Peacock and Repatriation Commission
[2007] AATA 1208
•5 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1208
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200400910
VETERANS' APPEALS DIVISION ) Re GEOFFREY RAYMOND PEACOCK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC and Dr G J Maynard, Member Date5 April 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............Signed............
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – disability support pension – claim for intermediate rate or special rate – post traumatic stress disorder and alcohol dependence as war-caused conditions –– range of employment opportunities defined as clerical work at medium to senior level – consideration of medical evidence – treating psychiatrist may lose objectivity vis-à-vis forensic psychiatrist - conditions have not rendered applicant incapable of undertaking any remunerative work – decision under review affirmed
VETERANS’ AFFAIRS – disability support pension – claim for intermediate rate or special rate - post traumatic stress disorder and alcohol dependence as war-caused conditions - conditions have not rendered applicant incapable of undertaking any remunerative work – whether loss of work is attributable to war-caused conditions or other causes – application of Flentjar questions – war caused conditions not only factor preventing remunerative work – applicant formulated plan to retire at age 55 before affected by conditions – applicant would have ceased work at age 55 absent war-caused conditions – no loss of salary – requirements for special rate or intermediate rate not satisfied – decision under review affirmed.
Veterans’ Entitlements Act – ss23(1)(b)(c), 23(3)(a), 24(1)(aa),(ab),(a),(b),(c),(d), 24(2)(a),(b), 28(a)
Peacock and Repatriation Commission [2004] AATA 523.
Peacock v Repatriation Commission [2004] 40 AAR 143
Chambers v Repatriation Commission (1995) 55 FCR 9
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
5 April 2007 Deputy President P E Hack SC and Dr G J Maynard, Member Introduction
1.The applicant, Mr Geoffrey Peacock, seeks a review of the decision of the respondent Commission, made as long ago as 3 April 2003, by which the respondent determined that he was not eligible to be paid disability pension at the “intermediate rate” or the “special rate”; that is, the rates described in ss 23 and 24 of the Veterans’ Entitlements Act 1986 (“the VEA”).
2.That decision was affirmed by the Veterans’ Review Board on 8 October 2003 and by this Tribunal, differently constituted, on 25 May 2004[1]. That decision was set aside by the Federal Court on appeal[2] and the matter remitted to the Tribunal for further consideration in accordance with law.
[1] See Peacock and Repatriation Commission [2004] AATA 523.
[2] See Peacock v Repatriation Commission [2004] 40 AAR 143.
3.The matter was treated by the parties as a fresh hearing (albeit that the respondent tendered the transcript of the earlier hearing). Indeed the respondent, on this occasion, put in issue the question of total and permanent incapacity[3], a question that it had conceded at the earlier hearing.
[3] See s 24(1)(b) Veterans’ Entitlements Act 1986.
4.The claim was lodged on 31 January 2003 and the parties are agreed that the assessment period runs from that date until the date of determination of this application.
Background
5.What follows appears to be common ground. The applicant was born in March 1945. He left school at the end of 1961 and took up employment as a clerk with the Council of the Shire of Kerang, an essentially rural area in Victoria between Bendigo and Swan Hill. He remained in that employment until he was conscripted into the Australian Army on 30 June 1965.
6.In that capacity he saw active service in South Vietnam in the period from 24 May 1966 to 6 May 1967. He was discharged on 30 June 1967. He returned to his employment with the Kerang Shire Council within a short time after his discharge and continued a career in local government that lasted until early 2000.
7.The applicant married in September 1967. He had first met his wife in February 1966 when she was starting a career as a teacher. The relationship continued, though interrupted by the applicant’s Army service, and the marriage continues to this day despite many difficulties.
8.We should, at this juncture, note that the applicant has a number of medical conditions that the respondent has accepted as being war-caused. Those conditions were accepted with effect from 31 October 2002 following the applicant lodging a claim received on 31 January 2003. The accepted conditions include alcohol dependence and post traumatic stress disorder. Those conditions, and the effect of them upon the applicant’s employment and capacity for employment, assumed some significance in the hearing.
9.In that regard we observe that much of the evidence, both oral and written, seemed to us to be addressed to matters that were either not in issue or were simply not relevant to the issues we are required to determine. Some of the evidence was no more than irrelevant and impermissible comments. By way of example, one witness concluded his statement in this way:
“As a citizen I feel ashamed and am appalled that someone such as Geoffrey has to take court and appeal action to obtain a concession that is so clearly his right.”
10.In circumstances where the applicant was represented by legal practitioners the Tribunal, whilst not bound by the rules of evidence, is entitled to expect that legal practitioners will present evidence that is apparently relevant and not burden the Tribunal and the other party with hyperbole and uninformed expressions of personal opinion.
