STEPHEN NORRIS and REPATRIATION COMMISSION
[2012] AATA 785
•13 November 2012
[2012] AATA 785
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3436
Re
STEPHEN NORRIS
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 13 November 2012 Place Brisbane The Tribunal affirms the decision under review.
...........................[Sgd].............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 90% of general rate – Eligibility for intermediate or special rate of pension – Incapacity from war-caused conditions not sufficient to prevent applicant undertaking remunerative work for more than 20 hours or 8 hours per week in parts of the assessment period – Applicant not prevented by reason of incapacity from war-caused conditions, alone or substantially, from continuing to undertake remunerative work – No loss of salary, wages or earnings that would not be suffered if free from incapacity – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 19, 22, 23, 24, 120
CASES
Birtles v Repatriation Commission (1991) 33 FCR 290
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Connell [2011] FCAFC 116
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
Willis v Repatriation Commission [2012] FCA 399
REASONS FOR DECISION
Mr R G Kenny, Senior Member
13 November 2012
BACKGROUND
Following lodgement of a claim on 20 March 2009 by Stephen Norris, the Repatriation Commission (“the respondent”) accepted, with effect from 20 December 2008, that his diabetes mellitus and posttraumatic stress disorder were war caused conditions under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The respondent assessed the disability pension paid to him in respect of those conditions and the previously accepted condition of sensori neural hearing loss at ninety percent (90%) of the general rate. On review of that assessment, the Veterans’ Review Board (“the Board”) affirmed the decision.
ISSUES AND LEGISLATION
The standard of proof applicable to assessment of pension is set out in s 120(4) of the Act, which requires that matters be determined to the decision-maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The procedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period”, which is defined as meaning the period starting on the application day, in this case 20 March 2009, and ending when the claim or application is determined.[2]
[1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335 per Beaumont J.
[2] Veterans’ Entitlements Act 1986 (Cth), ss 19(5C)(a) and 19(9).
It is not disputed that the general rate of pension payable to Mr Norris was correctly assessed by the respondent at ninety percent (90%). The issue raised by Mr Bob Richards, for Mr Norris, is whether he meets the criteria for payment of an earnings-related rate of pension under ss 23 or 24 of the Act. These relate, respectively, to the intermediate rate and special rate of pension. For the special rate, the matters that need to be determined are whether or not Mr Norris meets the requirements of ss 24(1)(a)(i), (b) and (c) of the Act. These read:
(1) This section applies to a veteran if:
…
(a) …
(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
…; 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
…
The requirements for the intermediate rate are identical except for paragraph (b). To that end, s 23(1)(b) and s 23(2) of the Act, read:
(b) the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently.
…
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
Mr Richards, in a written submission dated 15 November 2011, identified the types of remunerative work which Mr Norris had undertaken as being “marine mechanic, training marine mechanics, employment advisor for disabled people, teacher aide”. He submitted that, in 2008, Mr Norris entered into a Centrelink scheme which required him to undertake paid work or to be a volunteer for a combined total of 30 hours per fortnight, in return for which he received Centrelink benefits. He submitted that Mr Norris’ income, where it was less that $400 per fortnight, would be supplemented to that amount by Centrelink payments. He submitted that all of Mr Norris’ paid and voluntary work under that scheme was remunerative work for the purposes of ss 23 and 24 of the Act. He submitted that, in the assessment period, there were periods when Mr Norris could not work 20 hours per week and other times when he could not work for more than 8 hours per week because of his posttraumatic stress disorder. He submitted that this was the only reason for Mr Norris ceasing remunerative work and that he met all of the requirements for payment of either the intermediate rate or the special rate of pension. No submission was made in respect of diabetes mellitus or hearing loss.
Mr Richards noted that, from 31 May 2011, Mr Norris received the service pension, which was less than he had received when on Centrelink benefits and that this represented a loss of salary or wages by him. Alternatively, he submitted that, as Mr Norris was under the age of 65 years on the application day and had been genuinely seeking remunerative work, he was entitled to the benefit of s 24(2)(b) of the Act.[3] In support, Mr Richards referred to the decision of the Full Court of the Federal Court in Repatriation Commission v Connell[4].
[3] As well as its s 23(3)(b) equivalent.
[4] [2011] FCAFC 116.
Mr Jeff Kelly, for the respondent, conceded that Mr Norris met the requirements of s 24(1)(a)(i) of the Act.[5] However, he submitted that he did not satisfy the terms of ss 24(1)(b), 24(1)(c)[6] or 24(2)(b)[7] thereof and that, accordingly, neither of the earnings-related rates of pension was payable to Mr Norris.
EVIDENCE
[5] As well as its s 23(1)(a) equivalent.
[6] As well as its s 23(1)(b) and (c) equivalents.
[7] As well as its s 23(3)(b) equivalent.
Mr Norris
Mr Norris served in the Australian Army from March 1969 until March 1972 where he obtained qualifications in marine mechanics, marine engineering and radio communications. On leaving the army, he upgraded his qualifications to civilian trade equivalence including work on a wider range of engine types and also as an LPG mechanic. He was self-employed in work with marine and aircraft engines from 1985 until 1989 and conducted associated training courses. He completed a diploma of teaching in technical matters and in adult education and also taught marine mechanics courses at New South Wales TAFE colleges from 1989 to 1994. From 1994 until 2005, he worked for Disability Services Australia in Sydney where he provided training and support to disabled people and assisted them to obtain work in sheltered situations and also in the open market. He completed a workplace assessor/trainer course in 2003.
