Smith and Repatriation Commission
[2003] AATA 463
•23 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 463
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/714
VETERANS' APPEALS DIVISION )
Re CHRISTOPHER OSBORN SMITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date23 May 2003
PlaceBrisbane
Decision The decision under review is set aside and in substitution thereto, the Tribunal decides that Mr Smith is entitled to pension payable at the Special Rate. (Sgd) EK Christie
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS - disability pension – whether applicant entitled to special rate – whether applicant totally and permanently incapacitated – capacity to undertake remunerative work – whether applicant prevented from continuing to undertake remunerative work by reason of war-caused incapacity alone – whether accepted service-related conditions ‘substantial cause’ of inability to engage in remunerative work – whether genuinely seeking to engage in remunerative work.
Veterans’ Entitlements Act 1986 ss 24(1)(b), 24(1)(c), 24(2)(b), 28(a), 28(b), 28(c)
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Chambers v Repatriation Commission (1995) 12 ALR 219
Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 ALD 31
Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1Re Starcevich and Repatriation Commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Cavell v Repatriation Commission (1988) 9 AAR 534
Hall v Repatriation Commission (1994) 33 ALD 454
Hendy v Repatriation Commission [2002] FCA 602
Rendell v Repatriation Commission [2001] FCA 1881
Byrne v Repatriation Commission [2001] FCA 1134REASONS FOR DECISION
23 May 2003 Dr EK Christie, Member 1. This is an application by Christopher Smith to review a decision of the Veterans’ Review Board (the “VRB”) made on 12 July 2001 that decided that pension for Mr Smith be assessed at 70% of the General Rate, with effect from 11 August 1999.
2. In reaching its decision the VRB concluded:
“In addressing the requirements of section 24(2)(a)(i), the Board accepts that the applicant was experiencing considerable difficulties in the work place. It accepts that there was a strong possibility that he was made redundant, rather than other vendors, because of complaints in relation to his behaviour. However, due to the rationalisation process, it was apparent that one of the four vendors currently operating runs in the area would lose their job. In other words, all things being equal, the applicant had a 1 in 4 chance of losing his run.
In those circumstances, it would be speculative to suggest that, had the applicant not been suffering from post traumatic stress disorder, he would have maintained his employment. The Board sympathises with the applicant, who has endeavoured to work full time despite disruptive emotional and behavioural symptoms. However, the evidence before the Board, to which it must have regard, leads it to the view that it cannot be reasonably satisfied that Mr Smith ceased work because of accepted disabilities alone.” (Exhibit R1, T2, Folio 7)
3. At the hearing Christopher Smith was represented by Ms M Brennan of Counsel. Mr J Stoner, a Departmental Advocate, represented the Repatriation Commission.
4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
5. Mr Smith was born on 6 February 1947 and served in Vietnam on “operational service” from 9 April 1969 to 9 April 1970. Mr Smith also had a period of “eligible service” from 7 December 1972 to 9 April 1977.
6. Mr Smith has the following service-related disabilities:
(i) Bilateral sensori-neural hearing loss (22 December 1999); and
(ii) Post traumatic stress disorder (22 December 1999).
Issues to be Decided
7. There were three issues for the Tribunal to decide for Mr Smith to be paid pension at the Special Rate:
(i)whether paragraph 24(1)(b) of the Veterans’ Entitlements Act 1986 (“the Act”) was satisfied. That is, whether Mr Smith’s war-caused disabilities rendered him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week;
(ii)whether paragraph 24(1)(c) of the Act was satisfied. That is, whether Mr Smith’s war-caused disabilities, alone, prevented him from continuing to undertake remunerative work; or
in the alternative,
(iii)whether the ameliorative provisions of paragraph 24(2)(b) of the Act were satisfied.
Examination of the Factual Evidence
· Evidence of Christopher Smith, the Applicant
8. Mr Smith stated that he had left the Army in 1977. He had no formal qualifications. His first job was to run a corner store in Brisbane with his wife. However, he had to leave this job because he could not get along with the customers.
9. His next job (1978-1984) was that of a Van Sales Supervisor with Westons. This work involved cake sales in a territory extending from the Gold Coast to Townsville. He said that he had responsibility for about 30 staff and the truck fleet. Mr Smith said that he had left this job because he could not get along with management and, as well, could not handle the pressure driving in Brisbane traffic.
10. Mr Smith said that his next job (1984-1987) in Brisbane was that of a self-employed bread vendor with Tip Top Bakeries. This work only involved limited contact with shopkeepers and he had a satisfactory relationship with them at this time. However, his difficulty coping with city traffic arose again and he decided to move from Brisbane (“had enough of Brisbane becoming a rat race”) to Hervey Bay.
11. From 1987-1988, Mr Smith was a self-employed truck driver. He had purchased a 20 tonne truck for this business. However, he lost money in this business and had to sell the truck.
