Stevens and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 663
•2 September 2015
Stevens and Repatriation Commission (Veterans’ entitlements) [2015] AATA 663 (2 September 2015)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2014/0625
Re
John Stevens
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 2 September 2015 Place Sydney The Tribunal affirms the decision under review.
..................................[sgd]......................................
Ms G Ettinger, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – Special rate of pension or Intermediate rate – whether the Applicant is prevented from continuing to participate in remunerative work for more than 8 hours a week (Special rate), or 20 hours a week (Intermediate rate), due to his accepted conditions alone – whether loss of salary, wages or earnings suffered – decision under review affirmed – Veteran not eligible for pension at the Special rate or Intermediate rate
LEGISLATION
Veterans’ Entitlements Act 1986 ss 23, 24, 120
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
Ms G Ettinger, Senior Member
2 September 2015
SUMMARY
Mr John Stevens, the Veteran, who is now 66 years old, served in the Australian Army on operational service between 1970 and 1971. At the time Mr Stevens made a claim for pension at the Intermediate rate or Special rate pursuant to sections 23 & 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act), he was under 65. The Repatriation Commission, the Respondent in these proceedings, refused the claim, and continued Mr Stevens’ disability pension at 80% of the General rate. Mr Stevens appealed that decision to the Veterans’ Review Board, which, on 21 November 2013, substituted a decision that pension be assessed at 90% of the General rate with effect from 3 September 2010. Mr Stevens now applies for review of that decision to this Tribunal, seeking pension at the Special rate, or in the alternative, at the Intermediate rate.
This is an interesting case in many ways, in particular because the Applicant, seeking a Special rate pension, or Intermediate rate pension, claims to be totally and permanently incapacitated, that is to say, his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week in regard to the Special rate pension or 20 hours a week in regard to Intermediate rate. He is however, pursuant to the evidence before me, still working, and carrying out at least some of the work he was doing before he changed the location of his work, and his abode.
Mr Stevens suffers from a number of accepted war-caused conditions including:
·Post Traumatic Stress Disorder
·Alcohol Abuse
·Sensorineural Hearing Loss
·Tinnitus
·Solar Keratosis
·Non Melanotic Malignant Neoplasm of the Skin
·Discoid Dermatitis
·Sleep Apnoea
During the Hearing I heard oral evidence from Mr Stevens as well as Drs A Dinnen and S Smith, both psychiatrists, and Dr R Chase, an occupational physician. I have taken all their evidence, and all the evidence in the documents before me into account in reaching my decision. That also includes the reports of Dr B Keshava, Mr Stevens’ treating psychiatrist who first saw him on 23 November 2010, on referral from his general practitioner.
Much of the evidence was concentrated on Mr Stevens’ work, and the number of hours which Mr Stevens could work during the assessment period which commenced on 3 December 2010.
I have decided that Mr Stevens does not meet the criteria in section 24(1)(b) and (c) of the Act, and is accordingly not eligible for pension at the Special rate. I have also considered the tests in section 23 of the Act in relation to whether he qualifies for pension at the Intermediate rate, and have decided that he does not. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
I have to decide whether Mr Stevens was, during the assessment period, entitled to disability pension at the Special rate, or, in the alternative, at the Intermediate rate.
RELEVANT LEGISLATION
Mr Stevens will be eligible for a pension at the Special rate if he meets the criteria set out in section 24 of the Act, which follows as relevant:
Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
…
(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; …
In the alternative, he will be eligible for a pension at the Intermediate rate if he meets the criteria set out in section 23 of the Act, which follows as relevant:
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran’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; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and ...
Mr Stevens contends that his defence-caused conditions alone, particularly PTSD and alcohol abuse, prevent him working more than eight hours a week, and as such his pension should be assessed at the Special rate. In order to decide that, I must consider the application of sections 24(1)(a), (b) and (c) of the Act, and in the alternative, whether his defence-caused conditions alone prevent him working more than 20 hours a week pursuant to section 23 of the Act.
Since Mr Stevens was under the age of 65 when he ceased work, an additional consideration could be the ameliorating provisions in sections 24(2)(a) and 24(2)(b) of the Act. They would apply if he had genuinely sought remunerative work, and was substantially prevented from obtaining employment due to his accepted conditions. As Mr Stevens was still working in his own consultancy during the assessment period, those provisions do not assist.
The standard of proof in this matter is on the balance of probabilities, pursuant to section 120(4) of the Act.
