PETER OLDE and REPATRIATION COMMISSION

[2010] AATA 184

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 184

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0637

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER OLDE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date18 March 2010  

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides that Mr Olde should be paid the special rate of pension. 

..................[sgd]..........................

Ms N Bell, Senior Member   

CATCHWORDS – Veterans’ entitlements – special rate of pension – post traumatic stress disorder – inability to undertake remunerative work – contributory factors to the ceasing to undertake remunerative work

Veterans’ Entitlements Act 1986

Cavell v Repatriation Commission (1988) 9 AAR 534

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Alexander (2003) 75 ALD 329

Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      Peter Olde receives a disability pension under the Veterans’ Entitlements
Act 1986 in respect of accepted conditions of post traumatic stress disorder, bilateral sensorineural hearing loss and ischaemic heart disease.  Mr Olde currently receives 70% of the general rate of pension. He is seeking the higher special rate of pension.

2.      Mr Olde sold his family piano removal business in 2003 and has not been employed since then.  He begun running the business with his father in the 1970s. After his father’s death in 1986 Mr Olde continued to run the business on his own account, but with the assistance of a manager. The business expanded over the years and prospered, particularly in the 1980s.  After the second of his managers retired Mr Olde’s sister, Ms Diane McLaughlin, joined the business, initially as his secretary and assistant.

3.      

As time went on Ms McLaughlin took on more and more responsibility as

Mr Olde became more and more anxious and affected by his psychiatric condition.  Eventually she decided to leave the business in 2003 and shortly after that Mr Olde sold the business.

4.      Section 24 of the Act sets out the requirements for eligibility for special rate of pension.  In summary, they are:

a)        a degree of incapacity from war caused injury or disease of at least 70%; and

b)        total and permanent incapacity from war caused injury or disease; and

c)        by reason of incapacity from war caused injury or disease alone, the veteran is prevented from continuing to undertake remunerative work that he was undertaking and because of that is suffering a loss of salary or wages that the veteran would not be suffering if he was free from that incapacity.

5.      The Repatriation Commission concedes that a) and b) above are satisfied.  I agree.

6.      

However, the Commission contends that it is not incapacity from war caused injury or disease alone that gives rise to Mr Olde’s loss of salary.  While the Commission does not contend there is any other disease or injury at play, or that

Mr Olde has not suffered a loss of salary, it does maintain that the departure from the business of Ms McLaughlin contributed to his decision to sell the business and cease work.  In this way, the Commission contends, Mr Olde’s war caused injury or disease was not the only factor preventing him from continuing to work.

7.      Therefore, the sole issue for me to consider is whether Mr Olde ceased to work by reason of his war caused injury or disease alone.

evidence

8.      Mr Olde described to the Tribunal a decreasing effectiveness as a manager of his business from the mid 1990s.  He described his increasing difficulty in dealing with clients, answering telephone calls and generally dealing with the demands of the business.  He described his increasing reliance on his then manager and later on his sister as manager and his withdrawal from the business over the ensuing years.  He said that by 2002 his sister was “virtually running the business”.  He, on the other hand, was spending a few hours a day at the business, just walking around, chatting to people – not necessarily about the business.

9.      Mr Olde said that his withdrawal from the business was accelerated in 2001 after he had a blockage of the circumflex artery and required a stent.  He said he became very concerned about his stress level and began to think he was unable to continue with the business.  This was so even though his sister was doing all the work for him.  He was “stalled”, however, by the thought of all the employees dependant on him.

10.     Mr Olde said that shortly after his sister gave him six months notice of her intention to leave, a man for whom the business had done some work came into the office and said: “When are you going to sell me your business?” Mr Olde replied immediately: “It’s yours.”  The man ultimately bought the business and, after a period of changeover, Mr Olde ceased to be involved at all.

