Thirkell and Repatriation Commission
[2007] AATA 1552
•17 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1552
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600422
VETERANS’ APPEALS DIVISION ) Re NORMAN JOHN THIRKELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date17 July 2007
PlaceBrisbane (heard in Townsville)
Decision The Tribunal affirms the decision under review.
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Senior Member
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600422
VETERANS’ APPEALS DIVISION ) Re NORMAN JOHN THIRKELL Applicant
And
REPATRIATION COMMISSION
Respondent
DIRECTION TO AMEND DECISION [2007] AATA 1552
Tribunal M J Carstairs, Senior Member Date18 July 2007
PlaceBrisbane
Being satisfied that there is a typographical error in the text of the decision made in this matter on 17 July 2007, the Tribunal directs under s 43AA of the Administrative Appeals Tribunal Act 1975 that paragraph 11 of the decision is corrected so that the word “unable” replaces the word “able” in that paragraph.
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Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – special rate of pension – applicant retired to obtain superannuation benefits – Tribunal not satisfied that applicant prevented from working because of war-caused injuries or diseases alone – decision affirmed.
Veterans’ Entitlements Act 1986 s 24
Flentjarv Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Forbes v Repatriation Commission (2000) 171 ALR 131
Peacock v Repatriation Commission [2004] 40 AAR 143REASONS FOR DECISION
17 July 2007 M J Carstairs, Senior Member
1. Norman Thirkell served with the Australian Army from 1969 until 2005 when he took retirement, aged 55, having completed some 36 years in the Army. Within days of retirement Mr Thirkell lodged an application for special rate of disability pension, a rate available to veterans who demonstrate that their war caused injuries prevent them from working, and that as a result they have lost earnings.
2. Mr Thirkell maintains that his war-caused disabilities, chiefly post traumatic stress disorder and a spinal condition, prevent him from further engaging in remunerative work. The respondent maintains that Mr Thirkell simply made a decision to retire when he did so that he could maximise his superannuation benefits and that reasons other than war caused disability explain his not being in remunerative work.
BACKGROUND
3. Mr Thirkell left school at age 15 and until he joined the Army at the age of 19, he worked as a general hand at saw mills. Mr Thirkell had an uninterrupted Army career except for one period of about 4 months in 1972/73, when he left and worked as a labourer.
4. At the time of his discharge Mr Thirkell had achieved the rank of Warrant Officer 2 and was in charge of stores. Apart from the more general skills of soldiering, while he was in the Army Mr Thirkell obtained a number of qualifications that had civilian equivalents. As a qualified storeman he has skills, mostly attained during the 1990’s, in asset accounting, purchasing, and accounts management. He also holds a forklift licence; and had truck (heavy rigid) and bus (up to 28 seats) licences.
5. Mr Thirkell has not been in paid employment since he left the Army in 2005. The written materials revealed Mr Thirkell had intended to join the Army Reserve when he left the Regular Army. For a brief period - November 2005 to March 2006 - Mr Thirkell undertook a few hours voluntary work per week with the RSPCA.
ISSUES
6. Section 24 of the Veterans’ Entitlements Act 1986 contains the provisions for special rate of pension and consists of a number of tests, all of which must be satisfied to establish a person’s entitlement, and must be satisfied within the assessment period, a period commencing at the date of claim and ending at the date of the decision.
7. The respondent readily conceded that Mr Thirkell satisfied the parts of the test set out in s 24(1)(a) of the Act. This left as the matters in contention the tests under s 24(1)(b) and s 24(1)(c) of the Act.
8. Section 24(1)(b) requires that a veteran is unable, by reason of war-caused disability taken on its own, to work 8 hours per week.
9. The test in s 24(1)(c) has two limbs:
§ a veteran must be prevented from continuing in remunerative work, solely by reason of war-caused disability; and
§ the veteran must, as a result, suffer a loss of salary or wages that they would not suffer without war-caused disability.
IS MR THIRKELL PREVENTED FROM WORKING 8 HOURS PER WEEK?
10. In relation to this first test in contention in s 24(1)(b) – whether Mr Thirkell can work 8 hours per week, Dr Ian Fraser, Mr Thirkell’s general practitioner, stated categorically that Mr Thirkell passed this very stringent test because of his severe post traumatic stress disorder and lumbar spondylosis. However Dr Fraser did not provide any explicit reasoning for reaching this conclusion. I cannot accept that Dr Fraser’s assessment was right and I consider that the specialists who have reported on Mr Thirkell provide more detailed reasoning about Mr Thirkell’s capacities. Even without these other opinions, Dr Fraser’s conclusions make little sense. His report was dated April 2005. Mr Thirkell was then still serving, and there was no real indication that he was unable to carry out his full-time work load.