12. From 1988-1991, Mr Smith was self-employed for Regal Bakery, Maryborough, involved in overnight delivery of bread in the Maryborough/Gympie/Bundaberg region. He said that he enjoyed the work but was “pushed out of work when the bakery was taken over”.. He stated that he could not do this job today because of concentration and memory problems related to flashbacks as well as an inability to climb up into a truck because of knee problems. He said that his memory problems were such that he could travel miles and not know where he was going.
13. Mr Smith said that he then purchased a truck in 1991-1992 and transported fruit and vegetables from the Brisbane Markets. The truck and business had to be sold as he was “going broke”.
14. During 1992 Mr Smith commenced a job in real estate sales in Hervey Bay but this proved to be unsuccessful financially. He had been given no training, held no licence, and was employed on a commission only basis. He alternated this work with relief driving of a fuel truck for limited periods (4 times per year for a period varying from a few hours to half a day). However, he described this work as “scary” as he had “catnaps whilst driving”.
15. From 1993-1999, following the purchase of a truck, Mr Smith was a self-employed bread vendor for Cobbity Farm Bakeries in Maryborough. His agreement with Cobbity Farm was for a 5 year period. Mr Smith said that he had “fouled up” in this work and was “a bit aggressive to customers”. Ultimately, following a complaint about Mr Smith, his bread run was assigned to a new vendor.
16. Mr Smith described the problems he had with storekeepers related to difficulty that he had getting along with them because of his “attitude”. In one store (Franklins) he did not adhere to a fire drill whilst in the store delivering bread. Mr Smith stated that at one stage he had been put on probation by his supervisor in Maryborough.
17. Mr Smith stated that he decided to put this business up for sale because of his functional problems. However, a possible sale had been suspended.
18. Mr Smith said that when Cobbity Farm had been taken over he had persisted with his business until September 1999, when he became voluntarily redundant. One of the four vendors had to go following the takeover and Mr Smith said that he believed the Manager in Maryborough was extremely negative in his view of Mr Smith. He believed that this opinion was taken into account when the redundancy was determined by the company.
19. Mr Smith said that since he became redundant he had taken the following steps to find employment:
(a)an approach to the local milk distributor which was unsuccessful because his reputation preceded him;
(b)approaches to all bread vendors in Maryborough offering his services for relief work. However, because they were aware of his PTSD, no work opportunity arose;
(c)consideration of the purchase of a federal mail account; and
(d)an application for work with James Glass Roofing Company was completed but was unsuccessful.
20. Mr Smith concluded by saying that his ability to do manual work was “not good”, that he became frustrated, that he “still blows up” and that he still has short term memory concentration problems.
21. During cross-examination, Mr Smith gave the following responses to questions asked by Mr Stoner:
(a)that he could not cope with the corner store work and left the running of the business to his wife;
(b)that he had taken the position with Westons as a paid employee and progressed from Van Salesman to Assistant Supervisor to Supervisor. However, the job titles bore little resemblance to the very basic tasks he was required to do;
(c)that the problems contributing to difficulty in driving were the deterioration in both knees (the result of a sporting accident at Enoggera Army Barracks), a back problem, a problem in that he could not sit still as he had a need to move about and his PTSD; and
(d)that he did not accept the proposition that he simply had the personality of a “short-tempered nasty person”.
22. In terms of his efforts to find employment, Mr Smith gave the following responses to Mr Stoner:
(a)that he had approached a number of companies in the industrial estate at Hervey Bay, including James Glass;
(b)that he could not say whether he had applied to advertised positions;
(c)that he acknowledged that his approach to seeking employment was direct “cold canvassing” rather than responding to vacancies; and
(d)that he acknowledged that work was difficult to get in the area.
· Evidence of Dr Scott Jenkins, Psychiatrist
23. Dr Jenkins had been treating Mr Smith since November 2000. He described the following characteristics that he observed in Mr Smith at this time:
“…he presented as extremely agitated; could hardly or basically didn’t sit through the interview; paced up and down [largely because he was in unfamiliar territory and because of his mood state] in the room; was markedly restless….extremely irritable.
…[his] overall constellation of symptoms include nightmares, intrusive memories, anxiety symptoms, avoidance behaviour of just about everything now….his avoidance behaviour at this stage has become a predominant problem and all of that’s consistent with the diagnosis of PTSD.”
24. Dr Jenkins stated that his observations of Mr Smith indicated that his restlessness was related to “psychomotor restlessness” – and not pain-related restlessness associated with his back.
25. In terms of assessing the condition of PTSD in Mr Smith, relative to other veterans that he has treated, Dr Jenkins said that “I’m fairly confident he would probably have the most severe symptoms of any of the clients that I see” and his “ongoing levels of anxiety and agitation are extremely high”.
26. In stating “absolutely” that Mr Smith’s PTSD condition clearly rendered him incapable for the purposes of work, Dr Jenkins continued:
“There are cases where I sometimes wonder. This particular case, I have no doubt about.”
