Ryan and Repatriation Commission

[2003] AATA 471

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 471

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/225

VETERANS’ APPEALS  DIVISION		)
Re		RAYMOND RYAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal J.R Dwyer (Senior Member)

Date15 May 2003

PlaceAdelaide

Decision The decision under review is affirmed.

(signed)

J.R Dwyer

(Senior Member)

CATCHWORDS

VETERANS’ AFFAIRS – application for pension at special rate – post traumatic stress disorder – whether Post Traumatic Stress Disorder alone prevented the applicant from undertaking remunerative work.

Veterans’ Entitlements Act 1986; s24(1)(c)

Repatriation Commission v Alexander [2003] FCA 399

REASONS FOR DECISION

15 May 2003 J.R Dwyer (Senior Member)         

1.      This is an application made under section 175 of the Veterans Entitlements Act 1986 (The Act), for review of a decision of the Repatriation Commission which was made on 1 March 2001 and affirmed by the Veterans Review Board on 30 May 2002. The Repatriation Commission assessed Mr Ryan as entitled to pension under the Act at 100 percent of the general rate.  In this application he seeks pension at the special rate provided for in section 24 of the Act. 

2. The Tribunal had before it the documents (T documents) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the Hearing. Mr Swan, a solicitor, appeared for Mr Ryan. Mr Crowe, an advocate with the Department of Veterans Affairs, appeared for the Repatriation Commission. Mr Ryan gave evidence.

3.      Mr Ryan commenced service in the Australian Army on 26 August 1956, when he started as a National Serviceman.  Upon completion of his National Service, he joined the regular Army and served for almost 22 years until March 1978.  That service included 12 months of operational service in Vietnam from December 1967 to December 1968. 

4.      Mr Ryan has accepted disabilities of sensory neural deafness, Post Traumatic Stress Disorder, osteoarthritis of the knees and bilateral tinnitus..  It is the Post Traumatic Stress Disorder which is relevant to this application.

5.      After discharge from service, Mr Ryan joined the South Australian Department of Road Transport (SA Transport) and remained there for almost 20 years until he accepted a targeted separation package, with effect from 28 July 1995.

6.       The sole issue in this matter arises under section 24(1)(c) of the Act which provides a requirement as follows:

The veteran is, by reason of incapacity from 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.

7.      Spender J explained the operation of section 24(1)(c) in Repatriation Commission v Alexander (2003) FCA 399(13-18) as follows:

Section 24(1)(c) is directed at a quite different question, causation.  Section 24(1)(c) requires that the veteran's war-caused incapacity and only that war-caused incapacity, prevented the veteran from continuing to undertake remunerative work that the veteran was undertaking. 

Section 24(1)(c) is a “sole cause” requirement: the subsection contains the requirement that incapacity from war-caused injury or war-caused disease or both “alone” prevents a veteran from continuing to undertake remunerative work that the veteran was undertaking.

In Flentjar v Repatriation Commission (1997) 48 ALD 1, (“Flentjar”) at 5, Branson J, (with whom Beaumont and Merkel JJ agreed) reformulated the requirement as a question:

‘…is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?’

An application for special leave to appeal from the judgment of the Full Federal Court in Flentjar was refused with costs by Gaudron and Callinan JJ on 19 May 1998,  Gaudron J announcing:

‘The Court is of the view that there is no reason to doubt the correctness of the decision of the Full Federal Court.  Accordingly, special leave is refused … with costs.’

In Repatriation Commission v Hendy [2002] FCAFC 424, a Full Court of the Federal Court (Whitlam, Emmett and Stone JJ) on 19 December 2002 said at par 37:

‘The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise.  The language of section 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work.  The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working.  The decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work.’

Burchett J, noted in Cavell v Repatriation Commission (1988) 9 AAR 534 at 538, that Davies J in Re Easton v Repatriation Commission (1987) 6 AAR 558 at 570 to 571 referred to Banovich v Repatriation Commission (1986) 6 AAR 113, Lucas v Repatriation Commission (1986) 6 AAR 122 and Re Apthorp v Repatriation Commission (1986) 9 ALN N157, each of which cases emphasised that:

‘…what must prevent the veteran from continuing to undertake remunerative work in order to satisfy para c, must be war related incapacity and that incapacity alone.’

Burchett J continued:

‘As was pointed out in Lucas's case (supra), that means it must be relevant to determine whether the applicant would, in any event, have been debarred from work because of a factor such as age. But Davies J went on to say:

‘I would not, however, substitute for the word "alone", the description “sole, unique and absolute cause” as stated in Re Repatriation Commission v Cavell, (unreported, No 2891, 19 September 1986). … In the absence of ambiguity, other words should not be used in place of the words used by the legislation.’

‘With respect, I entirely concur in the comment made by Davies J. This is not to say, of course, that a paraphrase may not throw light into a dark corner of a statutory prescription. But the phrase used by the tribunal, to which objection is taken, involves an almost scholastic insistence upon analysis of the concept of singularity.  The tendency of that is to distract the tribunal from its true task - to make a practical decision with 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.’”