In May 2005, Mr Norris moved from New South Wales to Queensland to take advantage of lower priced properties in Queensland and because of his perceptions of a better climate and good prospects of work. He said that he was not experiencing any health problems while working in Sydney and ceased work there after giving a month’s notice to his employer of his intention to do so. He purchased and moved to an acreage site in the Sunshine Coast hinterland.
While still working in Sydney, Mr Norris made several applications for employment in the Sunshine Coast area and attended some interviews there during a two week holiday from his Sydney job. Mr Norris provided copies of letters he had sent to potential employers in Nambour on 31 January 2005 and 4 February 2005 in which he outlined his qualifications in dealing with intellectually disabled people.[8] He was unsuccessful, he said, with those applications and other applications made from Sydney because he received no responses.
[8] See Exhibits 9 and 10.
Mr Norris held various part-time positions from August 2005 to September 2010 and provided a schedule of these, which reads:[9]
[9] See Exhibit 7.
Organisation
From
To
Days Worked
Average hours/week
Notes
Nambour State School
3 August 05 11 November 05 3 5.3 Teacher aide Noosa Hospital
9 August 05 28 November 05 29 14 Wardsman Burnside State High School
27 September 05 5 December 05 11 5 Teacher aide Walk on Wheels 23 January 06 22 May 06 41 19 Sales/
MaintenanceHouse with no Steps 17 April 06 December 06 52 11 Employment Support
Noosa Hospital 9 August 06
28 November 06 204 6 Wardsman Burnside State High School
27 September 06 5 December 06 170 5 Teacher aide House with no Steps[10] 19 January 07 20 July 07 21 72 Employment Support
Noosa District High School
31 January 07 14 December 07 36 5 Teacher aide Burnside State High School
1 February 07 14 December 07 136 5.5 Teacher aide Noosa District High School
21 January 08 21 June 08 36 12 Teacher aide 31 July 2008: entered a Centrelink scheme to receive $400 per fortnight for 30 hours per fortnight as a volunteer
Community Focus Inc
5 August 08 20 December 08 19 7.5 13 week waiting period – volunteer United Synergies Inc
8 August 08 21 December 08 19 7.5 Community Focus Inc
July 09
December 09
23
5
Volunteer
United Synergies Inc
January 09 December 09 14 5 Burnside State High School
February 09 July 09 18 5.5 Teacher aide Coast Guard Noosa
June 09 December 09 24 5 Volunteer Good Shepherd Lutheran College
January 10 September 10 68 15 Volunteer [10] Mr Norris agreed that the days worked and average hours per week in this row need to be interchanged.
Mr Norris said that he usually had more than one and as many as three part-time jobs during the same week. In September 2008, he entered into an Activity Agreement, applicable to those over 55 years of age, with Centrelink.[11] This enabled him, after a 13 week waiting period, to be paid $400 per fortnight providing he undertook 30 hours per fortnight of paid or voluntary work. In the event that he did paid work, Centrelink would “top up” his payment to $400 if necessary. Mr Norris performed a mixture of voluntary and paid work from 2008 to 2010. His last position was with the Good Shepherd Lutheran College where he did voluntary work for an average of 15 hours per week, which met the 30 hour per fortnight Centrelink threshold.
[11] See Exhibit 8.
Mr Norris ceased some of his positions because he was not offered sufficient hours to justify the time and cost associated with driving to the workplace from his home, sometimes up to 30 minutes away. With others, his employment arrangements were based on a contract which ended when the contract period ran out. With teacher aide positions, this was always at the end of a teaching period and, with some schools, he was re-engaged on a new contract at the start of the next teaching period. In his schedule, he wrote that he “became very unwell in the weeks leading up to September 2010” and that he provided certificates from his treating doctor which advised them of his illness. In his evidence, Mr Norris said that he advised the Good Shepherd Lutheran College that he was not well and that he provided medical certificates in that regard to Centrelink. He said that was when school holidays were coming up and he understood that Centrelink paid his fortnightly benefit to him based on the medical certificates.
Mr Norris completed a statement[12] in response to the review conducted by the respondent under s 31 of the Act. Therein, he described his teacher aide work as requiring him to maintain equipment and to prepare timber cuttings for the students. He wrote that he worked alone which enabled him to rest when he was unwell and that he pushed himself to work beyond reasonable limits to support himself and his family. He agreed that he finished work at Burnside High School in July 2009 because the contract ended.
Medical evidence
[12] See Exhibit 1, T-documents, pp. 123-126. This was undated but received by the respondent on 23 November 2010.
Dr Tim Somers (treating doctor)
Dr Somers referred Mr Norris to psychiatrist, Dr Bruce Lawford, in June 2009. On 5 June 2009, Dr Somers completed a medical examination form in which he expressed the opinion that Mr Norris was unable to work for more than 20 hours per week because of posttraumatic stress disorder. He noted that Mr Norris was working as a teacher aide at that time and his opinion was that he could work for 16 hours per week.