11. The reports of several specialists do not support Mr Thirkell being able to undertake 8 hours work per week at the start of the assessment period. It is important to bear in mind that remunerative work as defined in s 28 of the Act has a wide meaning.
12. Dr B Low, orthopaedic surgeon, noted in his report in June 2004, that Mr Thirkell was undertaking all manner of physical activity including touch football, despite having the clinical and radiological signs of lumbar spondylosis and early arthritis of the right hip. Dr Low’s report does not specifically address the 8 hour test under s 24(1)(b). He observed that Mr Thirkell would be unable to carry out a civilian job in any physical capacity. However I understood his remark to mean that Mr Thirkell could undertake less physically demanding work (that is, light or moderate work) but that he should avoid heavy work.
13. Dr B Halliday, consultant orthopaedic surgeon, stated that Mr Thirkell’s lumbar spine condition, his bilateral hip pain, and his mild cervical pain were permanent conditions, but, despite them, Mr Thirkell maintained a high level of fitness by undertaking rigorous exercise, running and touch football. Dr Halliday concluded that Mr Thirkell was only mildly affected by his orthopaedic conditions and he observed also that Mr Thirkell was having no specific treatment. He said that the conditions did not prevent Mr Thirkell working, nor did they interfere with his social or family life. Dr Halliday concluded that Mr Thirkell was fit for light to moderate full-time work but not fit for heavy labouring. Dr Halliday identified as ‘lighter duties’ those that Mr Thirkell had undertaken as a storeman in the Army.[1]
[1] T4, p 67.
14. Mr Thirkell disputed parts of Dr Halliday’s report. He maintains that his physical capacities were less than Dr Halliday suggested. However I accept Dr Halliday’s conclusions, since they follow from his clinical findings and from what Mr Thirkell reported that he was able to do. Furthermore Dr Halliday’s conclusions are broadly consistent Dr Low’s conclusions and quite consistent with Mr Thirkell being in full time employment a matter of weeks before Dr Halliday’s clinical examination.
15. Somewhat surprisingly the psychiatrist Dr J Rogers saw fit to comment on the contribution made by Mr Thirkell’s back condition to his work capacities. Mr Thirkell first was seen by Dr John Rogers in late 2003, when Dr Rogers first diagnosed Mr Thirkell’s post traumatic stress disorder (and depression). Mr Thirkell has attended Dr Rogers regularly since then. In a report dated 26 April 2005[2] - once again, at a time when Mr Thirkell was employed full time in the Army - Dr Rogers stated that Mr Thirkell should be regarded as totally and permanently incapacitated on the grounds of his back condition, and that this would prevent Mr Thirkell from performing any work following his discharge from the Army. Dr Rogers referred to Mr Thirkell’s ‘mental conditions’ as contributing about 20% to his incapacity.
[2] T4, p 61.
16. Clearly Dr Rogers cannot claim the same level of expertise on matters of orthopaedic assessment and there is nothing in Dr Rogers’ report that suggests he conducted any clinical examination of Mr Thirkell’s back or hip. But it is significant that Dr Rogers at that time considered that Mr Thirkell’s psychiatric conditions were contributing much less than were his orthopaedic conditions. Some support for this being correct comes from answers Mr Thirkell gave to questions in his discharge health statement. Asked if he suffered from any illness during his service,[3] Mr Thirkell nominated only arthritis. I also note that an Army medical officer, Dr Fardell,[4] queried Dr Rogers’ diagnosis of post traumatic stress disorder, noting that Mr Thirkell was functioning well in the Army and had a recent successful deployment to the Solomons in 2004 without any apparent problems and without taking medication prescribed by Dr Rogers.
[3] T4, p 24.
[4] T4, p 18.
17. I was reasonably satisfied that at the start of the assessment period, Mr Thirkell was able to carry out full-time work, but he would need to avoid physically demanding work.
18. There were no other reports touching upon Mr Thirkell’s capacity to work until the report of Dr P Mulholland, consultant psychiatrist, who in December 2006,[5] concluded that Mr Thirkell’s psychiatric condition was such that he could not work 8 hours per week. Dr Mulholland saw Mr Thirkell 1 ½ years after he retired from the Army and 1 ½ after Dr Rogers indicated that psychiatric conditions contributed far less than orthopaedic conditions to any perceived incapacity for work.
