Straatman and Repatriation Commission

[2008] AATA 1148

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1148

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5087

VETERANS' APPEALS DIVISION		)
Re		PIETER STRAATMAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date22 December 2008

PlaceAdelaide

Decision The Tribunal sets aside the decision of the Repatriation Commission dated 20 February 2007, as affirmed by the Veterans’ Review Board on 27 July 2007, which continued Disability Pension at 100 percent of the general rate. The Tribunal substitutes a decision that, with effect from 18 November 2004, and pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth), Mr Straatman should be paid Disability Pension at the special rate.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans’ entitlements – Disability Pension – rate of pension payable – special rate – s 24(1)(c) – decision set aside

Veterans’ Entitlements Act 1986 s24

Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996
Starcevich v Repatriation Commission (1987) 18 FCR 221
Sheehy v Repatriation Commission (1996) 66 FCR 569
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

22 December 2008   Mr J G Short (Member)

1.      By decision dated 4 December 2006 the Administrative Appeals Tribunal noted that the parties had reached an agreement and determined that the veteran’s claimed condition of emotional disorder is determined to be post-traumatic stress disorder (PTSD) with secondary dysthymia and alcohol abuse.  The same decision accepted these lastmentioned conditions as war-caused with effect from 18 November 2004.  In other respects the decision of the Veterans’ Review Board made on 21 February 2006 was affirmed and the issue of assessment was remitted to the Repatriation Commission for determination.

2.      On 20 February 2007 the respondent (the Commission) determined that Mr Straatman’s accepted disabilities of hearing loss and tinnitus, hypertension, PTSD with secondary dysthymia and alcohol abuse and diabetes mellitus warranted 65 impairment points and with a lifestyle rating of 5, a degree of incapacity of 100 percent.

3.      On 27 July 2007 the Veterans’ Review Board affirmed the assessment decision and on 19 October 2007 Mr Straatman lodged an appeal to this Tribunal.

4. Mr Straatman suggested that he was entitled to disability pension at the special rate, pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act).

5. At hearing, the Commission acknowledged that Mr Straatman satisfied the first criteria under s 24, that is a determination of entitlement had been made to pension at a rate higher than 70 percent of the general rate. The Commission also acknowledged that Mr Straatman satisfied the second criteria (an incapacity from war-caused conditions of such a nature as, of themselves alone, render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week). These criteria are contained in s 24(1)(a)(i) and s 24(1)(b) respectively of the VE Act.

6.      The decision to affirm the Repatriation Commission’s assessment decision was made by the Veterans’ Review Board on 27 July 2007.  Subsequent to that hearing, fresh evidence was obtained.  I refer to a letter from Mr Ray Hoppe, the owner/operator of R & ME Hoppe SA Steel Fixing Pty Ltd dated 13 February 2008 (Exhibit A7).  This letter reads as follows:

“I was Pieter Straatman’s employer in 1987 and I was unable to continue him on to the next contract because of his behavioural problems and drinking problems, which seemed to be getting worse at this stage. 

He was aggressive, didn’t always follow directions and couldn’t get along with his co-workers.  He became unsafe to have around.”

7.      In the light of the abovementioned letter, the Commission no longer argued that Mr Straatman had ceased to work for reasons other than his now accepted disabilities. 

8. The remaining issue for me to consider therefore was whether Mr Straatman satisfied s 24(1)(c), that is:

(a)whether he is, by reason of incapacity from war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and

(b)whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free from that incapacity.

9. I have concluded that Mr Straatman has satisfied the requirements of s 24(1)(c) of the VE Act and consequently is entitled to a pension at the special rate for the reasons set out below.

legislation

10. Section 24(1)(c) provides as follows:

“24(1)  This section applies to a veteran if:

…

(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…”

mr straatman’s evidence

11.     Mr Straatman confirmed the accuracy of his statement dated 11 June 2008 (Exhibit A1).  Mr Straatman said that he had been employed by the Australian Army for approximately three and a half years as a plant operator.  He indicated that after leaving the Army, he worked as a trades assistant and later as a stress reliever.  His role was to assist tradesmen with general duties and with reheating welded metals.  Mr Straatman said that he was then employed by GMH Holden Pty Ltd as a production worker for approximately one year and was then employed as a trades assistant at Port Adelaide.  He then worked for a time at the Salisbury Council as a labourer.  His main role was setting out kerbing on roadsides.