8.      I have no reason to doubt any of the evidence before the Tribunal.  I accept, as described by Mr and Mrs Ryan in their statements, that Mr Ryan, after his return from Vietnam had various behavioural patterns, which have now been diagnosed by Dr McLean as symptoms of Post Traumatic Stress Disorder, but which, at that stage, remained undiagnosed.  But I cannot find that Mr Ryan's Post Traumatic Stress Disorder was the only factor which prevented Mr Ryan from continuing to undertake the remunerative work that he was undertaking with South Australian Transport.

9.      I find on Mr Ryan’s evidence and on the statements of Mr Chamberlain at T documents page 131 and Exhibit A4, that the restructure at South Australian Transport which lead to the departure of three quarters of the staff in the Supply Section, in which Mr Ryan worked, was also a factor.  I find that the job was good for Mr Ryan's health. As he said it provided him with stability.  Dr McLean, in his report A5 wrote on page 1::

“I wish to clearly state my opinion that Mr Ryan was suffering from PTSD symptoms at the time he retired from work with Transport SA on 29 July 1995.”

He then explained on the following page:

“In regard to his excessive work practices, I would like to offer the following comments.  By all accounts Mr Ryan had been exceptionally devoted to work.  He states that he had always been a conscientious employer [sic], would arrive an hour or more early each day and regularly work 44 hours per week instead of the required 37.5 hours, without claiming overtime.

In regard to his work pattern, Mr Ryan stated to me on 3rd May 1996 that the ‘tearfulness was under control at work… bury myself in work… if working then not thinking.’  Immediately on ceasing work, Mr Ryan ‘got into a hole’ and would not go outside of the house alone.  His wife was forced to give up work to care for him a month after his retirement. 

It would appear that Mr Ryan used the structure and activity of the work place to help control his PTSD symptoms by distracting himself from intrusive thoughts and memories of his South Vietnam trauma.  My opinion is that Mr Ryan would channel his energies into work in order to defend against or actively avoid the re-experiencing and hyper arousal symptoms of PTSD.  In this way, Mr Ryan's excessive work practices were a symptom of PTSD.”

He then goes on to reiterate:

“It is my opinion that, on the balance of probabilities and on his own report, Mr Ryan was suffering from Post Traumatic Stress Disorder symptoms at the time of his retirement from Transport SA. His excessive work practices were only one of several symptoms of PTSD displayed during his working life.  I believe that Mr Ryan retired from work when his past means of defending against Post Traumatic Stress Disorder symptoms was threatened by job restructuring. Thus Mr Ryan's retirement is attributable to PTSD symptoms.”

10.     Mr Ryan added to that picture in his own evidence when he explained his attitude, in particular to the retirement of the Supply Manager.  My notes of that evidence are as follows:

When the Supply Manager, who was a retired Lieutenant Colonel took a package, that was the last straw.  It took the wind out of my sails.  I lost what I was there for.  There was no need for me to be there.  There was still lots of work but the mainstay of the Department was gone.  The head man sets the example in the Army or a government department.  If he takes a package, it is like taking the wind out of my sails.  When I had the job it gave me stability.  I would still be working now if the reorganisation hadn't happened.  I loved my job, but once my manager had gone, there was no reason to stay.

11.     On that evidence, I find that three related factors combined to make Mr Ryan decide to take a package.  They were the South Australian Transport restructure, the retirement of the Supply Manager and the symptoms of the Post Traumatic Stress Disorder, which were becoming worse under the restructure.  Spender J said in Alexander at paragraph 22, speaking of the Tribunal decision there:

“It seems to me that the Tribunal has not addressed the question of causation that 24(1)(c) calls for, but has, in effect, applied the requirements of section 24(1)(b).  The conclusion that ‘a combination of war service and non-war service related conditions prevented Mr Alexander from working is a non-issue’, is simply wrong.  If the non-service related conditions were a factor in preventing Mr Alexander from continuing to undertake remunerative work, albeit those conditions were ‘of secondary importance’, the ‘alone’ requirements of section 24(1)(c) would not be satisfied.”

12.     I accept Mr Crowe's submission that the non-service related conditions need not only be non-service related health conditions, but can also be the restructure and in particular the retirement of a respected manager.  I find that the South Australian Transport restructure and the taking of a package by the Manager of Supply were factors preventing Mr Ryan from continuing to undertake remunerative work, in addition to the symptoms of his undiagnosed Post Traumatic Stress Disorder.

13.     Thus I cannot find that it was incapacity from war-caused Post Traumatic Stress Disorder alone which prevented Mr Ryan from continuing to undertake remunerative work that he was undertaking.  I recognise that Mr Ryan's Post Traumatic Stress Disorder has unfortunately deteriorated since he lost the stability and enjoyment his work provided.  However, he is already assessed at the maximum 100 percent of the general rate, but thus I cannot increase that assessment. 

14.     The decision under review will be affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of J.R Dwyer (Senior Member)

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

Date/s of Hearing  15 May 2003
Date of Decision  15 May 2003
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