Oxford and Repatriation Commission
[2005] AATA 137
•11 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 137
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/21
VETERANS' APPEALS DIVISION ) Re DARRYL DENNIS OXFORD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell Date11 February 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – rate of pension payable – special rate – applicant prevented from continuing to undertake remunerative work for war-caused reasons alone – other factors – applicant not entitled to special rate – decision affirmed
Veterans’ Entitlements Act 1986 ss 24, 120
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424 (19 December 2002)
Cavell v Repatriation Commission (1988) 9 AAR 534REASONS FOR DECISION
11 February 2005 Senior Member L Hastwell 1. On 5 May 2003, Darryl Oxford (the applicant) lodged a claim for an increase in the rate of Disability Pension payable to him. He sought an increase to the special rate. His pension was already payable at the 100 percent of the general rate with respect to the conditions of:
· Post-traumatic stress disorder
· Bilateral sensorineural hearing loss
· Bilateral tinnitus
· Lateral epicondylitis (left)
· Alcohol abuse
· Hypertension
· Plueral plaques
2. The applicant contended in his application for the special rate of pension, that his post-traumatic stress disorder (PTSD) had worsened since he was last assessed by the respondent (the Commission), and as a result of this he was unable to engage in the workforce at all.
3. The delegate of the Commission, in a decision dated 4 June 2003, accepted that the conditions outlined in paragraph 1 entitled the applicant to 100 percent of the general rate of pension, but rejected his claim for payment at a higher rate. The delegate found that he was not eligible for pension at either the special rate, or the intermediate rate, nor was he entitled to the Extreme Disablement Adjustment, which was only payable to a veteran over the age of 65 years. The delegate was of the view that there were other factors, ie other than service related disabilities, which had contributed to the applicant’s inability to work. In particular the delegate noted medical evidence of non-service related permanent medical conditions which impacted on the applicant’s ability to work.
4. The applicant applied for a review of that decision to the Veterans’ Review Board (VRB), and on 9 December 2003 the VRB affirmed the decision under review. They found that the applicant did not meet the “alone test”, ie that it was by reason of accepted disabilities alone that he had ceased to engage in remunerative work. The Board noted that after taking a voluntary redundancy package in February 1998, the applicant did not seek alternative employment for over five years. He was then offered casual employment working two days per week, but that employment was terminated after only three months because of customer complaints, and the applicant’s attitude.
5. The applicant applied to this Tribunal for a review of the decision.
issues for determination
6. The applicant’s entitlement to the special rate of pension is to be determined under s 24 of the Veterans’ Entitlements Act 1986 (the Act). It was common ground that the applicant satisfied the first two criteria set out under s 24 of the Act. There has been a determination that the applicant has an entitlement to a pension at a rate higher than 70 percent of the general rate (s 24(1)(a)), and he suffers an incapacity from war-caused conditions or diseases which prevent him working for periods aggregating more than eight hours per week (s 24(1)(b)).
7. The issues before the Tribunal are whether the applicant satisfies s 24(1)(c) of the Act, in that:
· he was, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
· in consequence he was suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
8. In determining the issue arising under s 24(1)(c), the Tribunal must also have regard to s 24(2)(a) of the Act.
9. The test to consider as set out in s 24(2)(a) of the Act is whether the applicant ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or disease.
10. The Tribunal has determined that the applicant has not satisfied the requirements of s 24(1)(c) and s 24(2)(a) of the Act, in that it is not by reason of his incapacity from his war-caused injuries alone that he left his employment, and that he is prevented from continuing to undertake remunerative work. He is not entitled to a pension at the intermediate or special rate for the reasons set out below.
