Sims and Repatriation Commission - [2002] AATA 472

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 472

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/156

VETERANS' APPEALS DIVISION       )
           Re      RONALD CRAIG SIMS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date3 June 2002
PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – whether the special rate of pension is payable to the applicant – whether the applicant satisfies the "alone test" – post traumatic stress disorder – whether applicant's non-accepted disabilities were factors contributing to his cessation of work
Veterans' Entitlements Act 1986 section 24

ORAL REASONS FOR DECISION

3 June 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Repatriation Commission (the Commission) of 19 June 2000, which assessed Disability Pension at 100% of the General Rate. The Veteran's Review Board (VRB) affirmed the decision on 4 April 2001.
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 parties. Mr White represented the applicant, who gave oral evidence. Mr Doube represented the Commission, and called Mr W Gartner, Managing Director of Aluwalk Pty Ltd, the applicant's former employer, as a witness. Mr Gartner gave evidence by way of telephone link up.
The applicant is currently 51 years of age and served in the Australian Army (the Army) from the age of 17, in 1968, until 1973. He served for approximately 12 months as an infantryman in Vietnam in 1970, with 2 RAR Regiment. His accepted disabilities are sensorineural deafness, tick bites and post-traumatic stress disorder (PTSD), all of which were accepted on 19 November 1989. The only disability upon which he relies, for the purpose of this application, is PTSD. Although he has been diagnosed with alcohol abuse and dependence, these conditions have not been claimed as war-caused under the Veterans' Entitlements Act 1986 (the Act) and symptoms from these conditions cannot be taken into consideration in assessment of Disability Pension.
The applicant's last employer was Aluwalk Pty Ltd, and he has not worked for the Company since 4 April 2000. The applicant maintains that he is entitled to payment of Disability Pension at the Special Rate, and that he satisfies section 24 of the Act which 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.
…"
It is not in dispute that the applicant satisfies sections 24(1)(a) and (b) of the Act. The Commission maintains that the applicant does not satisfy section 24(1)(c) of the Act, the so called "alone test", in that he did not cease work because of war-caused conditions alone; his non-accepted conditions were factors contributing to his cessation of work. He has not been prevented from continuing to undertake remunerative work because of incapacity from accepted disabilities alone. The Commission maintains also, that the applicant does not satisfy the ameliorating provisions of section 24(2) of the Act, in that although he appears to have sought work since ceasing his last employment, his war-caused disabilities have not been the substantial cause of his inability to obtain remunerative work.
The applicant was nearly 22 years of age when he left the Army. He worked then in various unskilled occupations as a bricklayer's labourer, and a builder's labourer in mainly commercial construction. He was 3 years at the Moomba Oil Fields, and in the early 1980s worked for 5 years as a driver with Tip Top Bakeries. He said in evidence that in 1992 when he was working for Steel Fabrications, a crane knocked him from the back of a trailer. He hurt his back, and had 3 months off work on compensation leave. By 17 March 1999 he had commenced employment with Aluwalk as a metal tradesman's assistant. The assignment was with SA Water at the Bolivar Treatment Works, fitting and installing safety handrails and walkways on the elevated work spaces.
The applicant said in evidence that he had become more and more short-tempered and increasingly more irritable over the years, and had difficulties working and dealing with other people. He has abused alcohol over a long period of time, as well. He has had a lot of jobs over the years, but had difficulty keeping any stable employment. He tends to avoid mixing, and finds it difficult working with other people. He frequently lost his temper and became involved in arguments with fellow workers. He often felt tired and lethargic during the working day, and had trouble concentrating and remaining focused on a job. His memory has been poor for quite some time. His emotional problems were getting worse and it was getting to the stage where other people would not work with him, and he could not cope with the work. He says that he was absent from work on numerous occasions as a result of alcohol abuse and being unable to face going to work. The applicant, in his statement dated 29 May 2002 [Exhibit A2], stated he had decided to cease this job due to the effects the PTSD was having. He withdrew that statement in the course of his cross-examination. He told the VRB that he had been back at work full-time for 3 weeks before he was laid off, and that the employer, Mr Gartner, "reckons lack of work … but I reckon he was scared I'd hurt my back again" [VRB transcript p15]. He said in evidence that he has had no problems with his back since March 2000, that his only ongoing medication is sleeping tablets from time to time, and he uses alcohol to make him sleep also.