Dr Aylam Ramaswamy (treating doctor)
In his report of 7 April 2011, Dr Lawford noted that Dr Ramaswamy was Mr Norris’ treating doctor in September/October 2010.[13] Dr Ramaswamy completed a medical impairment assessment on 23 February 2011.[14] He noted that Mr Norris had seen him seven times in the previous eight months for treatment for posttraumatic stress disorder. He described depression, flashbacks, intrusive thoughts, sleeplessness, lethargy and tiredness, poor motivation and poor concentration.
[13] See Exhibit 1, T-documents, pp. 158-159.
[14] See Exhibit 1, T-documents, pp. 145-150.
A medical certificate also dated 23 February 2011 and in the name of Dr Ramaswamy, advised that Mr Norris had been his patient and a patient of his practice since 11 April 2010.[15] He wrote that the conditions which impacted on Mr Norris’ capacity for work or study from 1 March 2011 to 1 May 2011 were chronic fatigue syndrome and diabetes, with symptoms of fatigue, poor stamina and weakness. The certificate also noted that Mr Norris was seeing psychiatrist, Dr Sharon Harding. In a further letter, dated 14 September 2012,[16] Dr Ramaswamy advised that a locum at his practice had completed a certificate for Mr Norris on 11 November 2010 for Centrelink in which chronic fatigue syndrome was identified. Dr Ramaswamy said that this was an error as Mr Norris had not suffered from chronic fatigue syndrome. Dr Ramaswamy wrote that he merely reproduced the same diagnosis in subsequent reports, including that of 23 February 2011. He described this as an error on his part.
[15] See Exhibit 13.
[16] See Exhibit 14.
Dr Ramaswamy completed a letter, dated 10 June 2011, stating that Mr Norris had been a patient at his practice for nearly five years and that his health had deteriorated in that time.[17] He wrote that he agreed with Dr Lawford that it was Mr Norris’ posttraumatic stress disorder that stopped him from working.
[17] See Exhibit 1, T-documents, p. 162.
In his evidence, Dr Ramaswamy said that the first consultation with Mr Norris for lethargy and tiredness was on 16 November 2010 and that he had referred him at that time to a psychologist and also to psychiatrist, Dr Sharon Harding. He accepted that tiredness was not a component of posttraumatic stress disorder. In response to Mr Richards’ questions, he said that Mr Norris ceased work because of his posttraumatic stress disorder. In response to subsequent questions from Mr Kelly, he said that, on the basis of Dr Harding’s reports, Mr Norris had a depressed mood and that Mr Norris’ posttraumatic stress disorder, tiredness and depressed mood all contributed to his inability to engage in remunerative work.
Dr Sharon Harding (psychiatrist)
Dr Harding completed a report on 5 January 2011.[18] She first saw Mr Norris on 21 December 2010 on referral from Dr Ramaswamy. She wrote that Mr Norris was co-operative with the assessment, that his speech was normal, that his affect was reactive but that he appeared dysphoric and depressed. She described his thought as normal and centred around a preoccupation with tiredness and malaise. She wrote that Mr Norris displayed no psychotic features, that his cognition was grossly normal and that his insight and judgement were reasonable.
[18] See Exhibit 1, T-documents, pp. 155-157.
Dr Harding wrote that Mr Norris was no longer undertaking voluntary work because of tiredness and concluded that he had posttraumatic stress disorder which was complicated by a comorbid depressive illness. She was uncertain of the source of his tiredness and lethargy and queried if it was related to his depression. She thought that a sleep study and a posttraumatic stress disorder program may be beneficial to Mr Norris.
Dr Bruce Lawford (psychiatrist)
Dr Lawford saw Mr Norris in 2009 on referral by Dr Somers. He completed reports on 23 June 2009,[19] 11 February 2010,[20] 7 April 2011[21] and 22 June 2012.[22] In his first report, he diagnosed posttraumatic stress disorder and noted that Mr Norris had done some part-time work towards the end of 2005 and that, in 2009, he was working 8 hours per week. His opinion was that Mr Norris was not capable of working more than that. In his second report, he wrote that Mr Norris had not undertaken remunerative employment for more than 6 months and was unable to work because of his posttraumatic stress disorder alone. In his third report, he repeated the analysis from his first report and referred to major difficulties in undertaking voluntary work at the Good Shepherd Lutheran College as a result of irritability, poor concentration and chronic fatigue. Dr Lawford noted that Mr Norris had been seeing his local doctor, Dr Ramaswamy, during September and October 2010 and had obtained medical certificates from him for Centrelink to show that he was unable to work. In his final report, Dr Lawford wrote that he had treated Mr Norris since February 2010. In assessing his work capacity, Dr Lawford relied on the content of letters from two persons who had worked with Mr Norris and also Mr Norris’ partner. He referred to the report of psychiatrist, Dr Anthony Tie, and wrote that Mr Norris’ hemochromatosis did not require treatment and did not cause him lethargy and tiredness.
[19] See Exhibit 1, T-document, pp. 47-52.
[20] See Exhibit 1, T-documents, pp. 121.
[21] See Exhibit 1, T-documents, pp. 158-161.
[22] See Exhibit 5.