[5] Exhibit R1.
19. Dr Mulholland noted with regard to Mr Thirkell’s psychiatric state that the tragic death of his son in a motorcycle accident in May 2006, not long after the death of his first wife in 2005, had significantly aggravated Mr Thirkell’s emotional state. Dr Mulholland said:
This man is not working and has not worked since he left the Army in May 2005. His psychiatric condition is such that I do not think that he is capable of working at the present time and I do not think that he could work the requisite aggregate 8 hours per week mostly because of his psychiatric conditions and also physical factors contribute. If only psychiatric factors were taken into account then I would consider him to be unemployable.[6]
[6] Exhibit R1, p 10.
20. Dr Mulholland agreed with Dr Rogers’ diagnoses of post traumatic stress disorder, major depressive disorder, and alcohol abuse (Dr Mulholland adding ‘in remission’ to the diagnosis of alcohol abuse). But in addition Dr Mulholland diagnosed Mr Thirkell as having an adjustment disorder (not otherwise specified). It was not entirely clear from Dr Mulholland’s written report, but he did confirm in his oral evidence, that the trigger for adjustment disorder was Mr Thirkell leaving the Army.
21. There were some indications in the documentary materials that leaving the Army had been a concern to Mr Thirkell. When seen by an Army medical officer Dr Fardell in May 2004, Dr Fardell recorded:
Has to get out May 05 b/c of age, but bit nervous re this. ‘The army has been my whole life.’[7]
[7] T4, p 15.
22. Mr Thirkell had told Dr Low he did not know what he would do when he left the Army, but that he hoped to join the Reserves. Mr Thirkell’s concerns about how he would cope did not escape Dr Rogers, who noted that when Mr Thirkell had briefly left the Army in the 1970’s he had been unable to cope with civilian life.[8]
[8] T4, p 33.
23. Dr Mulholland posed as a possibility that Mr Thirkell’s psychiatric condition in 2006 might be characterised as an adjustment disorder with aggravation of post traumatic stress disorder. That, he said, would depend upon whether any worsening of Mr Thirkell’s symptoms was simply the natural progression of his underlying conditions of post traumatic stress disorder and depression, or whether the worsening of symptoms was to do with his inability to adjust to leaving the Army.[9]
[9] Exhibit R1 p 9.
24. Dr Mulholland had taken a history form Mr Thirkell that he noticed his mental state deteriorated from about 14 months before he was discharged. Mr Thirkell had increased anxiety, worsening of a stutter, and increased irritability. Mr Thirkell anticipated that he would not handle civilian life – Dr Mulholland agreed that this is what has happened. Dr Mulholland stated that the increased anxiety in anticipation of the event of retirement and the tragic death of his son in 2006 worsened Mr Thirkell’s emotional state. Dr Mulholland said that it could be expected that any aggravation of symptoms as a reaction to his son’s death could be expected to resolve in about 1-2 years, although some sub-clinical features would remain.
25. It is important, in my view to note that Dr Mulholland said that Mr Thirkell was incapable of working at the present time. Dr Mulholland elaborated on these matters in his oral evidence and said that if Mr Thirkell only had an adjustment disorder, he would not be prevented from working in the longer term, because the condition would resolve. However the adjustment disorder combined with emotional problems following the death of his son exaggerated Mr Thirkell’s existing symptoms from post traumatic stress disorder and depression.
26. Does this evidence from Dr Mulholland provide a sufficient basis on which to conclude that Mr Thirkell is unable to work more than 8 hours per week by reason of war-caused disability alone later in the assessment period? I do not think so.
27. As I have indicated, it was clear that at the start of the assessment period, Mr Thirkell was not incapacitated for work. He had been working successfully full-time in the Army. He had deployed twice for overseas postings in the previous two years. There was no independent evidence that he was having problems in his work. Mr Thirkell said that he was becoming more irritable, but there was no evidence that this resulted in any adverse work consequences or in disciplinary charges. The first indication of a significant change in Mr Thirkell’s capacity to work comes in the report of Dr Mulholland where two factors, not themselves attributable to war-caused disability, are isolated as accounting for the marked reduction in Mr Thirkell’s functioning evident at the end of 2006. These are the effect of an adjustment disorder as a consequence of leaving army life and the effect of emotional problems arising from dealing with the death of his son.