27. Dr Jenkins stated that Mr Smith’s irritability and restlessness were not well-controlled by medication and, as a result, his arousal states were so high that Mr Smith only just managed most of the time. It was Dr Jenkins’ opinion that because of this characteristic, Mr Smith “would virtually be not only unemployable, but he finds it virtually impossible to tolerate being around other people at all most of the time”.
28. Dr Jenkins stated that Mr Smith’s PTSD symptoms, over time, particularly his hypervigilance and low tolerance of frustration, had increased to a level where he could not manage.
29. It was Dr Jenkins’ opinion “that there wouldn’t be a job on this earth this man could do at the moment and is unlikely to ever do, really” and “he’s in survival mode at this stage I’d say. He does what he needs in order to survive, but interaction with people, even if it’s over the phone, for him is problematic”.
30. Dr Jenkins gave the following responses to questions asked by Mr Stoner in cross-examination:
(a)that he acknowledged that Mr Smith could have a psychomotor restlessness and/or a pain-related restlessness. However, he later qualified his response, stating that his “psychomotor restlessness, even without pain, would be very difficult for most people to deal with”;
(b)Dr Jenkins contrasted Mr Smith’s PTSD characteristics of “short-temper” and “irritability” with similar characteristics in a person not having PTSD or any other psychiatric condition. In Mr Smith’s circumstances, these characteristics had never changed over time; Mr Smith had never presented any differently over time which indicated that it was a consistent background issue – not simply his personality.
In contrast, people with temper difficulties/anger issues would have days when these characteristics did not occur as the personality features of temper/anger fluctuated;
(c)that Mr Smith’s personality structure may have a temper. However, he did not find the fact that Mr Smith had a temper as remarkable. Rather, it was the amount of consistent restlessness, irritability and high levels of vigilance that he had all the time and that this was attributable to his PTSD;
(d)that the late diagnosis of PTSD and the fact that his symptoms had become more dominant recently (September 1999) was not surprising. Many veterans, like Mr Smith, who clearly suffered from PTSD, were extraordinarily self-sufficient and independent. It was not unusual for them to have spent many years in jobs. In addition, it was likely that Mr Smith never went to anyone for help as it would be seen as a sign of weakness; and
(e)an acknowledgment that, as a general rule, when veterans discover later in their lives that they have PTSD, that this condition would have been slowly emerging.
· Evidence of David Price, Grocery Sales Manager, Goodman Fielder Baking
31. Mr Price said that in September 1999 Goodman Fielder Ltd acquired Country Bake Bakeries Brisbane and due to rationalisation of the distribution system, several bread runs in the Hervey Bay area were consolidated into existing runs. A business decision had also been made to move from vendors to contractors. The run owned by Mr Smith was one of these and settlement was reached on the purchase price in conjunction with Mr Smith.
32. In terms of Mr Smith’s performance as a self-employed vendor with Goodman Field, Mr Price said that he had spoken with a Bakery Sales Supervisor who worked in the Maryborough/Hervey Bay region. Mr Price had been told that Mr Smith had been spoken to in this regard but only to advise him that chain stores could refuse to let him in the store if he continued to antagonise store personnel. At no stage was there any link between any performance issues and the rationalisation of runs in this area.
33. Mr Price said that he had interviewed Mr Smith on two occasions as to whether he wished to continue as a joint contractor. All other vendors were also interviewed. However, Mr Smith expressed little interest in converting from a vendor to a contractor.
34. Mr Price acknowledged that the number of vendors were to be reduced from four to three. The final decision was a personal choice for the vendors and all vendors, including Mr Smith, were given an opportunity to stay. He said that he saw no difference in the attitude between Mr Smith and the other vendors with respect to the takeover. The company did not have any assessment done on each person’s ability to undertake work as a vendor.
35. Mr Price said that he had since become aware of Mr Smith continually antagonising people. He said that very few vendors would be confronted with difficult situations.
Other Expert Evidence
36. At the end of hearing of oral evidence, both parties agreed that Dr Leong’s evidence would not be placed before the Tribunal.
Contentions and Submissions of the Parties
37. Ms Brennan submitted that both subsection 24(1)(b) and section 28 of the Act were satisfied. Mr Smith’s work history over a 35 year period indicated one characterised by skills and experience primarily in the areas of driving and as a self-employed bread vendor. His skills and experience in sales and clerical work, relative to driving and as a bread vendor, were minor. All the work Mr Smith had undertaken involved dealing with customers. The skills and experiences he had acquired over time had been “blown to pieces” by his PTSD.
38. Ms Brennan submitted that Mr Smith had worked consistently over a 35 year period and when confronted with employment changes, took whatever steps necessary to take on another task – including taking out significant loans to buy his own truck or business.
39. Ms Brennan referred to the problems that Mr Smith had with driving – his concentration, his ability to stay awake for long periods of time, his attitude to other drivers and difficulty coping with city traffic. Changing his driving patterns with his work from day to night did not resolve these problems.
40. Ms Brennan then referred to the difficulties confronting Mr Smith in dealing with customers – a difficulty arising from his “attitude” which reflected his PTSD condition.
