Rosolen and Repatriation Commission

[2004] AATA 1159

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1159

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2002/965

VETERANS’ APPEALS DIVISION		)
Re		WARREN ROSOLEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date5 November 2004

PlaceTownsville      

Decision The Tribunal affirms the decision under review.

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

MJ Carstairs
  Member            

CATCHWORDS

VETERANS’ APPEALS – benefits and entitlements – rate of pension – special rate – applicant did not cease remunerative work as a result of war-caused disabilities alone.

Veterans’ Entitlements Act 1986 ss 24

Forbes v Repatriation Commission (2000) 171 ALR 131
Cavell v Repatriation Commission (1988) 9 AAR 534
Hendy v Repatriation Commission (1994) 33 ALD 454
Flentjar v Repatriation Commission (1997) 48 ALD 1

REASONS FOR DECISION

5 November 2004  Ms M J Carstairs, Member

1.      This is an application by Warren Rosolen (the applicant) for review of a decision of the Repatriation Commission (the respondent) dated 1 February 2001 which rejected an application for an increased rate of pension and continued same at 100% of the General Rate with effect from 15 February 2001.

2.      At the hearing in Townsville on 4 November 2004 the applicant was represented by Mr D Honchin of counsel, instructed by Purcell Taylor Lawyers and the respondent by Mr J Stoner, a departmental advocate.

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and exhibits A1-A2 for the applicant and R1-R5 for the respondent.

BACKGROUND

4.      The applicant is aged 56 years.  He had 6 years service in the Royal Australian Navy (Navy) from 1965 to 1971.  After leaving the Navy he worked in a series of unskilled and all labouring positions. 

5.      On 15 January 2001 he made a claim for an increase in his rate of pension (T4 page 66) (the second claim).  He was then receiving 100% of the General Rate of pension for his war-caused conditions.  This was the second time that he had claimed for a rate above the general rates of pension, having done so through an earlier claim in 1994 (T4 page 41) (the first claim) which was heard and determined by a Veterans’ Review Board (VRB) on 6 October 1998 (the first VRB).  The applicant has the following conditions accepted under the legislation as related to his service.

·Generalised anxiety disorder

·Hypertension

·Impotence

·Ischaemic heart disease

·Bilateral sensori-neural hearing loss with tinnitus

·Diabetes mellitus

·Pre-pyloric and distal oesophageal ulcers

·Psychoactive substance abuse or dependence

·Depressive disorder

6.      The conditions that have not been accepted as being due to war service include osteoarthritis left knee, right knee, osteoarthrosis of the left knee, post traumatic stress disorder (PTSD) and adjustment disorder. 

EVIDENCE

7.      In the first claim form the applicant gave the following history of his employment after his Navy service. 

·1977 – 1979             labourer

·1979 – 1979             storeman

·1980 – 1980             farm hand

·1980 – 1981             farm hand

·1981 – 1981             school bus driver/cleaner

8.      In his second claim the applicant stated that his PTSD, anxiety disorder, mood swings, lack of sleep and concentration, panic attacks and major depression made him unable to get along with, or work with, other people.  In the second claim he stated that he had ceased work in 1991 though with a further 3 week’s work in 1999.  In another claim dated 25 September 1990 (T4 page 14) the applicant had referred to being retrenched and ceasing work in 1982.  Where a question on the form required him to state what prevented him from working, of the alternatives “age, ill health, age and ill health, and other”, the applicant ticked other. He said the other reason was I was retrenched.  

9.      In a written statement dated 30 June 2003 (exhibit A1) the applicant said that after he left the Navy he worked at a sugar mill, but could not settle and took up employment as a cook.  He said he found he had difficulty working with others, would find himself in conflict with staff and would move on.  He relocated to Western Australian where he obtained employment as a storeman at a mine site, and later was employed at various hotels in Perth.  When he returned to New South Wales he was employed, until the contract was cancelled, as a contract milker on a diary farm.  He then took up employment with a bus company driving school children to and from school as well as cleaning the buses. 