11.These matters aside, the evidence is that the applicant progressed well in his chosen career path in local government. He obtained tertiary qualifications and by 1974 was the Deputy Shire Secretary for the Council of the Shire of Healesville. He was appointed Shire Secretary in 1982. He held that position until 1993. At that time there was a State wide rationalisation of local authorities in Victoria. That resulted in four municipalities, including the Shire of Healesville, becoming a single body, the Shire of Yarra Ranges.
12.Mr Eric Howard was appointed the Chief Executive Officer of the Council of the Shire of Yarra Ranges and the applicant was engaged by him, initially, in a position described as Manager of Council Business. In 1996, after a number of internal staff restructures, the applicant was appointed to a position described as Council Support Executive with effect from 15 January 1997. The nature of the tasks performed by the applicant in that role appear from the position description:
“To provide confidential executive support including communication and public relations support to the Chief Executive Officer and Executive, Commissioners/ Counsellors and Corporate Managers and ensure the effective functioning of the Executive Support office to enable the Chief Executive Officer to lead, direct and maintain a strategic corporate focus.”
13.This position was a contract position, that is, one where the applicant was employed for a fixed term. The Council’s general practice was to appoint senior employees for terms of five years. But the applicant’s contract was for a term of three years and three months and expired on 14 April 2000. That shorter term was chosen deliberately by Mr Howard and the applicant to take the applicant to the age of 55 years. Mr Howard put the matter in this way:
“It is important to note that Geoffrey’s contract for that position differed from all other senior staff appointments made at that time. In general all other contracts were for a five-year period – in Geoffrey’s case it was for 3 years and 3 months from January 1997. It was my anticipation that this would take Geoffrey to a successful completion of his working career, given the comments and observations outlined in my previous advice referred to above of December 2001. I stress that it was my belief that it would be difficult for Geoffrey to continue to work effectively to age 55 and the end of this contract, let alone a later time.”
14.There can be no doubt that the applicant was a valuable and important employee of the Shire who was highly regarded both by Mr Howard and by others who worked with him. All of the witnesses spoke in glowing terms of his competence and dedication. But equally the evidence is that from around the time of the creation of the Yarra Ranges Shire Council, the applicant was experiencing increasing difficulty in coping. Witnesses who worked with him observed the signs of frequent and secret drinking and of working under stress. These difficulties however seem not to have required the applicant to seek medical attention. With the possible exception of treatment from Dr Smyth, the applicant did not seek medical treatment for the matters that now trouble him until he saw Dr Bothwell in mid 2001.
15.We should mention, in this context, that Mr Howard rejected, as do we, the notion that he had “protected” the applicant by finding him work within a limited capacity.
16.Mr Howard left the position of Chief Executive Officer of the Council in November 1998. He was replaced by Mr Robert Hauser who commenced with the Council in February 1999. Mr Hauser had a different perspective to that of Mr Howard on the need for the position occupied by the applicant. He did not believe that the position comprised the right mix of duties. His view was that the duties performed by the applicant could be better allocated to different officers within the Council.
17.The fact of the applicant’s contract expiring in April 2000 gave Mr Hauser the opportunity to restructure the organization in the way that he desired. That reorganization did not allow for a position for the applicant. These matters were communicated to the applicant in a meeting with Mr Hauser and, probably, Ms Jennings, in October 1999. Ms Jennings was, by that stage, the immediate superior of the applicant in the Shire’s organizational plan. At that meeting the applicant was given the notice, apparently required by the employment agreement, that the Shire did not intend to extend his contract when it expired in April the following year.
18.The applicant’s last day at work was in January 2000. Thereafter he used his accrued leave until the expiry of the contract in April 2000. The applicant moved to Queensland with his spouse in about June 2000 and has lived on the Gold Coast ever since.
19.Since moving to the Gold Coast the applicant has been diagnosed with, and obtained treatment for, alcohol dependence and post traumatic stress disorder. Since January 2003, he has been seen, for treatment purposes, by Dr Morris.
The Legislation
20.In order to qualify for disability pension at the “special rate” a veteran must satisfy each of the six criteria in paragraphs (aa), (aab), (a), (b), (c) and (d) of s 24(1) of the VEA. The respondent concedes the matters in paragraph (aa), (aab), (a)(i) and (d) of s 24(1). What remains in issue is satisfaction of paragraph (b) and (c).
