Morris and Repatriation Commission
[2005] AATA 253
•24 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 253
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/188
VETERANS' APPEALS DIVISION
Re: JOHN PATRICK MORRIS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 24 March 2005
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 16 June 2003.
(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - posttraumatic stress disorder - alcohol dependence ‑ ability to work - voluntary redundancy - whether special rate applies
Veterans’ Entitlements Act 1986 ss 24, 120(4)
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
24 March 2005 G.D. Friedman, Member
1. This is an application by John Patrick Morris (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 20 January 2004. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 8 October 2003 that the applicant was not entitled to an increase in his disability pension from 100 per cent of the general rate.
2. At the hearing on 30 November 2004 and 18 February 2005 Mr M. O’Brien of counsel represented the applicant, and Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T10), with five exhibits (Exhibits A1‑A5) lodged by the applicant and eleven exhibits (Exhibits R1‑R11) lodged by the respondent.
BACKGROUND
4. The applicant was born on 28 March 1939. He left school after completing Year 10 and began working as a clerk with the then State Electricity Commission at the age of 14 until he enlisted in the Royal Australian Navy (the navy) in February 1958. He served in the navy until February 1967 and again from November 1968 to November 1979. He worked as a stoker and engine room attendant on various ships. He rendered operational service as defined in the Veterans’ Entitlements Act 1986 (the Act) during service in Vietnam from 31 May 1965 to 22 June 1965; from 25 May 1966 to 11 June 1966; and from 16 March 1970 to 9 October 1970. He reached the rank of Petty Officer.
5. After his discharge from the navy he obtained employment as a boiler room operator with the then Melbourne and Metropolitan Board of Works, and after a year he joined the Gas and Fuel Corporation as a shift controller. He remained with this employer until he was made redundant in 1997, after the company was re‑structured following privatisation. He has not worked since then.
6. In 1960 the applicant injured his left hand and wrist which caused some discomfort but did not affect his ability to work. He had been drinking heavily since joining the navy, and found voyages to Vietnam frightening and distressing. In 1994 he was diagnosed with post traumatic stress disorder (PTSD) and was referred to counselling. He continued to drink to excess. In 1995 he was granted disability pension at 30 per cent of the general rate, which increased to 100 per cent on 22 June 1999.
7. On 16 June 2003 the applicant lodged a claim for an increase in disability pension, to the special rate, for the following conditions, which the respondent had previously accepted as being war-caused: PTSD, psychoactive substance abuse, bilateral sensorineural hearing loss, hypertension, peptic ulcer disease, corneal scars (right), gastro‑oesophageal reflux disease, conjunctivitis of both eyes, irritable bowel syndrome, non-melanotic malignant neoplasm of the skin at various sites, tinea and otitis externa of the right ear. On 8 October 2003 a delegate of the respondent determined that the applicant was not entitled to an increase in the applicant's disability pension from 100 per cent of the general rate.
8. On 20 October 2003 the applicant applied to the VRB for review, and following the decision of the VRB, the applicant lodged an application with the Tribunal on 17 February 2004 for review of the decision.
9. The issue before the Tribunal is whether the applicant satisfies the criteria for pension at the special rate.
EVIDENCE
10. In a written statement dated 10 February 2004 (Exhibit A1) the applicant said that he served in tours of duty to Vietnam on HMAS Melbourne in 1965, HMAS Vendetta in 1966 and HMAS Hobart in 1970. He stated that as a result of the stressful nature of his service in Vietnam he started drinking alcohol heavily, and suffered anxiety, depression, mood swings, irritability, anger, poor concentration and memory loss. He also described nightmares and flashbacks since his Vietnam service, and said that these symptoms have gradually worsened.
11. The applicant outlined his employment with the Gas and Fuel Corporation and gave details of the re-structure of the company when it was privatised. He stated that in early 1997 all shift operator positions were declared vacant and they were informed that two employees would lose their positions. He said that the company held a weekend workshop in Marysville at Easter 1997 (the Marysville workshop), at which psychological testing was carried out as part of the selection process and he found the exercise to be extremely stressful. The applicant noted that at that stage he had been drinking heavily, including during shifts, and his work performance was affected adversely by alcohol and the symptoms of PTSD, although his colleagues protected him by not disclosing his problems to management. He stated that he was given notice of termination in April 1997, to take effect from August 1997.
