record.  Mr Moles said he had no formal educational qualifications hence his employment record was of a series of manual labour tasks, ending in mid 1998 when back problems forced him to resign from Burnie Council employment.  He had later sought other posts, but his applications were rejected because potential employers were wary of his personality, given the depression and aggression he sometimes exhibited and his lack of ‘people skills’ and reluctance to follow orders.

12.     Under cross-examination about his applications for employment, Mr Moles said he did follow up invitations to contact firms and find out why he had not succeeded in gaining posts.  It was intended to be helpful, but it added to his depression.

13.     Mr Moles said his PTSD had been identified and was being treated prior to him ceasing employment, but in applying for disability pension he gave as cause his back conditions as it certainly contributed to his inability to undertake various kinds of work.  He considered it was his PTSD which rendered it difficult to work with others and this was a disability which had arisen from Vietnam service.

14.     Dr I Burges Watson, psychiatrist, was affirmed and gave evidence by telephone.  He said he was retired but could recall aspects of Mr Moles’ case.  His reports dated 21 April 2003 and 28 June 2004 confirmed that the applicant had suffered severe PTSD for several years.  Mr Moles had attended clinics in 2002-2003 aimed at providing counselling and rehabilitation services, but these had not been entirely successful.  He agreed with Dr Reynolds’ view that although it would be beneficial for the applicant to be engaged in some light work, his disabilities, age and time out of the work force rendered him incapable of remunerative work.  Even if he obtained employment, he would not be capable of sustaining it.

15.     Mr Bruce Frith and Ms Deanne Harman also gave evidence by telephone.  Each explained why applications for employment at Frozen Foods Pty Ltd and the Burnie RSL Club respectively had not been successful.  They had explained the situation to Mr Moles; he lacked people skills and his volatile temper meant he could not easily be trained to avoid offending customers.  They had tried to be fair to the applicant, but his prospects of remunerative work were small.

16.     In closing submissions Mr Ralph said that Dr Frank Reynolds, the applicant’s treating GP had certified as early as October 1998 Mr Moles’ work capacity had been severely diminished by war-related stress and depression.  In effect he was totally and permanently incapacitated due to war disabilities alone, his subsequent back pain merely reinforced that situation, Dr Reynolds’ reporting in November 1998 the applicant was unfit for work indefinitely, possibly permanently due to chronic lower back pain.  Nevertheless Mr Moles had subsequently made efforts to obtain employment, which having failed, meant there was a significant loss of potential earnings.  Overall there was a case for disability pension at the Special Rate and the Tribunal should therefore set aside the VRB decision and decide in favour of the applicant.

17.     Mr Castles in response said Mr Moles had not ceased work on the basis of service-related disabilities alone, but because of a back problem arising from his employment situation.  He agreed that Mr Moles’ service-related disabilities were substantial, particularly if the alcohol situation was taken into account, however this had not prevented him seeking work.  It was up to the Tribunal to determine whether the applicant met all criteria specified in the Act as qualification for payment at the Special Rate.

Analysis:

18.     The matter before the Tribunal is a de-novo merits review of an administrative decision and the Tribunal in arriving at a correct and preferable decision is bound to apply the law.  The Tribunal must take into account all available evidence, statutory and policy provisions and any relevant prior case determinations (Re Drake and Minister for Immigration and Ethnic Affairs (1979) 24 ALR 557,
Re Drake No 2 (1979) 2 ALD 634 and Re Walsh and SDFCS (2002) AATA 881 (4 October 2002).

19. In the current case the issue before the Tribunal is whether the applicant is entitled to disability pension at either the Intermediate Rate or Special Rate as specified in Sections 23 and 24 of the Veterans’ Entitlements Act 1986.

20.     In order to qualify for the Special Rate the applicant must be less than 65 years of age when the claim or application is made, with a degree of incapacity of at least 70 percent and incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, or suffering a loss of salary or wages that the veteran would earn if free of that incapacity.  The Special Rate is not payable if it can be demonstrated the veteran ceased to engage in remunerative work for reasons other than incapacity arising from war-caused injury alone.

21. Provisions in respect of the Intermediate Rate of pension are much the same (see Section 23 of the Act), but involve the issue of whether the applicant is in a position to work up to 20 hours per week or whether part-time or intermittent work might prove feasible. In all instances the type of work undertaken prior to incapacity as well as a range of prospects arising from skills, qualifications and experience must be taken into account (Flentjar and Repatriation Commission (1997) 48 ALD 1).

