Ristic and Repatriation Commission
[2005] AATA 396
•4 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 396
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/170
VETERANS' APPEALS DIVISION ) Re BOZIDAR RISTIC
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date4 May 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – entitlement to Special Rate pursuant to s 24 of the Act – alone test – if applicant’s war-caused disabilities alone caused cessation of remunerative employment – decision affirmed
Veterans’ Entitlements Act 1986 s 24
REASONS FOR DECISION
4 May 2005 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 14 May 2003 which continued the applicant’s Disability Pension at 100 percent of the General Rate. The Veterans’ Review Board (VRB) affirmed the decision on 30 March 2004.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents). Mr Swan appeared for the applicant, who gave oral evidence. Mr Crowe represented the Commission.
3. The applicant, who is 57 years of age, was training as a boiler maker, in Serbia, prior to migrating to Australia, at the age of 15. In Australia he worked as a welder at Chryslers, and then for the Snowy Mountains Hydro-Electric Authority in New South Wales. In 1969 he commenced National Service in the Australian Army (the Army). He served for 7 months in Vietnam, with the 8th Battalion as an infantry soldier. He was discharged from the Army in July 1970, as medically unfit. He worked then for more than 28 years in Western Australia, Moomba and Roxby Downs as a boiler maker.
4. Dr Ewer reported, on 29 January 1998, that at that time the applicant had been living at Olympic Dam and working for the same Company for the last 12 years. In 1994 the applicant sustained a significant injury to his left wrist, whilst working at Roxby Downs as a boiler maker. He received workers’ compensation payments over the next four years, whilst continuing to work for the Company, and undergoing several operations for his injury. His final operation was in 1998; and in 1998/99 he received a redemption of his WorkCover entitlements in the amount of about $150,000. He worked for about 11 months from February 2001 until January 2002, as a roofer, for Euro Roofing. He maintains that he is entitled to payment of Disability Pension at the Special Rate, and that he satisfies s 24 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“(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.
…”
5. It is not in dispute that the applicant satisfies ss 24(1)(a) and (b) of the Act. The Commission maintains that the applicant does not satisfy s 24(1)(c) of the Act, the so called “alone test”, in that he did not cease work because of his war-caused conditions alone; his non-accepted conditions were factors contributing to his cessation of work. He has not been prevented from continuing to undertake remunerative work because of incapacity from accepted disabilities alone. The Commission maintains also, that by virtue of s 24(2)(a) of the Act, the applicant cannot be taken to be suffering a loss of salary or wages or earnings on his own account by reason of incapacity arising from his war-caused conditions; and that the remunerative work that the applicant was undertaking was work as a “boiler maker”.
6. On 8 May 2002 the Commission increased the applicant’s Disability Pension from 50 percent to 100 percent of the General Rate, with effect from 11 September 2001; and determined also, that the applicant had a serious wrist injury, due to his work, and despite several operations, it had not been corrected.
7. On 16 January 2003 the applicant lodged an application for increase in pension for his war-caused conditions, and on 14 May 2003 the Commission refused the application, and continued the applicant’s Disability Pension at 100 percent of the General Rate. The VRB affirmed this decision on 30 March 2004. The applicant has now applied to this Tribunal for review of the Commission’s decision. His accepted disabilities are:
Personality disorder
Lumbar spondylosis
Acne
Post-traumatic stress disorder with alcohol dependence
Depressive disorder
Folliculitis
Irritable bowel syndromeBilateral sensorineural hearing loss with tinnitus
8. The applicant said in evidence that after his discharge from the Army, he did not work for some time. He was depressed and confused. He obtained employment then, around the country, in Western Australia, Brisbane, New South Wales, and at Roxby Downs. In 1994 a grinder broke off, and cut his left wrist and forearm. He said that he continued to work for the Company, and to undergo operations for his injury until the final operation in 1998. He accepted the Workers’ Compensation payment of $150,000 in 1998/99, and ceased employment with the Company. He says that he had never owned a home previously, and so he purchased a home in Morphett Vale.
9. The applicant gave evidence that whilst at Roxby Downs he had read about a lady in Serbia whose husband had been killed. He sent her some money to assist her, and after she rang him to thank him for his help, they continued to contact each other by telephone. As the applicant had not been to Serbia for 38 years, he decided to travel there, and search for any of his living relatives. Whilst he was in Serbia, he met the lady with whom he had been corresponding (Biljana), and helped some friends making bricks. He worked the conveyor belt.