12. The applicant said that he had seniority over all the other applicants and greater experience. However, his poor work performance and his performance at the Marysville workshop led to his retrenchment. His poor work performance and his performance at the Marysville workshop were directly related to his PTSD and alcohol dependence. He said that he had always intended to cease work at the age of 65, and would have continued working beyond 1997, but for his accepted conditions. The applicant stated that following his termination he has applied unsuccessfully for a variety of positions.
13. In a written statement dated 12 March 2000 (T3, page 21) the applicant said:
I ceased work with the Gas Transmission Corporation on 22nd August 1997 as my position was declared surplus to requirements. I was strongly advised by the Company to take a voluntary departure package, I had no other option...
…
I survived for many years at work, because the majority of my workmates in the control room were ex-servicemen and Vietnam Veterans…I did not intend to retire for many years…
…
I finally realised that I was a burden to my workmates and a liability to the Company because of my health problems and general manner. I feel that I am unable to return to the workforce on a permanent or part-time basis and that my disabilities are of a permanent nature.
14. In oral evidence the applicant confirmed that although he worked as a plant controller for more than 17 years, his performance deteriorated steadily and he was increasingly unable to cope. He stated that he was referred for counselling in 1994, but he did not feel able to commence until 1996. He said that the combined symptoms of alcohol dependence and PTSD caused him to become angry and hostile, and he was outspoken against management. He emphasised that the company’s plans to re-structure and to reduce the number of plant operators was traumatic, because he feared losing his livelihood at the age of 57. The applicant told the Tribunal that his non-compliance with psychological and other testing at the Marysville workshop, the direct result of his PTSD and alcohol dependence, damaged his prospects of selection for the vacant positions.
15. The applicant stated that in addition to his poor work performance, his home life and family relationships suffered as a result of his drinking and his PTSD. He said that after his termination he made every effort to seek employment but was unsuccessful. He said that in about 2000 he commenced working in a voluntary capacity as a pension officer with his local Returned Services League (RSL) branch, and later a veterans’ centre, but changed to administrative work which he found less stressful. He said that he now works in this capacity one day each week. In relation to counselling, the applicant stated that he consulted Mr D. Tierney, clinical psychologist, for four years from 1996 and he found this to be helpful.
16. Under cross-examination the applicant denied that he effectively decided to retire in 1997. He stated that any suggestion in company documentation that his preferred option was for a voluntary redundancy package was incorrect, because he had no real option after his unsuccessful application for one of the plant operator positions. He also stated that he was not qualified for positions as a technical officer, and re-deployment within the company was not realistic. With regard to statements made by him in applications for positions with the company that he had an unblemished record and that he was competent and trustworthy, the applicant indicated that in any job application it would not have been in his interests to give an accurate and detailed account of his shortcomings.
17. In a written report dated 7 June 2004 (Exhibit A2) Dr M. Epstein, psychiatrist, recorded that the applicant had said that he planned to retire at the age of 65 years. Dr Epstein stated:
From the information provided he has had long-term problems with all these [accepted] conditions. These have had a profound effect on his capacity to work and it appears that he was made redundant because his work record had been poor for some years arising from these disorders.
He has been involved as president of the Chelsea RSL and is a volunteer one day per week. These combined activities take more than eight hours per week. In my view, therefore, it is unlikely that his aforementioned accepted war caused injuries prevent him from undertaking remunerative employment for periods aggregating more than eight hours per week. It does seem, however, that he would be unable to undertake remunerative work for periods aggregating more than twenty hours per week.
In a supplementary report dated 15 July 2004 (Exhibit A3) Dr Epstein commented on reports by other practitioners, and stated that these reports did not lead him to alter his opinion. In oral evidence Dr Epstein stated that the applicant indicated a desire to work until the age of 65 years.