21.Those paragraphs are in these terms:
“(1) This section applies to a veteran if:
…
(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;
…”
22.In the context of the question posed by s 24(1)(b) the Commission, and thus the Tribunal, is required by s 28 of the VEA:
“… to have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”
23.In the context of the questions posed by s 24(1)(c) in this case reference needs to be made to s 24(2)(a). It reads:
“(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 …”
24.We should also note that Mr Jarro of counsel, who appeared for the applicant, conceded that the provisions of s 24(2)(b) have no application in the present case.
25.Section 23 of the VEA deals, in a similar way, with the “intermediate rate” pension. One significant difference is that s 23(1)(b) requires that the incapacity from the war-caused condition be such as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. Ms Bowskill of counsel for the respondent conceded that, on the evidence, this requirement was made out.
26.Section 23(3)(a) is relevantly identical to s 24(2)(a).
Discussion
27.Given the way in which the proceedings have been conducted s 24(1)(b), s 24(1)(c) and s 23(1)(c) are in issue. It is convenient to consider first the question of whether s 24(1)(b) is satisfied. We address these issues as at the assessment period i.e. between 30 January 2003 and the date of decision.
Section 24(1)(b)
28.In considering the enquiry raised by s 24(1)(b) we are required to have regard only to the matters set out in s 28 of the VEA. The way in which s 28 impacts upon the question in s 24(1)(b), has been authoritatively considered in Chambers v Repatriation Commission[4] where Moore and Sackville JJ said:
“Thus the ultimate inquiry to which s 28[[5]] is directed is whether the veteran’s war-caused capacity, of itself, has rendered that veteran incapable of undertaking any remunerative activity. It is in relation to this inquiry that s 28 specifies the matters – and the only matters – that are to be taken into account. The ultimate inquiry is not expressed to be whether the veteran’s war-caused incapacity has rendered him or her incapable of undertaking employment of the kinds for which his previous work history provided training or relevant experience. ”
[4] (1995) 55 FCR 9.
[5] The reference to s 28 seems mistaken; presumably it should be a reference to s 24(1)(b).
29.That case is authority for the proposition that the purpose of s 28(a) “is to direct attention to the range of employment opportunities available to the individual, but for his or her disability”[6]. The paragraph requires us to have regard to the applicant’s vocational, trade and professional skills, qualifications and experience. Here, the applicant has had considerable experience in the local government area, starting from a junior clerical position and rising to fairly senior positions.
[6] 55 FCR 9 at 20 (Moore & Sackville JJ, Davies J. agreeing).
30.Paragraph (b) requires us to focus attention on the range of employment opportunities a hypothetical person with the applicant’s skills, qualifications and experience might reasonably undertake[7]. In considering these matters we ought not take a narrow approach. Having regard to the employment history of the applicant we would regard the applicant’s skills, qualifications and experience as yielding a range of hypothetical employment opportunities encompassing essentially clerical work within a local government or state government context, but at least at a medium level. We do not regard it as reasonable for the hypothetical person postulated to undertake clerical work at a very junior level.
[7] Chambers at p20.
31.Finally, by virtue of paragraph (c) we must have regard to the extent to which the impairment actually suffered by the applicant as a consequence of his war-caused conditions has reduced his capacity to undertake clerical work of the type postulated.
32.The determination of that question depends upon an appreciation of the medical evidence available to us. We have the benefit of reports from three specialist psychiatrists – Dr Morris, Dr Katz and Dr Chalk - and from the applicant’s general practitioner since mid-2001, Dr Bothwell. We have, as well, some evidence from the applicant and from his spouse that touches upon the subject.
33.It is convenient to commence with the views of Dr Bothwell who provided three reports – July 2002, March 2003 and January 2006. The applicant places particular reliance upon this passage from the report[8] prepared in March 2003. She said:
“[The applicant] remains quite capable whilst alone in his own home environment. [The applicant] is able to perform basic [activities of daily living] including cooking/cleaning. However, once [the applicant] is removed from his comfort zone, he becomes withdrawn, does not interact with others and has difficulty concentrating and focusing on the issues at hand. [The applicant] becomes highly anxious and stressed in crowds and unfamiliar environments.”
[8] The other reports do not deal with this aspect of the matter.
The applicant also placed reliance upon the fact that the respondent did not require Dr Bothwell for cross-examination. That is, in fact, what occurred however we do not think that in the circumstances of this case the fact that Dr Bothwell was not required for cross-examination has the significance that it might otherwise have.