10. The applicant said in evidence that after 11 months he returned to Australia in 2000. He subsequently worked for a friend, Mr Vujicic, who had a roofing company, Euro Roofing. He says that he had “no problems” with his left wrist. He was able to climb on to roofs, hold on to the ladder, and manoeuvre pieces of corrugated iron. He was drinking too heavily, taking Zoloft tablets for his depression, and pain killer tablets for his accepted back disability. He became argumentative and difficult. Mr Vujicic warned him on several occasions, and finally he fired the applicant because he was drinking too much, and arguing too much. A few months later the applicant returned to Serbia, where he married Biljana, on 26 January 2001. He said he had to provide a letter to the Ambassador in Serbia, and Mr Vujicic forwarded a letter dated 9 January 2002, which reads as follows:
“TO WHOM IT MAY CONCERN
Mr. Bozidar Ristic has worked for us for a period of 11 months and we have been very happy with his attitude both between work and our customers, and his attendance has been excellent. We therefore keep his position open to his [sic] for a period of up to six months.
Failing that we can come to arrangement to re-emply [sic] him on a permanent basis, as he is a valuable employee.” [T31/157]
In contrast, Mr Vujicic provided another letter dated 3 July 2003 in the following terms:
“TO WHOM IT MAY CONCERN
Mr Bozidar Ristic is no longer employed by me, as his attendance has dropped dramatically. He seems stressed at all times and fires up at the smallest incidents, sometimes for no reason.
I feel he is a danger to the other workers and to himself and his attitude towards work in general is no longer there in any way.
I therefore cannot give him anymore work.” [T31/158]
11. The applicant said in the course of his cross-examination, that he stopped work as a boiler maker, partly because he wanted to go to Serbia after a 38 year absence. He had no contact with relatives over that time; and when he arrived he found that half of his family had been killed by the Croatians and the Muslims. He said that when he returned to Australia he did not seek work as a boiler maker because there was not much of that type of employment in Adelaide. He had been travelling around Australia all of his life, living in single men’s quarters; he had bought a home, and wanted to settle down. He said that he ceased work as a boiler maker because of the operation, and because they fired him when he got his lump sum. In relation to his work with Euro Roofing, he said that he worked there for a few weeks after his return from his second trip to Serbia in December 2002, but he could not remember the details. Mr Vujicic had problems with the business, he was “going under”; his business has been closed, and the applicant does not know where he is now.
12. The applicant’s treating General Practitioner for the last 20 years is Dr Birdsey, who at the request of the Department of Veterans’ Affairs (the Department), provided a medical report on the applicant’s ability to work (for Disability Pension purposes) on 7 February 2003. In answer to question 6(d) “When did the veteran last work and what were the reasons for ceasing work?” he replied “98 – due to L forearm injury” [T26/143]. In a subsequent report to the Department dated 9 May 2003 he stated:
“As regards to this mans left wrist and forearm injury, this was work related and required surgery.
He is unable to return to his job as a boilermaker/welder because of this injury.
His other illness prevents him from returning to other work.” [T28/146]
13. In a report dated 27 January 2004, and tendered at the VRB Hearing, Dr Birdsey stated:
“I have continued to treat Mr. Ristic since my last letter to you on 8.5.03, and his condition continues to deteriorate despite specialist treatment. His major disability is related to post traumatic stress disorder originating from his services in Vietnam. Despite his counselling and medical treatment this disorder is effecting [sic] his day to day living abilities and it is this disorder that has him unable to return to the work force. In my letter of May 03 it is mentioned that an industrial injury to his left wrist and forearm stops him working as a boiler maker welder but it is his PTSD which stops him from working in any capacity. Even if he had his full capacity of his left wrist and forearm he would be unable to work as a boiler maker or anything else.” [T2/10]
14. The applicant’s oral evidence was very confused, contradictory, and difficult to follow. He was very emotional and agitated. He has obvious difficulties with the English language, and his psychiatric condition is such, that I consider that the inconsistencies in his evidence were attributable to his accepted disability of PTSD and not to any attempt on his part to mislead the Tribunal. The contradictions however, were legion, and went to the heart of the issues between the parties. This meant that I needed to rely on the documentary evidence, in some areas of inconsistencies in the evidence.
15. I consider that for the purposes of s 24(1)(c) of the Act, the “remunerative work that the veteran was undertaking” is that of “boiler maker”, for which he was trained in Serbia, and which after his military service he continued to undertake until 1998.
16. Although the applicant maintained throughout his evidence, in effect, that since the last operation in 1998, his left wrist has been no problem at all, and that he did not cease work as a boiler maker because of it, I prefer Dr Birdsey’s opinion of 7 February 2003 that the applicant ceased work in 1998, due to his left forearm injury. The applicant may well have been suffering symptoms of his PTSD, and not sought further work because, having received his lump sum, he wanted to travel to Serbia and settle then, in Adelaide, in his new home with his wife; but for the purposes of s 24 of the Act, I am reasonably satisfied on the evidence that the applicant ceased work because of his wrist injury, and that he did not cease work as a boiler maker in 1998, because of his war-caused condition of PTSD alone. I am reasonably satisfied therefore, that the applicant does not satisfy s 24(1)(c) of the Act. He is not qualified for payment of Disability Pension at the Special Rate.
17. For these reasons, the Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate of Hearing 11 November 2004
Date of Decision 4 May 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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