Ring and Repatriation Commission - [2001] AATA 981

DECISION AND REASONS FOR DECISION [2001] AATA 981

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1436
VETERANS'     APPEALS       DIVISION
  Re:         RONALD DAVID RING
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             30 November 2001
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 16 May 1999.

(sgd) Graham Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - assessment of rate of pension - Post Traumatic Stress Disorder and other accepted conditions - whether war-caused incapacity was substantial cause of inability to undertake remunerative work - whether special rate applicable
Veterans' Entitlements Act 1986 ss9, 24
Byrne v Repatriation Commission [2001] FCA 1134
Fox v Repatriation Commission (1997) 45 ALD 317
Repatriation Commission v Sheehy (1995) 39 ALD 286
Sheehy v Repatriation Commission (1996) 41 ALD 205

REASONS FOR DECISION

30 November 2001 G.D. Friedman, Member

This is an application by Ronald David Ring (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 9 October 2000 which affirmed a decision of a delegate of the respondent dated 20 October 1999 to assess pension at 80% of the general rate.
At the hearing of this matter on 18 October 2001 the applicant was represented by Mr D. De Marchi, Solicitor, and the respondent was represented by Mr K. Rudge, Advocate for the Department of Veterans' Affairs.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T24), together with two exhibits lodged by the applicant (Exhibits A1 and A2) and two lodged by the respondent (Exhibits R1 and R2). The Tribunal heard oral evidence from the applicant and Dr W. Stone.
BACKGROUND
The applicant was born on 10 June 1945. He joined Patrick Stevedores (Patrick's) on 12 May 1965 where he worked as a crane driver and forklift driver. On 20 April 1966 he joined the Australian Army as a conscript and served until 29 May 1968. His service included a tour of duty in Vietnam and is operational service as defined in s9 of the Veterans' Entitlements Act 1986 (the Act). Following his discharge, the applicant returned to Patrick's until 14 September 1998, when he accepted a voluntary redundancy package. He registered with Centrelink and looked for work. He was assessed for Disability Support Pension on the basis of suffering from spondylosis, lumbosacral pain, left-sided lower back pain and groin pain, Paget's disease with right hip pain, and sensorineural hearing loss.
On 26 October 1998 a report from a treating doctor on behalf of Centrelink listed the major conditions suffered by the applicant as spondylosis, Paget's disease and hearing loss. The doctor rated the conditions as long-term and assessed the applicant as unable to lift, carry and move objects. On 8 December 1998 Health Services Australia assessed him as medically fit for non-heavy work.
On 19 May 1999 a further assessment was carried out and the applicant was considered to be unlikely to be able to return to employment. On 16 August 1999 the applicant made a claim for Invalidity Service Pension based on pain in the lower back and hips, Paget's disease, hearing loss and tinnitus and post-traumatic stress disorder (PTSD). On 20 October 1999 the respondent accepted that the following conditions were war-caused: chronic solar skin damage, right ear mixed deafness with tinnitus, left ear sensorineural deafness, PTSD and psycho-active substance abuse or dependence involving alcohol. The respondent assessed pension at 80% of the general rate to operate from 16 May 1999.
On 19 May 1999 a further medical report on behalf of Centrelink stated that PTSD was an additional condition suffered by the applicant. The doctor stated that the applicant was not likely to be fit for any work in the next two years and that the applicant's medical conditions prevented him from undertaking vocational rehabilitation or training.
On 25 October 1999 the applicant sought review by the VRB. On 9 October 2000 the VRB affirmed the decision. On 29 November 2000 the applicant sought review by the Tribunal and claimed an increase in pension to 100% of the general rate and entitlement to pension at the special rate.
EVIDENCE
The applicant told the Tribunal that in Vietnam he was present during active combat operations, and on one occasion he witnessed a number of casualties among members of his platoon. He said that he suffered from stress and numerous conditions arising from his service in the Army, and he commenced drinking alcohol to excess. The applicant stated that prior to leaving Patrick's he was able to cope with the work on the waterfront only with the assistance of his colleagues, who were aware of his medical and other difficulties. He said that he has attempted to obtain employment but has been unsuccessful, largely because of PTSD and a loss of confidence. The applicant stated that PTSD was diagnosed in 1999.
In a written report dated 2 July 2001 Dr Barrie Kenny, Consultant Psychiatrist, concluded that because of PTSD and substance abuse the applicant was unfit to undertake remunerative work for more than 8 hours per week, and was unfit for any effective employment.
Dr William Stone, Rehabilitation and Occupational Physician, gave evidence to the Tribunal. He referred to his written report dated 29 June 2000 in which he stated that the applicant's disabilities, particularly PTSD and alcohol abuse, interfered significantly with his capacity for work, although the other medical conditions would have less impact. He said that the applicant would not have been able to retain employment during the 1990s in an environment other than the waterfront, where his colleagues often stood in for the applicant or otherwise enabled him to complete his duties. Dr Stone concluded that the applicant had a very limited capacity for work, and would not be able to work for more than 8 hours per week in the open labour marketplace, and the limitation is likely to be permanent. Dr Stone told the Tribunal that the incapacity for work was almost entirely due to the accepted disabilities, particularly PTSD. Other factors, although relatively insignificant, were his age (54 years at the time) and the condition calcaneal spurs.
In his written report dated 5 January 2001 Dr Stone stated that the applicant had attended on 5 January 2001 for further assessment. He stated that PTSD and alcohol abuse were much the same as when assessed previously and would continue to have a substantial impact on the applicant's ability to work. However Dr Stone stated in his report that alcohol abuse needs to be added to PTSD in terms of having significant impact on his workability. He also said that low back pain is also a factor that needs to be added in consideration of his ability to work. In estimating the relative importance of the particular factors in relation to his ability to work, he listed the following:
PTSD  60 %
Lower back pain          15%
Alcohol abuse              10%
Calcaneal spurs            5%
Other (e.g. age)           10%
In evidence to the Tribunal Dr Stone revised his estimates as follows:
PTSD  40-45%
Lower back pain          30%
Alcohol abuse             10-15%

