NEIL COLIN COSTER and REPATRIATION COMMISSION
[2009] AATA 640
•27 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 640
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6038
VETERANS' APPEALS DIVISION ) Re NEIL COLIN COSTER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier C Ermert (Retd), Member
Dr K. Breen, MemberDate27 August 2009
PlaceMelbourne
Decision
The Tribunal sets aside the decision under review and substitutes the decision that Mr Coster is entitled to be paid a disability pension at the Special Rate with the date of effect of 13 July 2006.
(sgd)
C. Ermert, Member
VETERANS’ AFFAIRS – operational service – accepted impairment rating of 100 per cent – accepted war-caused disabilities of PTSD and alcohol dependence or abuse – whether qualified for special rate – four Flentjar questions – type of remunerative work – whether prevented from continuing work by war-caused conditions – whether other factors affect the continuation of remunerative work – s.24 of the Act satisfied – qualified for disability pension at Special Rate – decision set aside
Veterans’ Entitlements Act 1986 ss 23, 24
Repatriation Legislation Amendment Bill 1985
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Braund (1991) 23 ALD 591
REASONS FOR DECISION
27 August 2009 Brigadier C. Ermert (Retd), Member
Dr K. Breen, Member
INTRODUCTION
1. Mr Coster, the applicant, left school at the age of 16 after attaining an Intermediate Certificate. He then completed a five year apprenticeship as a fitter-machinist after which he commenced national training service with the Australian Army. Mr Coster completed a period of service in Vietnam. The respondent has accepted that period of service as constituting operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
2. Following his discharge from the Army, Mr Coster worked at the Ammunition Factory at Footscray until it closed in 1994. Mr Coster worked for 10 months managing a laundry at Box Hill before securing a position as factory manager at Ultra Furniture (Ultra), closer to his home at Maidstone. Ultra changed hands in 2001. Conflict developed between Mr Coster and the new owner and he was put off work. Mr Coster next obtained a position as production/factory manager with Hufcor Pty Ltd (Hufcor) involving duties similar to his previous position. After six months problems developed, similar to those at Ultra. In October 2005 Mr Coster was made redundant from Hufcor. Since then Mr Coster has looked for work through Centrelink and by perusing the newspapers. He has applied for positions but the applications have not led to interviews or offers of employment.
3. Prior to February 2007 Mr Coster was receiving a disability pension at 70 per cent of the General Rate in respect of a number of war-caused conditions. On 17 February 2007 Mr Coster submitted a claim to the Repatriation Commission (the respondent) for his adjustment disorder with depressed and anxious mood to be accepted as a war-caused condition. The application was refused and Mr Coster applied for a review of the decision. On 26 October 2007 the Veterans’ Review Board (VRB) affirmed the decision in relation to the adjustment disorder. However, it increased Mr Coster’s pension to 100 per cent of the General Rate, effective from 13 July 2006. On 10 December 2007 Mr Coster applied to this Tribunal for a review of the VRB decision. He claimed that his accepted war-caused disabilities warranted an increase in pension to the Special Rate.
THE HEARING
4. At the hearing Mr Coster was represented by Mr G Moore of Counsel, instructed by Mr P J Liefman, Solicitor. The respondent was represented by Mr P d’Assumpcao, a solicitor from Australian Government Solicitor. The Tribunal heard evidence from Mr Coster, his wife, Dr Nigel Strauss, consultant psychiatrist, and Dr Colin Seabridge, consultant psychiatrist. The Tribunal had before it the documents submitted by the respondent pursuant to s 37 of the Administrative Appeals Act 1975 (the T documents). The Tribunal also took into evidence four documents tendered by the applicant marked as Exhibits A1 to A4; and three documents tendered by the respondent marked as Exhibits R1 to R3.
THE ISSUES
5. At the hearing Mr Moore advised the Tribunal that the applicant was not pursuing the claim for adjustment disorder. This meant that the only issue to be decided was whether Mr Coster is entitled to be paid a pension at a rate greater than 100 per cent of the General Rate.
