Terence Reason and Repatriation Commission
[2013] AATA 882
[2013] AATA 882
Division VETERANS' APPEALS DIVISION File Numbers
2011/4930
2012/5089
Re
Terence Reason
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 11 December 2013 Place Brisbane The Veterans' Review Board Decision of 16 September 2011 (AAT file number 2011/4930) is set aside and in substitution it is decided the applicant suffers from war-caused PTSD. The decision in relation to the application for a special rate pension is set aside. In substitution it is decided the applicant is entitled to a pension paid at the special rate.
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Senior Member Bernard J McCabe
CATCHWORDS
VETERANS' AFFAIRS – Pensions and Benefits – Pension at the special rate – PTSD diagnosis – Reason for ceasing work – “Alone test” – Decisions under review set aside and varied
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) s 24
CASES
Willis v Repatriation Commission [2012] FCA 399
REASONS FOR DECISION
Senior Member Bernard J McCabe
Mr Terence Reason suffers from post-traumatic stress disorder (“PTSD”), and he cannot work. He has applied for a pension paid at the special rate pursuant to s 24 of the Veterans’ Entitlements Act 1986. The Repatriation Commission said Mr Reason is ineligible for a special rate pension because he cannot satisfy the so-called “alone test” in s 24(1)(c). While the Commission now accepts Mr Reason’s PTSD is an obstacle to him continuing work, they argued other factors contributed to his decision to cease work in 2011. Mr Reason disagrees and he has asked the Tribunal to revisit the issue.
THE FACTS
The factual background to the dispute is uncontroversial. Mr Reason was a soldier. He served in Vietnam in 1969-1970 where he experienced events that caused him to develop PTSD. (The Veterans’ Review Board concluded the applicant suffered from anxiety disorder, but the Commission has now accepted the correct diagnosis is PTSD.) He enjoyed a distinguished military career following his return to Australia. He retired with the rank of Lieutenant-Colonel in 1988, although he continued to be engaged in the Reserves until 1999.
Mr Reason developed high-level expertise in information technology management while he was in the Army. He continued that work as a consultant after he left the military. One of his clients was the Noosa Shire Council. He also ran a small business selling and erecting steel sheds for a time. He joined the Council as a full-time information systems manager in 2003.
By all accounts, Mr Reason was an effective and highly regarded manager. He spoke of his satisfaction at running a professional operation, and his supervisor at the time showered him in praise in annual performance reviews. Mr de Chastel, the supervisor, described the applicant as “a doer” who was also a good communicator. Mr de Chastel noted in his oral evidence that Mr Reason did have some shortcomings: in particular, the applicant was said to experience sudden mood swings and was capable of lashing out in frustration. Mr de Chastel said those outbursts were not directed at the applicant’s own staff; they tended to be directed at outside contractors, although there were some individuals elsewhere in the organisation who had also felt the applicant’s wrath. Mr de Chastel said that behaviour affected some of the external relationships, and it was apparently getting worse over time.
The applicant acknowledged he was capable of sudden mood swings and angry outbursts. He said none of that was new: he had experienced trouble controlling his anger since his early days in the Army. His wife, Mrs Coral-Anne Reason, gave evidence to this effect at the hearing. She said in her evidence that her husband was getting worse while he worked at the Council. One of Mr Reason’s staff, Ms Kemp, described an incident in which Mr Reason had manhandled a cheeky contractor in 2007 or 2008: Mr Reason became enraged by the man’s behaviour and physically propelled him out the door. She said the applicant’s behaviour was a complete and scary overreaction. Ms Onekawa, who served alongside Mr Reason as an officer in an Army Cadet unit during this period, also gave evidence about the applicant’s volatile behaviour. All of the witnesses spoke of a good and competent man who was nonetheless capable of sudden rage directed at people or objects.
The evidence of the various witnesses suggests Mr Reason’s propensity for sudden outbursts of anger was becoming more apparent in 2007 and 2008. Work had become more stressful because the Noosa Shire Council was in the process of amalgamating with two other local councils to form the new Sunshine Coast Regional Council in 2008. The applicant was unhappy about the amalgamation. He said the three councils did not have compatible IT systems. He explained Noosa Shire was the smallest of the three merged councils, and the systems and procedures at the biggest council tended to be preferred. That was frustrating, as Mr Reason obviously felt his expertise and the good work that had been done in the Noosa Shire Council was being ignored. His application to be appointed as the new Council’s Chief Information Officer was unsuccessful, and he did not think much of the successful candidate.