BACKGROUND
Mr Stevens served on operational service in Vietnam as a conscript from May 1970 to May 1971. He provided three written statements for the hearing. He told me that he had been studying engineering before he was conscripted, and on his return from Vietnam, decided that he did not want to speak about his experiences in Vietnam, or meet others who had been there. He accordingly enrolled to complete his degree in Tasmania where he felt he could get away from those experiences.
Mr Stevens told me that from approximately 1974/1975 he worked in civil engineering in Adelaide, then worked as a research officer for a statutory board involved in education in South Australia, followed by work for the South Australian Health Commission. He then worked with a colleague doing physical work on a trawler for a year, following which he moved to Indonesia to work on a project analysing data for an American company. Mr Stevens attributed his many changes of work, and the promiscuity in which he was indulging, to his psychiatric condition, which was not diagnosed until approximately 2010.
Mr Stevens said that he moved his young family to Coffs Harbour, and then worked in Singapore in a variety of roles including consulting and training. That turned into a variety of assignments over 20 years.
Mr Stevens said that the return to Australia was his decision, and in approximately 1998 – 2000, he was doing improvement programs for small business.
Following his return, Mr Stevens and a partner, Mr Craig Mitchell set up a company, Dunross Business Services Pty Ltd (Dunross), a consultancy doing business valuations, giving advice regarding the sale of businesses, and improvements programs for small business. Mr Stevens held, and still holds, a Business Agents Licence, Australian Financial Services Licence, and a broker’s licence. He carried out the work for the clients while Mr Mitchell did the marketing, mailings and networking. He told me that in 2005, Mr Mitchell joined one of their clients as its managing director or general manager, because that provided a steady job with a predetermined income which was more suitable for him, as he was bringing up a young family. Mr Stevens said that although Mr Mitchell had not actively participated in the company since 2005, and was with the company he joined as managing director from 2005 – 2007, he did not resign his directorship of Dunross until 2009.
In his oral evidence, Mr Stevens downplayed the loss of Mr Mitchell’s participation who had been doing the marketing and networking for the company. He indicated that even without Mr Mitchell, the company was still making money, as the brand was established by the time Mr Mitchell left. Mr Stevens told me that the marketing activities Mr Mitchell had previously undertaken had become less important by the time he left. He vigorously denied that the loss of his partner made a difference to the business.
However, in contradiction of that statement, at page 8 of the transcript of his hearing at the Veterans’ Review Board on 6 June 2013, Mr Stevens stated:
There was a lead-up to I think the deterioration in my ability to work probably starting in the business that I had. I had a partner, another director of the company who was quite a lot younger than I was. I was very dependent on him for the marketing side and the meetings side and the social interaction side…..
…
… so he resigned, leaving me there on my own. I didn’t have any people in the business at that time. And from there, it seemed to deteriorate not having anybody to bounce ideas off or anything, so I would find myself going to the office and – I had a little office and I would sit there all day and often stare at the wall and basically try and fill in the day without achieving very much at all.
There was also a second VRB hearing on 21 November 2013 at which Mr Stevens said:
Ms D’Arcy: … A change in your business and your ability to manage your business, as Mr Grant has just said, was affected by that partner moving out.
…
Mr Stevens: Well, also the reason he moved out was that he saw that - I suppose, my condition and he didn’t want to continue in that partnership.
Mr Grant: So he thought he was carrying you, which you’ve explained to me before.
Mr Stevens’ evidence at this Tribunal was that after 2008 his income decreased because of changes in his approach to the business, and his ability to perform. He said that he suffered anxiety at meetings, was shaking, could not pick up the phone when it rang, drank alcohol to excess, and was not sleeping. Mr Stevens said that until 2007/2008 he had not confronted the experiences in Vietnam, and suppressed thoughts of those. He said that in order to avoid other veterans, he attended university in Tasmania, and later worked in Singapore. He said that the first time he confronted his flashbacks, and what was then diagnosed as PTSD, was in 2010.
Mr Stevens said that after he closed his business in 2011 and left Sydney, he no longer carried out sale of businesses, and some of the other work he had previously done. He said he only did business valuations on a small scale from his property in the country. He referred to living and carrying out his work from a one room leaky fibro shack, which I ascertained during evidence, is in fact located on 40 acres of his land. Mr Stevens told me he also owns an apartment in Sydney where his son lives, but that he (Mr Stevens) does not conduct work from there.