relevant legislation
11. Section 24(1)(c) of the Act provides as follows:
“(1)This section applies to a veteran if:
…
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;”
Section 24(2)(a) of the Act provides as follows:
“(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason;”
background and discussion of the evidence
12. At the hearing Mr Swan, solicitor, appeared for the applicant and Mr Crowe, a Departmental advocate represented the Commission. The applicant and Ms Sharon Alderman, a Rehabilitation Consultant with the Commonwealth Rehabilitation Service (CRS), gave oral evidence to the Tribunal. Dr John Pakos, the applicant’s General Practitioner, gave oral evidence for the Commission. Various exhibits were tendered during the course of the hearing, including the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
13. The applicant is 58 years of age, having been born on 14 August 1946. He served in the Royal Australian Navy (the Navy) from 26 August 1963 to 11 October 1984, and he saw operational service in Vietnam on a number of occasions. During his time in the Navy he was an engineering mechanic and had experience on boilers. He worked for some 12 years in the engineering field, and also worked with the Naval Police for 8 years. He was discharged as a Sergeant, Naval Police in 1984.
14. Soon after his discharge from the Navy, he obtained employment. His employment history after leaving the Navy is set out in his statement, Exhibit A4. He took a voluntary redundancy package from his last position with Boart Longyear (Longyear) on 19 February 1998. He had worked for Longyear for the previous eight years, doing mainly purchasing work. He was also the chief fire warden.
15. The applicant’s evidence was that although his departure from Longyear was voluntary, he felt there was pressure put on him to take the redundancy package. He said that he was “devastated” at being “asked to leave”. In that regard the Tribunal notes that in evidence given by the applicant to the VRB, as contained in Exhibit A1/T2, he said that he thought his age and lack of formal qualifications were factors in his redundancy. He said that he was told at the time that there was not enough work available, although he commented that he knew the firm wanted to get rid of him. It is common ground that it was a voluntary redundancy, regardless of how the applicant now views the circumstances of leaving Longyear. There was no suggestion that his war-caused disabilities were in any way involved with his departure from Longyear.
16. The applicant’s evidence was that he then considered further work. He went to employment agencies, and considered various opportunities. He applied for a job as a warehouse supervisor. He did photography courses with a view to obtaining work, but nothing substantial came from that. He did a small amount of freelance commercial photography, mainly weddings, through word of mouth.
17. The applicant felt he was getting nowhere, so he sought assistance through one of the service organisations, and was asked to see a psychiatrist. His evidence was that as a result of that, he discovered that he had a psychiatric problem. He then commenced seeing a psychologist regularly, and discovered that he had PTSD. He undertook a six week PTSD course at the Repatriation Hospital.
18. The applicant applied for, and was granted, Disability Pension initially in 1996, and then in 1998 he applied for an increase in the rate of pension. The pension was then payable at 40 percent of the general rate.
19. The T documents show that in November 1999 the applicant applied for a further increase in the rate of his pension, based on the conditions of stress and anxiety, and a separate condition of alcohol abuse [T11]. That claim was successful, and his pension was assessed at 80 percent of the general rate [T15].
20. In his evidence, the applicant recounted that it was around 1998 and 1999 that he found himself in significant financial difficulties, which forced him to sell his home. He said that he lost the will to do anything for a while. He did not look for paid work again until March 2003 when he first made contact with the CRS. Prior to that he was involved with the service organisations, and had been doing voluntary work on a regular basis for some time.
21. The applicant made a further claim for an increase in Disability Pension in May 2001 [T16]. In that application he listed stress and anxiety as being the further disability from which he suffered. After further psychiatric reports were obtained from Dr Ewer, a decision was made in September 2001 to grant the applicant Disability Pension at 100 percent of the general rate [T21].
22. The applicant’s evidence was that he needed money, and he needed work, and his involvement with service organisations had made him aware of the Veterans’ Vocational Rehabilitation Scheme (VVRS). He decided to apply through that scheme and find a job. He became aware that he would not lose his entire pension if he found employment.
23. The applicant applied to be accepted to the VVRS. The referral was made on 5 March 2003. He met with Ms Alderman, a Rehabilitation Consultant with the CRS, on two occasions in March 2003. She recommended he be accepted into the VVRS. (by assessment report dated 14 April 2003). She assessed it as appropriate that he find employment for two days a week in a small environment where there were not too many managers. His stated preference was to work in purchasing and supply. That recommendation was accepted on 23 April 2003. The report is contained in Exhibit R1.
