Priest and Repatriation Commission

[2004] AATA 529

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 529

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/94

VETERANS' APPEALS  DIVISION		)
Re		MICHAEL JOHN PRIEST

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date25 May 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - general rate - special rate - bilateral sensori-neural hearing loss - post-traumatic stress disorder - alcohol dependence - diabetes mellitus - gastro-oesophageal reflux disease -  peripheral neuropathy - Raynaud’s disease - disability rating - lifestyle rating - remunerative work - continuing inability to work.

Legislation:

Veterans' Entitlements Act 1986 – s24

Guide to the Assessment of Rates of Veterans' pensions (Fifth Edition)

Authorities:

Re Freeman and Defence Force Retirement and Death Benefits Authority (1985) 8 ALN 97

Re Easton and Repatriation Commission (1987) 12 ALD 777

Cavell v Repatriation Commission (1988) 9 AAR 534

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Hendy (2002) FCA 424

Re Graham and Repatriation Commission (2004) AATA 208

REASONS FOR DECISION

25 May 2004 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1.      This is an appeal against a decision of a delegate of the Repatriation Commission dated 18 September 2002, subsequently affirmed by the Veteran’s Review Board (VRB) on 7 April 2003, whereby the applicant’s pension was continued at 100 percent of the General Rate.   The applicant seeks pension at the Special Rate.

Time Limits

2.      All steps in this matter having been taken within the prescribed time limits, if the applicant succeeds in his appeal, payment would operate from 7 February 2002.

Issue

3. The issue in this case is whether the applicant is entitled to receive either of the income related rates of pension provided for by ss23 and 24 of the Veterans’ Entitlements Act 1986  (“the Act”).

Standard of Proof

4. The Tribunal must decide on the balance of probabilities and to its reasonable satisfaction, pursuant to s120(4) of the Act.

Background

5.      Michael John Priest was born in Hobart on 25 February 1948 and after completing a high school education was employed as an apprentice butcher, fisherman and junior postal officer prior to enlistment in the Australian Army on 1 December 1970.   Following initial training and qualification as a technical storeman he was posted to Anzuk Signals Regiment in Singapore on 3 November 1971.   He was married and his wife was permitted to join him, a daughter being born in March 1972.

6.      On 1 August 1972 he was attached to the Army ship John Monash, sailing to Saigon, Vietnam via Vung Tau.   He was told he would be on a secret mission and issued with a rifle in poor condition, but the intended role was not revealed.   He was in Vietnam for only twelve days, but at the time Australian Forces were being withdrawn so he and fellow Australians were dependent upon American Forces for protection.   Although he was never engaged in close combat he claims to have experienced severe stressors, including a pistol being held to his head by a south Vietnamese police officer and being rendered concussed and deaf by a scare charge going off besides the ship immediately adjacent to where he was sleeping.   Because of such claimed stress he took up smoking and has not stopped since.

7.      On discharge from the Army he was employed by Australia Post as a delivery supervisor from 1974 to 1994 and during that period suffered a number of disabilities which he attributed to war-caused conditions.   He had a drinking problem which resulted in several vehicle crashes, he had disturbed sleep and nightmares resulting in irritability and clashes with other people, he had panic attacks as well as physical problems such as hearing and reflux difficulties.   His marriage broke up in 1992 and he felt everything was falling to pieces.

8.      In 1991-92 he was notified of intended career structure changes within Australia Post, whereby staff had to “requalify” for positions.   He says he abandoned a training course because of his disabilities and therefore failed to requalify; retaining his rank but being shifted from place to place as need arose.   Eventually he was notified as being surplus to requirements and to be placed on an unattached list.  A union representative told him that if he acknowledged this, another position would be found for him, but he was made redundant the same day.

9.      The veteran claims he was only 46 at the time and anxious to remain in employment, so immediately registered with the CES (Commonwealth Employment Service).   He was offered a job with PMR Quarries, but after few incidents there, was sacked.   He made other attempts to gain employment, but these often failed, because potential employers discovered he was alcohol dependent, with other disabilities requiring medication.   He last sought work about 1999, when he lodged a claim for disability pension, being granted 100 percent of the General Rate from 14 December 2000.