In his evidence, Dr Lawford was unable to say how many times he had seen Mr Norris but noted that Dr Harding had also been Mr Norris’ treating psychiatrist. He said that hemochromatosis was not a problem for Mr Norris as it affected 25% of the population and was managed by bloodletting. He described Mr Norris’ blood levels as normal. He said that posttraumatic stress disorder can cause the brain to atrophy, to break neurone connections and to develop into a permanent neurological disorder. He said that this process could continue, even though symptoms of posttraumatic stress disorder may be treated, and can reveal itself in lack of anger control and irritability. He confirmed his opinions that Mr Norris could not work for 8 hours per week and that, in assessing Mr Norris’ work capacity, he took account of the letters provided to him from Mr Norris’ partner and the two people whom Mr Norris had worked with.
Dr Anthony Tie (psychiatrist)
On 10 February 2012, Mr Norris saw Dr Tie who completed a report on 15 February 2012.[23] He had read the reports of Dr Lawford and Dr Harding. Dr Tie reported that Mr Norris had not left employment in Sydney because of work stressors but in order to take advantage of lower property prices and to undertake a lifestyle change in Queensland. While he diagnosed posttraumatic stress disorder, Dr Tie described Mr Norris’ predominant complaints as “lethargy and tiredness” and wrote that these symptoms might not be due to posttraumatic stress disorder but to hemochromatosis. He recommended a specialist review of that condition. In his mental state examination, Dr Tie noted some symptoms of posttraumatic stress disorder but also recorded that Mr Norris displayed evidence of humour at appropriate times, clear consciousness, no evidence of sedation or of a pervasively depressed mood and described his thought processes as being relevant, organised and goal directed. Dr Tie wrote that Mr Norris displayed no cognitive deficits and that he attended well to an extended psychiatric review of two hours with relevant responses to queries. He referred to Dr Harding’s description of a comorbid depressive episode but noted that he was unable to recognise this or any pervasively low mood.
[23] See Exhibit 2.
Dr Tie took a detailed history of a range of matters from Mr Norris including that relating to his work. He noted that, in 2009, he was working for remuneration at the Burnside State High School and in voluntary jobs with Good Shepherd, Community Focus and United Synergies. He noted that Mr Norris’ remunerative and voluntary work involved his assessment of individuals with disability and a mentoring role. Dr Tie’s opinion was that this was likely to have required a patient approach by Mr Norris. Dr Tie reported that Mr Norris was able to undertake remunerative work for 8 hours per week, and even 20 hours per week, on his current regimen of treatment. Dr Tie confirmed that opinion in his evidence and considered that Mr Norris’ current involvement with his claims for pension was impacting on him and decreasing his capacity for work. He believed this would improve when the matter was resolved. Dr Tie said that he took a longitudinal approach to psychiatric assessment and, in that regard, noted that Mr Norris had continued to work on a full-time basis for 11 years to 2005 without apparent impact on his work capacity, even though he had experienced severe stressors during that time in the form of deaths of close family members.
Other evidence
A report, dated 12 October 2011, from Disability Services Australia,[24] recorded Mr Norris as having been employed from 5 September 1994 until 15 April 2005 as “Manager - Service Access” for 40 hours per week on a permanent full-time basis. It noted that there had been no reduction in the number of hours worked by Mr Norris, no awareness by the company of any disability he may have had and no reason for his ceasing work apart from his notification that he was “moving interstate”. The employer noted that there was no basis for terminating Mr Norris’ position.
[24] See Exhibit 4.
A report from the Queensland Department of Education and Training, dated 8 September 2009,[25] described Mr Norris as being employed as a teacher aide from 11 July 2005 until 24 July 2009. It noted that he undertook seven hours per week from 18 May 2009 until 12 June 2009 and then five hours per week until 24 July 2009 with that revision of hours being “due to roster change”. It noted that the section of the report concerning time lost through ill-health was not applicable[26]. The employer provided no reason for the cessation of Mr Norris’ employment and declared that his employment would not have been terminated in the foreseeable future. At that time, Mr Norris was working at the Burnside State High School, from which a report, dated 6 May 2010,[27] confirmed Mr Norris as working for five hours per week with an additional two hours per week for a short period. It noted that Mr Norris’ position terminated due to the completion of his contract.
[25] See Exhibit 1, T-documents, pp. 57-60.
[26] The notation in the report was “N/A”.
[27] See Exhibit 1, T-documents, p. 115.
Mr Norris entered an “Activity Agreement” with Centrelink in 2008 and another agreement with them in 2010 which was entitled “Employment Pathway Plan”.[28] These agreements included the requirements that Mr Norris undertake voluntary work with Community Focus for 12 months from September 2008 until September 2009 and with the Australian Coast Guard Association for a nominated period of 12 months from July 2009 until July 2010. The second agreement included an undertaking by Mr Norris that he would actively seek paid employment while participating in the voluntary work. However, an Information Sheet attached to the Centrelink documents explained that persons over 55 years of age, which included Mr Norris, must either be:
·working in suitable paid employment, approved voluntary work or a combination of the two for at least 15 hours a week; or
·actively looking for suitable paid employment.
[28] See Exhibit 8.
A Centrelink statement, dated 28 August 2012,[29] advised that Mr Norris received newstart allowance from 7 October 2008 to 16 November 2011 except for two short periods in 2009 and 2010, respectively, when he travelled overseas. It also noted that Mr Norris was paid the service pension from 31 May 2011 which meant that he had not been entitled to the newstart payments from that date to 16 November 2011[30] and that a resultant overpayment of $3,307.21 was raised against him.
[29] See Exhibit 13.
[30] This was the date that Centrelink actually made the decision that he was not entitled to newstart allowance. The decision was then backdated to 31 May 2011.