34.That is so because the applicant, in his Statement of Facts and Contentions lodged with the Tribunal and provided to the respondent, identified in detail the medical reports (and other evidence) intended to be relied upon. The March 2003 report was not identified although it formed part of the s 37 documents. It was in these circumstances that the respondent elected not to require Dr Bothwell for cross-examination. We would not, in these circumstances, regard it as proper to treat the passage of Dr Bothwell’s evidence as being unchallenged, especially where it was contradicted by the opinion of a specialist psychiatrist.
35.Moreover, Dr Bothwell’s report does not directly address the question of the extent to which the war-caused conditions have impaired the applicant’s capacity to undertake remunerative work. The comments made were made in response to a request to describe the effect of the applicant’s post traumatic stress disorder on his ability to cope in basic everyday situations. That seems to us to be a different question to the present enquiry.
36.The next medical practitioner in time was Dr Morris. He saw the applicant first in January 2003 and has treated him since then. He has had in the order of twenty-five consultations with the applicant in that time. In a report dated 12 March 2003 (written after three consultations) Dr Morris noted the applicant’s work history in these terms:
“In 2000 he found that he could not deal with the pressures of work. His psychological symptoms made it difficult for him to complete tasks and respond to time and work pressures. His contract at the Yarra Ranges Council was not renewed in April 2000. He says that this was because his employers felt that he could not cope any further with the position.”
Those comments are significantly at odds with the other evidence in the case, particularly that of the applicant, Mr Hauser and Ms Jennings. Mr Hauser, when asked whether he was aware of “any performance issues associated with” the applicant said “none whatsoever”.
37.Ms Jennings, who worked closely with the applicant from early 1999 onwards, said of him:
“… he had an incredible knowledge and experience that was often drawn upon. He was meticulous in his presentation of information and always very good to work with and I would never had a performance issue with [the applicant].”
38.Dr Morris did, however, confirm that the applicant had told him the matter attributed to him in the 12 March 2003 report. In the same report Dr Morris commented on the applicant’s capacity to undertake work in these terms:
”At the moment [the applicant] is not capable of working. If the treatment of his psychiatric conditions are [sic] successful, then it may be possible for him to return to work in a suitable vocation in a part-time capacity.”
Dr Morris was, however, doubtful that the applicant could ever get back to full-time work. We also have a report from Dr Morris from 13 February 2006. At that time the applicant was in a period of relapse of alcohol dependence/abuse. After describing the applicant’s psychiatric conditions (about which there is no dispute), he continued:
“The combination of these two psychiatric disorders now renders him unemployable for his previous job as an administrator of local government instrumentalities. These disabilities make it difficult for him to work under the constraints required for paid employment of this type involving being supervised, time constraints, deadlines and dealing with the general public and large numbers of co-workers and subordinates.
…
However, when he recovers from this relapse and returns to a more stable state that existed through most of 2005, I would then consider he could work in a part-time capacity from 4-6 hours per week, but certainly no more than 8 hours per week. The duties he could undertake would be of a simple clerical nature, similar to the ones he is doing for his bowls club. He is not capable of returning to a high demand role as an administrator in a local government instrumentality. I do not consider that he is capable of working between 8-20 hours per week in any capacity.”
39.Dr Katz saw the applicant for the purpose of providing a report in May 2002 and in February 2004. In the report provided following the latter of those consultations Dr Katz expressed the opinion that the applicant’s then current psychiatric disorders were preventing him from full-time remunerative employment. That was, he said, particularly due to the applicant’s nervous instability which would affect his reliability and efficiency in the work place. He expected that the applicant might be able to work for up to 8 hours per week, perhaps in a voluntary capacity. In the course of cross-examination the general nature of the evidence of Mr Howard and other evidence complimentary of the applicant’s work capacity was put to Dr Katz. He was not aware of the high regard in which the applicant had been held by his superiors and fellow workers. That information was, he said, at odds with the information given to him by the applicant and his spouse. Had he known that information he would not have drawn the conclusions that he had drawn.
40.Neither counsel explored with Dr Katz the basis upon which he had drawn the conclusions that he had reached regarding the applicant’s capacity for work.
41.Finally we have the evidence of Dr Chalk and his reports of 28 July 2005 and 18 September 2006. In the first of these Dr Chalk expressed the view that the applicant’s psychiatric conditions “would not prevent him from undertaking gainful employment if that was available to him”. His later report expanded on that view and commented upon the contrary view expressed by Dr Morris. His report, particularly from page 4 onwards, contains what we regard as a most useful description of the logic that lead Dr Chalk to his conclusion that the applicant would be capable of undertaking clerical employment up to twenty hours per week. Having listed the elements necessary to undertake work e.g. the ability to comprehend and follow instructions, he said:
“Clearly [the applicant] may have some difficulty with some of these however, it would appear that he has the ability to understand written and oral instructions, ability to maintain his attention and concentration. He shows no deficit in the ability to perform simple and repetitive tasks and although he describes some difficulties in working within a schedule, in my view, there is no reason that he would not be able to attend work on a regular basis and be punctual. I would accept that, given the length of time away from the workforce, he may have some difficulty adapting to that however, in ordinary circumstances, I think that he could work for a half a day.”