CONSIDERATION OF THE ISSUES

Section 24 of the Act provides for a special rate of pension for a veteran who satisfies the criteria laid down in s24:
24(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.
Mr De Marchi, on behalf of the applicant, submitted that in accordance with s24(2)(b) of the Act, the applicant has not attained the age of 65 years and that his war-caused conditions were the major contributing factors to his inability to undertake employment. He referred the Tribunal to Repatriation Commission v Sheehy (1995) 39 ALD 286 in which Sackville J emphasised the three factors in s24(2)(b) of the Act (which clarifies s24(1)(c)) that need to be satisfied if the applicant is under the age of 65 years. Mr De Marchi submitted that there is uncontradicted evidence that the applicant has made application for many positions that would be suited to his qualifications and experience, so he has been genuinely seeking to engage in remunerative work. Mr De Marchi said that PTSD has now overtaken other conditions suffered by the applicant and that the evidence by the applicant, Dr Stone and other medical practitioners confirms that the applicant would continue to seek to engage in remunerative work but for the incapacity caused by PTSD and other war-caused conditions.
Mr De Marchi referred the Tribunal to Fox v Repatriation Commission (1997) 45 ALD 317 as authority for the proposition that the interpretation of s24(2)(b) of the Act is a question of fact to be determined by the Tribunal. He noted that at p319-320 Kiefel J stated:
The words "the substantial cause" require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be a substantial cause has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as "substantial"… The definite article in s24(2) requires a stronger and more direct causal connexion between the incapacity and the inability to obtain remunerative work.

Mr De Marchi submitted that, according to the most recent medical evidence, the incapacity due to PTSD and the other war-caused conditions was the substantial cause of the inability of the applicant to obtain remunerative work. He added that the fact that the applicant is unable to continue to provide for himself and his family well before the normal retirement age of 65 entitles him to pension at the special rate with effect from 6 May 1999.

Mr Rudge, on behalf of the respondent, referred the Tribunal to the Full Federal Court decision in Sheehy vRepatriation Commission (1996) 41 ALD 205 in which the Court held that:
the words undertake and undertaking in para 24(1)(c) import the notion of performance or of a successful or effective undertaking of work.

Mr Rudge submitted that the test in s24(1)(c) is applicable to a type of remunerative work that the applicant has successfully undertaken in the past. He submitted further that the clause continuing to undertake remunerative work that the veteran was undertaking in s24(2)(b) has the same meaning as it does in s24(1)(c). He referred to the report dated 26 October 1998 from the applicant's treating doctor who stated that the applicant was unemployable because of conditions relating to his lower back and Paget's disease. He submitted further that the assessment by Health Services Australia dated 30 April 1999 noted that the applicant had back pain, Paget's disease and mildly impaired hearing, and was fit for work such as bench work or security work that did not involve heavy lifting.