24. The applicant’s evidence, which was confirmed by Ms Alderman, was that through personal contacts he then obtained a position with Steway Sales and Design (Steway). They are a small company that supply safety equipment and sundries such as tea, coffee, cleaning products and general stores. The applicant had a personal acquaintance with the managing director, Steve Burrell. It was through this personal connection that he was able to find this employment. The offer of employment was for two days per week work on a casual basis. A letter sent to the Department of Veterans’ Affairs (the Department) by Steway dated 13 August 2003 [T30] confirms those terms.
25. The applicant’s employment at Steway commenced on 29 July 2003. For approximately the first four weeks of his employment he carried out a computer inventory of existing stock. He was working in the office with Mr Burrell’s daughter who was doing the accounts. It appears from his evidence, and this is confirmed by CRS reports contained in Exhibit R1, that conflict with both Mr Burrell’s daughter and his business partner soon emerged. The applicant described Mr Burrell’s business partner as an abrupt person who demanded things be done. The applicant stated that he liked to prioritise his own work. He described his relationship with Mr Burrell’s daughter as “niggly”. He described her as becoming very demanding, and at a later stage in his evidence he stated that he did not at the time believe that she was doing her job properly. The applicant also described the customers as getting “a bit out of hand”.
26. The applicant’s employment with Steway came to an end when he received a letter dated 22 October 2003 [Exhibit A3] terminating his employment. The applicant said that he was devastated by the termination of his service as he felt he had let Mr Burrell down. The Tribunal notes the following statement contained in that letter at Exhibit A3:
“…
A number of issues have not been resolved by you. As you are aware, we have had complaints from customers regarding wrong deliveries and your aggressive attitude. We have spoken on several occasions to you about this but nothing has changed. In a sales organisation customer relations is of paramount importance
….”
27. The Tribunal notes that in a CRS report dated 10 October 2003 [Exhibit R1], the applicant was reported as saying that because of conflict with Mr Burrell’s daughter he was likely to leave his job within four weeks in any event.
28. The applicant acknowledged in evidence that Steway did not satisfy his stated preference for purchasing work, or to work in a clerical capacity in stores or inventory. He said that his employment at Steway did not involve much purchasing, and there was not much negotiation with purchasers involved as Steway had only half a dozen or so suppliers. Most of his time was spent undertaking inventory, stock-take and despatch. He said that he felt he was not using his skills as much as he would have liked, but that he was happy initially, as he was doing something for a friend, and he wanted to work with a small organisation where there was not significant pressure from management.
29. The applicant’s evidence was that he wanted to see if he could manage two days work per week. He wanted to go further if he felt comfortable. Throughout his time at Steway he continued to do voluntary work at the RSL once a week. His evidence as to how much time he committed to voluntary work varied, and the Tribunal found his evidence on that point not at all clear.
30. In a CRS report dated 1 August 2003 [Exhibit R1], it was reported that the applicant had been offered by Steway an additional two days work in the following week, and had been asked to take on additional duties, but he was not willing to increase his hours due to his voluntary commitments, and because this was not in accordance with the original agreement that had been made. The same report raised issues of conflict at that early stage between the applicant and one of the proprietors. It also reported that the applicant said that he had nothing to lose if the current job did not continue as he would be financially supported by his service and disability pensions. It recorded that he declined to allow the CRS to intervene at that point.
31. The applicant was asked to comment on a number of the CRS reports [Exhibit R1]. As to the report of 1 August 2003, he initially denied the veracity of that report. When pressed further he acknowledged that he had been asked to “change working days”, but said that it did not suit him, and he was happy with the two day week. After being pressed further he acknowledged that he was offered extra days, but declined to accept them. He said that he did not want to work an extra day because of insufficient notice, and he did not like being told what to do. He was initially adamant that the report that his voluntary work commitments were an issue for him was incorrect. He eventually acknowledged that voluntary work commitments were part of the reason that he did not wish to work more than two days per week.