Higher rate of pension
6. Section 23 of the Act (the Intermediate Rate of pension), and section 24 of the Act (the Special Rate of pension) provide for the payment of pension at rates greater than 100% of the General Rate. The provisions for entitlement are the same for both rates, except for the capacity of the veteran to undertake remunerative work. For the Intermediate Rate, section 23 provides that a veteran must be not capable of working more than 20 hours per week, whereas for the Special Rate, section 24 provides a limit of 8 hours per week. For simplicity, these reasons for decision will consider only the provisions of section 24, unless or until there is a need to consider also section 23.
Special rate of pension
7. Section 24 of the Act provides for payment of a Special Rate of pension. The relevant subsections are:
24 Special rate of pension
(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 … is determined under section 21A to be at least 70% … ; or
(ii)… ; 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
…
8. There is no dispute between the parties that sections 24(1)(aa) and 24(1)(aab) are satisfied. The respondent has already found Mr Coster’s degree of incapacity from war-caused injuries to be 100 per cent. Hence the Tribunal finds that sections 24(1)(aa), (aab) and (a) are satisfied.
9. In considering Mr Coster’s capacity to undertake remunerative work the Tribunal notes the four questions to be determined, as set out in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4, 5:
1.What was the relevant “remunerative work that the veteran was undertaking” within … s24(1)(c) of the Act?
2.Is the veteran, by reason of the war-caused injury or … 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 … 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.
Remunerative work
10. The first issue to be determined is the type of remunerative work that Mr Coster was undertaking.
11. Mr Coster’s evidence was that he was a foreman while at the Ammunition Factory Footscray, after which he was a factory manager at Ultra and a factory/production manager at Hufcor. His duties at Hufcor were described in the Employer Questionnaire (Supplementary T documents, page 17) as a skilled professional manager. Mr d’Assumpcao submitted that Mr Coster’s remunerative work was that of a manager or production manager in the manufacturing industry. Mr Moore made no submissions on this issue.
12. The Tribunal is satisfied from the evidence that the type of remunerative work that Mr Coster was undertaking can be described as a production manager. The Tribunal sees no need to limit that work to the manufacturing industry, as Mr Coster has shown his flexibility in the application of his skills in another industry, being the laundry he managed for six months.
Is the veteran prevented by his war-caused injuries from continuing that work?
13. The second Flentjar question requires the Tribunal to determine whether Mr Coster’s war-caused injuries prevent him from continuing his remunerative work. Mr Coster’s suffers a number of conditions which have been accepted as war‑caused. The war-caused conditions relevant to this case are post‑traumatic stress disorder (PTSD) and alcohol dependence or alcohol abuse.
14. Mr Coster’s oral evidence was that he did not sleep well at night and this affected his work performance. He said also that he had become very irritable, had daily headaches and difficulty concentrating, and he had had a terrible temper since Vietnam. All of these factors affected his ability to work. Mr Coster said that at Ultra he started having arguments with sales and purchasing staff which created problems in his work.
15. Mr Coster stated that he would like to continue to work but did not think he could do it. In answer to hypothetical questions about his ability to work in harmonious office environments, where there were no personal conflicts, doing mundane clerical work, Mr Coster said he would probably fall asleep and he would get very frustrated. When asked about a statement to Dr Strauss, that he would attempt a managerial job if he were offered it, Mr Coster stated that he would try it but did not know whether he would be able to do it.
16. Mr Coster was asked about the possibility of his redeployment to another position at Hufcor, as recorded in the Employer Questionnaire (Supplementary T documents page 17). Mr Coster said that it was mentioned only at his first meeting with his supervisor and was not raised again.
17. Mr Coster also said that he does voluntary work at the local hockey club for about six hours a week. He said that he arranges the bookings, opens the ground for school use, and helps sweep the gutters and pick up drink bottles. Mr Coster said that he has been doing this for about 15 years. He said that he enjoys it and it gives me an outlet (Transcript page 35).
18. Mrs Coster’s evidence was that Mr Coster tends to drink more when he is under stress and that tendency is getting worse as time goes on. She said that he loses concentration and suffers daily headaches. Mrs Coster said that he can get a bit nasty if people upset him. She said that his temper was getting worse. Mrs Coster said that Mr Coster had always been a keen worker and she thought that he would be working now if he were able to do so. Mrs Coster said that he was very disheartened when he could not find work. When asked about the way Mr Coster handled conflict, Mrs Coster said that he would just shut himself off. She understood that at his work Mr Coster would just go for a walk.