A further Centrelink statement, dated 6 September 2010,[31] was prepared in response to a request by the respondent for medical information held in relation to Mr Norris. It advised that no medical reports were held in relation to Mr Norris at that time, although, as noted below, a certificate was provided by Centrelink for 23 February 2011.[32]
[31] See Exhibit 1, T-documents, p. 82.
[32] See paragraph 39 (below).
An “Employment Separation Certificate” was provided to Centrelink by Education Queensland on 14 July 2008 concerning Mr Norris’ employment between 11 July 2005 and 30 June 2008.[33] This included his last part-time employment, prior to receiving Centrelink benefits, at Noosa District High School. It confirmed that his work there ceased because of the “end of season or contract”.
[33] See Exhibit 7.
Mr Norris completed an Employee Report on 19 July 2010 in relation to his work with the Good Shepherd Lutheran College at that time.[34] He wrote that he worked there from 25 January 2010 for two days per week at 7½ hours per day “as per Centrelink’s requirements”. A statement from the Good Shepherd Lutheran College, dated 2 September 2010, confirmed that Mr Norris continued to work there on a voluntary basis for two days per week.[35]
[34] See Exhibit 1, T-documents, pp. 86-89.
[35] See Exhibit 1, T-document, p. 83.
Bevan Bozoky worked with the Good Shepherd Lutheran College for over 12 years and was Mr Norris’ supervisor during his employment there in 2010. In a letter, dated 1 June 2012,[36] Mr Bozoky wrote that Mr Norris was an enthusiastic employee but “always seemed very tired and lethargic all the time”, “generally down on himself” and “quite distant from everyone”. He wrote that he noticed “a dramatic down-turn in his self-esteem and energy levels” towards the end of Mr Norris’s time at the College and that he “finally just couldn’t bring himself to come in anymore”.
[36] See Exhibit 11.
Malcolm Buchanon was a senior teacher at Burnside State High School when Mr Norris worked there in September 2005 as a teacher aide and maintenance worker. He wrote, in an undated letter,[37] that Mr Norris’ “work ethic, punctuality and competency were satisfactory” but that there were times when “he showed himself to be extremely tired at the end of what was only a five and a half hour day, per week”.
[37] See Exhibit 11.
In a letter dated 20 June 2012,[38] Mr Norris’ partner, Barbara Partridge, wrote that she had lived with Mr Norris for nearly five years, that he slept poorly at night and that she had “mostly taken on the role of organising [their] day to day life such as bills, shopping, cooking, cleaning” but that he mowed the lawn and did odd jobs around the house. She described his “constant tiredness and lack of motivation” as “a huge problem”.
[38] See Exhibit 11.
CONSIDERATION
There are inconsistencies in Mr Norris’ evidence which impact on his veracity. Mr Norris’ last full-time work was in Sydney with Disability Services Australia. In evidence to the VRB, he stated that he “couldn’t cope in the job”. He also said:[39]
I was suffering fairly significant illness. I guess you could put it. I had been to many, many GPs to try to diagnose why I couldn’t - why some weeks I would sleep 12 hour days for week after week, and then it would disappear. Why I - I wasn’t able to think and concentrate properly in the workplace. So in the end I decided to move, sell up everything and just move, so I didn’t have to cope with that particular full-time job. It wasn’t until I got up here that, yes, that I went into – I went looking for work again.
[39] See Exhibit 3, Transcript of Proceedings, 26 July 2011, P-9, L10-16.
In another statement, received by the VRB on 23 November 2010, Mr Norris wrote that when he was working in Sydney, he felt as though he was “on the edge of a mental and physical breakdown”.[40] Those statements are not consistent with accounts Mr Norris gave to Dr Tie or to the Tribunal in his evidence. Dr Tie noted that Mr Norris “adamantly maintained that he had not left his position with disability services as a result of work stressors”.[41] Mr Norris’ evidence was that he made a conscious decision to move to Queensland because of property prices and a more attractive environment. He also gave evidence that he made many applications for work in Queensland while he was still working full-time in Sydney and even travelled to the Sunshine Coast for job interviews during his holiday from work.
[40] See Exhibit 1, T-documents, p. 125.
[41]See Exhibit 2, p.7.
Sections 24(1)(a) and 23(1)(a) of the Act
Mr Norris was in receipt of pension at more than 70% of the general rate throughout the commencement of the assessment period and, accordingly, ss 23(1)(a) and 24(1)(a)(i) of the Act are met during that period.
Sections 23(1)(b) and 24(1)(b) of the Act
There is conflicting medical opinion in relation to the application of ss 23(1)(b) and 24(1)(b) of the Act in Mr Norris’ case.
It is not clear how many times Dr Lawford saw Mr Norris. However, in his reports, he expressed the opinion that Mr Norris was unable to undertake more than 8 hours work per week because of his posttraumatic stress disorder alone. His first report in June 2009 was concerned, in the main, with causation of the condition. However, he recorded Mr Norris undertaking some part-time work towards the end of 2005 and 8 hours per week in 2009 and concluded that he was unable to do more than that. As I understand the material in his schedule,[42] Mr Norris was undertaking an average of 24 hours per week of part-time work at times in late 2005 and some 15 hours per week in June 2009. In February 2010, Dr Lawford correctly noted that Mr Norris had not been engaged in remunerative work for more than 6 months. However, this ignored his voluntary work with the Noosa Coast Guard and the Lutheran College at that time.
