Randall and Repatriation Commission

[2004] AATA 974

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 974

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/357

VETERANS' APPEALS DIVISION		)
Re		ALBERT RANDALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date17 September 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd].......................

Senior Member

CATCHWORDS

VETERANS AFFAIRS – pensions and benefits – special rate pension – whether applicant genuinely seeking to engage in remunerative work – decision affirmed

Veterans’ Entitlements Act 1986

Chambers v Repatriation Commission (1995) 129 ALR 219

Hall v Repatriation Commission [1994] FCA 458

REASONS FOR DECISION

17 September 2004

Senior Member McCabe    

Introduction

1. This is an application for review of a decision to refuse the applicant a pension at the special rate pursuant to s 24 Veterans’ Entitlements Act 1986.  The respondent’s decision was affirmed by the Veterans’ Review Board (the VRB) on 23 January 2003.

2.      The matter was heard in Townsville on 15 July 2004.  The applicant was represented by Mr Honchin of counsel.  The respondent was represented by Mr Stoner, a departmental advocate.  The following evidence was before the Tribunal:

· documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 (the T-documents);

·   A statement of the applicant dated 1 September 2003, a supplementary statement of the applicant dated 16 January 2004, an addendum to the applicant’s statement dated 23 June 2004;

·   Correspondence from various employers of the applicant: Highway Wreckers, G & L Sheetmetal, and IT and ML Roof Plumbers;

·   Two reports of Dr Rogers dated 26 March 2004 and 18 May 2004;

·   An application of the applicant for re-engagement in the Royal Australian Air Force;

·   A report of Dr Mulholland dated 30 October 2003;

·   A report of Dr Boys dated 25 August 2003;

·   A letter and attachments from Western Power (a previous employer of the applicant);

·   A letter from Riskcover and attachments from Workcover, dated 30 March 2004;

·   A bundle of clinical notes from Dr Noll.

The factual background

3.      Mr Randall rendered operational service in Vietnam from 18 March 1970 to 18 March 1971.  As a result of his experiences there he now suffers a number of conditions: bilateral tinnitus, bilateral sensori-neural hearing loss, depressive disorder, post traumatic stress disorder (PTSD) and alcohol dependence or abuse.  The respondent has accepted those conditions as war-caused.

4.      Following his discharge from the RAAF he was employed in various jobs of an unskilled nature.  In 1996 he seriously injured his back in a workplace accident.  That injury was the subject of a personal injury claim, which was settled for some $100,000.  After the injury he participated in a return-to-work program.  However in August 1997 he resigned from employment.

5.      Following his resignation Mr Randall says he searched for work in Albany, where he lived at the time.  He was not successful.  He says he was unable to obtain work because his attitude problems and aggression made him unemployable.

The Law

6. The law governing the award of pension at the special rate is contained in Division 4 of the Act. Section 24 first requires the veteran’s degree of incapacity to be at least 70%. There is no dispute that is the case here. The section then has two further limbs. The first limb in s 24(1)(b) is known as the “8 hour test”. It requires the veteran to be:

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

7. Section 28 sets out three matters the decision-maker must consider when making a decision under s 24(1)(b). They are:

(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).

8.      The Full Federal Court in Chambers v Repatriation Commission (1995) 129 ALR 219 says the Tribunal must make a broad inquiry when deciding whether a veteran is incapable of performing remunerative work.

9. The second limb – s24(1)(c) – is known as the “alone” test. It requires that the veteran be

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

10. Section 24(2) is an ameliorative provision available where the applicant cannot satisfy s 24(1)(c) because the veteran ceased remunerative work for reasons other than his or her war-caused injury. The sub-section says if the veteran can satisfy the Commission he or she has been genuinely seeking to engage in remunerative work, and his or her war-caused injury is the substantial cause of his or her inability to engage in remunerative work, the veteran is treated as having been prevented by reason of that incapacity from continuing to undertake the remunerative work that the veteran was undertaking.

11. Mr Honchin conceded the applicant did not cease his employment solely because of his PTSD. Having reviewed all of the evidence, I am satisfied the concession was appropriately made. The applicant was therefore unable to satisfy the test in s 24(1)(c). The applicant relied on the ameliorating provision in s 24(2).

The applicant’s argument

12.     Mr Randall says his aggression and attitude problems are responsible for the loss of his job and his inability to find another one.  He says his aggression, irritability and attitude problems are symptoms of his war-caused PTSD.  The applicant says he has been genuinely seeking to engage in remunerative work, and his war-caused injuries have been the substantial cause of his inability to obtain work.

