Russell and Repatriation Commission
[2011] AATA 788
•8 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 788
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4388
VETERANS' APPEALS DIVISION ) Re DENNIS ANTHONY RUSSELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean Date8 November 2011
PlaceAdelaide
Decision The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Russell is entitled to a pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 30 August 2007.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Disability Pension – Whether veteran entitled to pension at special rate – Whether veteran ceased remunerative work by reason of war-caused PTSD condition alone – Whether back injury also contributed to cessation of work – Veteran ceased work and was prevented from working by war-caused PTSD condition alone – Decision under review set aside.
Veterans’ Entitlements Act 1986 ss 19, 21, 24
Cavell v Repatriation Commission (1998) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50REASONS FOR DECISION
8 November 2011 Senior Member K Bean introduction
1. The applicant, Mr Russell, joined the Australian Army when he turned 18. He served in Vietnam between February 1971 and September 1971 and saw extensive action.
2. As a result of his service in Vietnam, Mr Russell is now afflicted with chronic post-traumatic stress disorder (PTSD) which has had an extremely adverse effect on many areas of his life.
3. In consequence of his war-caused PTSD, Mr Russell has been in receipt of a veteran’s disability pension at 100 percent of the general rate since before 1999. However in 2007, he applied to the respondent to have his rate of pension increased to the special rate on the basis that he had ceased remunerative employment and was unable to engage in remunerative employment by reason of his war-caused PTSD condition, alone.
4. His application was unsuccessful before the Commission and the Veterans’ Review Board (VRB)[1]. However on 19 September 2008, Mr Russell applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, declining to increase his rate of pension to the special rate. Accordingly, in general terms, the issue before me is whether Mr Russell’s rate of disability pension should be increased to the special rate.
[1] T2/3
legislation and issues
5. In order to establish that he is entitled to be paid disability pension at the special rate, Mr Russell must demonstrate that he satisfied all of the requirements of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) at some point during the assessment period. For the purposes of this matter, the assessment period is the period between when Mr Russell first lodged his claim on 30 August 2007[2] and the date of this Tribunal’s decision[3].
[2] T3/9-23
[3] S 19(9), VE Act
6. Section 24 of the VE Act relevantly provides as follows:
“24 Special rate of pension
(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.
…”
7. There was no dispute between the parties that the conditions suffered by Mr Russell and which have been accepted as being war-caused were:
(a) bilateral sensorineural hearing loss; and
(b) PTSD.
8. There was also no dispute between the parties that Mr Russell satisfies ss 24(1)(aa), 24(1)(aab), 24(1)(a), 24(1)(b) and 24(1)(d) and I am satisfied that he satisfies those provisions. However, the respondent contends that Mr Russell does not satisfy the “alone” test prescribed by s 24(1)(c). Mr Russell contends that he satisfies the “alone” test, either directly or with the benefit of the “ameliorating” provision contained in s 24(2)(b) because he has been genuinely seeking to engage in remunerative work, and his war-caused incapacity is the substantial cause of his inability to obtain remunerative work.
9. It follows that the issues for my determination are:
(a) whether, pursuant to s 24(1)(c), by reason of his war-caused incapacity alone, Mr Russell has been prevented from continuing to undertake remunerative work that he was previously undertaking and is suffering a loss of income as a result;
(b) whether at any time during the assessment period, Mr Russell was genuinely seeking to engage in remunerative work; and if so
(c) whether his war-caused incapacity was the substantial cause of his inability to obtain remunerative work.
10. I propose to first consider issue (a), that is whether Mr Russell satisfies s 24(1)(c) without resort to s 24(2)(b).
was mr russell prevented, by his accepted disabilities alone, from continuing to undertake the remunerative work that he was undertaking?
11. Whilst this matter was considered on a different factual basis by the VRB, it was clear on the material before me that Mr Russell’s last paid employment was some work that he did for a business known as “Farrelly Chaff” as a labourer between 25 January 2005 and 9 March 2005. There is no dispute between the parties that the work Mr Russell undertook for Farrelly Chaff was physically demanding work, which involved filling and lifting bags of chaff[4].
[4] Exhibit 2, [43]-[45]
12. Mr Crowe, who appeared as advocate for the respondent, accepted that this constituted remunerative work undertaken by Mr Russell of the kind he had previously undertaken, and submitted that he should accordingly be considered to have ceased work in March 2005, when he ceased that employment. However, he also contended that Mr Russell had not ceased that employment by reason of his accepted condition of PTSD “alone” and accordingly submitted that Mr Russell did not satisfy the “alone” test contained in s 24(1)(c).