19.In his written report dated 5 February 2009 (Exhibit R1) Dr Strauss said:
I do not believe that this man has developed a significant psychiatric incapacity since he lost his job several years ago. He is keen to find work, has looked hard for work but has been unsuccessful. I see no reason why he cannot work, from a psychiatric perspective, and therefore I do not believe that he has a psychiatric incapacity and he is capable of undertaking full-time paid work.
20. Dr Strauss initially confirmed this opinion in his oral evidence. However, when he was advised of the earlier evidence of Mr Coster, that his irritability and confrontations in the workplace were the primary causes of his loss of employment, Dr Strauss changed his opinion. When fully apprised of Mr Coster’s evidence, Dr Strauss did not take issue with the conclusion of Dr Seabridge that:
this is a man who has been significantly affected by post traumatic stress disorder, to the extent that he is unable to work … this further information certainly has altered my opinion in the sense that obviously psychiatric symptoms do affect his work ability (Transcript page 61).
21. When Dr Strauss was advised further of Mr Coster’s sleeping patterns, difficulty in concentrating for lengthy periods, narrowing social activities and frustrations even in a social context, he agreed with Mr Moore’s proposition that:
… taken at face value … this is a man who probably is at the point where he would not be able to work eight hours a week by virtue of the complications or the symptoms flowing from his PTSD and/or alcohol.
22. In his oral evidence Dr Seabridge confirmed his opinion that Mr Coster’s PTSD was moderate to severe. Dr Seabridge was asked about Mr Coster’s statement to Dr Strauss of his willingness to attempt a managerial position if offered. Dr Seabridge said that it was evidence of Mr Coster’s motivation but, unfortunately, it was impractical.
23. When Dr Seabridge was pressed on the issue of whether he had considered Mr Coster’s skills, qualifications and experience in reaching the conclusion that Mr Coster was unfit to work more than eight hours a week, Dr Seabridge said:
The area in which he has been employed is going to be the last possible area in which he could conceivably become re‑employed. And this is why I deliberately emphasise in assessing employment capacity the issues that relate to a structured work environment, where there’s an expectation that you turn up at a prescribed time in the morning, you put in a prescribed number of hours a day, you produce a prescribed amount of productivity through the day and you’re able to engage in reasonable interpersonal relations with either staff, clients or managers. He’s totally incapable of doing that. They’re the two areas in which he has fallen down … he couldn’t do eight hours a week helping his neighbours do handyman jobs (Transcript page 72-73).
24. Dr Seabridge described Mr Coster’s work at the local hockey club as occupational therapy, totally unrelated to a structured work environment. Dr Seabridge was asked to assume that Mr Coster was placed in a non-confrontational work environment that involved a physical environment which did not impede him, that it involved managing a small number of people, maybe a handful, and that he had a degree of autonomy in his work. Dr Seabridge maintained that in those circumstances Mr Coster would still be incapable of performing eight hours of work per week.
25. Mr d’Assumpcao submitted that Dr Strauss’s evidence was not conclusive, as he had no opportunity of re-examining Mr Coster with the benefit of the new evidence arising from the hearing. Mr d’Assumcao also submitted that Dr Seabridge’s opinions were based on his assessments only, without having read the other medical evidence, particularly the reports of Dr Rankin, the applicant’s local medical officer for more than 20 years. Dr Rankin assessed Mr Coster as being capable of performing light clerical work for up to 20 hours per week. Mr d’Assumpcao referred to the evidence of Mr Coster: that just prior to ceasing work he was working 38 hours a week, that he was happy with his job, he felt he was doing a good job and that conflicts and dispute resolution was not a large part of his job. Mr d’Assumpcao submitted that Mr Coster was not prevented by his injuries from undertaking work at Hufcor but that he was made involuntarily redundant; and that he had been considered for other positions but nothing was available.
26. In response, Mr Moore submitted that Dr Seabridge was not given an opportunity of commenting on Dr Rankin’s assessments. He submitted also that Dr Rankin was not a psychiatrist; he did not treat Mr Coster for any psychiatric conditions nor refer him for treatment. Mr Moore also pointed out the evidence from Mr Coster that at no time did Dr Rankin discuss the assessment with Mr Coster nor give him an opportunity to comment on them.