18. In a written report dated 8 November 2001 (T3, page 10) Dr C. Seabridge, consultant psychiatrist, stated that he interviewed the applicant and had been referred to reports from other medical practitioners. Dr Seabridge noted that the applicant’s work environment became increasingly difficult in the last two or three years of his employment, and that the applicant’s behaviour at the Marysville workshop was hostile and unco-operative, after which the applicant accepted a voluntary departure package. Dr Seabridge stated:
This information, which has not been previously reported, would provide a direct relationship between the termination of his employment, and aspects of his behaviour which were unacceptable to his future employers, and which could be directly attributable to his comorbid diagnoses of PTSD and substance abuse.
19. In a written report dated 22 March 1999 (T3, page 15) Dr J. Rogers, consultant psychiatrist, noted that had previously seen the applicant on 11 June 1997, and that the clinical presentation and symptomatology on review in March 1999 were similar. He stated:
This Veteran is now totally and permanently incapacitated for work because of his accepted, war related psychiatric disorders alone.
20. In a written Workability Report for the Department of Veterans’ Affairs dated 7 July 2003 (T4) Dr J. Dickman stated that the applicant would not be able to perform any full time or part time work, and that the applicant’s condition was not likely to improve in the future.
21. In an undated written statement (T3, page 16) Mr B. Charleston said that he was employed by the Gas and Fuel Corporation in 1997 as a relief controller at the Liquefied Natural Gas plant at Dandenong. He stated:
My contact with John was on a daily basis where our shifts coincided and for approx. 90 minutes where our shifts overlapped, afternoon shift hours being 1430 to 2230. During this period I had on many occasions to perform John’s duties as he was simply “not up to it”, and numerous times responded to staff requests re plant operations that were John’s responsibility as he was “unavailable”. He was “having a rest” in a place outside the Control Room (CR). This situation persisted until I was appointed as full-time Shift Controller (LNG). After about 18 months, my job was broadened to include that of Gas Transmission Controller (relief), and it was in this position that I had occasion to work with John, side by side in the Control room, for quite a number of shift cycles. The fifteen controllers, four were Vietnam Veterans with one other ex-serviceman. It was during these periods that I had occasion to see that John was simply not capable of carrying out his tasks and would put them off for up to 24 hours until he felt better.
…
John received constant support and encouragement not to “throw in the towel”, but, faced with what appeared to be insurmountable obstacles in his quest for continued employment, it was an impossible task.
22. In a written statement dated 30 January 2002 (T3, page 18) Mr J. Collins said that he first met the applicant in 1985 when he began employment as a relief shift controller with the Gas and Fuel Corporation at Dandenong. Mr Collins said:
THAT I became aware that John Morris had some difficulties maintaining his work capacity from about 1985. On numerous occasions, on average once a week and particularly on Saturday mornings, he came to work obviously affected by alcohol. As he was unable to manage his duties the other members of the teams from all three shifts including myself, covered for John until he was capable of commencing work some time later.
THAT it was common knowledge that the company were aware that John was being covered for, and there is no doubt that the problems caused by his alcohol consumption were a big part of the reason he left his employment.
THAT leading up to privatisation ’departure packages‘ were offered and John was made aware that he would be granted one. John did not wish to go, had told me he was too young to retire and that he intended to keep working until he was ready to go, even beyond 65 if possible.
23. In a written report dated 24 June 1998 (Exhibit R4) Dr K. Byrne, clinical psychologist, stated that the applicant told him of an intention to retire at the age of 60 years. Dr Byrne stated:
…the applicant’s Post Traumatic Stress Disorder does not prevent him from undertaking remunerative work, as evidenced by his significant work history since his Navy service. He does not report any significant difficulties at work and acknowledges that he would have been willing to remain employed until his retirement. However it is noted that Mr Morris would have significant difficulty finding employment at this time, as a result of his limited skills and his age.
…
…the applicant’s Alcohol Dependence Disorder does not prevent him from undertaking remunerative work. He is psychologically capable of working full time, however it is unlikely that he would be able to find employment for the reasons cited above.