Mr Stevens said that after he reduced his work load, he was able to attend to the referrals for business valuations which came from his solicitor and accountant, as he simply carried out the work as referred, and did not have to interact with clients. However, he said that as both the solicitor and accountant had now retired, there were few referrals, perhaps one a month. He thought they would stop altogether, but said that he still receives a few referrals.
Mr Stevens said that living alone was better for him as he could manage his alcohol and PTSD without social pressures. He said that he did not plan to retire, and yet was somehow retired as he had closed his business in Sydney. He told me that Dr Keshava, his psychiatrist, encouraged him to keep working, and I noted this was corroborated in the reports of Dr Keshava.
I note for the sake of completeness, that Mr Stevens, and Ms Mudge of counsel who represented him, sought to convince me that Mr Stevens did not understand what was going on at the VRB when he appeared there. I gave no weight to that submission on the basis that he was accompanied and represented by Mr J Grant, an advocate from Vietnam Veterans’ Peacekeepers & Peacemakers Association to whom he could have referred his queries. I also referred Mr Stevens to the very clear opening and explanation given by the Senior Member of the VRB at page 2 of the transcript of the hearing of 6 June 2013.
Before we hear from Mr Grant I would like to tell you about the Board. The Board is independent and separate from the Repatriation Commission and the Department of Veterans’ Affairs, so we are taking a fresh look at your case today. We tape the hearing so that we have a copy of the proceedings, and what we are going to do is ask Mr Grant to highlight or add to his written submission, which we have received and thank you for that, and then we are going to ask you some questions. At the end of our questions we will give you an opportunity to add any further information. If we can, we will make our decision today and send you our decision and reasons in the post in the next few weeks. On occasions we may need to adjourn the hearing to obtain further evidence and if we need to do that we will write to you and tell you what we need and how we are going to go about getting that information. The decision we are reviewing today is the decision dated 7 October 2011 refusing your claim for sleep apnoea and the decision of 18 May 2012 assessing your pension at 80 per cent of the general rate, and we understand that you are seeking payment of pension at the special rate.
I am satisfied that the explanation the Senior Member of the VRB gave at the beginning of the hearing which Mr Stevens attended on 6 June 2013, as transcribed above, was very clear, and as already stated, I do not accept that he did not know what was going on at the VRB hearing.
Sections 23(1)(a) and 24(1)(a) of the Act
I accept that Mr Stevens satisfies the tests in sections 23(1)(a) and 24(1)(a), of the Act in that he made an application for increase in pension, (he had not yet reached the age of 65), and that his degree of incapacity was determined to be at least 70%.
Section 24(1)(b) or 23(1)(b) of the Act
In considering the application of section 24(1)(b) of the Act and Special rate pension, I have to decide whether Mr Stevens is totally and permanently incapacitated, that is to say, whether his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours a week. In order to be eligible for the Intermediate rate of pension, Mr Stevens must similarly be incapable of undertaking remunerative work as a result of his war-caused conditions alone, for periods aggregating more than 20 hours per week.
Mr Stevens’ evidence was that after 2008 his income decreased because of changes in his approach to the business, and his ability to perform. He said that he suffered anxiety at meetings, was shaking, could not pick up the phone when it rang, drank alcohol to excess, and was not sleeping. His PTSD and alcohol abuse was accepted as war-caused in 2010.
Mr Stevens said that after he closed his business in 2011 and left Sydney, he no longer carried out sale of businesses and other work he had done previously, and only did business valuations on a small scale, working from his property in the country. He referred to living in a one room leaky fibro shack which I ascertained is in fact on 40 acres of land he owns.
Mr Stevens said that after 2011, he was able to attend to the referrals which came from his solicitor and his accountant, as he could just do the work, and did not have to interact with clients. However, he said that as both the solicitor and accountant had retired, there were few referrals, perhaps one a month. He thought they would stop altogether, but noted that he still receives a few referrals.
Mr Stevens confirmed that he maintained his brokers licence, and other licences noted above, even though they were not required for the business valuations work. He said that he shut down his website which was later revived by his son who had contemplated joining the business, but ultimately did not.
I moved then to consider the medical evidence.
Dr Keshava, psychiatrist
Dr Keshava was Mr Stevens’ treating psychiatrist who first saw the Applicant in November 2010. His reports dated February 2011, November 2011 and January 2012 were included in the section 37 documents. Dr Keshava also completed a Medical Impairment Worksheet in February 2013.