27. Mr Moore noted that according to Mr Coster’s evidence, Mr Coster’s position, which Hufcor declared redundant, was filled again within three weeks. Mr Moore submitted that the reference to redundancy was just a smokescreen for the way in which the dismissal took place.
28. Mr Moore also drew the Tribunal’s attention to the Centrelink job capacity assessment report on Mr Coster in Exhibit A4. It is a document that (from page 13) was completed by officers of Centrelink, on 1 July 2008. The document shows a current work capacity of zero to seven hours per week due to medical conditions likely to last more than two years.
29. In considering Mr d’Assumpcao’s submissions, the Tribunal noted that Dr Strauss did not express a need to re-examine Mr Coster and did not hesitate to change his opinion as a result of the new information. The Tribunal also notes the unequivocal views held by Dr Seabridge based on his personal assessment of Mr Coster. In regard to the differing opinions of Mr Coster’s work capabilities, the Tribunal prefers the opinion of the psychiatrist over that of Mr Coster’s general practitioner.
30. With regard to Mr Coster’s employability, as noted in the Hufcor questionnaire, the Tribunal notes the evidence of Mr Coster that the offer of relocation to another position was mentioned on one occasion only and was not repeated at his final interview. The statement about his employability in the Hufcor questionnaire was not tested at the hearing. On the other hand the Tribunal has no reason not to accept the evidence of Mr Coster, given on oath, supported by the evidence of his wife.
31. On the whole of the evidence before us, the Tribunal finds that Mr Coster is prevented by his war-caused disabilities of PTSD and alcohol dependence or abuse from undertaking his remunerative work for more than eight hours per week.
Are war-caused injuries the only factors preventing remunerative work?
32. The third Flentjar question requires the Tribunal to determine whether it is Mr Coster’s war-caused injuries alone which prevent him from continuing to undertake his remunerative work. The question for this Tribunal is whether any of Mr Coster’s unaccepted conditions or any other factors contribute to his incapacity for work.
33. Mr Coster gave oral evidence that his poor sleeping, irritability, daily headaches, difficulty in concentrating and terrible temper were the only problems affecting his work. Mrs Coster confirmed her husband’s loss of concentration and his temper. She also said that Mr Coster tends to drink more when he is under stress and that tendency is getting worse with time.
34. In his submissions on this issue Mr d’Assumpcao referred the Tribunal to the decision of the Full Federal Court in Repatriation Commission v Hendy [2002] FCAFC 424, in which the Court said at paragraph 37 that:
… 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.…
35. Mr d’Assumpcao submitted that in this case Mr Coster ceased work in October 2005 and the assessment period commenced in July 2006 and that the factors in Hendy are therefore highly relevant. He also referred to the evidence of Dr Strauss that age was not in Mr Coster’s favour and was therefore a factor affecting his ability to obtain work. Mr d’Assumpcao also asked the Tribunal to take judicial notice of the global financial crisis and its affect on Mr Coster’s inability to get employment. Mr d’Assumpcao also referred to the decision of the Federal Court in the matter of Cavell v Repatriation Commission (1988) 9 AAR 534 in which Burchett J says at page 539:
... The tendency of that is to distract the tribunal from its true task - to make a practical decision, whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice, philosophical distinctions, but with an eye to reality and as a matter in respect of which common sense is the proper guide.
36. Mr d’Assumpcao’s final submission was to refer the Tribunal to the purpose of the Special Rate of disability pension, described in the Second Reading Speech introducing the Repatriation Legislation Amendment Bill 1985 (the Second Reading Speech) as follows:
Since 1920 there has been a special rate of disability pension payable in circumstances where, because of total and permanent incapacity, resulting from war service, a veteran has been unable to resume or continue to continue in civil employment. This special or T&I rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families and put away any money for their old age. It was never intended that the T&I rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work, possibly with whatever superannuation and other retirement benefits are available to the Australian workforce.
37. Mr Moore submitted that Dr Strauss was not a labour market expert and contended that, in ordinary circumstances, Mr Coster’s age would not go against him.
