Pritchard and Repatriation Commission
[2000] AATA 1129
•20 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1129
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/758
VETERANS' APPEALS DIVISION )
Re ROBERT McNEILL PRITCHARD
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member
Date20 December 2000
PlaceBrisbane
Decision The Tribunal affirms the decision to continue the Disability Pension of Robert McNeill Pritchard at 100% of the General Rate pursuant to the provisions of the Veterans' Entitlements Act 1986.
...............(Signed)..............................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
VETERANS' AFFAIRS - prevented from continuing to undertake remunerative work – mixture of war-caused and non war-caused factors
Veterans' Entitlements Act 1986: s24
REASONS FOR DECISION
20 December 2000 Mr. D.W. Muller, Senior Member
This is an application by Robert McNeill Pritchard for review of a decision to continue his disability pension at 100% of the General Rate pursuant to the provisions of the Veterans' Entitlements Act 1986 (the Act).
Mr. Pritchard contends that he qualifies for the Special Rate pursuant to section 24 of the Act, the relevant parts of which provide:
"24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i) the degree of incapacity of the veteran from war-caused injury 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) …. ; 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"
The relevant history of this matter is as follows:
(i)Mr. Pritchard was born on 9 July 1936.
(ii)He attended school until he was fifteen years old.
(iii)At fifteen years of age he became an apprentice boiler maker. He completed his apprenticeship over the following 5½ years.
(iv)His apprenticeship was interrupted when he was 19 years of age by National Service which he did for 90 days.
(v)He then worked as a boilermaker at the New South Wales Railways (four months), at a firm of civil engineers (ten months) and B & W Steel, Wollongong (three months).
(vi)He then worked as a labourer at the Atomic Research Facility, Lucas Heights.
(vii)After he completed his National Service training, he spent four years as a part-time member of the Citizens' Military Force (CMF).
(viii)He joined the Regular Army on 9 September 1959 as a Blacksmith Welder in the Engineers Corps.
(ix)During his time in the Army (21 years) he was posted to ten different locations including postings to Australian bases, Papua New Guinea, Singapore and South Vietnam.
(x)He spent practically all of 1969 in Vietnam. He was a Combat Engineer at Nui Dat and he was also stationed at Xhan Loc. He went to South Vietnam as a Sergeant and was promoted to Staff Sergeant.
(xi)His duties as a Combat Engineer were to travel to Fire Support Bases where he supervised demolition of arms caches and related tasks. In addition to the demolition work, he was involved in occasional construction work (for example construction of a two hundred metre stretch of road, erection of a windmill and construction of a number of low grade buildings).
(xii)Throughout his time in South Vietnam the places where he was stationed were regularly mortared, at least three times per week. It was very shortly after his stint at Xhuan Loc that he experienced severe headaches. His headaches at that time would last four to five days and would restrict him to simply lying on his bed. He did not take any medication for those headaches until eventually he went to the field ambulance in late August or early September 1969 when he was given a course of a tablet a day over four days. He does not know what was in those tablets but the course cured the particular headache at the time and he then remained free of very severe headaches for a period of around twelve months or so after that.
(xiii)During his tour of South Vietnam he witnessed some traumatic and horrific incidents.
(xiv)He was discharged from the Army on 8 September 1980 by which time he had been promoted to the rank of Warrant Officer.
(xv)After leaving the Army he joined the Army Reserve as an Artificer Sergeant Major for Technical Support Group RAIME with Four Transport in Townsville. This Army Reserve activity was part-time involving one night per week with regular weekend duties and an annual camp. During his time with the Army Reserve he experienced occasional headaches and he believes that he also had overly aggressive reactions to people, surroundings and circumstances.
(xvi)In the first two years after he left the Army he had the following jobs.
Neilsen Toyota as a Yardman for four months;
Unipart as a Spare Parts Salesman for one month;
Townsville Trade Waste as a Rubbish Truck Driver for two months;
Mundingburra Police Station as a Cleaner for four months;
(xvii)Between 25 January 1982 and 8 July 1996 he worked at a local State School (both primary school and pre-school) as a Janitor Groundsman. His duties at the State School, in a five day week, included:
Changing lightbulbs;
Checking clocks;
Moving furniture;
Mowing – using hand mower, ride-on mower and tractor (often this mowing occupied anything up to four days of each five day week);
Watering – using hoses, underground hoses and an underground irrigation system (two inch hoses were used and had to be physically dragged, or wheeled in a cart, into position);
General garden maintenance;
Repairs – to the irrigation system, chairs, tables;
Occasional welding – goalposts;
Emptying refuse bins – a daily task until wheelie bins were introduced at which time the bins were emptied twice per week.