By the time Mr Stevens consulted Dr Keshava, his PTSD and alcohol abuse had been accepted as war-caused. Dr Keshava opined that Mr Stevens’ psychiatric condition was chronic and permanent at the time of his first report in February 2011. He stated that he did not issue any medical certificate supporting sick leave or retirement, noting that Mr Stevens is working in his corporate trading business and I have encouraged him to continue working.
Mr Stevens confirmed that Dr Keshava had recommended he continue working, but told me that he could only continue with carrying out a small number of business valuations after he closed his office and moved to his property in 2011. He said that he could carry out one a month and work a maximum of eight hours a week, although when probed further, suggested that he could do more, but was not sure how much more, given his physical and mental conditions. He said that he has good and bad days, and needs a couple of days to actually get started on a job.
Dr A Dinnen, psychiatrist
Dr Dinnen provided a report dated 9 April 2014, which was Exhibit A4. He detailed Mr Stevens’ experiences in Vietnam, noting that Mr Stevens told him he had suppressed memories of his experiences until he had his first session with Dr Keshava in 2010. He noted Dr Keshava’s diagnosis of PTSD and alcohol abuse due to service, with which Dr Dinnen agreed.
Dr Dinnen noted that Mr Stevens married in 1975, four years after his discharge from the Army, and that he had changed jobs many times. He also noted that Mr Stevens was drinking heavily following his time in the Army, and was promiscuous, which he considered part of the PTSD and alcohol abuse.
Dr Dinnen noted that Mr Stevens then relocated to Singapore where he was involved in a consultancy and training, and where he remained for 20 years. Dr Dinnen reported Mr Stevens telling him that as far back as the time in Singapore, Mr Stevens realised there was something wrong with him in that he was drinking to excess and being promiscuous, but that he had not been able to identify the reason. His marriage ended, his wife returned to Australia from Singapore, and Mr Stevens subsequently remarried. That relationship of approximately 15 years duration has now also ended.
Dr Dinnen reported that Mr Stevens told him he cannot work, and that alcohol has affected his capacity to concentrate. Dr Dinnen disagreed with the opinion of Dr Smith that Mr Stevens could work if he reduced his alcohol intake, opining that cutting out alcohol was unrealistic, and not simply lack of motivation, but rather, a very complex pathological condition. He opined that Mr Stevens required the alcohol to deal with his ongoing PTSD.
Dr Dinnen also reported Mr Stevens recounting the effect of the loss of his business partner, and the networking and marketing functions Mr Mitchell had undertaken. Dr Dinnen reported Mr Stevens telling him that he could not carry out the functions Mr Mitchell performed, and that after Mr Mitchell left, there was no pipeline for new clients, and the business started to shrink.
At the time of the consultation with Dr Dinnen in 2014, Mr Stevens told Dr Dinnen that he was only carrying out one business valuation a month which involved approximately 8 hours a week, and brought in $4,000 - $5,000 each. I noted that Dr Dinnen did not comment on Dr Keshava’s encouragement of Mr Stevens to continue working.
Dr S Smith, psychiatrist
Dr Smith provided two reports, one dated 12 August 2014 (Exhibit R5), and the other dated 16 October 2014 (Exhibit R6), following a consultation with Mr Stevens in August 2014. Dr Smith also gave oral evidence before the Tribunal. Dr Smith recorded the history of Mr Steven’s war service, family, and subsequent work life. I do not find it necessary to provide that detail as it is uncontroversial.
As to work; Dr Smith characterised Mr Stevens’ move to the country as maintaining a small office where the Applicant undertakes occasional evaluations of businesses. Mr Stevens’ evidence is that he lives in a shack on his 40 acre property and carries out the work he does from there rather than from an office.
Dr Smith reviewed reports of Drs Keshava and Dinnen, and other relevant documents including the decision of the VRB. He agreed with the diagnoses made by Drs Keshava and Dinnen of PTSD and alcohol dependence. Dr Smith noted however, that despite the development of the PTSD, Mr Stevens was able, following his discharge from the military, to successfully complete his studies, and then engage in a number of different work roles, followed by establishing his own business. In his oral evidence Dr Smith noted that Dr Keshava encouraged Mr Stevens to continue working, and agreed that Mr Stevens had a successful career notwithstanding his psychiatric conditions.
