Soper and Repatriation Commission - [2001] AATA 1010

DECISION AND REASONS FOR DECISION [2001] AATA 1010

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/989

VETERANS' APPEALS DIVISION       )
           Re      GARRY SOPER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date12 December 2001
PlaceBrisbane

Decision       The Tribunal affirms the decision under review.
  (Sgd) K L Beddoe
  Senior Member

Decision No: 1010/2001
CATCHWORDS
VETERANS' AFFAIRS – pension – whether pension should be assessed at Special Rate - whether war-caused disabilities alone resulted in applicant being incapable of remunerative work
Veterans' Entitlements Act 1986 s 24
Social Security Act 1991 s 94

REASONS FOR DECISION

12 December 2001 Mr K L Beddoe (Senior Member)

By a decision notified on 22 June 1998 the Respondent accepted a claim for post traumatic stress disorder ("PTSD") but refused a claim for gastro-oesophageal reflux disease, psychoactive substance abuse or dependence involving alcohol and hypertension.
On internal review the Respondent varied the decision and accepted the gastro-oesophageal reflux disease, alcohol dependence and hypertension by notice dated 11 January 2000.
Pension was assessed at 80% of the General Rate and payable from 6 November 1997. The Respondent's decisions, as varied, were subsequently affirmed by the Veterans' Review Board.
The Applicant now seeks review in this Tribunal on the basis that pension should have been assessed at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 ("the Act").
At the hearing Mr Martin represented the Applicant and Mr Stoner represented the Respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents (T1 to T8) and further documents were tendered and marked as exhibits. Oral evidence was given by the Applicant.
I make the following findings of fact. The Applicant was born on 29 April 1947. He was called up for service in the Australian Army and had operational service in South Vietnam, including being involved in a very serious fire fight during the Tet Offensive.
Following discharge from the Army in 1969 the Applicant undertook semi-skilled work in the Cairns area and as a deckhand on boats operating out of Weipa.
By 1972 he had settled into employment at the Mulgrave Central Sugar Mill working as a labourer/truck driver in the earlier years. In his oral evidence he said that he commenced long term employment at the Mill in 1975 but I have relied on Exhibit A.
I accept that from the time of his discharge from the Army the Applicant has found it difficult to get on with people. He admitted that he has a short fuse and he gave me the impression that he does not suffer others if he perceives them to be fools. I am also satisfied that the Applicant's adverse responses to others were often irrational and unprovoked.
In about 1989 or 1990 the Applicant found it not possible to continue with heavy labouring work at the Mill because of Rheumatoid Arthritis; a condition that has not been accepted as a war-caused disability under the Act. The Mill accommodated the Applicant and he was put on general duties of a light labouring nature. It would be reasonable to infer that the Mill was generally satisfied with the Applicant as an employee given that it was prepared to make suitable work available for him. I so find.
The Applicant resigned his employment with the Mill in 1994 because, he said, he was having trouble with his drinking and PTSD. He also said that one of his sons had been charged and convicted of an indictable offence and money was needed to fund an appeal against conviction. In the event $13,000 was needed for this purpose.
Having decided not to borrow the needed $13,000 the Applicant resigned his employment so that he could access leave and superannuation entitlements. This allowed him to pay the legal costs.
At about the time of his resignation, the Applicant's marriage struck trouble and he separated from his wife. The separation lasted approximately 12 months.
In 1992 the Applicant had purchased land at Ravenshoe with a view to building a home there when he retired from work. Having separated from his wife, who remained in Cairns, the Applicant moved to Ravenshoe and lived in a caravan apparently located in a friend's back yard.
Using funds from the leave and superannuation payments the Applicant commenced building a house on his land at Ravenshoe. Progress was apparently slow because the house took 4 years to complete. In part it seems the delay was caused by lack of money but that was partly remedied in 1996 when the Applicant was allowed to withdraw the employer's contributions from the employer sponsored superannuation fund conducted in relation to Mill employees.
Sometime after ceasing employment at the Mill and moving to Ravenshoe, the Applicant made enquiries about obtaining employment in Ravenshoe but did not find any openings for employment in that town. He applied for Social Security benefits and was eventually granted a Disability Support Pension because of Rheumatoid Arthritis. It is reasonable to assume, because of the requirements of section 94 of the Social Security Act 1991, that there was medical evidence to the effect that the Applicant had a continuing inability to work, I infer for reasons which follow, because of Rheumatoid Arthritis.
I have made that inference in the light of the Applicant's own evidence and the report by Dr Rolls dated 26 April 1996 which assessed 24% impairment based on Rheumatoid Arthritis (Exhibit 2). That assessment was made under the then Schedule 1B of the Social Security Act 1991.
Service pension became payable from 10 October 1996 for the claimed condition of chronic Rheumatoid Arthritis. On the material before the Tribunal the Applicant had been suffering this condition since 1989 and it was, as already noted, the reason he was put onto light duties at that time by his employer.
