Seymour and Repatriation Commission

Case •

[2001] AATA 436

•

23 May 2001

DECISION AND REASONS FOR DECISION [2001] AATA 436

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N1999/1465

VETERANS' APPEALS DIVISION          )          
           Re      Robert Frank SEYMOUR            
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mrs M T Lewis, Senior Member Ms S M Bullock, Senior Member     

Date23 May 2001

PlaceSydney

Decision       The Tribunal sets aside the decision of the Repatriation Commission dated 29 June 1998, and in substitution therefor decides that Robert Frank Seymour is entitled to be paid pension at the Special (Totally and Permanently Incapacitated) Rate pursuant to s24 of the Veterans' Entitlements Act 1986, with effect on and from 15 December 1997.
  ..............................................
  M T Lewis
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Assessment - whether entitled to Special Rate pension – whether war-caused disabilities alone were the cause of his inability to undertake remunerative work

Veterans' Entitlement Act 1986 (Cth) – subss24(1)(a), 24(1)(b) and 24(1)(c), s28

Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

Mrs M T Lewis, Senior Member  Ms S M Bullock, Senior Member        

  1. This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent') dated 29 June 1998 that increased the disability pension payable to Robert Frank Seymour ("the Applicant") to one hundred percent of the General Rate with effect from 15 December 1997, being the date of his application for increase in pension.  That decision was reviewed by the Veterans' Review Board on 12 August 1999 and affirmed.  The Applicant lodged an application for review by this Tribunal on 24 September 1999. 

  2. The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of the Applicant –

  • Report of Dr Martha Baz, occupational physician, dated 18 April 2000 (exhibit A)

  • Report of Dr Anthony Dinnen, consultant psychiatrist, dated 22 March 2000 (exhibit B)

  • Statement of Robert Frank Seymour dated 6 December 1999 (exhibit C)

  • Copy of Income Tax Returns lodged by the Applicant for the financial years ending 30 June 1998 and 30 June 1999 (exhibit D)

  • Medical certificate from Dr H B Chee dated 27 October 2000 (exhibit E)

  • Reports from Dr Peter Anderson, consultant psychiatrist, dated 18 July 1996 and in respect of a consultation conducted on 9 February 1998 (exhibit F).

The following documents were tendered on behalf of the Respondent –

  • Documents from the NSW Police Service Workers Compensation Section in respect of the Applicant (exhibit 1)

  • Medical Records from the NSW Police Service in respect of Applicant (exhibit 2)

  • Report of Dr Neil J Schultz, consultant psychiatrist, dated 29 February 2000 (exhibit 3)  

  • Report of Dr Mark Burns, occupational physician, dated 12 January 2000 (exhibit 4).

  1. The Applicant is seeking payment of pension at the Special (Totally and Permanently Incapacitated) Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 ("the Act"). He served in the Australian Army for six years from 1962 to 11 February 1969, including a period in Vietnam from 26 April 1966 to 8 November 1966. The following conditions have been accepted as being related to his war service –

  • Acne

  • Pilonidal sinus

  • Post traumatic stress disorder

  • Chronic airflow limitation with emphysema

  • Alcohol dependence/alcohol abuse.

the evidence

  1. Following discharge from the Army the Applicant joined the NSW Police Force and reached the rank of Senior Constable.  He applied for medical retirement and cited chronic obstructive airways disease, emphysema, severe nervous disorders, post traumatic stress disorder and migraine, as reasons for his retirement (exhibit 1, p26).  Following medical examination by Dr Peter Heery, Police Medical Officer, in February 1997, Dr Heery provided the following report dated 6 March 1997 (exhibit 1, p25) –

    History
    Senior Constable Seymour has been a serving Police Officer for nearly 28 years.  Prior to that time he was in the Australian Army, and served in Vietnam for 7 months.  He receives a part pension from Veterans Affairs for PTSD from his Vietnamese service.
    Senior Constable Seymour is a heavy smoker, and suffers from chronic Obstructive Lung Disease as a result.  He also abuses alcohol on a daily basis.
    When I saw him in February 1997, he was obviously not well, had untreated hypertension, chronic pain in both shoulders, and was very breathless on exertion.  He is now unfit for work.
    Diagnosis

    1.        PTSD

    2.        Emphysema

    3.        Hypertension

    4.        Arthritis in both shoulders
    Opinion
    Medical Discharge be approved.

  2. A report from Dr Peter Anderson, consultant psychiatrist, dated 18 July 1996 (exhibit 2, p22) was obtained by the Applicant for the purpose of an application to the Department of Veterans' Affairs.  However, as that report was also included in the Police Department file the Tribunal concludes that it was available to the Police Department at the time of the Applicant's medical retirement on 2 October 1997. Prior to that time he was employed on light duties for some years.  A report provided to the Respondent from Chief Inspector Gordon Wellings dated 20 January 1998 (T6) related to the Applicant's post traumatic stress disorder and alcohol abuse, and the effect they had on the performance of his duties.  Chief Inspector Wellings noted, inter alia, "In 1997 Bob was discharged from the Police Service on Medical Grounds for disabilities directly attributable to his claim on Dept. Veterans Affairs" (at p26).  No mention was made in that letter to the Applicant's hypertension, right shoulder osteoarthritis or migraine headaches preventing him from continuing in his employment.  The Police Department notified the Police Superannuation Advisory Committee in respect of the Applicant's application for medical discharge on 27 March 1997 (exhibit 1, p21) in the following terms, insofar as is relevant –

    Nature of Infirmity       The diagnosis of the PMO is that this officer suffers from Post Traumatic Stress Disorder, Emphysema, Hypertension and Arthritis in both shoulders.