Dr Smith opined that the difficulties Mr Stevens experienced with relationships and his promiscuity were in all probability against a background of excessive alcohol consumption. In that regard, Dr Smith noted, as corroborated by Mr Stevens, that Mr Stevens had not engaged in any efforts to cut down or control his alcohol abuse. Dr Smith considered that Mr Stevens’ impairments in concentration were predominantly related to his alcohol excess, and not to the PTSD. Dr Smith opined that Mr Stevens’ dominant psychiatric disorder is that related to his chronic and marked alcohol abuse. His Post-Traumatic Stress Disorder is not his dominant psychiatric condition. He also opined that Mr Stevens’ PTSD has not substantially contributed to the reduction in his employment capacity, and considered that the symptoms had resolved given the war had taken place a long time before. Dr Smith commented that Mr Stevens gave him an account of his difficult experiences during the war, (which were the cause of his PTSD), but that he was able to do so with no significant emotionality.
Dr Smith concluded that: …it is my opinion that Mr Stevens would have the capacity to work more than eight hours per week particularly if he made efforts to reduce his alcohol intake. He appears poorly motivated to do so.
Dr Smith provided a supplementary report following the provision of Dr Chase’s report to him, and stated that it did not cause him to modify his opinion in any substantial way.
Dr Smith vigorously disagreed with Dr Dinnen’s view that asking Mr Stevens to reduce his alcohol intake was not possible, and that he was using it to self-medicate. Dr Smith considered that view as outside accepted medical thinking, and emphasised that it was detrimental to Mr Stevens from a physical and psychological point of view. He named medical conditions associated with excessive alcohol intake, and opined that the thought that drinking alcohol was a method of coping was just wrong, because it in fact exacerbated existing problems,. Dr Smith considered that Dr Dinnen’s view about Mr Stevens’ alcohol consumption was a rationalisation, and that he needed to be encouraged to stop drinking.
Dr R Chase, occupational physician
Dr Chase provided two reports, dated 18 August 2014, (Exhibit R3) and 20 October 2014 (Exhibit R4). Dr Chase took a history of Mr Stevens’ background and work life, and discussed his accepted disabilities.
Dr Chase opined in his first report that Mr Stevens could work at his business valuations, but at a much reduced level as compared to previously. He stated that Mr Stevens would be capable of only working under circumstances which he can control and pace himself, and for no more than eight hours per week. Dr Chase accepted Dr Smith’s diagnoses of alcohol abuse and PTSD.
After reading Dr Smith’s report, Dr Chase provided his supplementary report dated 20 October 2014, and modified his opinion regarding Mr Stevens’ work capacity which Ms Mudge urged me to disregard. Dr Chase, relying on Dr Smith’s opinion, stated that he thought Mr Stevens was capable of working more than eight hours per week, but less than 20 hours. He noted that the exact amount of time Mr Stevens could work was difficult to quantify, and observed that he was reliant on Mr Stevens’ self-reporting. He noted further that Dr Keshava had encouraged Mr Stevens to work, but did not quantify the amount of work he could do.
Dr Chase opined that alcohol abuse made a strong contribution to the PTSD because alcohol can provoke symptoms of anxiety. I noted that his view accorded with that of Dr Dinnen in regard to Mr Stevens using alcohol to self-medicate.
In his oral evidence, Dr Chase stated he agreed with Dr Smith that the alcohol abuse, rather than the PTSD, was the more prominent problem. However, he said that high functioning alcoholics were able to do their work, at times commencing later in the day. He observed that as Mr Stevens was self-employed, he could commence work at any time of day suitable to him.
Dr Chase observed that Mr Stevens had no intention of reducing his alcohol intake, and noted further that his psychiatric illness was getting worse, and was likely to deteriorate further.
The Tribunal’s deliberations regarding sections 24(1)(b) and 23(1)(b) of the Act
In coming to a decision regarding whether Mr Stevens meets the tests in sections 23(1)(b) or 24(1)(b) of the Act, I have taken into account his evidence and that of the doctors who treated and examined him. I say for the sake of completeness that Mr Stevens has, amongst other accepted conditions which I have listed above, PTSD and alcohol abuse, which were accepted as war-caused in 2010. All the doctors, that is Drs Keshava, Smith, Dinnen and Chase who examined Mr Stevens in connection with this claim agreed that he suffers PTSD and alcohol abuse.