12.     Mr Straatman said that in about 1983, he commenced work for R & ME Hoppe SA Steel Fixing Pty Ltd as a builder’s labourer.  He said that the foreman was his brother and that he now understands that his brother may have assisted him in retaining his employment until about 1987 or 1988.  Mr Straatman said that he initially thought that the reason he had not been provided with any further contracts of employment with SA Steel Fixing was because no further work was available.  He said that he now understands, particularly in the light of the abovementioned letter from Mr Hoppe, that his accepted disabilities, particularly PTSD with secondary dysthymia and alcohol abuse, generated a view by his employer that he was unsafe in the workplace.  Mr Straatman explained that the steel fixing business in South Australia was a close network.  They all drank at the same hotel.  He now understands why he was unable to find any other employment in the same industry, notwithstanding applying for many positions.

13.     Mr Straatman was then dependent upon one of the unemployment benefits with an exemption from applying for work, and then in 2005 he was granted a Disability Support Pension. 

14.     An appreciation of the impact of Mr Straatman’s accepted disabilities can be gleaned from the report of psychiatrist, Dr Peter Furze, dated 28 October 2005 (Exhibit A8).  At page 12 of that report Dr Furze made the following comment:

“I would consider that this man is incapable of being employed.  I do not think he can maintain any form of direct person to person communication.

His level of anger is such that tiny slights would produce intense irritability and I consider this man is only able to maintain some control of symptoms by maintaining a very intense level of social isolation.  I consider this man is unable to work.  He certainly is unable to work 8 hours a week and given the long standing history of this man’s problems with unemployment for 17 years I consider this man is permanently incapacitated and this results solely from his post traumatic stress disorder.”

commission’s argument

15.     The Commission accepted that Mr Straatman was severely disabled.  The Commission argued however, that during the assessment period, which commenced on 18 February 2005, his accepted disabilities were not the only cause of his inability to work.  The Commission suggested that his time out of the workforce (approximately 17 years) and his then age of 55 years, also contributed to an inability to work.

consideration

16. In considering the application of s 24(1)(c) of the VE Act, I refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:

“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 account that he would not be suffering if he were free of that incapacity?”

17. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).

18.     As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223.  Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial: Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996.  The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J. Finally, the remunerative work must be substantial remunerative work which the veteran has effectively performed: Starcevich (supra) at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569.

19.     In the light of Mr Straatman’s evidence, which I accept, I find that the type of work Mr Straatman was undertaking was that of a trades assistant and general labourer in the steel industry.  The second question in Flentjar is whether the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work which I have found is relevant. As mentioned, the Commission has conceded that s 24(1)(b) is satisfied and I so find.

20.     The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.

21.     In Cavell, Burchett J said further, at [539], that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was:

“to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well.  It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.” 

In Forbes, RD Nicholson J said at [39]:

“The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.

22.     The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] - [37] as follows:

“[36]The tribunal’s task was to assess what the veteran probably would have done, if he had none of the 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.  That is the exercise that the tribunal undertook.  The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.

[37]The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise. The language of s24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … (H)aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”

23.     The type of work Mr Straatman undertook was generally unskilled or lightly skilled labouring work.  I am satisfied that his now-accepted conditions caused him to cease employment in 1987 or 1988 and resulted in an inability to find or perform work thereafter.

24.     I remind myself that I must consider Mr Straatman’s circumstances during the assessment period which commenced on 18 February 2005, and I accept that at that time he had been out of the workforce for approximately 17 years and was then aged 55 years.  I find however that neither of the abovementioned circumstances contributed in any way to Mr Straatman’s inability to work throughout the assessment period.  The work he was performing did not require any particular continuation of skills training and his age at 55 would not have contributed to his inability to perform the type of work he had previously undertaken.  In my view, throughout the assessment period, the sole reason for Mr Straatman’s inability to work was his accepted disabilities and in particular his PTSD.

25.     The Commission indicated that if I made the lastmentioned finding then it would accept that Mr Straatman was suffering financial loss as a result of his inability to work.  I find accordingly.

26. In light of the abovementioned circumstances I find s 24(1)(c) of the VE Act satisfied and as a consequence, determine that Mr Straatman is entitled to the special rate of pension (s 24) with effect from 18 November 2004, that is three months before the lodgement of the claim for acceptance of conditions as war-caused.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short

Signed:         ..........J Coulthard............................................
  Associate

Date of Hearing  28 November 2008
Date of Decision  22 December 2008
Counsel for the Applicant         Mr N Floreani
Solicitor for the Applicant          Tindall Gask Bentley

Advocate for the Respondent   Mr A Crowe

DVA