In his evidence before us Dr Chalk observed that he considered that the applicant, whilst not able to return to a position equivalent to his former position, “could cope with a couple of staff, but not vast numbers of staff.”
42.The evidence of the applicant was that he provided his services as a volunteer to his bowls club where he worked in a clerical capacity “keeping the membership base up to date and that sort of thing”. In the week preceding the hearing he had worked at that task for about two to two and a half hours which was more than the average. Otherwise he spends his days playing bowls, poking around in the garden, doing odd jobs, housework, shopping and the like. Whilst we regard the applicant as a truthful witness we do not regard him as entirely accurate; rather we think that he has persuaded himself, genuinely but mistakenly, that his condition is much worse than it is.
43.We need also to deal with the evidence of Mrs Peacock. We preface our remarks by observing that we do not suggest for a moment that Mrs Peacock was doing anything other than telling the truth as she saw it. However her evidence was given with such emotion and such theatrics that we find ourselves unable to place any reliance upon it. Mrs Peacock has persuaded herself of the genuineness of her husband’s claim but it is obvious from her evidence that she was not viewing the matter objectively. By way of example, when asked about the changes to her husband’s conditions over the years she said that she had seen no noticeable change at all over the years. Indeed, she said, she was surprised that he was ever able to go to work even from 1967 when he was discharged from the Army after returning from Vietnam. That is a view that is wildly at odds with all of the other evidence before us.
44.In relation to the evidence of her husband of the way in which he fills his day she disagreed with him, saying that he did not do the things that he said other than on an infrequent basis. We have no reason to doubt the reliability of this aspect of the applicant’s evidence and every reason to doubt the reliability of the evidence of Mrs Peacock.
45.We had the opportunity of observing the applicant whilst he gave his evidence. He was able to answer questions directed to him without any apparent difficulty in concentration or recall. He even debated with the cross-examiner, on one occasion, whether a particular question was relevant. He seemed not to be at all flustered by a fairly lengthy and searching cross-examination. There was nothing about his appearance that suggested that he was incapable, as Mrs Peacock suggested, of performing simple daily tasks such as making telephone calls.
46.There is no doubt that the applicant’s capacity to undertake work has been reduced by the war-caused impairments from which he suffers; the issue before the Tribunal is the extent of that reduction in capacity. The contest, in reality, is between the views of Dr Morris who regards the applicant as having, in effect, a complete reduction in that capacity and Dr Chalk who regards the reduction as being by about one half i.e. to the stage of a residual capacity of up to twenty hours per week. We do not regard the evidence of either of Dr Bothwell or Dr Katz as being helpful in determining the issue; the former because she was not asked to address the issue and the latter because of the reservations that he has expressed that are noted above.
47.Before addressing this issue we should make mention of some matters that occurred following the hearing. In the course of his evidence in chief Dr Chalk suggested that there were ethical constraints that would prevent a treating psychiatrist from being able to provide an independent report. Because Dr Morris had not been given an opportunity to comment on this proposition which might be thought to reflect adversely upon his professionalism we permitted the applicant to obtain a further report from Dr Morris[9]. Having considered that report and the evidence of both doctors upon the point we are quite entirely satisfied that Dr Morris has acted with complete propriety in preparing his reports and in giving evidence. As it happens we have reached the conclusion that the views of Dr Chalk are to be preferred however we do not intend any criticism of the professionalism of Dr Morris in doing so.
[9] Marked as Exhibit 41.
48.But, as we have indicated, it is our view that the evidence of Dr Chalk is to be preferred. We reach that conclusion for a number of reasons.
49.First, as it seems to us, the evidence of Dr Chalk demonstrates more apparently than does that of Dr Morris the logic that has lead him to the conclusions that he has reached. Ion that regard we refer to the discussion of his evidence in paragraph [41] above.