10.     With reference to all employment the applicant said he found himself in conflict with others, including instances of physical conflict, these not necessarily occurring at the workplace. 

11.     With regard to the work with the bus company in 1981, the applicant said he had difficulty dealing with school children and required them to behave on board his bus.  He said that he had directed one child to sit at the front of the bus near him, so that he could keep him under control and he said this led to a complaint from that child’s parent.  As a result of this complaint he said that the owners of the bus company asked him to leave, but it was agreed that the stated reason on the separation certificate would be that he was retrenched.  When he was taken in cross-examination to a record in a report by Dr L Power dated 26 November 1996 (T4 page 45-46) which stated that the applicant was retrenched after the bus company was sold and the school run was lost, the applicant said that he did not remember telling the doctor this.   

12.     The applicant also said in his written statement at exhibit A1, with regard to earlier claims citing osteoarthritis, that he did not recall stating to Dr Fried that he had problems with his knees.  He stated that about the time he was claiming service pension (1990) he had had a fall from a ladder and when he went to claim service pension an officer at the Department of Veterans’ Affairs commented that he would be likely to develop osteoarthritis as a result.  He said it was for this reason that he referred to this condition in his claim for service pension. 

13.     In a Statutory Declaration dated 10 June 1997 which the applicant submitted to the first VRB in 1998, the applicant said that he was reluctant to admit to suffering nightmares and anxiety attacks that he was having, because he had considered it was preferable to cite a physical disability (osteoarthritis) rather than to suffer the embarrassment associated with an admission of insanity.

14.     The applicant agreed under cross-examination that he had fabricated answers in his claim for service pension to ensure the success of the claim.  He also stated that after he was placed on a service pension he did not have to look for work, as he had been required to do by Centrelink.  The applicant was adamant that he has no problems with his knees or with his back.

15.     With regard to the work he obtained in December 1999 packing lychees the applicant said that employment was obtained after casual discussions with a neighbour.  He said he could physically do the work but left because the laziness of other workers made him angry and he was concerned that he would become violent.

16.     There were a number of medical reports on file.  They can be divided roughly into those related to the first claim in which physical disabilities of osteoarthritis and back pain predominate and those related to the second claim in which psychiatric conditions predominate. 

17.     In a report dated 25 July 1990 the applicant’s general practitioner, Dr P Hopkins, stated that the applicant had recurrent worsening knee pain and that he walked slowing with a stick favouring his left leg.  He noted the applicant adopted a rigid posture to prevent back ache.  Dr Hopkins concluded that the major diagnosis was severe degenerative osteoarthritis of both knees with a minor diagnosis of lumbar spondylitis not expected to improve.  He stated that the applicant was capable of full-time clerical work limited by low back pain and poor skills.  

18.     In a report dated 26 September 2000 (page 22-24) Dr R Bull referred, amongst other conditions, to the applicant developing pain in his knees and swelling after prolonged standing or sitting since 1982/1983.  He referred to the applicant’s use of a stick when away from home and his propensity to fall.

19.     In a report dated 9 February 1998 in support of an application for service pension (T4 page 32) Dr R Fried gave as the major diagnoses anxiety disorder, osteoarthritis both knees of 9 year’s duration, alcohol disorder and hypercholestrolaemia and the secondary diagnosis was scheurmanns disease of the back.  He stated that possibilities of work were restricted by anxiety, mobility problems arising from osteoarthritis and poor job skills.

20.     In a report dated 25 January 1994 (page 33) Dr A Dineen noted the applicant’s anxiety attacks and psychiatric symptoms.  After referring to these, Dr Dineen said that the applicant’s last work was when he was 35 and that he had developed arthritis of the legs over the years, first treated at the age of 21.  Dr D Chapman, orthopaedic surgeon, in a report dated 28 November 1994 (T4 page 44) could find no evidence of pathology in the knees. 