11.     Mr Olde was not a good historian.  In a statement filed with the Tribunal and in his evidence to the Veteran’s Review Board, he gave slightly different information about the hours he had worked and his decision to sell the business. In his statement Mr Olde said:

“In early 2003 my sister decided to go to live in Queensland with her husband and retire.  She gave six months notice.  I felt no bitterness at her decision as she had been a complete support to me.  I had to make a decision about whether to continue with the business.  I felt my health was failing, especially my heart.  I was becoming increasingly prone to panic in the face of the ringing phone.  Whenever the phone rang, I would start, even at home.  The constant worry, never ending difficulties requiring decisions, the workload, increasingly difficult staff, my inability to focus and increasing need to escape the pressures, my anxiety state, the state of my heart all weighed heavily in my mind before I came to the decision to sell up and retire.  I came to realise I was not in a fit state to continue work on my own or with the staff available to assist without Diane…”

12.     In his evidence to the Veterans’ Review Board Mr Olde said, in answer to the question whether he would have continued with the business if his sister had continued also: “Possibly.  Yeah, I think so.”  This followed an explanation by him that his sister and other staff had shielded him from having to deal with customers and he knew that when she left he would no longer be shielded.  He also noted, later in his evidence to the Veterans’ Review Board, that difficulties with staff, including stealing, were his problem and his responsibility as the owner of the business, rather than his sister’s, and he found he was not able to deal with it at all.

13.     Mr Olde also said in his evidence to the Tribunal that it is only since selling the business that he realised that he had post traumatic stress disorder and has begun to understand the nature of the difficulties he had with the business. 

14.      Notwithstanding the inconsistencies between Mr Olde’s evidence to the Tribunal and to the Veterans’ Review Board, I consider him a credible, if somewhat confused, witness.  I consider it significant that it was not until some time after he sold the business that he was diagnosed with post traumatic stress disorder.  I accept his evidence that at the time the business was still owned by him, he had no insight into the condition he suffers from.  It would not be surprising if his perspective and his recollection of events has changed over time and with his evolving understanding of his own condition.  I note that psychiatrist Dr Anthony Dinnen reports that Mr Olde stated that he did not consult a psychiatrist until 2006.  I do not find the evidence Mr Olde gave to the Tribunal to be self serving or tailored to the requirements of the legislation.  I accept his oral evidence.

15.      

In her statement, Ms McLaughlin confirmed Mr Olde’s description of his withdrawal from the business.  She said that by 1997 there was no real point in

Mr Olde being there and by 2000 he either was not there at all or he would be at work but contributing nothing.  Ms McLaughlin said she was virtually running the business by herself and when Mr Olde began to have heart problems she avoided telling him about any issues with the business unless they were of major concern.  She said he was easily irritated and by then had given her control of wages.

16.     

Dr Dinnen recorded a history that was in accordance with the evidence

Mr Olde gave to the Tribunal.  Dr Dinnen stated, in his report of 17 August 2009:

“He worked in the business from 1971 to 2003 but gradually became disengaged.  He relied on his managers and his sister who was doing the work.  He didn’t do very much at all.  He would come in late and go home early.  The business was static.

The situation was brought to a head when his sister moved to Queensland.  He would then have to deal with the accounts, clients and staff and he couldn’t do it.  He sold the business as fast as he could.  He was greatly relieved.”

consideration

17.     The Commission referred me to the judgment in Repatriation Commission v Hendy (2002) 76 ALD 47 as authority for the proposition that, in determining whether a veteran’s ceasing to work was by reason of a war caused condition alone, a 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. I note that Hendy concerned the effect of another, non war caused condition (arthritis of the knees) on the veteran and his ceasing to work.  The case was not concerned with a work based event such as the departure of a manager.  Although other non medical factors were mentioned in the judgment as being of a kind that should be taken into account in the context of section 24(1)(c), they were all external to the common incidents of a workplace (recent work experience, time out of the workforce, increasing age).

18.     I was also referred to the Federal Court’s judgment in Repatriation Commission v Alexander (2003) 75 ALD 329 in which Spender J stated:

“If non service related conditions were a factor in preventing Mr Alexander from continuing to undertake remunerative work, albeit those conditions were ‘of secondary importance’, the ‘alone’ requirement of section 24(1)(c) would not be satisfied.” 

Again, the judgment was concerned with non war caused medical conditions and not with factors arising out of the inability to perform the remunerative work itself. 

His Honour characterised section 24(1)(c) as being concerned with causation and cited the judgment of Branson J in Flentjar v Repatriation Commission (1997)

48 ALD 1 in which her Honour framed the question posed by section 24(1)(c) to be:

“…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?”