50.The second arises from an issue that was canvassed with both Dr Morris and Dr Chalk, that is, the advantages and disadvantages of a treating psychiatrist over a forensic psychiatrist. We accept, as Dr Chalk says, that in the case of a treating psychiatrist there is the possibility of a subconscious loss of objectivity. Dr Chalk explained the matter rather well in these terms:
“If you are treating someone, then you, by virtue of the treatment relationship – it’s a very different relationship from a forensic relationship. A forensic relationship is one where you see the person where you are called upon to take history, make some judgments, and draw some conclusions. Treatment is about allying yourself with someone. It’s about walking in their shoes, for want of a better phrase. It’s about trying to help them change, but also seeing the world from their perspective. Now, you can’t – you cannot be completely independent and treat someone; it doesn’t work”
51.There is an example of that subconscious loss of objectivity in the evidence of Dr Morris. It was his evidence, in his March 2003 report, that after treatment there was a possibility that the applicant could return to part-time work. The applicant has himself acknowledged an improvement since then and Dr Morris also acknowledges an improvement. Yet Dr Morris does not acknowledge any improvement in the applicant’s capacity for work.
52.There is a further reason to be cautious about accepting the views of Dr Morris. That relates to the history recorded by him of the applicant’s departure from work. That history, as we have remarked, is quite contrary to all the evidence before us. There are two possibilities – that the applicant in January or February 2003 provided a wrong history, attributing to his employer a motive for not renewing his contract that was simply not true, or that Dr Morris made an error in recording the history. Either possibility is concerning. In the first case it suggests that the history given was not reliable; in the latter that the history recorded was not reliable. In either event an unreliable history gives us cause for concern about the validity of the conclusions drawn from that history. Were it necessary to reach a concluded view we would conclude that Dr Morris had accurately recorded the history given to him.
53.Finally, as it seems to us, the conclusions drawn by Dr Chalk seem to more closely reflect the fact that up until early 2000 the applicant was undertaking work at a high level of responsibility without any complaints from those who were his immediate superiors, Ms. Jennings and Mr Hauser. On the contrary, they regarded him as an excellent employee. We accept, of course, that there is much evidence that suggests that he was experiencing difficulties however the reality is that the applicant, despite these difficulties, was, in fact, working full-time at an important job at a fairly high level. We have difficulty in reconciling that fact with the notion that by March 2003 he was not capable of working as a consequence of his accepted conditions. We think the reality of the fact of his employment until early 2000 and the accepted conditions from which he suffered is more readily explicable on the basis that Dr Chalk puts forward, that is, that he is capable of working in a medium level clerical occupation for up to twenty hours per week.
54.In addition, Dr Chalk’s views accord more closely with our own appreciation of the capacity of the applicant to give evidence (and be subjected to cross-examination) over a period of time. The applicant was to us, adopting the words used by Dr Chalk, “lucid and clearly able to articulate his difficulties”.
55.Thus, having regard to the matters in s 28 of the VEA we conclude that the applicant’s accepted conditions have not rendered him incapable of undertaking any remunerative work.
56.In light of that conclusion, it is unnecessary for us to consider s 24(1)(c) of the VEA however we should consider the other aspects of the s 24 question against the possibility that our earlier conclusion might be found to be erroneous and because the same questions need be addressed in relation to s 23(1)(c).
Section 24(1)(c)
57.It may be regarded as settled that in considering the s 24(1)(c) issue we are obliged to make a practical decision whether the applicant’s loss of remunerative work is attributable to his war-caused incapacities and not to some other cause or causes and in doing so we are to have “an eye to reality” and be guided by common sense[10].
[10] Cavell v Repatriation Commission (1988) 9 AAR 534 at 539.
58.In Flentjar v Repatriation Commission[11] Branson J (with whom Beaumont and Merkel JJ agreed) identified the issues involved in s 24(1)(c) in these terms:
“In my view the issues before the Tribunal in this case were as follows:
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 question 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?”
[11] (1997) 48 ALD 1 at par [iv].
The first Flentjar question
59.The parties are agreed that the answer to this question is that the remunerative work that the applicant was undertaking was best described as “clerical and administrative work at a middle management level in a public or government context”. That conclusion seems to us to be plainly correct on the evidence. Given that the applicant had spent his entire working life in local government it is proper to confine the remunerative work to work within a government context.
The second Flentjar question
60.In considering this question it seems to us that there is a difference between the remunerative work in issue here and the work considered in the s 24(1)(b) issue. The remunerative work in issue in the s 24(1)(b) question was any work of a clerical nature other than work at the most junior level; the remunerative work in issue here is work at a more senior level.
61.That difference is highlighted by this passage in the evidence of Dr Chalk:
“ ... that job was quite a senior level within local government, and I’m not suggesting that he go back to that level of seniority. But I thought that with the improvement that he had had, that he could return to some form of gainful employment and utilise some of the skills that he had, but probably not at the level that he had utilised them previously.”