21.     In a report dated November 1997 (page 47-48) Dr J Rogers, psychiatrist, stated that the reasons for the applicant not working for some 15 years were the persistence of PTSD, characterised by sleep difficulties, chronic major depression, alcohol dependence, ischaemic heart disease and hypertension.    He stated that the applicant was unable to work for psychiatric reasons alone. 

22.     In a report dated 11 September 2001 (T4 page 95) Dr R Watson, specialist in rehabilitation medicine, has stated that the applicant told him that he had only experienced problems with his knees in 1989/1990 when he fell off a ladder, but this was a time that coincided with a need to attend at the Department of Veterans’ Affairs.  The applicant told the doctor that he had no knee difficulties when he worked for 3 weeks packing lychees and only discontinued that work due to his anxiety.  Dr Watson commented upon the normal pain-free range of movement in the knee and concluded that the applicant’s unemployability was due to emotional disturbance.

23.     More recent reports completed in relation to the second claim confirm that the applicant has essentially normal knees.  In a report dated 16 July 2003 (exhibit R1) Dr P Mulholland, psychiatrist, concluded that the applicant was unable to work because of accepted psychiatric conditions.  In a report dated 28 July 2003 (exhibit R3) Dr Adam, specialist in occupational medicine, concluded that the applicant’s back and knee conditions would not prevent the applicant undertaking remunerative employment but that his psychiatric condition would do so. 

24.     In a report dated 7 July 2003 (exhibit R2) Dr Boys, orthopaedic surgeon, stated that the applicant suffered mild osteoarthritic changes in the back and knees but these conditions would not prevent him from undertaking remunerative employment.   

CONSIDERATION OF THE ISSUES

25. The assessment period for this matter starts on the date of the application for increase in pension was lodged, which was 15 January 2001: s19(9) of the Veterans’ Entitlements Act 1986 (the Act).  The applicant was then aged 53. 

26. Section 24 of the Act provides for the special rate of pension, which is one of the earnings-related pensions that a veteran may claim under the Act. The respondent conceded that certain parts of the qualifying conditions set by the section were met by the applicant. The Tribunal accepts the correctness of the concession that s24(1)(b) is met by the applicant as is supported by the evidence of Dr Boys, Dr P Mulholland and Dr Adam that the applicant is unable to work eight hours per week due to the effects of his psychiatric condition: s24(1)(b).

27. The issues in this case arise with regard to s24(1)(c) which relevantly provides as follows:

“This section applies to a veteran if:

…

(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; …”

28.     There are two limbs to the section that must be met: Forbes v Repatriation Commission (2000) 171 ALR 131. In the first limb, the applicant must be prevented from continuing to undertake remunerative work that the veteran was undertaking, or, relatedly, must be deemed to be incapacitated from continuing to undertake remunerative work, as provided for in s24(2)(b). Mr Honchin said that the applicant did not rely on s24(2)(b) of the Act.

29. Mr Stoner noted that the respondent did not assert that the applicant had not sustained the loss referred to in s24(1)(c) of the Act if he met the other requirements of the subsection.

30. The Federal Court has frequently considered the effect and operations of s24(1)(c) of the Act. In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, the Federal Court said:

“…The tendency of that is to distract the tribunal from its true task – to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well.  It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”

31.     In Forbes v Repatriation Commission (2000) 171 ALR 131, the Court said that any factor having employment consequences which played a part in the applicant’s inability to work or to retain and hold remunerative employment is sufficient to displace the applicant’s case for pension at the special rate.

32.     Mr Honchin acknowledged that the applicant has not assisted the resolution of his claims by his acknowledged dishonesty in regard to his service pension claim.  However, he said the Tribunal should take account of his honest admissions with regard to that claim and take into account that he had a basis for doing so because he was concerned and embarrassed to acknowledge his psychiatric disability.  He said that what was now clear was that there were no orthopaedic reasons that prevented the applicant continuing to undertake remunerative work. 