24. In oral evidence Dr Byrne reiterated that the applicant’s work history suggested that he would be capable of working despite his accepted conditions. Under cross-examination Dr Byrne agreed that he examined the applicant on one occasion only, six years ago, and was not able to comment on his work capacity in the period since the consultation. Dr Byrne also agreed that if he had been informed about the actual difficulties faced by the applicant at work and the circumstances of the termination of employment, his conclusions may have been different.
25. In a written report dated 28 January 1997 (Exhibit R5) Dr L. Chester, consultant psychiatrist, stated that the applicant satisfied some of the criteria for a diagnosis of PTSD. In oral evidence he said that the applicant denied any significant anxiety or depression, or that he had suffered from any previous psychiatric disorder. Under cross-examination Dr Chester agreed that he was not informed that PTSD had been diagnosed several years earlier. He also agreed that the applicant had referred to a daily alcohol consumption of six beers.
26. In a written report dated 27 April 2001 (Exhibit R6) Dr R. Horsley, occupational physician, stated that the applicant’s accepted conditions of PTSD and alcohol dependence were the significant factors impacting on his ability to work. She said:
With respect to other accepted physical disabilities, I do not believe that these disabilities have prevented him from working more than eight hours or more than 20 hours per week. Putting aside his post traumatic stress disorder and alcohol dependence disorder, I believe that the other disabilities have minimal impact on his capacity for work.
Dr Horsley gave oral evidence in which she confirmed the contents of her report. Under cross-examination she agreed that a psychiatrist would be the appropriate medical practitioner to assess the impact of PTSD and alcohol dependence on the applicant’s capacity to work. She also agreed that if the applicant was prevented from working because of the two particular disabilities, it would be these alone, rather than any physical disability.
27. Mr B. Rose, Manager, Assets and Technical Regulation, GasNet Australia (Operations) Pty Ltd, gave oral evidence that the re-structure of the Gas and Fuel Corporation (GasNet) in 1997 arose from changes in procedures designed to increase efficiency, and that a review of control room operations resulted in the reduction in staff on a shift, from three to two. He said that at no time, including the Marysville workshop, was he aware of any allegations that the applicant had exhibited poor behaviour. Mr Rose told the Tribunal that length of service was not in itself relevant to the selection process. He said that re-deployment within the company had been an option for the applicant.
28. Under cross-examination Mr Rose said that he had no knowledge of the applicant’s PTSD or alcohol dependence, and that these matters had not arisen during the selection process.
CONSIDERATION OF THE ISSUES
29. Section 24 of the Act provides for a special rate of pension for a veteran who satisfies the following criteria:
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)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.
...
30. Mr O’Brien submitted that on the medical and other evidence the applicant’s accepted conditions relating to PTSD and alcohol are the sole reason that he cannot work for more than eight hours per week, and that those conditions were the only reason for the termination of the applicant’s employment. He said that there is ample evidence from the applicant, supported by Mr Charleston and Mr Collins, that the applicant experienced significant difficulties at work, as a direct consequence of his accepted conditions of PTSD and alcohol dependence, and that his co-workers had protected him. Mr O’Brien stated that Dr Horsley had confirmed in her evidence that the applicant’s physical disabilities would not prevent him from working.
31. Mr O’Brien submitted that the applicant has actively sought to engage in remunerative work and satisfies the criteria in s 24 of the Act. He said that the applicant would not have been completely truthful in job applications because he did not want to jeopardise his chances of continuing to work.
32. Ms McCulloch submitted that the applicant does not satisfy the alone test in 24(1)(b) of the Act. She stated that Dr Chester noted that the applicant denied any previous history of psychiatric disorders, and that the applicant admitted to consuming six beers per day. She stated that in June 1997 the applicant was capable of working, and said that Dr Byrne’s evidence was that the applicant told him he would retire at 60 years of age. She submitted further that Dr Epstein had noted the applicant’s work with the RSL and had assessed him as being capable of working more than eight hours per week, but not more than 20 hours.