28. Dr Mulholland leaves open the possibility that these new factors may also have worsened Mr Thirkell’s symptoms of post traumatic stress disorder and major depressive disorder. However, I was satisfied that it was not war-caused psychiatric disorders (or those conditions in combination with the orthopaedic conditions), alone, that account for Mr Thirkell’s inability to undertake 8 hours work per week at any time in the assessment period. The marked deterioration in psychiatric functioning evident between the reports of Dr Rogers in 2005 and that of Dr Mulholland in 2006 indicates the significance of adjustment disorder and emotional problems in explaining Mr Thirkell’s reduced work capacity evident later in the assessment period.
29. I was satisfied that Mr Thirkell was not prevented from working 8 hours per week by reason of war caused disability alone. His not satisfying the test in s24(1)(b) of the Act, without examining the other tests in s 24(1)(c), means that he is not entitled to be paid at the special rate. However I have considered the matters that arise under s 24(1)(c) of the Act, as it was these matters that formed the focus of evidence and submissions at the hearing.
IS WAR CAUSED INCAPACITY THE ONLY REASON MR THIRKELL IS NOT IN REMUNERATIVE EMPLOYMENT?
30. In relation to s 24(1)(c) of the Act I must examine whether Mr Thirkell was prevented from continuing to undertake remunerative work and if, as a result, he is suffering loss. Section 24(1)(c) deals with the question of whether any loss of remunerative work is attributable to service-related incapacities and not to something else as well.
31. I note in regard to the period after Mr Thirkell’s retirement from the Army that his counsel, Mr D Honchin, did not rely upon the ameliorative provision in s 24(2)(b) that may allow a veteran, in circumstances where they have made genuine attempts to look for work, to satisfy the more stringent requirements of s 24(1)(c) if he or she can show that the substantial reason was war caused disability. Mr Thirkell has not been seeking work in the assessment period and there was no evidence to show that his war caused disabilities were the substantial reason for this.
32. The Federal Court in Flentjarv Repatriation Commission (1997) 48 ALD 1 said that s 24(1)(c) of the Act poses the following questions :
1. What was the relevant "remunerative work that the veteran was undertaking"…?
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?
33. As to the first of these questions it seems to me that an appropriate broad description of Mr Thirkell’s kinds of remunerative work would encompass general soldiering, but also work as a storeman (and as a storeman manager in view of his seniority and qualifications at the time of his discharge); a driver; and/or delivery person (with a range of motor vehicle licences). His general soldiering skills and qualifications would have enabled him to take up employment in the Army Reserve following his discharge. His other qualifications (such as storeman and holding various licences) would enable him to work in a range of warehouse, delivery and driving jobs.
34. As with other matters relating to special rate of pension the second question must be addressed - not at the time the veteran ceased work - but from the start of the assessment period. In Mr Thirkell’s case however those two points of time coincide. Also in many cases a person’s reasons for ceasing a particular job may give some insight into reasons for ceasing remunerative work generally.
35. Mr Thirkell has never denied that a major motivation for leaving the Army when he did was to maximise his financial benefits, and obtain a lump sum payment that would not be available if he retired later or was medically discharged.[10]
[10] T4 p 87 and Exhibit R3, Transcript of Veterans' Review Board hearing: 1 March 2006.
36. Mr Thirkell acknowledged that he was required to retire at the age of 55 but said he could have joined the Army Reserve, even full-time. In his most recent written statement Mr Thirkell said that he was aware that his post traumatic stress disorder would be an issue in the Army Reserve and he doubted that he was fit enough to show the way as a SNCO.[11]He told the Veterans' Review Board that he had decided before he took his discharge that he would not apply for the Army Reserve. Mr Thirkell said Dr Fraser had advised him that he should not work, but there was no evidence from Dr Fraser confirming this advice.
[11] Exhibit A1.
37. I have referred already to Mr Thirkell’s expressed concerns about his life after the Army. In his oral evidence Mr Thirkell said that he would like to have a job but that he cannot find anything out there that he can do. He said that he did not think he could do more than a storeman’s job, however admitted, that he had not looked around. He said that he is bored and misses the camaraderie and structure of Army life. He says that he is more limited now in his activities but he plays seniors touch football once a week; cycles for three 30 minute sessions per week; participates in a cardiac heart health programme for Vietnam veterans; and jogs once a week with his seven year old son.
38. It is important not to focus unduly upon Mr Thirkell's admitted financial reasons for ceasing his employment in 2005. Those reasons explain why he left that particular job, but do not explain why he ceased remunerative work thereafter. As was said in Repatriation Commission v Hendy (2002) 76 ALD 47, the Tribunal’s task is to carry out the hypothetical exercise of assessing what the veteran would have done if he had none of the service disabilities during the assessment period.
