Robert James and Repatriation Commission

[2013] AATA 700

[2013] AATA 700  

Division	VETERANS' APPEALS DIVISION
File Number	2011/1538
Re	Robert James
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe Dr M Sullivan, Member
Date	30 September 2013
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

VETERANS' AFFAIRS – Pensions and entitlements – Special rate pension – War caused incapacity alone causing loss – Work associated stress – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) s 24

REASONS FOR DECISION

Senior Member Bernard J McCabe
Dr M Sullivan, Member

1. Mr Robert James has applied for a service pension paid at the special rate under the Veterans’ Entitlements Act 1986. The criteria governing the eligibility for special rate pensions are set out in s 24 of the Act. Broadly speaking, the section says a veteran may be eligible for the special rate (which is higher than the general rate) if he or she is totally and permanently incapacitated and that incapacity is entirely and only attributable to medical conditions that have been accepted as being service-related.

2. There is no dispute that Mr James has a number of accepted conditions including post-traumatic stress disorder and alcohol dependence. (The hearing was adjourned in 2012 to obtain further medical evidence regarding the possibility of an underlying personality disorder or developmental condition that might have offered an alternative explanation for the applicant’s symptoms. We are satisfied the additional evidence from Dr Timmins excluded that possibility.) The Repatriation Commission agreed Mr James was able to satisfy the criteria in s 24(1)(a) and (1)(b). The dispute in this case revolves around the application of the so-called “alone test” in s 24(1)(c).

3. Section 24(1)(c) says the special rate provisions are available where:

   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…

4. In order to determine whether the applicant has satisfied the “alone” test, we must first establish the kind remunerative work that he was undertaking. That requires us to have regard to his work history.

5. Mr James left the Army in 1990. He had attained the rank of staff sergeant. He moved to Toowoomba with his wife and family. In 1993, he began work for the Heritage Building Society as a janitor/caretaker in a building in Toowoomba. He also became an officer in the Army Cadets. He continued at the Heritage Building Society until 2006; he said he quit the job because he found it too stressful. He spoke of difficulties in dealing with people and referred to incidents where he would become extremely agitated by youths on skateboards.

6. The applicant also experienced increasing difficulties in fulfilling the duties associated with his paid part-time position with the Army Cadets. He left the Cadets in 2009 but matters had come to a head at an annual camp in 2008. Questions were raised about his judgment when he was required to deal with an injured cadet: his supervisor at the time, Mr Bassingthwaite, said in his statement (exhibit six) that Mr James had overreacted to “an incident” (we understand from oral evidence from Mr James and Mr Bassingthwaite that the reference to “an incident” was a reference to the injured cadet). Mr Bassingthwaite also referred to another incident involving the discipline of a cadet. Mr James said the problems arose because of his poor health, which was the product of his service-related conditions.

7. Mr James also conducted a lawn-mowing business alongside his work with the Cadets after he left Heritage Building Society. (There is some evidence to the effect he had done this sort of work in the past after leaving the Army, but we accept he did not apply himself to the business in a serious way until 2006.) He said in his evidence that he would take his equipment to a customer’s home and do the work. While he said it was stressful dealing with new customers, most of his work was with repeat customers who were pleasant old ladies who did not offer much of a challenge. He ceased this work about the same time he gave up working with the Cadets.

8. That work history suggests Mr James’s remunerative work should be characterised as property maintenance and management/youth leader.

9. We accept the evidence of Mr James and Mr Boxall (a supervisor at Heritage who provided a statement: exhibit seven) provides a basis for concluding the applicant was unable to continue the remunerative work he was doing at Heritage because of his service-relate psychiatric symptoms. The symptoms associated with those conditions were clearly hindering him in the performance of his duties. It was becoming obvious Mr James was simply unsuited to dealing with the public in a service role of that nature. We also accept the evidence of Mr James and Mr Bassingthwaite suggested Mr James was no longer suited to dealing with young people in his role as an officer of Cadets as a consequence of his psychiatric symptoms. We are satisfied the applicant’s psychiatric conditions are the only explanations for him ceasing that work: that much is clear from the evidence of Dr Carter, the treating psychiatrist, and Dr Timmins, the independent consultant psychiatrist who was asked to provide a report at the request of the Tribunal. (The report dated 16 November 2012 was not formally exhibited at the hearing but it was provided to the Tribunal as evidence and considered by both parties.)

10. We are satisfied the same cannot be said for the applicant’s decision to cease remunerative work in his lawn-mowing business. We accept he has described some stress associated with work that was engendered by his service-related psychiatric conditions. That stress undoubtedly made the lawn-mowing work less pleasant. But it was essentially solitary work that did not involve extensive and stressful interaction with anyone (certainly after the initial contact with a homeowner had occurred), nor did it involve the onerous responsibility of looking after anyone. Dr Carter, in her evidence, assumed Mr James could not continue the work because his drinking problem meant he could not drive and that he should not operate dangerous machinery. Dr Carter’s oral evidence on this point was vague, but in any event we note Dr Timmins pointed out in her report that Mr James was essentially able to control his drinking in more recent times. We are not persuaded the psychiatric conditions prevented (even if they discouraged) Mr James from continuing to undertake the remunerative work he was undertaking in his lawn-mowing business. That means he is unable to satisfy the requirements of s 24(1)(c).

11. In those circumstances, we are satisfied the decision under review should be affirmed.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe, and Dr M Sullivan, Member.

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Associate

Dated  30 September 2013

Dates of hearing	5 September 2012, 25 March 2013, 9 July 2013, 9 August 2013
Counsel for the Applicant	Mr P. Van Grinsven
Solicitors for the Applicant	Cockburn Legal
Advocate for the Respondent	Mr J. Kelly