All of the employees of the old councils were offered roles in the amalgamated entities. Mr Reason was offered a senior role. He did not take it, although he continued working in the merged entity for a short time. Like many of his colleagues, he decided to resign in 2008, not long after the amalgamated council came into existence.
In cross-examination, Mr Reason explained it was his intention to do some consulting work after he left the Council in 2008. He said consulting was potentially lucrative and did not require him to work closely with people he did not respect. (I note his letter of resignation refers to his consulting plans.) He insisted he was not planning on retiring from the workforce. He added he was confident he could get work easily: he said many project managers were mature-aged, and his experience would be an advantage in the employment market if he were looking for work. He insisted the real reason for his departure from the Council in 2008 was his concern that he was becoming unable to control his temper. He said he was worried he would hurt someone if he remained in the workplace. In the course of his evidence, he said more than once that he feared he would end up in gaol because of a violent assault if he continued working at the Council. Mrs Reason agreed she thought her husband was a risk to his fellow employees, and said in her evidence that she was relieved (if a bit surprised) when Mr Reason told her he would leave his job at the Council. In her written statement, she recalled:
He confided that he was afraid that he could become so violent that he may actually assault someone in the course of either his work, cadets, or other situation. I strongly supported him in his decision to remove himself from these situations for I too was afraid that his hitherto violent verbal outbursts could translate into action.
Mrs Reason’s evidence confirms the applicant’s claim that his motivation was not a recent invention for the purposes of these proceedings. She recalls him offering that explanation at the time. She also corroborated Mr Reason’s claim that he was philosophical about missing out on the Chief Information Officer’s role. She said he was not about to resign from his work simply because he did not get the promotion he sought.
I am satisfied the applicant was unhappy about working in the new environment of the amalgamated Council, and he was upset he did not get the role of Chief Information Officer. But he was clear in his evidence that he made the decision to leave his workplace in 2008 because he was worried he would not be able to contain his rage, which was a feature of his service-related psychiatric condition. He insisted in his evidence that - but for that concern - he would have buckled down and continued working in the amalgamated Council. I have no reason to doubt that was so. I also accept the evidence established he did not intend retiring from the workforce in 2008 when he left the employ of the Council. I accept he planned working as a consultant, at least partly because he would have more control over his work and make a healthy return, but also because he would be able to work without as much contact with people who might annoy him and trigger outbursts of rage.
Mr Reason said he did not work after he left the Council in 2008. He did not immediately seek alternative employment or consulting opportunities after his resignation. In cross-examination, he said the decision not to return to the workforce (including his decision to quit the cadets) was only taken in October 2009 – nearly a year after he resigned from his job on the Council – on the advice of his psychiatrist, Dr Tucker. I note he had attended a cadet camp in September 2009; he did not formally relinquish his role with the Army Cadets until August 2010 although Ms Onekawa said in her statement that Mr Reason was experiencing serious difficulty in controlling his frightening temper during this period.
DOES THE APPLICANT SATISFY THE REQUIREMENTS OF S 24(1)(C)?
The assessment period during which Mr Reason’s circumstances must be evaluated commences on the day the application for a special rate pension was lodged with the Commission, and concludes on the day the Tribunal finally determines the application. Mr Reason’s application was lodged on 25 November 2009.
The Commission, in written submissions, suggested the applicant’s remunerative work could properly be described as “information technology consultant and manager.” The applicant did not quibble with this characterisation, and I accept it was clearly appropriate. (I am assuming for present purposes that the work Mr Reason was doing with the Australian Cadets was not remunerative work because he merely received an honorarium. Both parties appeared to accept this was so, although Mr Black, for the applicant, did not make an express concession on the point. I will return to this issue later.)
Ms Bowskill, for the respondent, said it was still appropriate to consider the reasons why Mr Reason left his last paid employment even though that occurred over a year before the assessment period begins. I agree, because those reasons might provide some insight into why the applicant was not doing his old work during the assessment period.