41. Ms Brennan submitted that an analysis of Dr Jenkins’ opinion evidence indicated that Mr Smith’s PTSD was founded during operational service in Vietnam and the symptoms had emerged and increased, worsening over time.
42. It was Ms Brennan’s contention that Mr Smith’s accepted disabilities alone prevented him from engaging in work for more than 8 hours per week; Dr Jenkins’ opinion evidence and Mr Smith’s oral evidence were quite clear in this regard.
43. Ms Brennan stated that Dr Jenkins had given Mr Smith a rating of “8” for operational dysfunction and his opinion was that Mr Smith was “totally unemployable”. The VRB gave Mr Smith a similar rating for his operational dysfunctioning.
44. Ms Brennan referred to the Medical Assessment undertaken by Dr Mansour in which he assessed Mr Smith could do “moderate less skilled work”, subject to the qualification “if he can work by himself”. However, Ms Brennan submitted Mr Smith had attempted to work by himself as much as possible – but eventually it was problems interacting with people that made him realise he had to give work away.
45. In terms of Mr Smith genuinely seeking remunerative work, it was Ms Brennan’s contention that it was relevant that:
(a)on each occasion, in the past, when he had left a job, Mr Smith pursued whatever avenues he could to get another job;
(b)when he became redundant he continued to seek employment in different areas. Whilst he could not recall answering specific job advertisements, Mr Smith’s oral evidence illustrated his determination to get a job; and
(c)that Mr Smith’s cold canvassing to find relief work in Hervey Bay [eg by directly approaching milkmen and bread vendors] may have been unsuccessful – but they could not be construed as a “charade”. Ms Brennan contended that Mr Smith’s method to find work was characteristic of living in a rural environment, where work could be found by seeking opportunities directly from people living in the area.
46. Mr Stoner submitted that Mr Smith did not satisfy subsection 24(1)(b) of the Act and his accepted service-related disabilities did not render him incapable of working for more than 8 hours per week in the aggregate.
47. Mr Stoner considered the three elements prescribed in section 28 in relation to Mr Smith’s factual circumstances and contended:
(i)subsection 28(a): that the vocational, trade and professional skills qualifications and experiences of Mr Smith were that of a self-employed bread vendor and a real estate salesman. In addition, as he had also carried on his own business, supervised sales persons and had done some clerical work, Mr Smith had a “reasonable range of semi-skilled things available to him”;
(ii)subsection 28(b): that a broad view had to be taken of Mr Smith’s vocational, trade and professional skills, qualifications and experience in order to identify the remunerative work he could undertake. Accordingly, the whole of the work experience of Mr Smith had to be taken into account – rather than to simply focus on what he might have done in recent years; and
(iii)subsection 28(c): that an assessment of the impact from his accepted service disabilities on his ability to undertake the wide range of jobs he has undertaken in the past must then be made.
48. Mr Stoner submitted that Mr Smith did not satisfy the prescribed requirements of subsection 24(1)(c) because:
(a)in relation to his redundancy, the cessation of work by Mr Smith was clearly due to the failure of contract. The rationalisation program put into place by Goodman Fielder reduced the number of vendor runs from 4 to 3. All four affected vendors entered into discussions and negotiations with Goodman Fielder with respect to entering into contractual arrangements. Mr Smith was reluctant to enter into contractual arrangements and elected for a redundancy. The sale of his business and cessation of work with Goodman Fielder were unrelated to his war-caused incapacity; and
(b)Mr Smith’s oral evidence that physical conditions prevented him from continuing to undertake remunerative work. Specifically, his knee conditions which limited his getting into a truck and the distances he could drive without stopping for a rest. In addition, his oral evidence was that a back condition also affected him, in this regard. Accordingly, Mr Smith’s non-service disabilities (orthopaedic problems) in part would prevent him from undertaking work as a self-employed bread vendor.
49. Mr Stoner acknowledged that the war-caused incapacity of Mr Smith was the “substantial cause” of his inability to engage in remunerative work in which to engage. However, Mr Stoner contended that Mr Smith had not been genuinely seeking to engage in remunerative work that, but for his incapacity, he would be continuing to do so.
50. Mr Stoner submitted that the “cold canvassing overtures” Mr Smith made to local employers to directly find work, when told that his contract was to be terminated, were “desultory and not enough”. That is, Mr Smith was required to establish not only was he willing to work but “he must be genuinely seeking work”. A few cold canvassing enquiries did not represent active pursuit of work.
51. Mr Stoner submitted that the test in Re Hornery and Repatriation Commission (1998) 52 ALD 317 (“objective signs of active pursuit of remunerative work”) “has to be garnered with the “Hall exception”: Hall v Repatriation Commission (1994) 33 ALD 454. That is, where there was real evidence before the Tribunal that the war-caused incapacity was of such a nature that it made it impossible.