19.     I also note Spender J’s reference to the judgment of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534, and in particular the following passage (at 538):

“ … the phrase used by the tribunal, to which objection is taken,  involves an almost scholastic insistence upon analysis of the concept of singularity. 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.”

20.     The judgments in Hendy and Alexander deal with factors that were clearly independent of the war caused diseases or injuries concerned.  They both dealt with separate and distinct non service related injuries, each of which had its own effect on the veteran’s ability to continue in remunerative work.  However, in the current application before the Tribunal, the factor identified by the Commission as contributing to Mr Olde’s inability to continue is a commonplace event in business;  managers of businesses come and go and owners of businesses adjust to these commonplace events. Mr Olde’s post traumatic stress disorder was an obstacle to that necessary adjustment.

21.     

The view urged on me by the Commission is of the kind described by

Burchett J in Hendy as “an almost scholarly insistence on analysis of the concept of singularity”.  It is artificial to view the links in a chain of causation in isolation.  The Commission would have me consider the departure of Ms McLaughlin in isolation of the causes of his dependence on her in the first place.

22.     I note the Commission’s concessions, in its Statement of Facts and Contentions, that:

·had Mr Olde not suffered from his war caused post traumatic stress disorder, he could have coped with taking on a new employee to assist in the business and could have managed the training involved; and

·if Mr Olde had not suffered from post traumatic stress disorder, he would not have come to place so much reliance on his sister in the running of the business.

23.     Notwithstanding these concessions, the Commission insists that the departure of Ms McLaughlin and its effect on Mr Olde’s ability to continue with the business was a factor separate from his war caused medical condition and one that intervened in the chain of causation so as to independently prevent him from continuing to work.

24.     

I am not persuaded by this submission.  I think the better view is that

Mr Olde’s inability to continue in the face of the departure of a trained and experienced manager was, rather, a feature and effect of his post traumatic stress disorder.  It is artificial and against the commonsense urged by Burchett J to draw out this event (an event that most business owners must face and indeed on his evidence Mr Olde had successfully faced in the past) and characterise it as an independent factor preventing him from continuing to work.  It did not prevent him from working so much as it exposed his inability to continue work, that inability being the undisputed result of his post traumatic stress disorder.  The effect of his sister’s departure was that she would no longer be there to do the things he could no longer do due to his post traumatic stress disorder.  Ms McLaughlin was an ‘enabler’, in the best sense.  Her withdrawal is no more a factor in preventing him from continuing than would be the withdrawal for some reason of enabling medication.  As Dr Dinnen said, the departure of Ms McLaughlin simply brought things to a head.

25.     On this basis I conclude that Mr Olde ceased to work by reason of his war caused injury or disease alone.

26.     There was some argument about the identification of the remunerative work that Mr Olde was undertaking.  The Commission submitted that the remunerative work that Mr Olde was undertaking was managing a piano removals business or possibly simply management of a business. Mr Olde submitted that his remunerative work was indeed managing a piano removals business, but that it should be kept in mind that it was a small business and required him to be involved in its administrative and financial affairs and to deal with clients and staff.  As an alternative argument, Mr Olde submitted that “the remunerative work that he was undertaking” was the work he carried out after he took over from his father in the mid 1970s until the mid 1990s when he began to transfer responsibility to his sister. It was then, he submitted, that he ceased to undertake that remunerative work.

27.     While there is evidence from Mr Olde and Ms McLaughlin to support this argument, it is unnecessary for me to determine it given the conclusion I have reached above.

decision

28.     The decision under review is set aside and instead the Tribunal decides that Mr Olde should be paid the special rate of pension.  The date of effect of this decision is 13 November 2007.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell

Signed:...........................[sgd]................................................
  Associate: Lloyd Doherty

Date of Hearing  22 December 2009
Date of Decision  18 March 2010
Date of written reasons  18 March 2010

Representative for the Applicant  Mr Craig Colbourne, Barrister
Instructed by Mr Greg Isolani of KCI Lawyers 

Representative for the Respondent                  Mr Adrian Crowe, Department of Veterans’ Affairs Advocacy Section