13. In particular, Mr Crowe submitted that a back injury suffered by Mr Russell in 1990 was continuing to trouble him in 2005 and this was at least one of the reasons for him ceasing work with Farrelly Chaff in March 2005. Mr Crowe relied in particular on medical evidence documenting the extent of Mr Russell’s back injury and indicating that it had resulted in a permanent disability. The material relied upon by Mr Crowe included a report of Dr Sen, orthopaedic surgeon, dated 7 May 1993 in which Dr Sen reported as follows:
“Clinically Mr Russell’s back injury seems to be stabilised now. I believe that he is suffering from 30% permanent residual disability of the lumbar spine. However, taking into account his emotional state and abnormal pain response, etc, I further believe that 40% of the abovementioned disability is due to non-organic causes and remaining 60% due to the alleged injury.”[5]
[5] Exhibit 6, p 3
14. Mr Crowe also directed my attention to the records of Mr Russell’s general practitioner, which recorded that in June 2004 he had complained of “gradual lower back pain a day or two after lifting, previous lower back injury (WorkCover) many years ago”. These records indicated that Mr Russell was prescribed Celebrex and Panadeine Forte on this occasion, but also that he had not returned for any further treatment in relation to his back or complained about back pain on any subsequent visit to his general practitioner.
15. Mr Crowe submitted that this and other evidence indicated that the back injury suffered by Mr Russell in 1990 was a reasonably significant one, that it was continuing to affect Mr Russell in 2005 and it was reasonable to infer that his back condition was at least one of the reasons for him being unable to continue his employment with Farrelly Chaff.
16. However, whilst the evidence relied on by Mr Crowe suggests that the back injury suffered by Mr Russell in 1990 was a significant one and the doctors treating him at that time thought that it was likely to cause him ongoing problems, there is also a significant body of evidence before me to the effect that the injury had in fact resolved by 2005 when he commenced work for Farrelly Chaff.
17. Mr Russell said in his oral evidence that his back was better by 2005 and that it caused him no problems in carrying out his duties at Farrelly Chaff. He said that this job involved him lifting 28 kg bags of chaff and he had no problems with the physical aspects of his duties. He also said in his statement[6] that he had undertaken heavy work on a horse stud during the 1990s.
[6] Exhibit 2
18. In addition, Dr Sen was asked to examine Mr Russell again for the purposes of this application. He has provided a further report dated 15 March 2011[7] and he also gave oral evidence at the hearing. In his written report, Dr Sen indicated that on examination this year he found no abnormality of Mr Russell’s lumbar spine. He expressed the opinion that Mr Russell was “not suffering from any significant injury/disease of the lumbar spine”. He also stated “I consider that his back injury did not have any significant effect on Mr Russell’s ability to perform work as a forklift driver/storeman etc over the last 20 years”.
[7] Exhibit 7
19. When questioned as to the apparent inconsistency between this report and his earlier report of 1993, Dr Sen explained in his oral evidence that whilst in 1993 he had expected Mr Russell’s condition to persist, in the event it had resolved. He also explained that because Mr Russell’s experience of pain in the early 1990s was attributable in part to emotional distress, his back problem had taken longer to resolve than would normally be expected. He also explained that in the event, it was now apparent that an even larger proportion of Mr Russell’s symptoms in 1993 was attributable to non-organic causes than Dr Sen had identified in 1993. He said that Mr Russell’s recovery had been better than expected and he had been left with no permanent disability of his back. Based on his examination of Mr Russell this year, he also indicated that there should be no physical impediment to him carrying out work of the kind he did at Farrelly Chaff.
20. It is also significant that Dr Sen’s analysis and conclusions are to a large extent consistent with the other medical evidence before me. For example, in a report of 29 November 1990, Dr Paul Carney, neurosurgeon, stated as follows:
“Pain unit assessment indicated that non-organic factors contributed significantly to Mr Russell’s presentation including in particular the stress of his military service in Vietnam. …”[8]
In a further report dated 9 June 1994, Dr Carney stated:
“It would appear that his state is determined by pre-existing psychological factors and degenerative change. His Vietnam experiences and unsympathetic responses from his employer following his injury appear to be important in this area. In this setting I find it impossible to distinguish disability as a result of the accident from the surrounding factors …”
[8] Exhibit 2
21. Dr Hall, orthopaedic surgeon, also stated in his report of 1 June 1991 “Mr Russell is unlikely to suffer a permanent residual physical impairment” and “the prognosis is excellent”[9].
[9] T24/96-97
22. In other words, most of the specialists who assessed Mr Russell’s back condition in the early 1990s appear to have considered that his presentation was heavily influenced by non-organic or psychological factors. Further, according to Dr Sen’s evidence, it has now become apparent that Mr Russell did not suffer a permanent back injury in 1990. In effect, what Dr Sen has said is that the injury appeared to be more serious in the early 1990s than it was in fact, due to psychological factors affecting Mr Russell’s presentation at that time.