Consideration of the Issues
52. The object of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Veterans’ Entitlements Act 1986.
53. The Tribunal has considered and applied the following case law authorities to the central issues to be decided: subsections 28, 24(1)(b), 24(1)(c) and 24(2)(b) of the Veterans’ Entitlements Act 1986.
(a) Legal Principles
54. In considering the parties submissions, it is useful to consider the scope of the legislation itself. Section 24 specifies three criteria that a veteran must meet in order to be entitled to a special rate of pension. The second criterion requires that the veteran be totally and permanently incapacitated, in the sense referred to in s 24(1)(b). Section 28 gives directions concerning the matters to which the Commission “shall have regard to” in determining, for the purposes of s 24(1)(b), whether an incapacitated veteran is incapable of undertaking remunerative work.
55. In Chambers v Repatriation Commission (1995) 12 ALR 219, the Full Federal Court stated:
s 24“Section 28(a) also directs that only the three specified matters are to be taken into account in making the determination. In this respect the section is exhaustive: Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 (FCA/FC), at 160. The purpose of the inquiry is to ascertain whether the veteran is totally and permanently incapacitated - that is (to use the language of (1)(b)), whether the veteran's incapacity from war-caused injury or disease is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The phrase "remunerative work" is defined in the widest terms, to mean "any remunerative activity". Thus the ultimate inquiry to which s 28 is directed is whether the veteran's war-caused capacity, of itself, has rendered that veteran incapable of undertaking any remunerative activity. It is in relation to this inquiry that s 28 specifies the matters - and the only matters - that are to be taken into account. The ultimate inquiry is not expressed to be whether the veteran's war-caused incapacity has rendered him or her incapable of undertaking employment of the kinds for which his previous work history provided training or relevant experience”.
56. Later, in Chambers’ case, the Full Federal Court concluded:
“One thing which is abundantly clear is that [s 28] par (b) does not restrict a member to the employments in which he is now engaged in his impaired state. That would be to mock the statutory purpose, which is to find an objective criterion for the assessment of the extent of the impairment. The criterion is a broad one which relates to categories of employment and not to particular occupations. It is concerned with the range of occupations open to the person described, so that the effect of the disability may be measured against the opportunities that might have been open.”
57. The Full Federal Court in Chambers’ case then referred, with approval, to the following often-cited passage of Brennan J [as he then was] in Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 ALD 31 at 34:
'If there be no incapacity of the relevant kind, a person's talents - his education, training, skills, physical strength, personality or other attributes - open to him a range of employment opportunities. The range may cover opportunities for engaging in various kinds of employment, for earning various levels of remuneration and for deriving tangible and other benefits. These are the opportunities which are appropriate to the individual - his own range of employment opportunities estimated by reference to the talents which, but for the incapacity, he would have had. When he suffers an incapacity, some of these opportunities are denied to him. He suffers an incapacity in relation to civil employment. A comparison between the lost opportunities and the whole range of the individual's employment opportunities provides the measure of his percentage incapacity'"
and concluded that:
“The reliance upon the extract from Re Bos made after the 1979 amendments shows that the Full Court considered that a wide range of skills, qualifications and experience were to be taken into account in assessing the opportunities for remunerative work available to the applicant, independently of his or her incapacity. The decision of the Full Court was that the opportunities were not restricted to work specifically related to that undertaken in the course of the individual's previous occupation. However, the adoption of Brennan J's analysis in Re Bos suggests strongly that all the individual's skills and qualifications, regardless of the means by which they have been acquired or developed, are to be taken into account in determining the opportunities for remunerative work available to that person.”
58. Finally, the Full Federal Court in Chambers’ case stated that:
“In our view, while it will often be desirable for the Tribunal to consider separately the three sub-paragraphs of s 28, and to record findings in relation to each of them, the Tribunal is not compelled as a matter of law to take this course. Section 28 requires the Commission (or the Tribunal) "to have regard to (three specified) matters only" in determining whether an incapacitated veteran is incapable of undertaking remunerative work. These words mean that the Tribunal must give weight to each of the matters as a fundamental element in making a determination on that issue: R. v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, at 329, per Mason J. The Tribunal is also required to exclude all other considerations in making its determination. Provided the Tribunal follows this course it does not depart from the requirements of s 28. Whether it has followed the requisite course will depend upon a reading of the Tribunal's reasons as a whole. Such a reading should not be concerned with looseness in language. As was said by the Full Court in Collection of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FCA/FCt), at 287: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’."
59. The following approach was used in Forbes v Repatriation Commission (2000) 101 FCR 50 at 52 and 53 by RD Nicholson J, to interpret and to apply the provisions of subsection 24(1)(c):
“That approach [ss 24(1)(c)] is best understood by dividing it into its two limbs and relating those limbs to the relevant portions of what follows in s 24(2).
The first limb of s 24(1)(c) reads:
‘(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…’
That limb must be read subject to the application of s 24(2)(b) which reads:
‘(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.’