10.     The following war-caused conditions were accepted:

·     Bilateral sensori-neural hearing loss

·     Diabetes mellitus

·     Post-traumatic stress disorder (PTSD)

·     Alcohol dependence

·     Gastro-oesophageal reflux disease

·     Irritable bowel syndrome

11.     On 7 May 2002 the veteran lodged a further claim for disabilities he described as diabetic peripheral neuropathy and Raynaud’s disease.   A delegate of the Repatriation Commission determined on 18 September 2002 that these conditions were war-caused with effect from 7 February 2002 and pension was continued at 100 percent of the General rate.

12.     Mr Priest lodged an application for review of the decision continuing pension at 100 percent of the General Rate on 21 November 2002 and this was considered by the VRB in Hobart on 7 April 2003.   The Board decided to affirm the decision under review and the veteran then sought review by the Administrative Appeals Tribunal on 22 May 2003.

The Initial Decisions:

13.     The original decision-maker in December 2000 considered whether Mr Priest was entitled to pension at the intermediate or special rate, but decided he did not qualify on a number of grounds:

(a)The veteran did not cease work because of his disabilities alone, having accepted a voluntary redundancy.

(b)Evidence on file suggested that the veteran had not genuinely sought further work since leaving Australia Post in 1994.

(c)There was no evidence of attempts to remain in the workforce, such as seeking counselling, training or registering for employment.

Similar reasons for refusal of the intermediate or special rate were cited by the decision-maker who considered further disabilities in September 2002.

14.     At the VRB hearing on 7 April 2003, the applicant and his wife gave evidence, detailing events in Vietnam; disabilities suffered and contended that such disabilities had prevented him from engaging in remunerative employment.   After considering all available evidence the VRB concluded there was no contemporaneous evidence that conditions accepted as war-caused were involved in him being offered and accepting a redundancy from Australia Post in July 1994.

15. The VRB also noted claims by the veteran that he had subsequently actively sought work, but had been unsuccessful. The VRB decided there was no documentary evidence to support this claim and although it accepted the opinion of a Dr Booth (the veteran’s GP) that he could no longer work, they were unable to find Mr Priest met the provisions of s24(2) of the Act. For these reasons they affirmed the decision under review i.e. that Mr Priest should continue to be paid disability pension at 100 percent of the General Rate.

The AAT Hearing

16.     At the AAT hearing conducted in Hobart on 28 April 2004, the applicant was represented by Mr Richard Howroyd of counsel and the respondent by Mr Michael Castle.

17.     After a brief opening submission by counsel, Mr Priest was affirmed and explained in detail his Army service, current disabilities and experience in trying to obtain employment after leaving Australia Post in 1994.   He claimed to have been forced into accepting a redundancy and admitted that his alcohol dependence and other symptoms such as irritability had tended to dissuade potential employers from accepting him, even though he had sincerely sought work.   He had been forced to seek psychiatric treatment and now pursued this on a regular basis.   He still suffered PTSD, anxiety attacks and sleep problems including nightmares.   His second wife was understanding and helpful, but his problems remained.

18.     Under cross-examination by Mr Castle for the respondent, he repeated his claim that the redundancy from Australia Post was taken under duress.   He cited examples of his subsequent search to obtain work in country hotels, the fishing industry and Hobart industrial plants and indicated some letters and a diary supported his claim of actively seeking employment.

19.     Mrs Anita Priest was then sworn as witness, supporting her husband’s contentions, noting that he genuinely wanted work but was so depressed and alcohol dependent that few prospects existed.   She considered Dr Matthews psychiatric counselling had been useful, but her husband remained anxious and still had trouble sleeping.