This appears to have arisen from Dr Heery's report (supra).  Dr Heery's medical examination on 17 February 1997 (exhibit 1, p36) noted the following history, inter alia –

Both shoulders – fairly constant pain – especially on abduction, no analgesics.  No apparent history of trauma.
OE. ….
Shoulders  No deformity.  All movements full & pain free.  No tenderness.

  1. The Applicant gave oral evidence at the hearing by conference telephone.  He agreed that in about 1993 he provided a medical certificate from his local doctor that he should not be involved in the annual shoot because prolonged flexion of the right shoulder with the elbow extended caused pain and aching in the shoulder.  The Tribunal notes that on medical examination at that time he was found to have "full range of movement in both shoulders – painful on extreme movement – crepitus both shoulders.  Tender over ant. R. shoulder." (exhibit 1, p37).  The Applicant said in his oral evidence that the problem he had at that time in his right shoulder improved somewhat by the time he left his employment.  He said that he continued to have "discomfort" rather than "pain" in his right shoulder.  He said that at no time did it prevent him from undertaking his light duty work that the Tribunal notes he was performing by that time.  He also anticipated that it would not have prevented him from normal police duties, including using a firearm, had he been otherwise fit to perform normal duty. 

  2. The Applicant also said in his oral evidence that his migraine headaches sometimes occurred daily and sometimes every few weeks.  He said that he did not take time off for the headaches.  In respect of hypertension, this has never interfered with his work.  He said he has been on medication for hypertension for some years.  The Tribunal notes that on medical examination by Dr Heery on 17 February 1997 (exhibit 1, p36) his blood pressure was 175/110.  The Tribunal understands this to be an abnormally high reading, and notes that Dr Heery considered the Applicant had  "untreated hypertension" at that time (exhibit 1, p25). 

  3. It was the Applicant's evidence that he has not sought employment since he ceased work as a police officer because he considered it would not be fair to encumber his alcohol abuse on another employer.  He did not consider he was employable because of the effects of his alcohol abuse.

  4. The Applicant was examined by Dr Baz, occupational physician, on 13 April 2000 (exhibit A).  She opined that there was no clinical evidence of significant shoulder or knee conditions.  She also said that although he might have experienced discomfort in his knees and shoulders at work, they were not sufficiently severe to preclude him from undertaking his normal duties in the Police Force.  Dr Baz considered that it was the Applicant's psychiatric condition, in particular, his irritability, depression and alcohol abuse, that precluded him from obtaining alternative physically light work after leaving the Police Force.  She said that the Applicant's musculoskeletal conditions do not preclude him from full-time work.

  5. Dr Burns, occupational physician, who examined the Applicant on 12 January 2000 (exhibit 4) considered the Applicant was incapable of working even eight hours per week because of his post traumatic stress disorder and alcohol abuse.  His chronic airflow limitation limited his capacity to work but did not preclude him from sedentary work.  Dr Burns considered that the Applicant's migraine did not render him unemployable even though it caused him to go home from work from time to time and lose up to 12 days per year because of that condition.  Nor was his osteoarthritic causing any functional impairment for the Applicant. 

  6. Dr Dinnen, psychiatrist, was of the opinion  (exhibit B) that the Applicant was unable to work more than eight hours per week because of his chronic post traumatic stress disorder and alcohol dependence. Furthermore, in his report dated 8 February 2000 (exhibit 3), Dr Schultz opined that the Applicant would be unable to carry out work as a police officer given the extent of his chronic alcoholism.  He believed his alcohol abuse was a significant issue in limiting his ability to work.
    submissions

  7. It was submitted for the Applicant that it was his post traumatic stress disorder, and particularly his alcohol abuse that caused his medical retirement from the police force, and that his osteoarthritis right shoulder was not significant. It was submitted that the Applicant's shoulder condition would have allowed him to stay in the police service and perform light duties or indeed full duties. It was his alcohol abuse that caused him not to be able to undertake any work. In respect of s28 of the Act, it was submitted that taking into account the knowledge and skills associated with the Applicant's work in the Police Force, he was restricted in the sort of work that he could perform to work of a security nature. However he was not capable of work in that field because of his alcohol abuse.