32. As to the CRS report of 28 August 2003 [Exhibit R1] which indicated difficulties in the relationship with the business partner, but that things were progressing well, the applicant’s recall was that at that stage he was still doing some voluntary work, and there was no problem with the voluntary work impinging on the two days per week employment. He said that there were some problems arising, such as him sending supplies to the wrong people, and he acknowledged that he had had both minor and more significant arguments with Mr Burrell’s daughter.
33. The CRS report dated 10 October 2003 [Exhibit R1] stated that the applicant was considering leaving the job within one month, and reported conflict with the employer’s daughter, and his view that she was not doing her job properly, thereby creating more work for him. In that report it also stated that income was not a motivating factor in him maintaining the employment, and that the applicant did not want to pursue stress management, nor did he want the CRS to intervene on his behalf.
34. The applicant, in evidence, denied making the statements contained in that report. He agreed that the comments about the difficulties he was experiencing with the employer’s daughter were correct, and acknowledged verbal altercations with her. He said that he had difficulty managing the stress of just the two of them in the office.
35. The applicant was then questioned at some length about a sleep apnoea problem recorded in his medical notes [Exhibit R2] as a condition that was first investigated in 2001, when he was referred to the Sleep Disorders Clinic at the Repatriation General Hospital. Documents contained in Exhibit R2 indicated that he was receiving ongoing treatment for sleep apnoea throughout most of 2003 and for all of the time that he was with Steway.
36. The applicant was asked to comment with respect to the reported sleep apnoea problem. In his evidence, he minimised the problem. Initially he denied the problem altogether. Then he acknowledged that he had experienced significant sleep disturbance problems at times, sleeping only three, four or five hours per night and breaking out in sweats. He then acknowledged that there was a period in his life when he had issues with tiredness, but added that this was not when he was working with Steway. He did acknowledge that between June and October 2003 he was undergoing a second trial of a nasal mask to improve his sleeping difficulties, but he added that this had nothing to do with Mr Burrell terminating his employment. His evidence was that throughout the entire series of tests he felt he did not have a problem at all, and he considered it was a waste of time and money, and that the testing should be used on someone who needed it. He acknowledged that it was his complaint to his doctor of feeling run down and listless that had led to the investigation of these sleeping habits. He could not recall when that problem resolved.
sharon alderman
37. Ms Alderman, who had been the applicant’s Rehabilitation Consultant at the CRS, gave evidence from her notes, and from her independent recollection. Her notes were tendered as Exhibit R1 and have already been referred to. She confirmed the content in Exhibit R1, and in addition she had some additional notes on her file from which she refreshed her memory.
38. Ms Alderman said that she first had contact with the applicant in early March 2003. He then he came in for an initial assessment on 11 March 2003. At the end of that assessment, it had been her opinion that he was keen to participate in a programme and a rehabilitation plan was developed on 10 April 2003 [Exhibit R1]. She said that the goal was for the applicant to secure part-time employment in a low stress supportive environment for 16 to 20 hours per week. She said he particularly wanted to work in the purchasing area, and they also looked at warehousing as a possibility. She started canvassing employers, but the applicant found employment himself with Steway.
39. On 1 August 2003, Ms Alderman confirmed receiving a phone call from the applicant indicating that his first day at work went well, but that he had a run-in with the business partner on the second day, and he had decided to steer clear of that person to avoid conflict. He reported that the conflict arose from the business partner wanting him to work on dates that had not previously been discussed. The applicant reported to her that he was not particularly happy with the way that the business partner had spoken to him.
40. On 27 August 2003, her notes indicated that she had called the applicant to check on how things were going. He said that he was still working two days a week and again commented that he had experienced a couple of run-ins with the business partner. He said that he had been doing stock control and deliveries, but he wanted to avoid deliveries as he had also had difficulties with customers. He told her that he was taking one day at a time, and had no expectations. She offered to contact the employer to arrange a work site meeting, but the applicant said that he felt no need for counselling at that stage, and said he could make an appointment with his own psychiatrist.