20.     Dr Jacob Matthew, consultant psychiatrist, was sworn and stated that Mr Priest’s physical and mental condition had markedly deteriorated since an earlier assessment report dated 9 April 2001.   The veteran’s diabetes was now more severe and he suffered peripheral neuropathy and foot drop, with loss of sensation in lower limbs.   He remained anxious and depressed, requiring psychiatric treatment.   His alcohol consumption and heavy smoking had increased, despite specialist treatment for such conditions.    It was likely the veteran had suffered PTSD at the time he was employed by Australia Post, although it was not possible to say whether this was the sole or significant reason for termination of employment.   Mr Priest’s anxiety and depression would have been apparent to anyone interviewing him for employment.

21.     Under cross-examination Dr Matthew stated that the applicant’s PTSD and alcohol dependence would severely restrict his employment opportunities and if he gained an appointment it was likely he would experience difficulty in coping and responding to particular situations.

22.     In closing submissions counsel for the applicant argued that Mr Priest had been forced into redundancy at Australia Post, it was not really voluntary and was attributable in the main to his war-caused disabilities.   Although his maladies left him in a situation where employment was unlikely, he had genuinely sought work for several years after leaving Australia Post.    His disabilities were the ongoing and substantial cause of failure to achieve that goal.

23. Counsel for the respondent said that Mr Priest’s circumstances failed to meet the criteria set out in s24 of the Act. It was not war-caused injuries alone that forced him to leave Australia Post and if he had remained, there were alternatives within the organisation. While medical evidence must be accepted, it was up to the Tribunal to decide whether his search for subsequent employment was adequate or not. Although some evidence existed, it was tenuous and insubstantial, so speculation remained about Mr Priest’s claims.

Analysis

24.     As this is a de novo review, the Tribunal must stand in the shoes of the original decision-maker, examining all evidence anew, noting statutory provisions and any relevant case determinations.

25. The relevant legislation is ss23 and 24 of the Act and the Guide to Assessment of Rates of Veterans’ Pensions – Fifth Edition (the Guide).

26. The veteran has not yet reached the age of 65 years and has a disability rating of at least 70 percent, thus it is s24 of the Act which is pertinent. Section 24 provides as follows:

(1)

“(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d) section 25 does not apply to the veteran.

(2)       For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”

27.     The fundamental questions to be asked about the applicant, Michael John Priest, are whether the veteran is totally and permanently incapacitated by war-caused disabilities alone, or whether such disabilities prevent him from engaging in remunerative employment.   Causation between his service conditions and claimed disabilities must be demonstrated.

28.     It has been claimed before the Tribunal that Mr Priest voluntarily accepted a redundancy from Australia Post, thus it was not war-caused disabilities alone which caused him to quit employment.   While this may be correct, the applicant has argued that he only accepted the redundancy under duress and no other cause of action was open to him.   This is not a totally persuasive argument,  since he could have requested reassignment to other kinds of duties within Australia Post; equally it is clear his alcohol dependency and failure to requalify for his substantive post were significant factors leading to redundancy.

29.     The VRB noted that Mr Priest claimed to have sought employment immediately after leaving Australia Post, but the VRB considered there was little documentary evidence to support such a contention.   The current Tribunal notes the existence of limited evidence Mr Priest did seek employment between 1984 and possibly 1998, but essentially on an intermittent basis and with no attempt to seek retraining or employment other than on very basic tasks.   Given his age and mental and physical condition at the time, it is reasonable to conclude his disabilities probably were a significant causative reason for failure to secure employment.  Dr Matthews evidence indicates the situation is now worse and it is unlikely Mr Priest could work again.

30. In weighing all evidence before it the VRB concluded there was no contemporaneous evidence that the conditions currently recognised as war-caused were implicated in any way in the veteran’s being offered, and his acceptance of, redundancy. The Board found that the veteran ceased employment in July 1994 for reasons other than his war-caused disabilities. The VRB further noted there was no documentary evidence that inability to achieve employment was related to claimed war-caused disabilities and were therefore unable to find the veteran satisfied provisions of s24(2) of the Act.