38. Mr Moore referred the Tribunal to the decision of the Federal Court in Repatriation Commission v Braund (1991) 23 ALD 591 in which Pincus J said at 594:
In my opinion the tribunal was not obliged on the facts as presented to it, to consider eligibility over the whole assessment period, but only eligibility at the inception of the period.…
39. Continuing, Mr Moore submitted that it is irrelevant that the labour market at the present time is bad and probably getting worse. It is also irrelevant that Mr Coster is now 60 rather than 57. Mr Moore submitted that the important issue is what he was doing at the time of his application. At that time Mr Coster was 57, he been out of the workforce for only a limited period of time and he was actively seeking employment.
40. In considering the evidence the Tribunal notes that at the time of ceasing work Mr Coster was 57 years old, the global financial crisis had not commenced, indeed the economy was very positive. The time between the cessation of Mr Coster’s work and the start of the assessment period is only nine months. The Tribunal considers this period to be too short for the factors of recent work experience, time out of the workforce and increasing age to influence Mr Coster’s ability to continue his remunerative work. In regard to the issue of Mr Coster’s age, the Tribunal puts no weight on the opinions of Dr Strauss, as it is an area in which he has no special qualifications or knowledge.
41. After considering the whole of the evidence, the Tribunal is satisfied that there are no factors in addition to Mr Coster’s war-caused injuries which prevent Mr Coster from undertaking remunerative work or contribute to his inability to undertake remunerative work. As a consequence, the Tribunal is satisfied that the only factor preventing Mr Coster from continuing to undertake remunerative work are his war‑caused injuries of PTSD and alcohol dependence or abuse. The Tribunal finds accordingly. In making this finding the Tribunal is making a practical decision;
… whether the veteran’s loss of remunerative work is attributable to his service‑related incapacities, and not to something else as well …
as required by the decision in Cavell. The Tribunal also finds no reason to refer to the Second Reading Speech as it finds no ambiguity in the sections of the Act under consideration.
Is Mr Coster suffering a loss of salary?
42. The fourth Flentjar question requires the Tribunal to determine whether Mr Coster is, by reason of being prevented from continuing to undertake his remunerative work, suffering a loss of salary, wages or earnings on his own account, which he would not be suffering if he were free of that incapacity.
43. Neither party made a submission on this question. Nor was any evidence led specific to this issue. Nevertheless, the Tribunal notes that just prior to the cessation of his work Mr Coster was in full time salaried employment. The Tribunal accepts that on ceasing his work Mr Coster suffered a loss of salary. The Tribunal has already found that Mr Coster was prevented from continuing his remunerative employment due to his war-caused injuries alone. The Tribunal finds as a consequence that Mr Coster is suffering a loss of salary that he would not be suffering if he were free of his war-caused incapacity.
Section 24(2) of the act
44. The provisions of section 24(1)(c) are subject to the provisions of section 24(2) of the Act which states:
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.
45. In this case the Tribunal has found that Mr Coster did not cease to engage in remunerative work for reasons other than his war-caused incapacity, satisfying the provisions of sub-section (a). Accordingly, the Tribunal finds that section 24(2) does not affect the operation of section 24(1)(c) in this case and finds that the provisions of section 24(1)(c) are met in Mr Coster’s circumstances.
Conclusion
46. The Tribunal finds that Mr Coster’s circumstances satisfy the provisions of section 24 of the Act and Mr Coster is entitled to be paid a pension at the Special Rate.
47. The date of effect is three months before the application date and has been agreed by both parties to be 13 July 2006. The Tribunal finds accordingly.
DECISION
48. The Tribunal sets aside the decision under review and substitutes the decision that Mr Coster is entitled to be paid a disability pension at the Special Rate with the date of effect of 13 July 2006.
I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of
Brigadier C Ermert (Retd), Member, and Dr K. Breen, Member.
(sgd) Mara Putnis
Clerk
Dates of Hearing: 22 – 23 July 2009
Date of Decision: 27 August 2009
Counsel for the applicant: Mr G Moore
Solicitor for the applicant: Peter Liefman, solicitors
Representative for the respondent: Mr P d’Assumpcao, Australian Government Solicitor
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