I am satisfied the applicant left his job at the Council in September 2008 because of his PTSD condition – in particular, because he felt increasingly unable to control his outbursts of rage that he feared would lead to an assault. While I accept he was happy to leave the Council because it had, for a variety of reasons, ceased to be a rewarding place to work, I accept his evidence that he would have persevered in the work but for his concern about working with people whom he might assault. I am not satisfied he left because he was unhappy about the amalgamation and his role in the new structure, although he certainly was unhappy. I note he expressed the view during the course of his evidence that he was confident he could make a go of consulting activities after he left the Council, but I also accept he was attracted to the consulting activities because they provided scope for him to control his workplace and avoid interactions with people that might end badly because of his PTSD. I am satisfied the evidence (I refer in particular to his own uncontradicted testimony which was consistent with his resignation letter) established he was not intending to retire or otherwise leave the workforce, and I accept his evidence that his age was not and is not an obstacle to doing the work he was doing. It follows I accept the applicant’s PTSD condition was the only explanation for him actually leaving the employ of the Council in September 2008.
Dr Jetnikoff, the independent psychiatrist, said in his report (exhibit three) that Mr Reason is presently unable to work because of his PTSD. That evidence is consistent with Dr Tucker’s advice in 2009 and subsequently to the effect that Mr Reason should cease work because of his war-caused condition. But is there anything else contributing to his ongoing (and apparently permanent) absence from the workforce during the assessment period?
I have already noted the applicant’s uncontested evidence that there is no obstacle to a man of his age and experience returning to the workforce in a managerial role. The applicant said he was confident his absence from the workforce would not be a problem. He pointed out an IT manager needed managerial skills which were potentially enhanced by experience. The technical work could increasingly be left to younger, less experienced people. Labour market conditions and the applicant’s age are therefore not a factor. Nor can it be said the applicant voluntarily retired. He resigned with the express intention of doing consultancy work. He did not immediately commence a search for consultancy work after leaving the Council, but I do not think much turns on that: taking a temporary break from the rigours of a demanding workplace is not the same as leaving the workforce. He only formally withdrew from the workforce when advised to do so by his psychiatrist.
In all the circumstances, I am not persuaded there were other factors that contributed or are contributing to the applicant’s cessation of work. His PTSD is the reason, not just a reason, for his continuing inability to do the remunerative work he was doing: see Willis v Repatriation Commission [2012] FCA 399 at [24] per Bromberg J.
I am also satisfied the applicant’s PTSD-related cessation of work has resulted in a loss of salary, wages or earnings. He stopped receiving an income when he resigned from the Council, and that income stream has not been replaced by other paid work, most obviously the consultancy work he expected to do but is now precluded from doing. If he were not experiencing the PTSD symptoms, his essentially uncontradicted evidence (which I have already accepted, given I was satisfied he was a credible witness) is that he would have remained in his job at the amalgamated Council. It follows he has lost an income stream he would not have lost but for his condition.
The applicant is able to satisfy all of the relevant requirements in s 24. He is entitled to be paid a pension at the special rate.
There is one other matter. I noted earlier the applicant continued to work as an officer of the Australian Cadet Corps until he resigned from that role in 2010. There is no dispute on the evidence that he resigned because of his PTSD condition, and for no other reason. Ms Onekawa confirmed in her written and oral evidence that the applicant was a fine officer but he experienced explosive rages that were especially problematic when dealing with young people. There is also no doubt the applicant could not resume that work because of his PTSD. There is nothing else in the evidence to suggest he could not otherwise do that work. I have not focused on the applicant’s experience in the Cadet Corps because it was not the focus of the evidence at the hearing. Ms Bowskill pointed out it was unclear whether the work as a Cadet Officer was properly characterised as remunerative work because the only compensation Mr Reason received was in the form of an honorarium.
Ultimately, I do not think the approach I take on this issue makes a difference to the outcome of the case. If the work was remunerative work, the applicant’s PTSD is the sole explanation for him not being able to continue, and the loss of the honorarium is attributable to that condition. If it was not remunerative work, then his decision to cease that work does not assist either party to this dispute.
CONCLUSION
The decision in relation to the application for a special rate pension (file no 2012/5089) is set aside. The Tribunal decides in substitution that the applicant is entitled to a pension paid at the special rate. The parties did not address the date of effect in their final submissions; in the event there is disagreement on that point, the parties are free to make further submissions.
It was agreed between the parties that I should set aside the decision of the Veterans’ Review Board dated 16 September 2011. The Board decided the applicant suffered from war-caused anxiety disorder. The parties agreed (and I accept the evidence establishes) the applicant was properly diagnosed with PTSD and that the condition is war-caused. I make that finding in substitution.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. .......................[Sgd].................................................
Associate
Dated 11 December 2013
Date of hearing 3 October 2013 Counsel for the Applicant Mr M Black Solicitors for the Applicant Cockburn Legal Counsel for the Respondent Ms H Bowskill Solicitors for the Respondent Australian Government Solicitor
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