Sutton and Repatriation Commission

[2001] AATA 119

DECISION AND REASONS FOR DECISION [2001] AATA 119

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V99/643

VETERANS' APPEALS  DIVISION       )          
           Re      RICHARD SUTTON          
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mrs Joan Dwyer,   Senior Member Assoc. Professor J Maynard,            Member        

Date12 February 2001

PlaceCanberra

Decision      The Tribunal sets aside the decision under review and in substitution varies the decision of the Repatriation Commission made 10 October 1996 to provide that pension is payable to the Veteran, Mr Sutton, at the special rate with effect from 24 April 1996.          
  (Sgd) Joan Dwyer
  Senior Member

VETERANS' AFFAIRS – entitlement to special rate pension – veteran under 65 at relevant date – whether veteran entitled to benefit of section 24(2)(b) – decision set aside
Veterans' Entitlements Act 1986 s 24(1)(c)

Repatriation Commission v Sheehy (1995) 39 ALD 286

REASONS FOR DECISION

12 February 2001    Mrs Joan Dwyer,   Senior Member Assoc. Professor J Maynard,      Member                    

1. This matter came on for hearing today.  Mr D De Marchi, a solicitor, appeared for Mr Sutton.  Mr K Rudge, an advocate with the Department of Veterans' Affairs appeared for the Repatriation Commission.

2. This was an application for review of a decision of the Repatriation Commission dated 10 October 1996 and affirmed by the Veterans' Review Board on 26 March 1999 which determined that Mr Sutton was entitled to payment of pension at 100% of the General Rate but was not entitled to special rate pension.

3. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.  The Tribunal heard evidence from Mrs Sutton and Brigadier Kahn.

4. Mr Sutton, who served with great distinction, marked by the award of a Military Cross whilst in Vietnam, was retired from the Army at the age of 50 in 1988 with the rank of Lieutenant Colonel.  We accept the evidence of his wife and Brigadier Kahn and find that from the time of his return, after a lengthy period commanding an infantry company, he had problems with alcohol abuse.

5. We accept Mr De Marchi's description that Mr Sutton was burnt out.  We find that is a helpful description.  He was burnt out by his service in Vietnam. 

6. It is probable that Mr Sutton would have attained higher rank if not for the alcohol dependence, which was well known within the service.  At the relevant time for this assessment, Mr Sutton had a number of accepted disabilities including chronic anxiety state and post traumatic stress disorder.  The respondent accepts that the alcohol abuse was a component of that condition on the opinion of Dr Swift, psychiatrist.  It is also accepted that Mr Sutton is entitled to pension at 100 per cent of the general rate.

7. The issue is whether Mr Sutton is entitled to special rate pension under section 24 of the Act.  The only subparagraph in issue is paragraph 24(1)(c) which provides as follows.

   (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

8. The submission of the respondent is that war caused disabilities were not the only factors keeping Mr Sutton out of the workforce.  The respondent submitted that by the relevant date Mr Sutton had Huntington's chorea which was itself a disabling condition which prevented him working from 1994, when it was first noticed, and that he also had been out of the workforce for six years and that he had other non-accepted conditions such as abdominal pain.

9. The answer to this matter, in our view, is found in section 24(2)(b) of the Act.  As Sackville J said in Repatriation Commission v Sheehy (1995) 39 ALD 286 at p295:

   When the veteran is under the age of 65 it is enough if he or she is prevented from obtaining remunerative work by reason of the war caused incapacity.

His Honour explained at page 292 that there are three steps which must be taken in order for that provision to apply:

(i)        that the veteran has been genuinely seeking to engage in remunerative work;

(ii)that the veteran, but for the incapacity, would be continuing to seek to engage in remunerative work; and

(iii)that the incapacity is the "substantial cause" of the veteran's inability to obtain remunerative work in which to engage.

1. We find that Mr Sutton, as we have said, was burnt out on his return from Vietnam.  He suffered a loss of motivation after his discharge from the Army in 1988.  It took him until about 1992 or 1993 to start to seek work.  He then made two attempts, which the respondent has conceded and which we also would have found genuine, to find suitable work.  One was at the Australian Institute of Sport and the other position was at Canberra Grammar School.  They were both genuine but unsuccessful attempts.  Mr Sutton also expressed genuine interest in a position as an assessor offered him by Brigadier Kahn.  That offer was not followed through because Brigadier Kahn realised that the alcohol problem was such that Mr Sutton lacked the credibility necessary for the job.

2. We find that after these failures Mr Sutton continued to drink to excess due to his post traumatic stress disorder alcohol component and depression, and that he then lacked the motivation to apply again.  We found very perceptive his wife's evidence that she did not encourage him to make further applications as she did not want to see him hurt again and she knew he was no longer up to the sort of work that would have been suitable for him.

3. Thus we find that were it not for the incapacity from post traumatic stress disorder, and in particular the alcohol problem and depression, Mr Sutton would have been continuing to seek to engage in remunerative work, but that he did not do so due to those problems after the unsuccessful attempts. 

4. The third question posed by Sackville J is whether the incapacity from accepted disabilities was the substantial cause of Mr Sutton's inability to obtain remunerative work.  We find it was.

5. The known drinking patterns reduced Mr Sutton's promotion prospects while he was in the Army and in fact it was him drinking too much on one occasion which ended his responsible position as a Chief Instructor at Duntroon and meant that he only had less satisfying work for his last two years of service.  That drinking problem was also the reason why Mr Sutton did not obtain the position which Brigadier Kahn could have made available to him, and we find it was probably the reason why he was not interviewed for the Australian Institute of Sport position and may have played a part in the failure to obtain an interview for the Canberra Grammar position.

6. Looking at Mr Sutton's character prior to the onset of chronic anxiety, post traumatic stress disorder and alcohol dependence, we find that he would have looked for other work after discharge from the Army were it not for the accepted condition. 

7. We find that Mr Sutton is to be treated under section 24(2)(b) as satisfying the component of 24(1)(c) which looks at the war caused disease preventing him from continuing to undertake remunerative work that he was undertaking.  We find that it was the war-caused disease alone, which was significant even before the detection of Huntington's chorea symptoms and the diagnosis of that condition.  The pattern of failure and loss of motivation, failure to obtain employment and further loss of motivation was already established prior to the 1994 investigations for Huntington's chorea. 

8. In this rare matter we find there is the necessary loss of earnings even without detailed financial evidence. 

9. We will set aside the decision under review and in substitution will vary the decision of the Repatriation Commission to provide that Mr Sutton has been entitled to the payment of pension at the special rate 24 April 1996.

   I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Assoc. Professor J Maynard, Member

   Signed:         G.A. Carney
     Associate

   Date/s of Hearing  12 February 2001
   Date of Decision  12 February 2001
   Counsel for the Applicant        Nil
   Solicitor for the Applicant         Mr D De Marchi
   Counsel for the Respondent    Nil
   Solicitor for the Respondent    Nil
   Departmental Advocate           Mr K Rudge