The second limb of s 24(1)(c) reads:
‘(c)….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’
This is to be read in conjunction with s 24(2)(a) which provides:
‘(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 reasons 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…’”
60. With respect to the requirements of subsection 24(1)(c), Nicholson J referred to the decision of the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at pages 4-5 where the Court said that the issues before the Tribunal were:
“1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, 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?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
61. The above matters must be satisfied to the reasonable satisfaction of the Tribunal in accordance with the standard in subsection 120(4): Re Starcevich and Repatriation Commission (1986) 10 ALN 202; Re Doyle and Repatriation Commission (1986) 47 ALD 187. That meant, as Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’.”
62. The question of a combination of war service conditions and non-war caused conditions and undertaking remunerative work, was also considered by Nicholson J in Forbes v Repatriation Commission (supra) at page 57:
“The applicant’s case requires the Tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the Tribunal in the light of the words used in the first limb of s 24(1)(c). The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptional environment identified in the applicant’s case. Furthermore, it is consistent with the application by a Tribunal of a common sense approach ‘with an eye to reality’.
As in the case of the present applicant, it is possible that the war-caused condition will be far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made. To date, the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration” [Tribunal emphasis].
63. With respect to the third question identified in Flentjar, Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 agreed with the following statement by the Tribunal, in terms of it clearly revealing an application of the statutory test, in an unexceptional manner, to the material in evidence before the Tribunal:
“that it followed from the use of the word “alone” in s 24, that any factor having employment consequences which played a part in the applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant’s case for pension at the special rate.”
64. Section 24(2)(b) has long been interpreted as an ameliorative provision specifically included in the Act to deal with a veteran who does not come within the provisions of Section 24(1). Compliance with this subsection would excuse a veteran from having to meet the “alone” test as provided in ss. 24(1)(c).To come within Section 24(2)(b) an applicant must be under the age of 65 and have been genuinely seeking to engage in remunerative work, and the war-caused incapacity must be the substantial cause of the inability to obtain remunerative work.
65. In Re Hornery and Repatriation Commission (1998) 52 ALD 317, the Tribunal stated:
“If a veteran falls within s. 24(2)(b), the veteran is relieved from the “alone” requirement in s. 24(1)(c). In order to fall within s. 24(2)(b) the veteran must satisfy the Commission (and now the Tribunal standing in the shoes of the Commission) that he or she “has been genuinely seeking to engage in remunerative work …” and the Tribunal must also be satisfied that the veteran would, but for the incapacity, be continuing so to seek to engage and that war caused incapacity “is the substantial cause of his or her inability to obtain remunerative work”.
66. The meaning of the term ”substantial cause” was considered in Fox v Repatriation Commission (1997) 45 ALD 317. Kiefel J noted that this term:
“requires that, if the incapacity is not of itself productive of an inability to obtain work, it is nevertheless the operative factor which, more than any other explains it. That, something might be a ‘substantial cause’ has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as ‘substantial’...” [Tribunal emphasis]
67. In Rendell v Repatriation Commission [2001] FCA 1881 (21 December 2001), at para 37, French J referred to the decision in Hornery, stating that the reasoning by the Tribunal represented “a relevant point of construction” and was “conveniently set out”. Furthermore, French J made the following observations on the operation of s 24(2)(b):
“ …it cannot have been intended that veterans under the age of 65 who have ceased work by reason of incapacity from war-caused injury or war-caused disease, or both, alone, are required to actively pursue remunerative work before they can be entitled to payment of the Special Rate. Section 24(2)(b) is ameliorative of s 24(1)(c) and is to be applied where the Tribunal is satisfied that the veteran has been genuinely and actively pursuing remunerative work in the sense of looking to obtain work and that war-caused incapacity is the substantial cause of his inability to obtain it”.
68. In Byrne v Repatriation Commission [2001] FCA 1134 (17 August 2001) Gyles J made the following observations as to the proper application of s 24(2)(b) [at para 10]:
“The issue is not limited to the question why the incapacitated is in fact unable to obtain employment in the particular place [Kempsey], although that may be relevant. In order to judge the effect of the relevant incapacity, it is necessary to compare the position of the applicant as he is with the position he would be without the relevant incapacity. In the present case, that requires the formation of an assessment of the work prospects of the applicant as a fifty-one year old man with his characteristics and abilities, who had never suffered from PTSD, bilateral sensorineural hearing loss, osteoarthritis of right and left knees or sleep apnoea and who is probably not living in Kempsey. That process enables the true effect of war-caused incapacity upon the ability of the applicant to obtain work to be assessed”.