41. Ms Alderman said that her next contact with the applicant was on 9 October 2003, when he said that he did not think the employment would last, and that he was having conflict with customers, and also with the employer’s daughter. He said he was being asked to do a lot more work, and had to make up for days when he was not there. He felt orders were not being attended to, and he was becoming frustrated and stressed by the business manager and the employer’s daughter. He reported that conflict was daily, and that the psychiatrist had recommended he leave the job. He made the comment that he did not need to stress himself out as he did not need the job. The psychiatrist had stressed that he was not suited to the job. Once more he rejected any CRS intervention, and said he would let her know how it went.
42. Ms Alderman’s next contact with the applicant was on 24 October 2003, when he advised her that he had been sacked the previous day. He said that he was alright about it, then he said that he suspected it was on the cards as he had been given three warnings prior to his dismissal. They discussed the reasons for the termination, namely issues with the employer’s daughter. Options were discussed for the future and the applicant indicated to her that he did not feel ready to pursue a new job, and would be guided by his psychiatrist. She said that he reported to her that voluntary work fulfilled his needs, and that he was also preoccupied regarding an asbestosis claim which was going to the review board.
43. On 11 November 2003, Ms Alderman contacted the applicant and he reported that he had seen Dr Ewer, his Psychiatrist, and that he did not wish to work at this time, so the programme was closed. He told her that the RSL work was fulfilling, that money was not an issue, and he wanted to give work a try, but had realised that he had limitations. He commented that he wanted to continue his voluntary involvement with netball and the RSL, and he believed that involvement may increase.
44. Ms Alderman was clear in her evidence that she had recorded on more than one occasion that the applicant commented to her that he was financially secure, and had no financial need to work. She was clear that he had said that unpaid work was an important part of his life. She said he mentioned voluntary work occupied two days per week.
45. Ms Alderman had recorded discussions with Dr Pakos, the applicant’s General Practitioner, on 19 March 2003, when Dr Pakos said that the applicant could do 20 hours work per week, and had confirmed various aspects of his medical condition, and in particular had mentioned his PTSD, his back injury, and his emphysema. Dr Pakos had said that he would need a supportive environment.
46. Ms Alderman confirmed that the applicant had stated that his preference was for purchasing work, and she did have the impression that purchasing work was more rewarding for him. She said she felt that the reason that the applicant had declined her offer to contact the employer to deal with issues that had arisen was because he had a personal relationship with the employer and wanted to deal with it himself.
medical evidence
dr john pakos
47. Dr Pakos, the applicant’s General Practitioner, was called by the Commission and gave evidence by telephone. The Tribunal had in evidence, as Exhibit R2, a bundle of documents from the Woodcroft Medical Centre.
48. Dr Pakos was specifically asked to comment on the sleep apnoea issue. He said that the applicant was first referred for assessment for sleep apnoea in 2002. The applicant had attended his surgery complaining of problems of lethargy and tiredness, and was referred to the Repatriation Hospital for a sleep study. He recalled that his major complaint was one of tiredness, but that there was not a lot of detail in his notes, other than that the applicant was suffering from insomnia. Dr Pakos noted that the report of Dr Huw Davies, Sleep Clinic, dated 23 September 2002, stated that the applicant was suffering from obstructive sleep apnoea, and suggested he trial some oxygen to see if it helped the symptoms. Dr Pakos did recall that the applicant found it uncomfortable to use the oxygen mask provided. Dr Pakos said that once he referred the sleep apnoea problem to the specialist he felt that problem was in the domain of the specialist. He said that his main involvement with the applicant was to deal with what he referred to as the “emotional side of things”, being his chronic back pain and breathing problems.