39. When he took his discharge in 2005, the medical evidence from that time indicates that disability was not preventing Mr Thirkell continuing in remunerative work. He told Dr Mulholland that he had been doing his work reasonably well. Dr Rogers noted that despite his symptoms and his colleagues apparently commenting on his short temper, Mr Thirkell had maintained a good Army record until recently. Dr Rogers at that time indicated that the psychiatric disorder was making a relatively minor contribution. The orthopaedic surgeons were not suggesting that Mr Thirkell was disabled for moderate or sedentary employments, consistent with at least some of the remunerative work with which he had been engaged, particularly that of storeman. Many records refer to Mr Thirkell’s high level of maintained fitness. He undertook two overseas postings in the eighteen months prior to his discharge, without any suggestion of any major problems arising. On any view of circumstances at the start of the assessment period, Mr Thirkell was not then prevented from continuing to undertake remunerative work.
40. Later we see the deterioration that Dr Mulholland records in his 2006 report. I accept Dr Mulholland’s evidence that this deterioration was due to an adjustment disorder that arose as a result of leaving the Army:
He had anticipated that he would not handle civilian life and had become anxious in the anticipatory sense about it and that is what has happened….I suspect that once he was away form the disciplined structure, controls and support of army life he was and is simply not able to cope. It is a pity that he was not able to join the Army Reserve[12]
[12] Exhibit R1 pp 8-9.
41. Mr Thirkell openly acknowledged that he has faced difficulty adjusting since leaving the Army.
42. Mr Thirkell took retirement from the Army at the expected retirement age of 55 years. The evidence does not suggest that at that time there was any significant medical component for doing so. His qualifications and experience fitted him for further work in soldiering with the Army Reserve. I was not satisfied that, at the start of the assessment period, Mr Thirkell was prevented from continuing in his remunerative work by war caused disability, even taking into account his belief that he would not be accepted into the Army Reserve on medical grounds. He never tested the correctness of that belief.
43. I also was not satisfied that war caused disability prevented Mr Thirkell undertaking civilian employment in the kind of work that he had done in stores. The medical evidence indicates that he was capable of undertaking such employment as long as it was not unduly physically demanding. Dr Halliday, whose opinion I accept, considered that in 2005 Mr Thirkell was quite capable of continuing work as a storeman. This being the case, the second Flentjar question should be answered no.
44. Later in the assessment period, at the time that Dr Mulholland came to report upon Mr Thirkell, there were other reasons for his not being able to continue in remunerative work, namely adjustment disorder and emotional problems in dealing with the death of his son. This means that by 2006 there were other factors preventing Mr Thirkell from continuing in remunerative work and so the third Flentjar question must be answered no, at that time.
45. Whilst it is strictly unnecessary to decide this last question in view of the findings above, I would also decide the fourth question against Mr Thirkell. The fourth question deals with the second limb of the test in s 24(1)(c) of the Act, which must be read together with s24(2)(a).[13] This provision was considered by Dowsett J in Peacock v Repatriation Commission [2004] 40 AAR 143. That case involved circumstances similar to those here, in that Mr Peacock had taken retirement at age 55 when his superannuation became available. Dowsett J said that two inferences were open, firstly that this was a sufficiently attractive prospect to contribute to the decision to retire, regardless of war caused disabilities. The other was that early retirement offered the opportunity to escape the difficulties that were being experienced at work (as a result of war-caused injuries).
[13] Forbes v Repatriation Commission (2000) 171 ALR 131.
46. I was satisfied that the evidence here supports the former inference. Mr Thirkell was not demonstrating an inability to perform in his work before he took discharge. He said as much to Dr Mulholland and there was no evidence other than his own that he had become short tempered. No material suggested his performance was of any concern to the Army. Mr Thirkell has never indicated that his decision to retire at the age of 55 was for medical reasons. He openly acknowledged the attractiveness of lump sum benefits to him. He had decided before he even took his discharge that he would not pursue the option of joining the Army Reserve and he proceeded immediately to claim special rate of pension, without ever testing whether he could obtain further employment. I concluded that he ceased to engage in remunerative work for other reasons, including that he was able to maximise certain financial benefits.
DECISION
47. The Tribunal affirms the decision under review.
I certify that the preceding 47 paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms M J Carstairs.
Signed: M J Brazier
AssociateDate of Hearing 19 March 2007
Date of Decision 17 July 2007
Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor
For the Respondent Mr T Thrupp, Departmental Advocate
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