69. In Hendy v Repatriation Commission [2002] FCA 602, Madgwick J made the following observations in relation to the application of s 24 (2)(b) by direct reference to the following conclusion in Hall v Repatriation Commission (1994) 33 ALD 454 wherein Spender J said (at 461):
"It seems to me that the question of whether a veteran has been `genuinely seeking to engage in remunerative work that he or she would, but for that incapacity, be continuing to so seek' has to be addressed in a realistic way, having regard to the nature and extent of the incapacity.. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade.” [Tribunal emphasis]
70. Furthermore, in Hendy, Madgwick J made the following statement by reference to Hall v Repatriation Commission (1994) 33 ALD 454:
“His Honour [Spender J] also observed that evidence which shows that a veteran who may not be able to seek employment but indicated a willingness to accept work if any could be found, would be enough to satisfy the ‘genuinely seeking’ requirement of s 24(2)(b)”
(b) Application of Facts to the Law
71. Subsection 24(1)(b) required that Mr Smith be unable to work more than 8 hours per week as a result of his accepted disabilities, alone. Section 28 specifies the criteria that the Commission “shall have regard to” in determining for the purposes of section 24(1)(b) whether Mr Smith is incapable of undertaking remunerative work.
72. The Tribunal has taken into account the range of skills of Mr Smith, in order to assess the kinds of work opportunities available to him independently of his incapacity. In this regard, Mr Smith would have a range of opportunities in semi-skilled work. His primary skills relate to driving and sales. He has some skills in clerical work [section 28(a)].
73. The range of occupations open to him with these skills, and that he might reasonably undertake, relate to driving, vending of consumer goods and possibly some forms of semi-skilled clerical work [section 28(b)].
74. Given these conclusions, the Tribunal next considers the range of employment opportunities that might be reasonably undertaken by Mr Smith and the lost opportunities arising from his accepted service-related disability, PTSD (Bos’ Case).
75. The Tribunal has considered the VRB findings, as well as the expert medical opinion before the Tribunal and the matters specified in section 28 in the context of the reasoning in Chambers’ case. Specifically, whether Mr Smith’s war-caused incapacity, of itself, has rendered him incapable of undertaking any remunerative activity for periods aggregating more than 8 hours per week.
76. The VRB referred to reports of two psychiatrists, Dr Leong (T9, 6 December 1999; T14, 25 July 2000) and the initial report of Dr Jenkins (T17, 19 February 2001). The VRB concluded that “the Board was reasonably satisfied that the applicant satisfies sub-section 24(1)(b)” [T1 Folio 4].
77. However, the reports of Dr Leong were not before the Tribunal (see para 36).
78. The initial report of Dr Jenkins relied upon by the VRB in their findings (T17, 19 February 2001) states:
“He last worked full-time in September of 1999. He left the city largely because he is unable to tolerate people and because of the symptoms secondary to his Post Traumatic Stress Disorder.
Mr Smith’s Post Traumatic Stress Disorder is currently acutely exacerbated. This has produced significant irritability and anxiety symptoms. He is no longer able to function in remunerative work. I would believe that he is unable to work at all at this stage and is likely to be so indefinitely.
I believe that his inability to work is directly related to his Post Traumatic Stress Disorder.” (Folio 177)
79. The oral evidence of Dr Jenkins given at the hearing (paras 27, 29) and his later report (Exhibit A2, 4 April 2002), further substantiates his earlier expert opinion, and the conclusions of the VRB. Dr Jenkins’ oral evidence is significant in that he was “absolutely” certain that Mr Smith’s PTSD clearly rendered him incapable for the purposes of work (para 26).
80. The follow up expert report of Dr Jenkins (Exhibit A2, 4 April 2002) stated:
“I have no doubt whatsoever and have had no doubt for the past 16 months that his Post Traumatic Stress Disorder clearly renders him incapable for the purposes of work. This incapacity would be such that he would be unable to work even 8 hours per week.
The key features of his Post Traumatic Stress Disorder include a variety of anxiety symptoms including restlessness and agitation, agoraphobia, severe agitation, and irritability with marked outbursts of anger. All of the symptoms are both consistent with and entirely related to his Post Traumatic Stress Disorder. The outcome of such agitation, restlessness, low tolerance for frustration and noise, and irritability is that he creates a great deal of tension in relationships with the public and finds it virtually impossible to work in any job that requires contact with any other human beings.
Therefore in conclusion not only does Chris Smith suffer from Post Traumatic Stress Disorder but also it is this condition and it’s attending symptoms, which have prevented him from working” (Tribunal emphasis).
81. In this regard the Tribunal prefers the expert evidence of Dr Jenkins – a psychiatrist, rather than the evidence of Dr Monsour (T7, 27 November 1999). Dr Monsour, a general practitioner, carried out a “Medical Impairment Assessment” as well as a “Capacity to Work”. However, his expert reports were based on Mr Smith’s having a disability of “Generalised Anxiety Disorder” – not PTSD. Moreover, symptoms of Mr Smith’s psychiatric condition identified by Dr Monsour were not correlated to his capacity to undertake work in the same manner as the expert opinion of Dr Jenkins. The Tribunal concludes that this limitation in Dr Monsour’s report reflects the limitations in his assessment with respect to the correct psychiatric condition (ie PTSD) being the subject of his assessment.