Mr Gartner, the applicant's former employer, gave evidence that the applicant's employment commenced on 17 March 1999; that he was recruited with others to undertake the Bolivar Treatment Works project; that on 9 June 1999 the applicant changed from being a casual employee to full-time, and that between 23 June 1999 and 15 December 1999 he took 6 days sick leave – 2 for flu, 1 for shoulder problems, and 3 days when his wife rang to say he would not be in. In addition he took 2 hours on 15 October 1999, and 3 hours on 26 October 1999, for doctors' appointments. Mr Gartner said that the applicant's attitude in the workplace become more unpredictable in later times. He was more moody and sometimes others would not want to work with him. Even the mildest criticism of his work performance caused a strong reaction. It did not take much to upset him.
Mr Gartner gave evidence that he was not aware that the applicant had suffered a serious back injury in 1992, and when he suffered back pain in December 1999 and claimed compensation, WorkCover advised the Company it was not liable. In relation to his back claim, the applicant took leave for 2 weeks from 31 December 1999, and then various further periods of leave until 3 March 2000, a total of 227.4 hours. On 4 April 2000 Mr Gartner provided the applicant with a letter of dismissal in the following terms:
"Reluctantly, I have made a decision to dismiss you from your position at Aluwalk Pty Ltd. mainly for your own welfare.
Your recent bout of health problems is resulting in a lot of absenteeism from work and is concerning our company.
We believe that you are not able to perform your tasks satisfactorily, which in turn is causing a great deal of regret for us as well as yourself.
The work, which we perform, appears to stress you very easily.
You now appear to become very easily agitated over minor matters.
Our work staff has expressed concern about your health and would probably prefer not to work with you, for fear of perhaps being implicated in any future health problems, which cold eventuate.
Our work requires each employee to be very fit and able to perform normal daily tasks associated with the building industry.
You do not seem to be able to perform this type of work without affecting your health, and unfortunately we do not have any non-physical work.
Please feel free to discuss this matter with our office staff, but we have taken this course of action for your benefit and health." [T9]
Mr Gartner reiterated in evidence statements that he had provided in answer to specific questions from the Department of Veterans' Affairs. He said that the applicant's back condition played a part in his decision to terminate the applicant's employment; that lack of work was one of the factors leading to the applicant's dismissal; that the applicant's emotional problems played a part in this decision to terminate the applicant's employment and that it was a combination of the back problem, lack of work and the applicant's emotional problems that played a role in that decision. I accept Mr Gartner's evidence.
It is not in dispute that after the applicant ceased work at Aluwalk Pty Ltd he applied for Newstart Allowance, and genuinely sought employment. He said in evidence that apart from a 2 day driving job, Adelaide/Mildura return, on 24 and 25 May 2000, he was not successful in gaining an interview, or any other acknowledgment of his job applications. He said that he did not tell any of these prospective employers that he suffered from PTSD, and Mr Gartner said in evidence that he was never at any time approached by a prospective employer about the applicant.
In my view, on the whole of the evidence, I am reasonably satisfied that the applicant did not cease work because of his war-caused disabilities alone. I consider that his PTSD was a factor in Mr Gartner's decision to dismiss him, but that non-accepted conditions were factors contributing to his cessation of work, and that he has not been prevented from continuing to undertake remunerative work because of his accepted disabilities alone. I am satisfied therefore that the applicant does not satisfy section 24(1)(c) of the Act.
In relation to the ameliorating provisions of section 24(2) of the Act, although he has genuinely sought work, none of the prospective employers were aware of his accepted condition of PTSD; and his PTSD cannot be the substantial cause therefore of his inability to obtain remunerative work. In my view, he does not satisfy section 24(2) of the Act, and is not qualified therefore for payment of Disability Pension at the Special Rate.
For these reasons, the Tribunal affirms the decision under review.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date of Hearing  3 June 2002
Date of Decision  3 June 2002
Counsel for the Applicant        Mr T White
Solicitor for the Applicant         Tindall Gask Bentley
Counsel for the Respondent    Mr G Doube
Solicitor for the Respondent    DVA