[42] See paragraph 11, above.
Much of Dr Lawford’s third report was a restatement of what he wrote in his first report except that he also identified Mr Norris’ major difficulties undertaking voluntary work at the Good Shepherd Lutheran College. He wrote that Dr Ramaswamy had provided medical certificates to Centrelink to show that he was unable to work at that time. The evidence from Centrelink did not confirm the receipt of such medical certificates though one certificate, incorrectly completed by Dr Ramaswamy, was provided but it was dated 23 February 2011. In his final report, Dr Lawford placed reliance on the letters written by Mr Norris’ partner, by Mr Buchanan and, in relation to the Good Shepherd Lutheran College, by Mr Bozoky who worked there with Mr Norris. None of these gave evidence at the hearing. Mr Bozoky did not explain the basis on which he was able to express his opinions and it was not suggested that he had any medical qualifications. Dr Lawford took that evidence into account when he declared that Mr Norris was unable to undertake remunerative work for more than 8 hours per week.
In his evidence, Dr Lawford described a development pattern which could arise with posttraumatic stress disorder. He said that it could cause atrophy of the brain and the breaking of neurone connections with consequential permanent neurological disorder. However, this development pattern was described in general terms by Dr Lawford and he did not attribute that process specifically to Mr Norris.
Dr Ramaswamy agreed with Dr Lawford’s opinion that Mr Norris could not work because of posttraumatic stress disorder. Aspects of Dr Ramaswamy’s evidence were concerning to me. He admitted that he merely reproduced the diagnostic content of a previous doctor’s certificate when he completed a medical certificate for Centrelink on 13 February 2011 and, also, he variously advised that Mr Norris was a patient at his practice for a period of five years and from April 2010 only. His evidence in relation to the reasons for Mr Norris being unable to work was also less than satisfactory. Within a short period, he gave the reasons as posttraumatic stress disorder only and posttraumatic stress disorder in conjunction with depression and tiredness.
Dr Harding provided no specific reference to Mr Norris’ work capacity except that it was impacted by tiredness. However, she described him as co-operative, with normal speech, reactive affect and normal thought which was centred round a preoccupation with tiredness and malaise. Her opinion was that he displayed normal cognition with reasonable insight and judgement and no psychotic features. However, she noted that he appeared dysphoric and depressed and concluded that he had posttraumatic stress disorder which was complicated by a comorbid depressive illness. She questioned whether Mr Norris’ tiredness and lethargy were related to his depression. I note that Dr Lawford and Dr Tie were unable to identify a depressive illness in Mr Norris.
References have been made to Mr Norris’ tiredness and lethargy in the evidence of both medical and other witnesses. No satisfactory explanation has been given for these feelings. Mr Norris has been diagnosed with hemochromatosis. Dr Tie suggested specialist review of Mr Norris in relation to that condition. Dr Lawford declared that this was not a problem in Mr Norris’ case because his blood levels are normal. Dr Lawford is a psychiatrist and, as I understand it, the nature and effects of hemochromatosis do not fall within Dr Lawford’s speciality. There is no material before me to suggest that Mr Norris has seen a specialist in relation to his hemochromatosis.
The diagnosis of posttraumatic stress disorder is not disputed in this matter and the issue is the effect of this condition on his capacity for remunerative work. In that regard, Dr Tie disagrees with the opinions of Dr Lawford and Dr Ramaswamy that Mr Norris is unable to undertake work for more than 8 hours per week.
The opinions of Dr Lawford and Dr Ramaswamy are not supported by those of Dr Somers. In June 2009, the same month in which Dr Lawford completed his first report, Dr Somers considered that, at that time, Mr Norris was able to work 16 hours per week and he expressed the opinion that Mr Norris was unable to work for more than 20 hours per week because of his posttraumatic stress disorder. The schedule of Mr Norris’ work shows that the total of his working hours at the time of Dr Somers’ report was 15.5 hours. Dr Somers’ analysis of Mr Norris, in relation to his actual working hours, as at June 2009, is more accurate than that of Dr Lawford and preferable, in that regard, for that reason. However, in general terms, specialist psychiatric evidence is more persuasive than that of the general practitioner and, in that regard, I am satisfied that the compelling evidence of Mr Norris’ capacity to undertake remunerative work is that provided by Dr Tie. He had read the reports of Dr Harding and of Dr Lawford. His report provided a detailed and objective analysis of Mr Norris’ psychiatric circumstances. There, and in his evidence, he concluded, in a reasoned manner, that Mr Norris, on his current medication, was capable of undertaking 20 hours per week of remunerative work. Dr Tie noted some symptoms of posttraumatic stress disorder but, in reasoning to his conclusion, he also noted that Mr Norris displayed evidence of humour, clear consciousness, no cognitive deficits and no evidence of sedation or of a pervasively depressed mood. He described Mr Norris’ thought processes as being relevant, organised and goal directed. Dr Tie noted that in 2009 Mr Norris was working for remuneration at the Burnside State High School and in voluntary jobs with Community Focus and United Synergies and that these forms of work involved him occupying a monitoring role to assess individuals with disability. His opinion was that this was likely to have required a patient approach by Mr Norris. I accept the evidence of Dr Tie in relation to Mr Norris’ work capacity in the assessment period.