49. The Tribunal noted the report from Dr Davies dated 2 June 2003 [Exhibit R2], which reported that the applicant had an appointment with him that day. The report referred to his daytime fatigue and tiredness as being multifactorial, and that there would be a further review in three months after undergoing a trial of a nasal CPAP. On 16 October 2003, Dr Davies reported that the applicant had attended on 15 October 2003, and that “… despite making strenuous efforts he has been unable to settle to using nasal CPAP. He got to the point in which he was sleeping less with the CPAP on than he had been previously. …”
50. There was other medical evidence contained in the T documents [Exhibit A1] Dr Ewer provided a report to the Department dated 23 December 1999 [T13], in which he diagnosed the applicant as suffering from PTSD. A second report of Dr Ewer dated 22 May 2001 [T18], outlined the treatment programme that the applicant had undertaken. He confirmed that the applicant continued to suffer from PTSD and alcohol abuse. Sleep disturbance is commented on as being a problem that has caused him to sleep in a separate room from his wife for the last 16 years. This report refers to the applicant having had the benefit of a range of interventions, and continuing to experience a range of psychiatric symptoms. He continued to suffer from sleep disturbance, and short-term memory problems.
51. A letter from Dr Pakos to the Department dated 23 June 2004 [Exhibit R2] contains a list of medical visits to his surgery from February 1998. The applicant was a regular visitor, and during the period he was working at Steway he is recorded as visiting Dr Pakos three times, being on 1 September 2003, 11 September 2003, and 19 September 2003. The Tribunal has no information as to the reason for those visits. The most relevant information from the Tribunal’s perspective was the information relating to the investigation of the applicant’s sleep apnoea. The Tribunal noted that on 26 April 2002, Dr Stranks, a Consultant Physician and Endocrinologist, reported to Dr Pakos that “Darryl’s energy and general wellbeing has been much better since he started work”. The Tribunal assumes this is a reference to the voluntary work referred to in evidence. In a report dated 2 July 2002 from the Repatriation Hospital to Dr Stranks regarding a review of the applicant in the Sleep Disorders Clinic, it is noted that “Mr Oxford is an office worker with regular hours. He drinks 4 to 5 cups of caffeine per day …” .
52. The Tribunal has already noted the reports contained in Exhibit R2 that refer to the ongoing treatment for sleep apnoea in 2003.
consideration
53. In making a decision the Tribunal must have regard to s 120(4) of the Act, which requires that the matter must be decided to its reasonable satisfaction. This means that the Tribunal must consider all the evidence, and determine whether the criteria made out under s 24(1)(c) and s 24(2) of the Act are satisfied. Neither party has an onus of proof (s 24(6) of the Act), and the Tribunal must act according to substantial justice and the substantial merits of the case.
54. It was accepted before the Tribunal that the applicant satisfies s 24(1)(a) and s 24(1)(b) of the Act. The only issue for the Tribunal to decide is whether the applicant satisfies s 24(1)(c) of the Act.
55. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at pages 4-5 Branson J considered s 24(1) and s 24(2) of the Act. She formulated a series of propositions as being the issues to determine under s 24(1)(c) of the Act:
“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?”
56. It is common ground that the applicant was undertaking remunerative work at Steway. Questions 1 and 4 are answered in the affirmative. The only issues for the Tribunal are whether the applicant is, by reason of war-caused injury or disease, or both, prevented from continuing to undertake the work at Steway, and if so, was it a war-caused injury or disease alone that caused him to leave his employment, or prevented him from continuing to undertake that work. Were there other factors that took a part in or contributed to the applicant continuing in his employment?
57. The Tribunal is satisfied that as a feature of his PTSD, it is reported by Dr Ewer that the applicant experiences irritability and difficulties in relationship with co-workers. His PTSD does interfere with his ability to work with others [T18/98].
58. The applicant’s case was that it was due to war-caused injuries alone, namely his PTSD that he had ceased work at Steway, and he submitted that the date of effect of the new rate of pension should be 22 October 2003, being the date his employment with Steway was terminated.
59. In the context of s 24(2)(a) of the Act, the question becomes whether the war-caused injury or war-caused disease, or both, are the only factor or factors that prevent the applicant from continuing to engage in remunerative work, and whether the applicant ceased to engage in remunerative work for war-caused reasons only. There is agreement that the reference to employment in this case is a reference to the employment at Steway.