The Applicant said that because of the granting of the Service Pension he was then allowed to access the employer contribution portion of his interest in the superannuation fund and this money was paid to him in 1996. The funds were used for building the home at Ravenshoe.
Having failed to find any leads to employment in Ravenshoe after he moved there in 1994, the Applicant made no further attempts to obtain employment until 1999 when he obtained work with a furniture removalist. The Applicant made two attempts at this employment. On the first attempt he was dismissed after he reacted violently to staff and customers. Given a second chance by the employer he turned up for work on the first day in an inebriated condition and was refused employment. The Applicant said he had been drinking until 4.00am before he attended for employment on the second occasion to take up a position of employment which involved driving a truck.
The Applicant also obtained employment as a "Gyprok" fixer but lost that job because "he had trouble concentrating at times and seemed to lose his temper easily because of this". His drinking was also said to have caused concern because it affected his performance on the job.
The Medical Evidence
Some of the medical reports before the Tribunal are relevant to entitlement rather than assessment. I have not considered it necessary to give any weight to these reports.
In a report dated 14 December 1999 Dr Grant, Senior Medical Officer Compensation, assessed the Applicant for each of the accepted disabilities. In particular he assessed 43 impairment points under Tables 4.1 – 4.8 for Post Traumatic Stress Disorder with Alcohol Dependence or Abuse.
Dr Grant also reported that he had spoken with Dr Conolly, local medical officer, who confirmed that the Applicant had significant problems as a result of Rheumatoid Arthritis which would interfere with his capacity to work in fields he is trained and experienced (T4/44).
Dr Conolly completed a detailed pro forma report dated 29 November 1999 in relation to the Applicant (Exhibit 2). That report seems to have formed the factual base for Dr Grant's assessment of impairment. In relation to the Rheumatoid Arthritis, Dr Conolly described bilateral mild weakness of upper limb function resulting in limited lifting of large objects and mildly reduced dexterity. Affected joints were identified as both shoulders, both elbows and both wrists. Dr Conolly also noted aching in the cervical and thoraco-lumbar spine with normal/minor loss in range of movement. He described monthly treatment with described symptoms 75% attributable to Rheumatoid Arthritis.
Exhibit 1 is a report by Dr Conolly dated 16 January 2001. In it he notes the Rheumatoid Arthritis as being well controlled but the Applicant would not be able to work in a job requiring physical exertion because of the adverse effect of the condition.
Consideration
It is the essence of the Applicant's case that it was the accepted disabilities alone that have resulted in the Applicant being incapable of undertaking remunerative work for eight hours per week. The rheumatoid arthritis is no longer significantly implicated in the Applicant's inability to undertake relevant remunerative work. In any event the Applicant is entitled to the benefit of a favourable decision under paragraph 24(2)(b) of the Act so that it is sufficient that the accepted disabilities are the substantial cause of his inability to obtain remunerative work and it should be accepted that those disabilities prevented him from continuing to undertake remunerative work.
The Respondent says that the Applicant resigned from long term employment to access his leave and superannuation moneys and to remove himself from problems at the workplace. There was no subsequent genuine attempt to seek work. The admitted attempts to obtain employment were desultory and made after the issue was raised for the Respondent. He was a rude person with a short fuse – not a symptom of PTSD. None of the medical reports say the Applicant cannot work.
In considering this matter I am required to consider the claim at the time it was made ie February 1998. At that time the Applicant had been out of employment for just on four years having left that employment because of reasons other than his accepted disabilities. In particular, I am satisfied that the relevant factors included the rheumatoid arthritis, the PTSD and the need to raise funds to pay his sons legal costs. Thereafter the relevant factors for not working were a decision to move to Ravenshoe and build a house and a decision not to work. I am satisfied that the Applicant made no serious attempt to obtain employment up to February 1998. I take official notice that Ravenshoe was a depressed former timber town where finding employment would be difficult. The fact of removal from the Cairns area to Ravenshoe carries with it an inference that the Applicant had decided to retire from employment.
I am not satisfied that the Applicant, by reason of his accepted disabilities alone, was prevented from continuing to undertake remunerative work thereby resulting in a loss of remuneration. The loss of remuneration was caused by a decision to leave the workforce for reasons not wholly attributable to the accepted disabilities. There was no reasonable attempt to obtain remunerative employment between cessation of employment at the Central Mill and February 1998 when the Applicant made his claim. He was more concerned to move to and build his house in Ravenshoe. He was not prevented, in the relevant sense, from continuing to undertake remunerative work by reason of his accepted disabilities alone.
The decision under review will be affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  27 September 2001
Date of Decision  12 December 2001
For the Applicant  Mr Martin
For the Respondent                 Mr Stoner