The respondent’s argument

13.     The respondent says Mr Randall did not make genuine efforts to re-enter the workforce.  While he did approach some employers they were not genuine inquiries.  The respondent also says Mr Randall’s war-caused injuries are not a substantial cause of his inability to obtain remunerative work.

14.     The respondent adds it is a mistake to attribute Mr Randall’s attitude problems to his PTSD alone.  They say he is a naturally irritable and aggressive person. At the highest his PTSD merely contributes to his attitude problems which the evidence suggests are the real cause of his ongoing unemployment.

The Evidence

15.     The applicant tendered statements from three people from whom he had sought work.  (He said he had applied for other jobs, but no evidence was submitted to support this claim.)  All three statements are similar.  They all say the authors refused to hire Mr Randall on account of his “attitude”. 

16.     Ms Marchese (proprietor of G & L Sheetmetal) wrote in an undated letter (exhibit 6):

I would not consider Tom Randall for employment in this type of industry and I do not believe he has the skills required or the attitude necessary to gain these skills in this workplace.

17.     Ms Marchese recounted Mr Randall’s application for work in her oral evidence.  She said Mr Randall asked: “if I were to ask you for a job, what would you say?”  She replied that she would say “no”.  He then asked her to put that in writing. 

18.     Mr Bradley (from IT & ML Bradley Roof Plumbers) also gave evidence.  Mr Bradley had been fixing Mr Randall’s roof.  After the job was complete, they were talking socially when Mr Randall asked Mr Bradley for a job.  Mr Bradley refused.  When pressed for his reasons, Mr Bradley indicated there were several.  Mr Randall did not seem sufficiently agile for the job (it involved climbing on roofs).  Also he indicated he had a pool of regulars from whom he normally picked people to employ on a temporary basis - but this did not seem a major factor.  The most significant factor was that Mr Randall seemed to be “an aggressive arrogant man” with whom Mr Bradley did not think he could work.  I note Mr Randall was days away from moving permanently from Western Australia to Queensland when he had the discussion.

19.     The only other evidence submitted was a letter from Highway Wreckers P/L.  It says Mr Randall was unsuitable because of his attitude.  The respondent requested the author of the letter to be made available for cross-examination, and he was not.  In light of this the weight of this piece of evidence is diminished.

20.     After listening to the applicant give evidence, it was easy enough to appreciate why prospective employers might find his attitude unacceptable. He presented as angry and quick-tempered man. He had a menacing demeanour. Mr Honchin says that is because of his accepted condition: irritability is a recognised symptom of PTSD. That may be so, although I note Dr Noll said in his evidence that Mr Randall’s irritability may be unrelated to his PTSD.  In any event it is unclear from the evidence whether his condition really would prove to be an obstacle to securing and retaining employment. While he would be unlikely to be useful in a customer service-type position, there are other types of work he could realistically access where his irascibility – whatever its cause - would be less of a problem. I think the difficulty here is that the evidence suggests Mr Randall was not trying very hard to get a job.

21.     His application to G&L Sheetmetal struck me as perfunctory and even calculated.  His inquiry was “What would you say if I asked you for work…put that in writing”.  His application to IT & ML Bradley Roof Plumbers was also perfunctory – he asked for a job knowing he was moving interstate, permanently, in the immediate future.  Even if Mr Bradley offered him a job, the applicant knew he would have been unable to accept it.  The only other evidence was a letter from Highway Wreckers. The strength of that evidence was placed in doubt when the applicant failed to make the letter’s author available for cross examination. Mr Randall cannot take advantage of s 24(2).

22.     The applicant had all but given up looking for work. His efforts, such as they were, seemed to be directed towards giving the appearance of searching for work. I cannot be satisfied his attempts to seek out work were genuine. His condition did not prevent him from looking, and I am not satisfied his PTSD made the search for remunerative work futile: cf Hall v Repatriation Commission [1994] FCA 458. The ameliorating provision therefore does not apply.

Conclusion

23. Given the applicant’s (appropriate) concession that he cannot satisfy the test laid down in s 24(1)(c) and my finding that he cannot take advantage of the ameliorating provision in s 24(2), the result in this case is clear: the applicant cannot succeed. It is therefore unnecessary to determine whether he is able to satisfy s 24(1)(b) of the Act. The Tribunal affirms the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         .....................................................................................
  Associate:  Thomas Ritchie

Date/s of Hearing: 15 July 2004
Date of Decision: 17 September 2004
The applicant was represented by Ms Wallace and Mr Honchin of counsel.
The respondent was represented by Mr Stoner, a departmental advocate.