82. The Tribunal has followed the reasoning in Chambers’ case (see para 58 of the decision) and has given weight to each of the three subparagraphs of section 28. The Tribunal concludes that the effect of Mr Smith’s accepted service-related disability is a compelling factor for the Tribunal findings. In effect, the range of employment opportunities available to Mr Smith are all “lost opportunities” because of his PTSD.
83. Given the above findings, the Tribunal agrees with the VRB’s conclusion. That is, the Tribunal is reasonably satisfied that Mr Smith satisfies section 24(1)(b) and is incapable of undertaking any remunerative activity for periods aggregating more than 8 hours per week.
84. The Tribunal has applied the principles in Cavell and Forbes in relation to section 24(1)(c). On all the evidence and information before it, the Tribunal is reasonably satisfied that it was not Mr Smith’s accepted service-related condition of PTSD which, alone, prevented him from continuing work of the kind that he was previously undertaking.
85. The evidence before the Tribunal is that the sale of Mr Smith’s business and the cessation of work as a bread vendor arising from his redundancy arose independently of his accepted service-related disability. In addition, orthopaedic conditions (back and knees) as described by Mr Smith in his oral evidence, were non-service related disabilities and may prevent him from continuing work as a self-employed bread vendor.
86. Accordingly, the Tribunal concludes that, on all of the evidence before it, the requirements of section 24(1)(c) are not satisfied. Other factors having employment consequences have combined to play a part in preventing Mr Smith from continuing work of the kind that he was previously undertaking.
87. The Tribunal has already noted that the legislation contains provisions to ameliorate sub-section 24(1)(c) by sub-section 24(2)(b) of the Act. In Mr Smith’s circumstances, given that he is under 65, “substantial cause” may be substituted for the “alone” test – provided that the other pre-conditions of section 24(2)(b) are met.
88. The Tribunal concludes that, based on the expert evidence before the Tribunal and the earlier findings made by the Tribunal, the accepted service-related conditions, in themselves - but particularly PTSD and its symptoms, are the “operative factors”, more than any of the “combined factors”, that are the substantial cause of Mr Smith’s inability to obtain remunerative work in which to engage.
89. Next, the Tribunal has adopted the approach in Byrne in order to assess the true effects of war-caused incapacity in Mr Smith’s ability to obtain work. Consequently, the Tribunal has considered the work prospects of a 56 year old man with his characteristics and abilities who has never suffered from PTSD or bilateral sensorineural hearing loss. Moreover, such an assessment recognises Dr Jenkins’ expert opinion evidence that:
(a) Mr Smith had the most severe symptoms of any of his clients;
(b)that Mr Smith had extremely high levels of ongoing anxiety and agitation; and
(c)Dr Jenkins’ significant acknowledgement that he had “absolutely” no doubt about Mr Smith’s PTSD and the impacts of his symptoms upon him.
90. The approach in Byrne has also been combined with the reasoning in Rendell “in the sense of [Mr Smith] looking to obtain work and that war-caused incapacity is the substantial cause of his inability to obtain it”. In this regard, the Tribunal concludes that it is reasonably satisfied that Mr Smith’s reputation and the awareness of his PTSD in the local area (para 19) that resulted in his failure to succeed to find work is correlated with Dr Jenkins’ opinion evidence that Mr Smith fount it “virtually impossible to tolerate being around other people at all most of the time”.
91. The Tribunal has also adopted the approach in Hall to address the issue in a “realistic way” and to consider any “evidence which shows that a veteran who may not be able to seek employment but indicated a willingness to accept work if any could be found” [see para. 70]. The Tribunal concludes that, based on the Tribunal’s acceptance of Dr Jenkins opinion that Post Traumatic Stress Disorder clearly rendering Mr Smith incapable for the purposes of work, together with the fact that Mr Smith had used a range of means – “formal” and informal, to find work in his local area in regional Queensland, as well as his past work ethic, indicates a willingness by Mr Smith to accept work if any could be found.
92. Given the Tribunal’s conclusions related to Byrne, Rendell and Hall, the Tribunal is reasonably satisfied, that in the context of the true effects of these findings, there were objective signs that Mr Smith had genuinely and actively pursued remunerative work opportunities in the local and regional area (paras 19, 22; Exhibit A1 paras 25-28) as consistent with the limitations imposed by his accepted service related disability (PTSD) and where his symptoms had become more dominant over time [para 30(d)].
93. It was not in dispute between the parties that Mr Smith suffered a loss of salary or wages or of earnings. The Tribunal further concludes, given the above findings in relation to the first limb of sub-section 24(1)(c) and sub-section 24(2)(b), that sub-section 24(2)(a) of the Act is also satisfied.
94. For all of the above reasons, the Tribunal sets aside the decision under review and in substitution thereto decides that Mr Smith is entitled to a pension at the Special Rate. The earliest date of effect is 22 December 1999, the date that his PTSD was accepted as a service-related disability.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Sarah Oliver
AssociateDate of Hearing 20 December 2002
Date of Decision 23 May 2003
Counsel for the Applicant Ms M Brennan,
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr J Stoner, Departmental Advocate
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