Russell and Repatriation Commission

[2001] AATA 1046

DECISION AND ORAL REASONS FOR DECISION [2001] AATA 1046

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2000/457

VETERANS' APPEALS  DIVISION       )          
           Re      STEVEN STANLEY RUSSELL  
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Senior Member WJF Purcell        

Date7 December 2001

PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to payment of pension at the special rate with effect from 3 April 1998.          
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans' Entitlements – Disability Pension – whether applicant is entitled to special rate – Post Traumatic Stress Disorder – whether applicant meets "alone test" 
Veterans' Entitlements Act 1986 section 24

ORAL REASONS FOR DECISION

7 December 2001     Senior Member WJF Purcell                 

1. This is an application for review of a decision of the Veterans' Review Board (the VRB) dated 31 October 2000, which set aside the decision of the Repatriation Commission (the Commission) of 4 March 1999, which assessed pension at 80% of the general rate, and substituted a decision that pension be assessed at 90% of the general rate with effect from 3 April 1998. The VRB concluded also, that the applicant had a significant back problem which contributed to his inability to work, and that he did not satisfy section 24 of the Veterans' Entitlements Act 1986 (the Act).

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the applicant. Mr Swan represented the applicant, who gave oral evidence, and called his treating psychiatrist, Dr M Ewer, and his brother, Mr Glenn Russell. Mr Doube represented the Commission.

3. The applicant was born on 30 January 1950 and after leaving school at 15, he worked for 18 months as a sales assistant at John Martins, and then at Coles for 18 months, and at the time of his resignation was manager of deep freeze and dairy.  In 1968, at age 18, he joined the Royal Australian Air Force (RAAF) and served for 20 years until his discharge in 1988.  He operated a supermarket then with his brother, Glenn, for 3 years until 1991, when he sold his share in the business to his brother.

4. The applicant depended then on the income from his wife's employment and his defence pension.  He had four infant children, and in December 1995, he and his wife separated.  His wife ceased providing income.  He and the children remained in the matrimonial home.  His wife subsequently left her full-time job, and on 11 January 1996, the applicant commenced receipt of Sole Parent Pension, until 2 July 1998, when he lodged a claim for Service Pension and the Disability Pension from the Department of Veterans' Affairs.

5. During 1995 the applicant was experiencing pain in the left-hand side of his back and claimed pension also, for a back condition.  In April 1997 he underwent a partial ureterectomy.  Complications ensued over the following 18 months, until on 9 October 1998 he had muscle wall weakness repair and left ureteric stricture dilation and on 23 November 1998 a flexible cystoscopy and stent removal at the Repatriation General Hospital under the care of Mr Sinclair, surgeon.  The applicant said in evidence that he has not suffered any back symptoms since that time.

6. On 31 August 1998 the applicant consulted Dr Ewer, a psychiatrist, and was assessed as suffering post traumatic stress disorder (PTSD) as a result of war service in Vietnam.  His accepted disabilities are PTSD, alcohol dependence, and bi-lateral sensorineural hearing loss with tinnitus.  On 30 January 2001, Mr Fry, Orthopaedic Surgeon, reported (Exhibit A1) that it is "thoroughly improbable that Mr Russell has ever had problems with his lumbar spine".  The recent episodes of pain that the applicant described in the previous 10 years related, he thought, to the ureteric polyp that was discovered and later removed.  Mr Fry considered that there was no indication at all to suggest that the applicant's lumbar spine was in any way abnormal or symptomatic or likely to have any affect upon his everyday affairs, at work or away from it.

7. The applicant asserts that he ceased work as a consequence of his accepted disabilities alone; that he satisfies section 24 of the Act and is entitled to payment of pension at the special rate. Section 24, as far as is relevant for the purpose of these proceedings, 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.

   …"

8. The Commission concedes that the applicant satisfies sections 24(1)(a) and 24(1)(b) of the Act, but maintains that he does not satisfy section 24(1)(c) of the Act, the "alone test". It would be stretching the bounds of credibility it submits for the Tribunal to accept that the applicant ceased work in 1991 because of his PTSD alone.

9. I heard lengthy evidence from the applicant.  I consider that he did his best to outline the history accurately.  He is clearly a deeply troubled and angry man; but I consider that he gave his evidence succinctly, and without attempt at embellishment.  I accept his evidence that his lassitude (because of lack of sleep), and his ill temper, led to disagreements with his brother and bad business decisions, none of which, he seems convinced, were caused by him.  The bad decisions he asserts were those of his brother.  These problems are summed up in the statutory declaration of his mother, Mrs Molly Russell (Exhibit A3) wherein she stated: 

   "…
   My sons were quite excited about their business at first, then after a short period, disagreements started to happen.  They would argue about stock quantities, and what specialty items the shop should carry, and eventually this situation worsened considerably during the next twelve months, and got to a stage where they were not talking to each other, and eventually couldn't stand each other.
   …"

I accept Mr Glenn Russell's evidence as to the disputes that arose. 

1. Dr Ewer was in the hearing room for some 35 minutes during the applicant's cross-examination, and I accept his evidence that the applicant's presentation at the Hearing and his evidence as to the events surrounding the business, were in keeping with the diagnosis of PTSD.  Dr Ewer said that with these obsessional traits the applicant sees the world in black and white terms.  I accept also Dr Ewer's view that the applicant ceased work in 1991, solely because of his PTSD.  Dr Ewer expressed this view in his report of 21 November 2001 (Exhibit A2) in the following terms:

   "…

   10.      STATEMENT OF OPINION AND REASONS
   My opinions in relation to this matter, and the reasons are as follows (these coincide with the questions you have asked):

   10.1In my opinion, Mr. Russell is suffering from a Chronic Post-Traumatic Stress Disorder.  He fulfils the DSM-IV diagnostic criteria for this.

   10.2In my opinion the aetiology of this condition is Mr. Russell's war experiences.

   10.3In my opinion Mr. Russell ceased work in April of 1991 because of the effects of his war caused Post-Traumatic Stress Disorder.  This factor alone caused him to cease work.  In summary, a number of symptoms were interfering with Mr. Russell's ability to work in the supermarket.  His lethargy and insomnia reduced his pace and perseverance.  His irritability led him into frequent conflict not only with coworkers but also with representatives.  He had difficulty coping with pressure.  As a result of these factors Mr. Russell sold his share of the business to his brother.  The business was financially viable at the time and it continued to run profitably until it was sold some years later.

   …"

2. I am satisfied on the evidence and find as a fact that the applicant ceased to work in the supermarket in 1991, solely because of the symptoms associated with his war-caused condition of PTSD. I am satisfied on the evidence that the applicant satisfies section 24(1) of the Act, and that he is eligible for payment of pension at the special rate.

3. For these reasons the Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to payment of pension at the special rate with effect from 3 April 1998.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .....................................................................................
  Associate

Date/s of Hearing  7 December 2001
Date of Decision  7 December 2001
Counsel for the Applicant        Mr C Swan
Solicitor for the Applicant         Swan Lawyers
Counsel for the Respondent    Mr G Doube
Solicitor for the Respondent    DVA