(xviii)Throughout his life he has been a keen sportsman. He has participated in Australian rules, tennis, squash, rugby league, rugby union, golf, fishing, water polo, swimming, boxing, hockey and bicycle racing. After South Vietnam he played squash frequently and some golf. From 1979 he played baseball until 1993 when he had reached fifty-seven years of age. Up until and including 1998 he coached baseball. In 1998 his baseball coaching occupied about two hours training on a Wednesday evening and then two to three hours on a Saturday afternoon for the games. He is currently President of the Townsville Junior Baseball Association.
(xix)He has been married twice. His first marriage lasted four years. His second marriage has lasted 36 years and produced four children, with whom he has a close relationship.
(xx)He suffers from diabetes mellitus which was first diagnosed in 1982. He believes that he had some of the symptoms of diabetes as early as 1977 and possibly dating back to his days in Vietnam.
(xxi)In the early 1990s, he made enquiries at a branch of the Department of Veterans' Affairs (DVA) about the possibility of being granted a pension because he was having severe headaches and he was generally irritable and run down. He says that he was told that he could not get a pension until he turned 60 years of age. He gave evidence to the Tribunal that although he was not feeling well, he battled on with his job at the State School for about eighteen months prior to his 60th birthday and then resigned on the day before he turned 60, that is 8 July 1996. He subsequently applied for and was granted the Service Pension.
(xxii)Two days after he left the State School job, that is, on 10 July 1996, he stubbed his toe on his right foot, whilst working in a shed in his back yard. A bruise developed which prevented blood flow; circulation problems developed in his leg; he had a by-pass graft in his leg in September 1996; he developed an infection, osteomyelitis and a danger from gangrene. His right leg was eventually amputated below his right knee in November 1996. He now wears a prosthesis which he has had since February 1997. He has been proficient at using the prosthesis since July 1997. He still potters about his home, doing gardening and odd jobs. He was still able to coach baseball with his prosthesis.
(xxiii)He was first diagnosed as suffering from post traumatic stress disorder (PTSD) by Dr. Rogers, psychiatrist, in 1997. He had been referred to Dr. Rogers by his general practitioner, Dr. Hickey. His PTSD has been accepted as war-caused pursuant to the provisions of the Act, based on his traumatic experiences in Vietnam. He is said to have been affected by PTSD since 1969.
(xxiv)He has the following "service-related disabilities" and "non-service related disabilities".
SERVICE RELATED DISABILITIES NON-SERVICE RELATED
DISABILITIESMuscle Contraction Headaches Refractive Error
Headaches Presbyopia
Chronic Solar Skin Damage Diabetes Mellitus
Squamous Cell Carcinoma Hypertension
(NSR) Amputation Below Right Knee
Post Traumatic Stress Disorder
Bilateral Sensori-Neural HearingLoss with Tinnitus
Psychoactive Substance Abuse or
Dependence
(xxv)He is in receipt of a Disability Service Pension of 100% of the General Rate with effect from 13 July 1997.
(xxvi)The relevant date of application for increase in pension was 11 September 1998.
It is Mr. Pritchard's claim that he was suffering from the effects of PTSD and severe headaches for about 18 months before he "retired" from his job at the State School. He gave evidence that he "hung on" until he was 60 years of age, that is until he thought he was entitled to receive the Service Pension. He said that if it had not been for the effects of his PTSD and his headaches he would have worked until he was 65. He claims that none of his non-service related disabilities prevent him from working.
The representative for the Repatriation Commission conceded that Mr. Pritchard satisfied the provisions of subsections 24(1)(a) and 24(1)(b) set out above, but submitted that there were factors other than service-related disabilities which prevented Mr. Pritchard from undertaking remunerative work. That is, it was submitted, Mr. Pritchard did not satisfy subsection 24(1)(c) of the Act.