33. Mr Honchin submitted that the applicant’s remunerative work included a wide range of unskilled and labouring work. He submitted that applying the 4 stage test to s24(1)(c) as set out in the Federal Court decision Flentjar v Repatriation Commission (1997) 48 ALD 1 the applicant must succeed. He said that the applicant’s remunerative work was a broad range of skilled and labouring work. He said that there were no reasons other than psychiatric reasons that prevent him from continuing to partake in that work as he had no physical ailments, he was relatively young and the time out of the workforce was less relevant to this kind of remunerative work.

34. Mr Stoner submitted that while other parts of s24 were met by the applicant, s24(1)(c) was not. He said that in this case there were other reasons impacting on the applicant’s ceasing to engage in remunerative work. He said that he ceased work for a number of reasons including his retrenchment from the bus company and he noted that the applicant had only recently provided a version of the story in which he lost that position for reasons that might be related to his psychiatric condition. He said the applicant should not be believed on this.

35.     Mr Stoner submitted that two views of the applicant’s case could be taken, one accepting the history from the documentary materials or one accepting the applicant’s most recent version.  But he said that on either version the applicant’s claim could not succeed.  He pointed to the applicant having been 20 years out of the workforce and that on his own evidence that some 10 years before the assessment period began the applicant had removed himself from the labour market by obtaining a service pension.

36.     The Tribunal reached its decision taking into account the oral and written evidence and the submissions. The applicant has few skills and has not been in the workforce for a substantial time.  The Tribunal agrees that the remunerative work that properly is to be considered includes a range of unskilled and labouring jobs. 

37.     The Tribunal noted that much of the evidence and submissions were directed at the applicant’s reasons for leaving the position with the bus company in 1982.  The Tribunal took into account the applicant’s evidence and Dr Mulholland’s that he might have had difficulty coping with school children in that position.  However, the Tribunal also takes into account the documentary evidence that he was telling medical practitioners at the time of his first claim that he was retrenched when that work ceased because the bus company was sold.  The Tribunal accepts that the applicant did tell Dr L Power, as reflected in her report dated 26 November 1996 (T4 page 45-46), that he was retrenched when the company was privately purchased.  The applicant also stated this in his second claim form.

38.     The issues surrounding the applicant’s ceasing work in 1982 are of relevance but must not supplant the test under the legislation which must be applied in the assessment period which dates from the time the applicant claimed in 2001.  At that time the applicant had been out of the workforce for some 20 years. The Tribunal accepts the respondent’s submission that whether or not the Tribunal accepts the applicant’s current evidence about his departure from the bus company, this was effectively his last employment and he has had no real work since. 

39.     It is more likely than not that in the early 1990s the applicant saw the service pension as a preferable course to take because it would remove the need for him to look for work.   By the time of his claim in 2000 he was in his mid-50s and had no recent workforce experience.  Despite a potentially wide base of remunerative work available to him based on his past experience, there is no question that it is an impediment to employment to have this amount of time out of the workforce.  As the case of Cavell points out, a commonsense approach must be taken. The Tribunal was reasonably satisfied that the combination of time out of the workforce and age prevent the applicant being able to satisfy s24(1)(c). The Tribunal was satisfied that it was not incapacity from war-caused injury or disease that was the direct, and only cause of the applicant being out of the workforce at that time or at any time in the assessment period : Hendy v Repatriation Commission [2002] FCA 602.

40. For these reasons the applicant cannot be paid pension at the special rate under s24 of the Act. The Tribunal affirms the decision under review.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:         Denise Burton          
  Administrative Assistant

Date/s of Hearing  4 November 2004 (Townsville)
Date of Decision  5 November 2004 (Townsville)
Counsel for the Applicant         Mr D Honchin
Solicitor for the Applicant          Purcell Taylor Lawyers
Counsel for the Respondent     Mr J Stoner, Departmental Advocate