31. Having noted these conclusions, the Tribunal has considered all evidence anew, including provisions of s24(1) and 24(2) of the Act and a number of relevant case determinations.

32.     In considering whether pension at the special rate should be granted, considerable emphasis is place on the phrase “of itself alone”, requiring clear demonstration that war-caused disabilities alone are the cause of loss of employment or earning capacity.  See, for example Freeman v DFRDBA (1985) 8 ALD 97; Easton v Repatriation Commission (1987) 12 ALD 777 or more recent cases such as Flentjar v Repatriation Commission (1997) 48 ALD 1 and Repatriation Commission v Hendry (2002) FCA 424. The Tribunal is not permitted to consider the state of the labour market, but can take into account a few non war-related factors, such as injuries preventing continuation in specialised occupations.

33.     As Deputy President Jarvis said in Graham and Repatriation Commission (2004) AATA 208, following analysis of Federal Court decision such as Flentjar and Repatriation Commission (1997) 48 ALD 1 and Cavell v Repatriation Commission (1998) 9 AAR 534:

“The word alone as it appears in section 24(1)(c) requires a practical decision as to whether the veteran’s loss of remunerative work is attributable to his or her service related incapacities and not something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran’s case of pension at the special rate.”

34.     In Re Hendy it was recognised that all factors which might prevent an individual continuing their normal work should be taken into account, but the Tribunal was required to determine whether it was the veteran’s war-caused injuries or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.

35. Turning more directly to Mr Priest’s situation, it is clear the applicant meets the criteria specified in s24(1)(a) and (b) of the Act, in so far as not having reached the age of 65 years and having a degree of disability of at least 70 percent, but the query is whether the veteran’s disabilities are of such a nature of itself alone to render him incapable of undertaking work for periods aggregating more than 8 hours per week.

36. The evidence before the Tribunal is that Mr Priest accepted a redundancy from Australia Post on a voluntary basis (albeit he claims it was under duress), but there does not appear to be any medical or other evidence the redundancy was directly related to his disabilities alone. He failed to requalify for his substantive post or seek alternative employment with Australia Post and also experienced car accidents probably attributable to alcohol dependency at the time. The VRB was unable to find any contemporaneous evidence disabilities were the sole cause of redundancy, indeed they concluded the applicant ceased unemployment in July 1994 for reasons other than disabilities alone. The Tribunal has re-examined the evidence and agrees with this assessment; in other words Mr Priest’s situation fails to meet the criteria specified in s24(1) of the Act.

37. It is now necessary to consider whether the veteran’s situation meets provisions of s24(1)c) and s24(2) of the Act. Here the situation is somewhat ambiguous. There is limited documentary evidence Mr Priest did made some attempt to gain employment after his redundancy from Australia Post, but his efforts appear to have been intermittent and there is no indication he sought retraining or educational qualifications which might have enhanced prospects. Dr Matthews has speculated that alcohol dependence and PTSD are likely to have limited his prospects and the Tribunal accepts this as a realistic assessment.

38. On the other hand factors identified by Dr Matthew in his report of 9 April 2001 were taken into account by the delegate of the Repatriation Commission in September 2002 and the VRB in April 2003, in deciding that pension should be continued at 100 percent of the General Rate and not at the Intermediate or Special Rate. Having considered the evidence anew the Tribunal concurs with this assessment and has decided on the balance of probabilities the veteran fails to satisfy the provisions of s24(1)(c) and s24(2) of the Act.

39. The Tribunal has also considered whether Mr Priest qualifies for pension at the Intermediate Rate pursuant to s23 of the Act. After further re-examination of the evidence the Tribunal has decided on the balance of probabilities he does not do so, having left Australia Post for reasons other than disability alone and there is no evidence of capacity for or undertaking part-time work of more than 20 hours per week after that time.

40.     The decision under review is affirmed.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  28 April 2004
Date of Decision  25 May 2004
Counsel for the Applicant         Mr R Howroyd
Solicitor for the Applicant           
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Department of Veterans' Affairs