The Tribunal heard evidence and received statements from various witnesses concerning the capacity of Mr. Pritchard to undertake remunerative work of the type which he had been doing for over fourteen years at the State School. The following excerpts have been taken from the evidence given.
Dr. Hickey (General Practitioner)
"It was and still is my opinion that Mr Robert Pritchard ceased gainful employment due to his PTSD and recurrent headaches.
It was mainly his PTSD that caused his cessation of work and it is his PTSD which continues to render him incapable of gainful employment.
Mr Pritchard has other medical problems which are significant but do not exclude his working."Dr. Likely (Psychiatrist)
"1. The nature and extent of post traumatic stress disorder suffered by Mr Pritchard is outlined above. His symptoms have been severe and chronic and were interfering significantly with his functioning when he was working at the Currajong State School, in terms of irritability and angry outbursts, together with chronic headaches which were a feature of his anxiety disorder.
2. Mr Pritchard continues to suffer significant symptoms of post traumatic stress disorder and in my opinion they alone would be responsible for him being unable to undertake any future remunerative employment.
3. In my opinion Mr Pritchard's headaches and post traumatic stress disorder are currently, and were at the time of his ceasing work in July 1996, sufficient to render him incapable of working more than eight hours a week as a janitor/groundsman."
Mr. Bullock (Principal (now retired) of Currajong State School from 1 January 1987 to 31 December 1998)
"Bob Pritchard was employed as a Janitor Groundsman, but mainly his role and functions fell within the Groundsman area.
When I took up my position in 1987 Bob's work performance was not completely satisfactory in all respects. I worked with him on a program to improve his work performance and that performance improved within a relatively short period to be satisfactory. When that point was reached Bob was doing a good day's work for a good day's pay.
In the last couple of years leading up to his retirement from the school Bob showed signs of slowing down and his level of productivity dropped. There was no diminution in the quality of Bob's work, it was just that gradually he took longer and then longer to achieve the same level of productivity.
During this same period Bob came to take more time off work, through illness, than previously was the case.
In truth I could have placed Bob on what was then known in the Queensland Public Service as "Diminished Work Performance". This would have meant that had he not improved his work performance according to a nominated schedule, he could have been dismissed.
I recognised Bob as a person who had sought to contribute conscientiously to his work position in the past and accordingly chose to work with him, once again, to improve his level of performance rather than add to his difficulties by placing him under the work performance regime.
In all the years of my acting as Bob's supervisor he never once refused any instruction which I had given to him. He obviously placed great pride in his groundsman activities because even with the drop in productivity mentioned earlier in this statement the grounds at the school always looked good.
During the last six to eight months of his employment Bob occasionally spoke of retirement and so I was not surprised when he chose to leave the workforce.
Bob didn't mention to me his reasons for retiring, although I did not think that was particularly unusual because Bob always had been a reticent and self effacing employee.
He did speak from time to time of his difficulties with his headaches, but Bob prided himself in being (or appearing to be) physically fit and so, to my perception at least, generally avoided any discussion of himself or his health."Kathryn Purse (Occupational Therapist)
"Mr Pritchard is able to mow the front lawn of his home although the task is usually carried out by his son who also resides in the home. Mr Pritchard reports that he is able to mow for about 30 minutes.
Mr Pritchard does not participate greatly in leisure pursuits at present. He is interested in returning to playing golf, which he has not done since the amputation. He feels that he could do so provided he had the use of a buggy so that he doesn't have to walk long distances. He played wheelchair rugby league on a social basis in 1998 and 1999. He coached junior baseball up until 1998. He is the president of the Junior Baseball Club and his participation is limited to running the meetings and organisational tasks. He is a member of a servicemen organisation and attends social functions and meetings about once per month on average. He goes shopping with his wife about once per week. He walks to a shop near his home to collect the paper. About once every 2 months on average he and his wife go out to play keno for a couple of hours. He rarely visits people and visitors to his home are rare.
Whether the amputation of Bob's leg, considered alone would preclude his having continued in his position at the Currajong School.
Based on the functional testing carried out I consider that Mr Pritchard would be physically able to undertake a range of the duties required however there would be some significant restrictions and he would require the consideration of his employer in the way of providing help with some tasks. His work pace would be slower.