I accepted from the evidence that following Mr Stevens’ return from Vietnam he was restless, changed jobs several times, and then spent some 20 years in Singapore where he conducted a successful consultancy. I accept the evidence that indicates he was successful at his business in spite of suffering PTSD and drinking to excess, and that his marital problems and his promiscuity were the result of his psychological conditions, including alcohol abuse. I note that PTSD and alcohol had not yet been accepted as war-caused during that period.
Following his return from Singapore, Mr Stevens was able, in the late 1990s, to set up and operate Dunross, a consultancy offering business consultations, sale of businesses, business valuations and other services. Mr Stevens’ evidence was that his business partner Mr Mitchell had not actively participated in the company from 2005, when he joined a company with whom Messrs Stevens and Mitchell had done business. Mr Stevens told me that Mr Mitchell was with the other company from 2005 – 2007, but did not resign his directorship of Dunross until 2009.
Mr Stevens’ evidence was that after 2008 his income decreased because of changes in his approach to the business, and his ability to perform in it. He said that he suffered anxiety at meetings, was shaking, could not pick up the phone when it rang, drank alcohol to excess, and was not sleeping. He said that after he closed his business in 2011 and left Sydney, he no longer carried out sale of businesses and other work he had done previously, and only did business valuations on a small scale, working from his property in the country which he referred to as living in a one room leaky fibro shack.
I am not satisfied however, that as claimed by Mr Stevens, closing his business was the result of his war-caused conditions alone. I find that notwithstanding Mr Stevens’ argument that Dunross was an established business by the time Mr Mitchell left, and his attempts to play down the loss of his business partner, that the loss of Mr Mitchell to Dunross was at least part of the reason Mr Stevens closed down the business in Sydney. Mr Stevens gave evidence in that regard at the VRB on 6 June 2013, as follows:
There was a lead-up to I think the deterioration in my ability to work probably starting in the business that I had. I had a partner, another director of the company who was quite a lot younger than I was. I was very dependent on him for the marketing side and the meetings side and the social interaction side…..
…
… so he resigned, leaving me there on my own. I didn’t have any people in the business at that time. And from there, it seemed to deteriorate not having anybody to bounce ideas off or anything, so I would find myself going to the office and – I had a little office and I would sit there all day and often stare at the wall and basically try and fill in the day without achieving very much at all.
Mr Stevens said that after leaving Sydney he was able to attend to the referrals which came from his solicitor and his accountant, as he did not have to interact with clients in order to carry out those business valuations. He said however, that as both the solicitor and the accountant had retired, there were few referrals, perhaps one a month. He thought they would stop altogether, but noted that he still receives a few referrals, and was able to carry out that work. The reduction in referrals is another factor which contributed to Mr Stevens working less. That was due to the reduced referrals from the accountant and solicitor, and clearly not incapacity due to his accepted disabilities alone.
Mr Stevens confirmed that he maintained his Business Agents Licence and Australian Financial Services Licence even though it was not needed for business valuations, and shut down his website which was later revived by his son who had contemplated joining the business, but ultimately did not.
I noted that Mr Stevens considered his excessive alcohol consumption served to assist with the management of his PTSD (also the opinion of Dr Dinnen). He told me that he has made no attempts to reduce that alcohol consumption or seek treatment for it. In that regard I have noted the evidence of Dr Dinnen who reported that Mr Stevens told him he cannot work, and that alcohol has affected his capacity to concentrate. Dr Dinnen disagreed with the opinion of Dr Smith that Mr Stevens could work if he reduced his alcohol intake, opining that cutting out alcohol was unrealistic, and not simply lack of motivation, but rather, a very complex pathological condition.
Dr Smith emphatically disagreed with Dr Dinnen’s opinion about Mr Stevens’ abuse of alcohol which he said was outside accepted medical thinking. Dr Smith emphasised that excessive alcohol was detrimental from a physical and psychological point of view.
When questioned about the number of hours he could work, Mr Stevens said that he could work for periods in excess of eight hours a week, to which Dr Chase opined that if one could work for eight hours, one could also work for nine or more hours. Dr Chase altered his opinion about Mr Stevens only being able to work eight hours a week which is what he originally reported, after being provided with the report of Dr Smith. Both doctors opined that Mr Stevens could work for periods of between 8 and 20 hours per week.
Dr Keshava stated that he did not issue any medical certificate supporting sick leave or retirement, as he noted that Mr Stevens is working in his corporate trading business and I have encouraged him to continue working. I noted that Dr Keshava did not specify how much work Mr Stevens could or should do.