Later Dr Chalk spoke of the applicant being able to perform work above a “mundane” level and that he “could cope with a couple of staff, but not vast numbers of staff.”
62.That evidence in particular, and Dr Chalk’s evidence in general, which we accept, leads us to conclude that during the assessment period the applicant was and is capable of undertaking work of the type that the parties agree was the remunerative work that he was undertaking. That is, he was not prevented from undertaking that work by reason of his war-caused conditions. Those conditions would have prevented him from undertaking work at the level at which he was employed at the time of the conclusion of his employment but the evidence of Dr Chalk satisfies us that he was capable of undertaking employment at a lesser level that comes within the scope of clerical and administrative work at a middle management level in a public or government context.
The third Flentjar question
63.But even if we had determined the second question favourably to the applicant we would consider that what was preventing him from continuing to undertake that remunerative work was more than merely his war-caused disabilities.
64.In Repatriation Commission v Hendy[12] the Full Court said of this question that we are 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.”
[12] (2002) 76 ALD 47 at 54-5, par. [37].
65.At the start of the assessment period the applicant was 62 years of age. At that time he had not worked for more than three years. And, as we discuss at greater length below, he had, from a very early stage in his working life, planned to retire at the age of 55 years. In our view these matters, and the last in particular, play a significant part in preventing the applicant from undertaking remunerative work.
The fourth Flentjar question
66.We would answer this question, too, adversely to the applicant. The issue that question four raises is what the applicant probably would have done if he had none of his service disabilities[13].
[13] Repatriation Commission v Smith (1987) 15 FCR 327 at 337.
67.It is helpful, before considering that question in the present case, to have regard to what was said by Dowsett J on this aspect of the matter in the appeal from the earlier Tribunal decision. His Honour said[14]:
“[34] The fourth Flentjar question requires a consideration, not of the veteran’s incapacity, but of whether that incapacity is causing a loss of remuneration. In practice that often requires a consideration of whether the veteran, had he not suffered his war-caused conditions, would have been earning remuneration during the claim period. If a veteran has previously stopped work, it may be necessary to ascertain whether that would have occurred irrespective of his incapacity. Much of the discussion at [29] – [32] of the Tribunal’s reasons concerned this question, although the Tribunal’s language suggests that it was there considering the third, and not the fourth, Flentjar question. It concluded, at [31], that one of the reasons for the applicant’s retirement in 2000 was the availability of his superannuation benefits. The Tribunal inferred from this that by the date of claim, he had retired, with no intention of resuming work. It was said to follow that ‘it was not his war-caused injuries or diseases, alone, which prevented him from continuing to undertake his previous remunerative work …’.
[35] As I have said, the availability of superannuation benefits may have induced the applicant to retire in 2000, but such availability did not prevent him from performing work in 2004. Further, even if he was not incapacitated for work in 2000, he may well have been so incapacitated by 2004. This aspect of the Tribunal’s reasoning seems to reflect a further misunderstanding of s 24 and of the decision in Flentjar.
[36] The Tribunal should have considered whether the applicant would have retired in 2000 or between then and 2004 had he not been suffering the war-caused conditions from which he now suffers, to the extent to which they were then manifest. The applicant claimed that prior to 1997, and until 2000, he coped with his work, but with difficulty. He asserted that Mr. Howard had “protected” him by finding work which was within his limited capacity. It is likely that the Tribunal rejected that assertion. However it did not expressly accept or reject the applicant’s claim that he had difficulty in performing his duties and the suggestion that his efforts to do so caused him to experience difficulties in other aspects of his life. The applicant claimed that as a result of these matters, he decided to retire at age 55 when his superannuation benefits became available. If that claim is accepted at face value, two alternative inferences are open. The first is that the opportunity to retire at age 55, with his superannuation benefits was, itself, attractive to him and therefore contributed to his decision to retire at that time, without regard to his war-caused conditions. Such a view might lead to the conclusion that even in the absence of the applicant’s incapacity, he would not have been working for remuneration in 2004. The alternative inference is that early retirement was of no interest to him as such but offered him an opportunity to escape the difficulties which he was experiencing in his work. In that case, the Tribunal might well have inferred that in the absence of his incapacity, the applicant would have been working for remuneration in 2004. It seems, however, that the Tribunal did not directly address the fourth Flentjar question.”
[14] Peacock v Repatriation Commission [2004] 40 AAR 143 at 153-154.
68.On the evidence, we conclude that what the applicant probably would have done, absent his service disabilities, is to retire at the age of 55, the age where he was able to access his superannuation and to remain retired.