22.     In considering whether pension at the Special Rate should be granted, considerable emphasis is placed on the phrase ‘of itself alone’; requiring clear demonstration that service-related disabilities are the sole and principal cause of loss of employment or earning capacity.  See for example, Easton and Repatriation Commission (1987) 12 ALD 777, or more recent cases such as Hendy and Repatriation Commission (2003) HCA 358 or Cavell and Repatriation Commission (1988) 9 AAR 534.

23. It is quite clear from the available evidence that neither delegates of the Repatriation Commission or the Veterans’ Review Board were convinced Mr Moles’ situation met the criteria in Section 24(1)(c) of the Act for payment of disability pension at the Special Rate. In essence their argument is that the applicant did not cease work due to his war-caused disabilities alone, but ceased employment due to chronic back pain arising from manual labour for the Burnie Council. The applicant appears to have confirmed this himself, noting the reason in his application for invalidity service pension dated 7 September 1998. Mr Moles also indicated in lifestyle questionnaires dated 31 July 2002 and 20 December 2004 that he had not sought work nor did he intend to seek work.

24. The Tribunal is required to examine these matters anew. Section 24 of the Act contains several criteria and all of them must be complied with before the veteran can qualify for payment of pension at the Special Rate:

“the veteran must be totally and permanently incapacitated by service disabilities which themselves alone render the veteran incapable of undertaking remunerative     work for more than 8 hours per week”  (Section 24(1)(b));

“the veteran must be prevented by the war-caused disabilities alone from continuing       to undertake the paid work he was previously undertaking”  (Section 24(1)(c));

“he or she must not have ceased to engage in paid work for reasons other          than the accepted disabilities”  (Section 24(2)(a)(i));

“the veteran must not be incapacitated or prevented from engaging in paid work for         some other reasons”  (Section 24(2)(a)(ii));

“the veteran must be suffering a loss of salary or wages on his own account that he         would not be suffering if he were free of his accepted disabilities” (Section 24(1)(c)).

25. In certain circumstances, the ‘ameliorating’ provisions of Section 24(2)(b) of the Act (or Section 23(3)(b)) may apply in determining eligibility for the Special Rate. The ameliorating provisions only apply to a veteran under the age of 65 years who has not been engaged in paid work. The requirements are that:

. the veteran must have been genuinely seeking to engage in paid work;

. but for incapacity arising from accepted disabilities, the veteran would be   continuing to seek to engage in paid work;  and

. incapacity is the substantial cause of the veteran’s inability to obtain paid   work.

If these provisions are met, the veteran is to be treated as having been prevented by reason of his disabilities from continuing to undertake the paid work he was undertaking.

26. Turning more directly to Mr Moles’ case, having re-examined all available evidence and noting the criteria above, the Tribunal has determined on the balance of probabilities the applicant fails to meet the criteria for pension at the Special Rate, since his inability to work does not derive from war-caused disabilities alone. In essence, the veteran meets some provisions of Section 24(1)(b) of the Act, insofar as being totally and permanently incapacitated is concerned, but he fails to meet Section 24(1)(c) and 24(2)(a)(ii) because his incapacities are not attributable to war-caused disabilities alone, but involve injury arising from civilian employment.

27. There is a question as to whether ‘ameliorating conditions’ apply. Mr Moles has given evidence he was genuinely seeking work in 2005 and the Tribunal accepts this was the case between March and May that year. However there is no evidence the veteran was actively seeking employment in the six years between leaving the Burnie Council in June 1998 and claiming in the VRB hearing in November 2005 he had made some verbal inquiries about work but these had proven unsuccessful. As previously noted his response to two lifestyle questionnaires in July 2002 and December 2004 was that he had not sought work nor did he intend to seek work. This means he fails to meet provisions of Section 24(2)(b) of the Act that requires an active and ongoing search for paid employment.

28.     Both delegates of the Repatriation Commission and members of the Veterans’ Review Board have expressed sympathy for the difficult psychiatric and other disabilities Mr Moles faces, however the reality is that the veteran does not meet the criteria for payment of disability pension at the Special Rate.  Having carried out a de-novo review the Tribunal agrees with this assessment;  Mr Moles’ appeal against the VRB decision of 30 November 2005 fails and his disability pension must currently remain at 100 percent of the General Rate with effect from 21 December 2004.

29.     It should be noted that the Tribunal did assess whether payment at the Intermediate Rate was warranted.  Given that the provisions are much the same as those for the Special Rate, but involved the issue of whether part-time work of up to 20 hours per week might prove feasible, the applicant fails to meet the criteria for the Intermediate Rate.

Decision:

30.     The decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  22 September 2006
Date of Decision  6 October 2006
Representative for the Applicant    Mr G Ralph
Counsel for the Respondent          Mr M Castle
Solicitor for the Respondent          Department of Veterans' Affairs