  8. It was submitted for the Applicant, relying on the decision of the Federal Court in Cavell v Repatriation Commission (1988) 9 AAR 534, that the test in s24(1)(c) did not require that the Applicant's accepted disabilities alone were the "sole, unique and absolute cause" of his retirement. In respect of the Tribunal's reasons, Burchett J said (at 12), -

    …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 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.

It was submitted for the Applicant that, applying Cavell, the Applicant meets the test in s24(1)(c) of the Act.

  1. It was submitted for the Respondent that as conditions other than the Applicant's accepted disabilities, were included in the reason for his medical retirement, viz. osteoarthritis both shoulders and hypertension, this was sufficient to cause him not to be able to meet the "alone" test in s24(1)(c) of the Act. It was also submitted that the Applicant does not meet the ameliorating provisions of s24(2)(b) because he has not sought other employment since he ceased work in the police service. Although the Applicant's counsel noted that the Applicant had not sought work since he left the police service it was submitted on behalf of the Applicant that he met the ameliorating provisions of s24(2)(b) because he was unfit to perform any work because of his accepted disabilities alone.

  2. The Respondent clarified its position to the effect that despite the realistic position taken by the Applicant that he was unemployable because of his alcohol abuse and this was the reason he did not seek work, he would have satisfied the ameliorating provisions of s24(2)(b) had he sought work during the ten week interval between ceasing work and lodging his application for increase in pension.
    consideration of evidence and findings of fact

  3. There is no issue between the parties in respect of the Applicant meeting s24(1)(a) and (1)(b) of the Act, and the Tribunal so finds. The only issue is in respect of s24(1)(c).

  4. The Tribunal notes from the Applicant's medical records from his Police Service personnel file (exhibit 2, pp44 and 52, that are in fact sequential pages) that on 7 September 1992 when the Applicant complained that he was unable to undertake a practice shoot because of his right shoulder problem, it was considered that he was –

  • Fit for current duties

  • ? relevance of shoot to current duties

  • probably not suited to more involved police work

  • stay where is till retirement.

At that time he was doing light duties maintenance work with the Water Police.  He had been doing that lighter work for some years and was coping with it. 

  1. The Tribunal finds, on the Applicant's evidence, that his shoulder condition has improved since that time.  However, the Tribunal also notes that the Applicant's shoulder condition, even at its worst, did not prevent him from undertaking his restricted duties with the Water Police that he had been doing for many years because of his psychiatric condition and alcohol abuse. 

  2. The Tribunal notes the absence of any definitive evidence from Police Service Superannuation about the precise reason for his medical discharge.  This evidence has been inadvertently obliterated from the relevant document at Exhibit 1, p9.  That document relates to six persons including the Applicant.  But all the names, including that of the Applicant, have been obliterated in the section of the document identifying the conditions suffered by each person leading to the decision for medical discharge.  However, the Tribunal considers it quite likely that the conditions "chronic post traumatic stress disorder, chronic rotator cuff dysfunction of the left shoulder and associated chronic pain syndrome" were the reasons relevant to the Applicant.  After the conclusion of the hearing the Respondent endeavoured to obtain an unmarked copy of this document from office of State Super.  However the extensive documentation provided to the Respondent dated 6 March 2001 and subsequently forwarded to the Tribunal, was unhelpful in clarifying the position for the Applicant.

  3. As this is the best evidence available, the Tribunal assumes that the formal reasons for the Applicant's medical retirement from the Police Force included his left shoulder condition.  That evidence does not sit comfortably with the 1992 medical examination (see paragraph 18, supra) and the Applicant's oral evidence to the Tribunal about the improvement in his shoulder condition since 1992.  The Tribunal finds that the inclusion of the left shoulder condition in the reasons for the Applicant's medical retirement was no more than a reference to that condition affecting the performance of his work but not precluding him from working.  Even in 1992, when the condition was a problem for him, it did not preclude him from undertaking the selective duties he had been performing with the Water Police for many years, because of his war-caused psychiatric condition and alcohol abuse.  This is a case where the Tribunal, noting the decision of the Federal Court in Cavell (supra), is required to have "an eye to reality" and take a "common sense" approach to determining this matter.

  4. The Tribunal is reasonably satisfied that it was the Applicant's war-caused conditions alone that prevented him from continuing to undertake the remunerative work he was undertaking in the police service, and he is, because of this, suffering a loss of salary or wages that he would not be suffering if he did not suffer from those war-caused conditions: s24(1)(c). Therefore, the Applicant is entitled to be paid pension at the Special (Totally and Permanently Incapacitated) Rate, pursuant to s24 of the Act. All applications for review were in time, and therefore the effective date for payment of pension to the Applicant is 15 December 1997, being the date of his application for increase. The decision under review is therefore set aside.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of

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

Date/s of Hearing  30 October 2000
Date of Decision  23 May 2001
Counsel for the Applicant        Mr D Price
Solicitor for the Applicant         Cutler, Hughes & Harris
Solicitor for the Respondent    Mr R Wallis, Department of Veterans' Affairs

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