I am satisfied that, throughout the assessment period, Mr Norris’ incapacity from his accepted disabilities of sensori-neural hearing loss, diabetes mellitus and posttraumatic stress disorder was not such as to render him incapable of undertaking remunerative work aggregating more than 8 hours per week for the purposes of s 24(1)(b) of the Act. I am also satisfied that that incapacity was not such as to render him incapable of undertaking remunerative work aggregating 20 hours or more per week for the purposes of ss 23(1)(b) and 23(2)(b) of the Act.
This means that neither the intermediate rate nor the special rate of pension are payable to Mr Norris.
Sections 23(1)(c) and 24(1)(c) of the Act
Though not necessary, I also make the following observations concerning ss 23(1)(c) and 24(1)(c) of the Act. They involve a consideration of what Mr Norris would probably have done in the assessment period in the absence of his accepted disabilities.[43] The Federal Court has said that a proper consideration of s 24(1)(c) of the Act requires responses to the following questions:[44]
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?”
[43] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
[44] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 2.
Consideration must also be given to ss 23(3)(a) and 24(2)(a) of the Act, which operate in conjunction with the fourth of those questions, and ss 23(3)(b) and 24(2)(b) of the Act which operate, in the case of a veteran under 65 years of age, in conjunction with the third of those questions.
Questions 1 and 2
For the first of those questions, I am satisfied that Mr Norris’ remunerative work is as submitted by Mr Richards viz. marine mechanic, training marine mechanics, employment advisor for disabled people of the kind he did with Disability Services Australia in Sydney, teacher aide work of the kind that he did with schools prior to 2009 and with Burnside State High School in 2009 as well as wardsman, employment supporter and in sales maintenance. The work Mr Norris did with Community Focus, United Synergies and the Coast Guard at Noosa was as a volunteer and of a type not undertaken previously for remuneration. Though voluntary, the work at the Good Shepherd Lutheran College was as a teacher aide and of a kind previously undertaken for remuneration.
For the analysis of Mr Norris’s remunerative work, Mr Richards referred to Repatriation Commission v Connell[45]. As I read that decision, the Full Court of the Federal Court was concerned with a veteran who had been engaged in full-time remunerative work and then continued that work on a part-time basis. Those are not the circumstances of Mr Norris.
[45] [2011] FCAFC 116
As I understand it, Mr Richards also submitted that the duties undertaken by Mr Norris as a volunteer from 2008 until 2010 constitute remunerative work as provided for in ss 23(1)(c) and 24(1)(c) of the Act. This was on the basis that he received the Centrelink benefit of $400 for a fortnight in which he was engaged in voluntary and/or remunerated work for a total of 30 hours. I do not accept that contention. The term “remunerative work” is broadly defined in s 5Q(1) of the Act as including “any remunerative activity”. While the nature of the activity that constitutes work in that term has been widely construed,[46] I am satisfied that there needs to be a remunerative component related to the work undertaken as determined by an employer/employee relationship. That was not the case with Mr Norris’ voluntary work. There was no remuneration to Mr Norris referable to the nature or quality of the voluntary activities he undertook for Community Focus, United Synergies, the Noosa Coast Guard or the Good Shepherd Lutheran College. Indeed, for a thirteen week waiting period, Centrelink did not make any payment to him. As I understand it, neither did these organisations provide any form of remuneration during that waiting period or afterwards until when he ceased his voluntary work in September 2010. Rather than be remunerated for his work, the carrying out of the voluntary activity for the required periods allowed him to qualify for the social security benefit paid by Centrelink. As I read the Centrelink documentation, this also relieved him of the obligation that Centrelink may have otherwise imposed on him to look for suitable paid employment.
[46] See Birtles v Repatriation Commission (1991) 33 FCR 290.
From the summary of the psychiatric evidence above,[47] I am satisfied that the second question is answered in the negative.
[47] See paragraphs 41-47, above.
Question 3
The third of the questions noted above raises in issue the first parts of ss 23(1)(c) and 24(1)(c) of the Act through what is referred to as the “alone test”[48]. There must be no other factor, apart from Mr Norris’ accepted disabilities, which would impact upon his capacity to undertake the relevant remunerative work at the start of, or during, the assessment period. Such a factor may be associated with a wide variety of considerations, such as incapacity from a non-service-related medical condition, the effects of age, relocation to a locality distant from work opportunities or the impact of the length of time out of the workforce. Such factors, individually or in combination with each other or with accepted disabilities, may serve to prevent a person from continuing to undertake relevant remunerative work.[49] In the event that they would have contributed to preventing Mr Norris from doing so in the assessment period, ss 23 and 24 of the Act will not be satisfied.
[48] Willis v Repatriation Commission [2012] FCA 399.
[49] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54–55; and Repatriation Commission v Alexander (2003) 75 ALD 329 at 334 per Spender J.