69.The applicant ceased work, in the sense of being no longer in paid employment, in April 2000. He had just turned 55 years. He was not in employment at any time thereafter. He lodged this claim in January 2003.
70.The applicant gave evidence in his statement[15] in these terms:
“The bottom line is I lived and worked to endeavour to retire at 55 to enable me to no longer have to present and continue with this charade – finish work, move interstate away from everyone and everything and have a bit of financial security from the super. This can be explained by one anxiety which had manifested itself over the years, that of seeking financial security.”
When asked when he first formulated that plan he made it plain that he had had that plan from a very early stage of his career. It was a plan that he had had “for some considerable time”, “a very long time”; he went so far as to say that he formed the plan when he was in his 20’s or 30’s. His answer, when asked to confirm what he meant by the words set out above, is relevant:
“Well, am I reading it incorrectly to say that from a very early age that was your intention, to retire at the first available opportunity, that is, 55? – Yes, but I can’t tell you at what stage in my life.”
[15] Exhibit 7.
71.If this was his plan for that length of time then, as it seems to us, the inescapable conclusion is that the applicant would probably have retired at age 55 absent his disabilities. He did not suggest that he decided to retire at age 55 because of difficulties that he was then experiencing as a result of any disabilities. Nor did he suggest that he had planned to resume work after retirement. It seems highly unlikely that someone who has formulated a plan to retire at 55 early in his career would, after retirement, return to employment.
72.There is no evidence that, at the time when this plan must have been formulated, the applicant was experiencing or had experienced, any difficulties that might be attributable to what are now accepted as being war-caused conditions. The first reference in the medical evidence appears to be a notation in the clinical records of Dr Smyth, his general practitioner at the time, dated 26 September 1984 which reads:
“Has been very stressed by work as Shire Secretary.”
The applicant saw Dr Smyth on four subsequent occasions up until April the following year when he was recorded as “not keen to see a psychiatrist.”
73.We should also say that in July 1984 he was treated for epistaxis which he attributed “from a self-diagnosis point of view” to “stress, alcohol and smoking.” He was not able to recall whether any medical person had reached a similar diagnosis and the medical records from the hospital where the applicant was treated are devoid of any reference to the matters relied upon by the applicant. In the circumstances we place no weight upon the applicant’s “self-diagnosis”; it seems to us to be the product of reconstruction and unqualified reconstruction at that.
74.We accept that in the later years of his employment the applicant was troubled by the conditions that now are accepted conditions – alcohol dependence and post traumatic stress disorder – matters remarked upon by some of the witnesses. But the conditions did not affect him sufficiently to require him to seek medical treatment nor, apparently, did they prevent him from obtaining and retaining positions of considerable responsibility within local government. In that regard we note that Mr Perkins, who had a close working relationship with the applicant for a period of approximately 10 years from 1984, said:
“I was also surprised that despite being a veteran Geoff did not display the traits I had seen in other veterans such as short temper, alcoholism and difficulties in maintaining personal relationships.”
75.Thus the applicant did not suggest that he decided to retire at the age of 55 as a consequence of difficulties with his health and the evidence leads us to conclude that his plan to retire at that age was formulated long before there were any evident signs of him having difficulty in coping with his work. If, as we conclude, the applicant formulated a plan to retire at age 55 before he was affected by the disabilities that are now accepted, that is to say, the plan was not formulated as a response to any difficulties occasioned by those disabilities, then we also conclude that he is not suffering a loss of salary that he would not be suffering but for his war-caused incapacities.
76.These conclusions have the result that the applicant does not satisfy s 24(1)(c) in relation to the special rate of pension and accordingly, in our view, the applicant was not entitled to pension at the special rate.
Section 23(1)(c)
77.These conclusions are, as well, sufficient to dispose of the s 23(1)(c) question in relation to intermediate rate of pension. While there are some textual differences between s 24(1)(c) and s 23(1)(c) they are not different in substance and the Flentjar questions fall to be considered again at this level. On this basis we would reach the same conclusions that we had reached in relation to s 24(1)(c) and conclude that the applicant does not satisfy s 23(1)(c).
Conclusion
78.It follows that we would affirm the decision of the respondent made on 3 April 2003.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr G J Maynard, Member
Signed: ......................Signed............................................
Associate, Eleanor O’GormanDates of Hearing 12, 13 and 14 February 2007
Date of receipt of last material 21 March 2007
Date of Decision 5 April 2007
Counsel for the Applicant Mr N Jarro
Solicitor for the Applicant Haney Lawyers
Counsel for the Respondent Ms H Bowskill
Solicitor for the Respondent Australian Government Solicitor
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