Mr Rudge stated that the applicant had worked for many years on the waterfront before his period of operational service, and that his inability to work was related to the lower back and other conditions. He submitted that security or bench work could not be taken into account, under s24(1)(c), to negate a finding that the applicant was prevented from continuing to undertake remunerative work that the veteran was undertaking because of reasons other than his war-caused disabilities.
Mr Rudge submitted that the accepted PTSD and psycho-active substance abuse or dependence involving alcohol are significant factors but are not the substantial cause of an inability by the applicant to obtain employment. He said that the report by Dr Ian Parkin, Consultant Psychiatrist, dated 7 September 1998 concerning the effects of psychiatric conditions on occupation supported this view. Mr Rudge stated that, in terms of the test outlined by Kiefel J in Fox, the accepted psychiatric incapacity is one cause among a number of others.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made. The Tribunal finds the applicant to be an honest witness who gave evidence in a frank and clear manner. The Tribunal notes that Dr Kenny concluded that the applicant was unfit for any effective employment because of PTSD and substance abuse. The Tribunal also accepts the evidence of Dr Stone that the applicant would not be able to work for more than 8 hours per week in the open labour marketplace and that the incapacity was almost entirely due to the accepted disabilities. The Tribunal takes into account that, in oral evidence, Dr Stone revised his estimates of the relative importance of various factors, and that approximately 30% was attributable to lower back pain, which is not an accepted war-caused condition.
As a result of these findings, the Tribunal gives less weight to the report from the applicant's treating doctor who found the applicant to be fit for work such as bench work or security work. The Tribunal is satisfied that he has made a genuine effort to obtain employment in positions that would be appropriate for a person with his skills and experience, including positions similar to his previous employment.
On the available evidence, and there appears to be no dispute between the parties, the Tribunal finds that the applicant's incapacity from war-caused injury or disease is of such nature alone as to render the applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Therefore the applicant satisfies s24(1)(b) of the Act.
In Byrne v Repatriation Commission [2001] FCA 1134 Gyles J stated at par 10:
In my opinion, the applicant has established that the AAT misdirected itself as to the proper application of s 24(2)(b). The issue is not limited to the question as to why the incapacitated person is in fact unable to obtain employment in the particular place, although that may be relevant. In order to judge the effect of the relevant incapacity, it is necessary to compare the position of the applicant as he is with the position he would be in without the relevant incapacity. In the present case, that requires the formation of an assessment of the work prospects of the applicant as a fifty-one year old man with his characteristics and abilities, who had never suffered from PTSD, bilateral sensorineural hearing loss, osteoarthrosis of right and left knees or sleep apnoea and who is probably not living in Kempsey. That process enables the true effect of war-caused incapacity upon the ability of the applicant to obtain work to be assessed.

Applying the test set out in Fox, the Tribunal finds that, despite the existence of other factors such as the applicant's age, possible stigma arising from his previous employment on the waterfront, lower back pain, Paget's disease and calcaneal spur, on the balance of probabilities there is a strong causal relationship between the war-caused incapacity and the inability to obtain remunerative work. For this reason the war-caused incapacity is the operative factor which, more than any other, explains it.

Therefore the Tribunal finds that the applicant is, by reason of incapacity from war-caused injury or disease, alone, prevented from continuing to undertake remunerative work that the applicant was undertaking and is suffering loss of wages or earnings that he would not be suffering if he were free of the incapacity. The Tribunal finds that the applicant satisfies s24(1)(c) of the Act. For similar reasons the Tribunal finds that the applicant has been genuinely seeking to engage in remunerative work and that the incapacity is the substantial cause of his inability to obtain remunerative work in which to engage. The Tribunal finds that the applicant satisfies s24(2)(b) of the Act and therefore meets the requirements of s24 for eligibility for special rate of pension.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 16 May 1999.
I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of
G.D.Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  18 October 2001
Date of decision:  30 November 2001
Solicitor for applicant:                  Mr D. De Marchi, De Marchi & Associates
Solicitor for respondent:              Mr K. Rudge, Department of Veterans' Affairs