He would be unsafe climbing ladders to change light bulbs and check clocks. He is able to move furniture about a room but would not be safe shifting furniture up and down flights of stairs. He is able to use a push mower and ride on mower for periods of up to 30 minutes continuously. Hand mowing would be slower than prior to the amputation and he would need to pace out the task. In regard to tractor operation he would be able to operate the tractor with care in regard to the right foot controls. He is physically capable of watering the grounds and moving hoses. He is physically capable of carrying out general repairs with some difficulties performing repairs at ground level. He is physically capable of welding although low level fixtures would present difficulties and he would need to use a stool. He is physically capable of emptying wheelie bins and other rubbish bins.
The physical limitations imposed upon Mr Pritchard by the amputation preclude him from heavy physically demanding work and work that has the critical demands including but not limited to continuous sustained standing and walking with no opportunity for sitting intermittently, moving at speed, moving continuously over uneven surfaces, climbing ladders and assumption of awkward and sustained low postures.
Mr Pritchard was working in his job as a janitor/groundsman whilst suffering headaches however when the headaches became worse he reported that he had increasing difficulty in performing his work at a normal pace and he required days off work and early days on a regular basis. The headaches would hinder his current employment prospects similarly. He would require days off work about once per month on average. His work pace slows when the headaches are more severe. He has difficulty maintaining social relationships with co-workers. Employees with these limitations are not generally accepted in the open labour market.
The symptoms reported by Mr Pritchard and outlined by Dr Likely place significant limitations on his prospects for employment. He is fatigued much of the time due to poor sleep and experiences disturbing flashbacks, dreams and intrusive thoughts. He has difficulty maintaining social relationships at work and becomes angry and irritable much of the time.
Mr. Pritchard described that he had increasing difficulty maintaining his work in the last 12 to 18 months of his employ as a result of the headaches and post traumatic stress disorder symptoms. The statement of his employer, Mr Bullock, indicates that it was noticed that Mr Pritchard's work pace and work attendance was diminished. Mr Pritchard did however maintain his job. He described that he did so only because he was required to earn an income, not being aware that he may have been eligible for a pension before he turned 60 years of age if his service related conditions prevented him from working. According to his description he would not have tolerated the work without the financial necessity to do so. When considering the symptomatology he described as occurring at the time it is clear that he was having significant difficulties in maintaining his work role, and in my opinion it is reasonable that he ceased his employment.
His job as a janitor/groundsman is probably the type of position that a person can best cope with whilst experiencing his particular symptomatology in that the work is largely self directed and largely solitary other than for intermittent conversations with other staff and instruction from his supervisor/school principal. He was having difficulties coping with this work and other types of work would present the same if not further difficulties."
Mr. Pritchard and the psychiatrists who reported on him, paint a picture of a man who has been badly affected by PTSD since his service in Vietnam in 1969. They portray a man who was eventually ground down by PTSD until he could no longer work, participate in sport or socialise. Contrasted with that picture is the objective evidence which shows that Mr. Pritchard served in the Army with distinction for a further 11 years after his stint in Vietnam; then served for some years in the Army reserve; participated in a large number of sporting and social activities; played and coached baseball until very recently; has been involved in baseball administration until the present time; has been in a stable matrimonial situation for 36 years; held his job at Currajong State School for 14½ years; has played wheelchair rugby league during 1998 and 1999; attends social functions and goes shopping. I do not accept that Mr. Pritchard's PTSD and his headaches were of such severity that he was forced, for those reasons alone, to retire from his job as janitor/groundsman.
I find that Mr. Pritchard ceased work due to a combination of PTSD, headaches, advancing age, a desire to retire and the prospect of receiving a service pension on his 60th birthday. He now has the added problem of his amputated leg, which has the effect of reducing his capacity to undertake remunerative work. That is, there are a number of significant non war-caused factors which prevent Mr. Pritchard from continuing to undertake remunerative work.
Mr. Pritchard does not satisfy all of the conditions to qualify for a Special Rate pension.
The decision to continue Disability Pension at 100% of the General Rate is affirmed.
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
Signed: .....................................................................................
R. Hayes, AssociateDate/s of Hearing 30 November 2000
Date of Decision 20 December 2000
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Suthers and Taylor
Respondent Mr. J. Stoner, departmental advocate
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