Even if the forms of voluntary work undertaken by Mr Norris were considered to be remunerative for the purposes of the Act, I am satisfied that he did not cease that work because of his disabilities. Only in relation to his voluntary work with the Good Shepherd Lutheran College was such an issue raised by Mr Norris in that, in his schedule of work, he wrote that he “became very unwell in the weeks leading up to September 2010” and that he provided Centrelink with certificates from his treating doctor which advised them of his illness. Mr Bozoky’s letter[50] referred to Mr Norris’ time at the Good Shepherd Lutheran College describing lethargy, being “down” and “distant” and showing a “dramatic downturn in his self-esteem and energy levels” towards the end and finally being unable “to bring himself to come in anymore”. As I understand it, Mr Bozoky is not medically qualified. The basis of his observations was not tested in evidence although Dr Lawford referred to Mr Bozoky’s statement in his final report. Dr Lawford’s opinions relied on statements from Mr Norris that he had provided Centrelink with medical certificates from his treating doctors. The evidence from Centrelink was that no such certificates were in its files. Dr Lawford also referred to the information provided by Mr Buchanon who was not called to give evidence. In his statement,[51] Mr Buchanon described Mr Norris as appearing “extremely tired” at the end of a five and a half hour working day. I note that this was in 2005, some years before posttraumatic stress disorder was diagnosed and that it fails to refer to the other 20 hours per week that Mr Norris was employed at Nambour State School and Noosa Hospital in 2005.[52]
[50] See paragraph 33 (above).
[51] See paragraph 34 (above).
[52] See the schedule in paragraph 11 (above)
The report from Disability Services Australia recorded Mr Norris as working 40 hours per week with no reduction in the number of hours worked, no awareness of any disability he may have had, no basis for terminating his position and no reason for his ceasing work apart from his notification that he wished to move to Queensland. Mr Norris’s evidence was that this was for economic reasons and I am satisfied that Mr Norris ceased his last full-time work, which was with Disability Services Australia, for reasons unassociated with his disabilities.
In Queensland, Mr Norris sought many part-time positions. His evidence was that he received no response to many of his applications and there is no evidence before me that his lack of success in obtaining any particular position was related to his disabilities. He was also successful in his applications for a range of part-time positions as listed in the schedule above.[53] Prior to seeking income support assistance from Centrelink in 2008, he worked as a wardsman in 2005 and in sales maintenance and employment support in 2006. There is no material before me that Mr Norris ceased any of those forms of work because of his disabilities. His main employment from 2005 until mid-2008 was as a teacher aide on six occasions. With the first five of these appointments, his employment ended towards the end of the academic year and this is consistent with Mr Norris’ evidence that he was engaged on a contract basis until the teaching year finished, with a new contract being in prospect in the following academic year. The last of those positions was with the Noosa District High School from January to June 2008. The separation certificate, dated 14 July 2008, from Education Queensland, Mr Norris’ employer, declared that the reason for the cessation of that position was: “End of season or contract”. Mr Norris also gave evidence that he ceased some of his part-time work because of the inconvenience of travelling to his workplaces from his home.
[53] See paragraph 10 above.
The only paid work undertaken by Mr Norris after he commenced his arrangement with Centrelink in mid-2008 was at Burnside State High School from February to July 2009. A report from the Queensland Department of Education and Training, dated 8 September 2009, described Mr Norris as being employed as a teacher aide in 2009 for periods from five to seven hours dependent on the relevant roster. The report made no reference to Mr Norris’ health and no reason for his position to be terminated in the foreseeable future. A more specific report from the Burnside State High School, dated 6 May 2010, confirmed Mr Norris’ hours of work and that his position terminated due to the completion of his contract.
The evidence from Mr Norris’ employers is that his disabilities played no part in the cessation of any of his paid employment from 2005 until 2009. I am satisfied that Mr Norris did not cease his full or part-time remunerative work because of his disabilities. In the assessment period from 20 March 2009, the only remunerative work undertaken by Mr Norris was with the Burnside State High School. This was not continued by Mr Norris after July 2009 because he had no further contractual arrangements with the employer. It was this absence of a teacher aide contract which was the factor which prevented him from continuing to undertake that work. The third of the questions identified above is answered in the negative.
Question 4
Even if the third question noted above were answered in the affirmative, I am satisfied that the fourth question noted above would be answered in the negative. This relates to whether, by reason of being prevented from continuing to undertake the work, Mr Norris is 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. This is because of the effect of ss 23(3)(a)(i) and (ii) and ss 24(2)(a)(i) and (ii), which read:
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; …
I am satisfied that Mr Norris ceased his full and part-time remunerative work for reasons other than his accepted disabilities. For the former, he ceased work to fulfil his desire to move to Queensland for financial and social reasons. No explanations were provided for Mr Norris’ cessation of some of his part-time work. That was the case with his work as a wardsman, in sales maintenance and in employment support, all of which were undertaken before mid-2007. He ceased some work because of the inconvenience associated with travelling to the workplace. His involvement in the remaining part-time remunerative work, as a teacher aide, ceased because he reached the end of his contracted period of engagement.
At the commencement of the assessment period, Mr Norris was under 65 years of age. In that regard, ss 23(3)(b) and 24(2)(b) of the Act read:
(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
During the assessment period, Mr Norris was already in remunerative work with the Burnside State High School. There is no evidence that he sought other remunerative work in the assessment period or that, if he did, his accepted disabilities were the substantial cause of his being unsuccessful.
I am satisfied that Mr Norris does not meet the requirements of ss 23(1)(c) and 24(1)(c) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
........................[Sgd]................................................
Associate
Dated 13 November 2012
Dates of hearing 21 August 2012; 16 October 2012 Advocate for the Applicant Mr Bob Richards Advocate for the Respondent Mr Jeff Kelly
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