Mr Stevens confirmed that Dr Keshava had recommended he continue working, but told me that he could only continue with carrying out a small number of business valuations after he closed his office and moved to his property in 2011. He said that he could carry out one a month and work a maximum of eight hours a week, although when questioned further, suggested that he could do more. He said that he was not sure how much more he could work, given his physical and mental conditions. He said that he has good and bad days, and needs a couple of days to actually get started on a job. He is however, continuing to work.
Based on Mr Stevens’ evidence, as noted above, and the evidence of Drs Smith and Chase which I prefer to that of Dr Dinnen, I cannot be satisfied to the requisite standard that Mr Stevens is totally and permanently incapacitated, that is to say, that his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours a week, or for periods aggregating more than 20 hours per week. The factors which impact upon his capacity to work are of course his PTSD and alcohol abuse, but it is not they alone. The factors which also impact have been mentioned above, and include the loss of Mr Stevens’ business partner leading to the closure of his Sydney office, and move to the country, and the retirement of his sources of work, being his accountant and solicitor.
I am not satisfied from the evidence that Mr Stevens meets the tests in section 24(1)(b) of the Act, and that Mr Stevens is totally and permanently incapacitated, that is to say, his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Neither am I satisfied from the evidence that he meets the tests in section 23(1)(b) of the Act, so that his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 20 hours per week. Neither Dr Keshava nor Mr Stevens himself at times specified the number of hours he could work. I noted that Mr Stevens told the Tribunal he could work more than he was doing.
As I am not satisfied, and have found that Mr Stevens does not meet the tests in section 24(1)(b) and 23(1)(b) of the Act, I am not obliged to consider section 24(1)(c), and 23(1)(c) of the Act, that is evidence related to whether he was suffering a loss of salary or wages due to incapacity arising out of his war-caused injuries or war-caused disease alone.
Section 24(1)(c) and section 23(1)(c)of the Act
However for the sake of completeness, I nevertheless considered whether Mr Stevens is, by reason of incapacity from his war-caused injury or war-caused disease, or both, alone, (in the assessment period), prevented from continuing to undertake remunerative work that he was undertaking for more than eight hours a week, (20 hours for section 23), and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that Mr Stevens would not be suffering if he were free of that incapacity.
In doing so, I note that the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 identified the following questions to be asked:
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?
In Repatriation Commission v Hendy (2002) 76 ALD 47, the Full Federal Court said that the task of the Tribunal was:
… to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. … The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
As to the relevant remunerative work; I am mindful that pursuant to the Act, that means any remunerative activity. In Mr Stevens’s case, work in his business consultancy doing business valuations and other related work such as sale of businesses, was his relevant remunerative work, with business valuations ongoing following the closure of the Sydney office.
I have found from the evidence of Mr Stevens that he has not ceased remunerative work. He is still the holder of a Business Agents Licence and Australian Financial Services Licence, and has not ceased work, or even reduced his work due to his war-caused disabilities alone.
Given I have found that Mr Stevens is not by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake the work he had been doing before moving to the country, and that the war-caused injury or war-caused disease, or both, are not the only factor or factors preventing him from continuing to undertake that work, I am not obliged to consider if Mr Stevens has suffered a loss of earnings as a result. However, his evidence, and the documentation in the section 37 documents indicates a reduction in income in recent years. By contrast, the 2013 tax return indicated an amount of $65,000 of income, which Mr Stevens termed a windfall, a commission for a few hours work.
As stated elsewhere in these Reasons for Decision, there is no dispute, and I agree that Mr Stevens is still carrying out work doing some business valuations. I am not satisfied from the evidence that Mr Stevens ceased to engage in remunerative work that he was undertaking for reasons of incapacity from his war-caused injury or disease alone, or that he has by reason of being prevented from continuing to undertake that work, suffered a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity.
The answer to the Flentjar questions 2, 3, and 4 are no. Accordingly, Mr Stevens does not satisfy the conditions required to receive pension at the Special rate or the Intermediate rate.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 79 (seventy -nine) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member ...................................[sgd].....................................
Associate
Dated 2 September 2015
Date(s) of hearing 20 - 21 May 2015 Counsel for the Applicant Ms C Mudge Solicitors for the Applicant KCI Lawyers Solicitors for the Respondent Mr T O'Reilly, Repatriation Commission
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