60. In Repatriation Commission v Hendy [2002] FCAFC 424 (19 December 2002) the Full Court of the Federal Court said at paragraph 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 facts 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. …”
61. In Cavell v Repatriation Commission (1988) 9 AAR 534 Burchett J referred to the true task at p 539 as being:
“ … 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.
…”
62. Considering all the evidence the Tribunal is not satisfied that it was due to war-caused injury or disease alone that the applicant in this case had his employment with Steway terminated. The applicant’s own evidence, although at times straight forward, was at other times less than direct, in particular when he was confronted with comments that were attributed to him by Ms Alderman that related to lack of financial motivation to retain the employment, and that related to the importance of voluntary work in his life. The Tribunal agrees with submissions by counsel for both parties that Ms Alderman was a straightforward and credible witness, and the Tribunal had no reason to disbelieve either the statements contained in her reports or her evidence.
63. The evidence suggests that the applicant consulted Dr Ewer during the period that he was working at Steway. Dr Ewer was not called to give evidence, and the only medical evidence available to the Tribunal comprised the fairly dated reports of Dr Ewer contained in the T documents at T13 and T18. The most recent report was dated 22 May 2001.
64. The applicant’s employer was also unavailable to give evidence with respect to the applicant’s period of employment, and the reason for the termination of his employment. The Tribunal was advised that his inability to give evidence was due to some personal difficulties that Mr Burrell had recently experienced.
65. Based on all available evidence, the Tribunal makes the following findings:
· That the applicant was not motivated by income to maintain the employment at Steway as he was able to rely on his service pension. He made that comment on more than one occasion to Ms Alderman.
· That the applicant was being treated for another significant medical condition during the period that he was at Steway, namely sleep apnoea. He was undergoing a nasal CPAP mask trial, and he continued to suffer the effects of sleep disturbance during this time. His sleep apnoea is not a war-caused injury or disease.
· That the applicant valued his other voluntary work commitments which covered a number of areas, and that he did not want anything to interfere with those commitments. He prioritised those commitments, and was hopeful that those commitments would increase to occupy more of his time. It appears likely on the evidence that the applicant was spending at least one day per week, if not more, doing voluntary work during the period he was at Steway.
· That the applicant was pursuing another claim for asbestosis, and was being medically investigated with respect to that claim at the same time that he was employed at Steway.
· That the applicant was offered intervention by CRS to enable him to maintain his employment, and to assist in management of the workplace stressors. There were offers of intervention on more than one occasion by CRS. He rejected that intervention.
· The applicant showed no interest in resolving the conflicts that arose in the workplace, and he appeared to have made up his mind, relatively early in the piece, that he was not particularly bothered as to whether his employment ended.
· The applicant was given appropriate warnings before his employment was terminated, and showed no interest in even attempting to improve his attitude or performance as a result of those warnings, as he had decided he intended to resign in any event.
66. The applicant’s evidence was, at times, confusing. When issues of his voluntary work commitments, his sleep apnoea, and his general motivations for employment were raised, he became less direct in his responses, and in the Tribunal’s view, he was evasive and, at times, not truthful in his responses with respect to these three issues.
67. The Tribunal is satisfied that the applicant’s ability to tolerate differences in the workplace were a contributing factor to his employment with Steway ending. These difficulties derive from a war-caused disease, namely his PTSD, and possibly also alcohol abuse. Nevertheless, the Tribunal is not satisfied that they were the only factors involved in the applicant ceasing work with Steway. The applicant was not motivated to succeed in this employment because of the numerous other issues that were occupying his time as referred to in paragraph 65. His inability to keep his employment, or maintain other employment, related to a number of factors, including his lack of interest in maintaining a job because of other interests and issues in his life.
68. The Tribunal is satisfied that non-service related issues, as set out above, were a factor in preventing the applicant from continuing to undertake remunerative work, albeit those factors may have been of secondary importance. It is not possible to say, on the balance of probabilities, that war-caused injury or disease alone contributed to his loss of employment.
69. For these reasons, the Tribunal affirms the decision under review.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .....................................................................................
AssociateDates of Hearing 2/3 December 2004
Date of Decision 11 February 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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