33. Ms McCulloch said that the applicant ceased work with GasNet in 1997 because of his acceptance of a retrenchment package, and that at that time he was capable of working. She noted Mr Rose’s evidence that the selection committee had no knowledge of the applicant’s accepted disabilities, and these had played no role in the selection process.
34. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The Tribunal takes into account that in Cavell v Repatriation Commission (1988) 9 AAR 534 Burchett J stated that when considering the provisions of s 24 of the Act a commonsense approach with an eye to reality should be maintained.
35. There was no dispute that the applicant satisfies s 24(1)(a) of the Act. In respect of s 24(1)(b) of the Act, the Tribunal notes that Dr Epstein gave evidence that the applicant’s accepted war-caused disabilities would not prevent him from undertaking remunerative employment aggregating more than eight hours per week. However, Dr Epstein acknowledged that the applicant’s activities with the RSL included voluntary work for at least one day per week. Because this aspect of the work is voluntary rather than remunerative, the Tribunal prefers the evidence from Dr Seabridge, Dr Rogers and Dr Dickman. The Tribunal concludes that the applicant is incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Therefore, the Tribunal finds that the applicant satisfies s 24(1)(b) of the Act.
36. In respect of s 24(1)(c) of the Act, the Tribunal notes that in Repatriation Commission v Hendy (2002) 76 ALD 47 the Full Federal Court held:
37. 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.
37. In Flentjarv Repatriation Commission (1997) 48 ALD 1 the Federal Court set out the issues in a series of 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 own account that he would not be suffering if he were free of that incapacity?
38. In respect of question 1 the Tribunal finds that the remunerative work undertaken by the applicant was shift controller. In respect of question 2, the Tribunal accepts the clear medical evidence that the applicant was prevented from continuing to undertake that work by reason of his war-caused disabilities of PTSD and alcohol dependence, so the answer to question 2 is yes.
39. In respect of question 3 the Tribunal accepts the applicant’s evidence that his work performance was affected adversely by his PTSD and alcohol dependence, and that by the time of the Marysville workshop he was openly hostile to management and was unco-operative because of these disabilities. This is supported by the uncontradicted statements of Mr Charleston and Mr Collins, that the applicant was protected by his co-workers when he was incapable of performing his duties because of the two disabilities. The Tribunal considers plausible the applicant’s evidence about his failure to disclose his disabilities to the company as this might have jeopardised his employment prospects. The Tribunal accepts the evidence from Dr Horsley that the applicant’s physical disabilities did not prevent him from working.
40. The Tribunal accepts the evidence from Dr Epstein in relation to whether other factors may have prevented the applicant from working. The Tribunal places less weight on Dr Byrne’s evidence because he was not aware of all the relevant information when he examined the applicant and wrote his report.
41. For these reasons the Tribunal accepts the submission by Mr O’Brien that the war-caused disabilities of PTSD and alcohol dependence were the only factors that prevented the applicant from continuing to undertake work as a shift controller because the employer terminated his employment as a result of his work performance which was caused by these conditions. So the answer to question 3 is yes.
42. In respect of question 4 the Tribunal finds that the applicant’s inability to work that was caused by his accepted conditions of PTSD and alcohol dependence, and not by other factors, has resulted in a loss of salary, wages or earnings.
43. For these reasons the Tribunal finds that the applicant, by reason of being prevented from continuing his work due to his incapacity, suffered a loss of salary, wages or earnings on his own account that he would not have suffered if he were free of that incapacity. He therefore satisfies s 24(1)(c) of the Act. Under s 120(4) of the Act, the Tribunal is reasonably satisfied that the applicant meets the requirements for eligibility for special rate of pension.
DECISION
44. The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 16 June 2003.
I certify that the forty-four [44] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Lake
Clerk
Dates of hearing: 30 November 2004 and 18 February 2005
Date of decision: 24 March 2005
Counsel for applicant: Mr M. O’ Brien
Solicitor for applicant: Williams Winter
Advocate for respondent: Ms J. McCulloch
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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