23. Having carefully considered all of the evidence relevant to this issue, I am accordingly satisfied that Mr Russell’s back injury had resolved by 2005 and did not trouble him during his employment by Farrelly Chaff. In reaching that conclusion, I accept his evidence that his back did not trouble him in carrying out his duties with Farrelly Chaff and I also accept Dr Sen’s evidence that despite earlier expectations to the contrary, Mr Russell’s back condition had in fact completely resolved by the time he saw him again in 2011 and that in retrospect his presentation in 1993 was explained in large part by emotional distress. Whilst it is clear on the material before me that Mr Russell did experience some back symptoms in 2004, on the basis of the evidence available to me, it appears that those symptoms resolved quickly and did not recur.
24. As I am satisfied that Mr Russell’s back condition did not cause him any difficulties in carrying out his employment with Farrelly Chaff, it follows that I do not consider that condition to have made any contribution to Mr Russell’s ceasing that employment in March 2005.
25. As to the reasons why he did cease that employment, there is limited evidence before me directed to that question. Mr Russell’s employer at that time, Mr Farrelly, gave evidence at the hearing but had little recollection of the circumstances surrounding the ending of Mr Russell’s employment. His recollection was that Mr Russell’s employment was not terminated but rather that he ceased attending work.
26. In his statement, Mr Russell said of his Farrelly Chaff employment:
“Unfortunately, I could not attend work on every day that I was supposed to be there. This was because I experienced what, in those days, I called good days and bad days. I had been diagnosed with ‘PTSD’ but I didn’t really know what it meant. …
I now know that what I regarded as bad day was a day where I was too depressed and was unable to motivate myself. …
The affect [sic] on me was devastating. It meant that even though I had the prospect of work, I just could not bring myself to go to work.
For me, this was just a part of my way of life. I knew the Farrellys. I had never talked to them about my problems and I never did. I don’t know if I just assumed that it would all work out, but eventually, they asked me to leave. I cannot recall if I was given an explanation at the time, but I have talked to them since and they have told me that they were perfectly happy with my work but that I just took much time off.”[10]
[10] Exhibit 2, [46]-[50]
27. Mr Crowe did not point to or rely upon any other matter, apart from Mr Russell’s accepted PTSD condition and his back condition, which contributed to him ceasing employment with Farrelly Chaff and in fact he conceded that, if Mr Russell’s back problems did not contribute to his cessation of work in 2005, he satisfied the criteria for payment of pension at the special rate throughout the assessment period. In those circumstances and having regard to the evidence before me, I am satisfied that Mr Russell ceased work by reason of his accepted condition of PTSD. I also note that that conclusion is consistent with the opinion of Dr Ewer, psychiatrist, who said in his report of 10 February 2011 that Mr Russell was not fit to work eight hours per week during the period January to March 2005, by reason of his psychiatric state.
28. I note that any factor having employment consequences which plays a part in a veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to prevent a veteran from satisfying the “alone” test[11]. However, as I have indicated above, I am satisfied that Mr Russell’s back condition did not contribute to him ceasing work with Farrelly Chaff in March 2005. I am also satisfied that no other factor, apart from his accepted condition of PTSD, played a part in the cessation of that employment and that Mr Crowe’s concession in that regard was properly made. For completeness, I am also satisfied that Mr Russell is suffering a loss of income that he would not be suffering if he did not have his PTSD condition and Mr Crowe did not contend to the contrary. It therefore follows that Mr Russell ceased remunerative employment by reason of his accepted PTSD condition “alone” and that he satisfies the “alone” test laid down by s 24(1)(c) of the VE Act.
[11] See Cavell v Repatriation Commission (1998) 9 AAR 534, Forbes v Repatriation Commission (2000) 101 FCR 50.
29. Having regard to this conclusion, it is unnecessary for me to consider the alternative argument advanced on behalf of Mr Russell, that is, that he satisfies s 24(1)(c) with the benefit of the ameliorating provision, s 24(2)(b).
conclusion
30. I have concluded that Mr Russell ceased remunerative employment in March 2005 when he ceased work as a labourer for Farrelly Chaff. I have also concluded that he ceased that employment and was prevented from continuing to undertake remunerative work by reason of his accepted PTSD condition “alone” within the meaning of s 24(1)(c) of the VE Act.
31. I consider that if he had lodged an application for an increase in pension when he ceased employment with Farrelly Chaff, Mr Russell would have been eligible for pension at the special rate at that time. However, as his application for an increase in disability pension was not lodged until 30 August 2007, he can only be paid disability pension at the special rate from that date[12].
[12] See s 21, VE Act.
decision
32. The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Russell is entitled to a pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 30 August 2007.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: .............J Coulthard....................................
AssociateDates of Hearing 8 July 2010, 12 May 2011 & 13 September 2011
Date of Decision 8 November 2011
Counsel for the Applicant Mr G Hemsley
Solicitor for the Applicant Hemsley Gilbert & MattnerAdvocate for the Respondent Mr A Crowe
DVA
0
3
1