Thompson and Repatriation Commission
[2003] AATA 604
•27 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 604
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/604
VETERANS’ APPEALS DIVISION ) Re RALPH THOMPSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date27 June 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................(Sgd)......................
I R Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether applicant is entitled to pension at the Special Rate – whether the applicant’s war caused conditions alone prevent him from undertaking remunerative work –whether applicant’s war caused conditions caused him to cease work – whether genuinely seeking remunerative work
Veterans’ Entitlements Act 1986
Repatriation Commission v Smith (1987) 74 ALR 537
Forbes v Repatriation Commission [2000] FCA 3825
Repatriation Commission v Alexander [2003] FCA 399
Repatriation Commission v Maloney (1993) 30 ALD 449
Repatriation Commission v Braund (1991) 23 ALD 591
Cavill v Repatriation Commission (1988) 9 AAR 539
Starcevich v Repatriation Commission (1987) 18 FCR 221
Banovich v Repatriation Commission (1986) 69 ALR 395
Magill v Repatriation Commission [2002] FCA 744
Fox v Repatriation Commission (1997) 45 ALD 317
Re Sanfead and Repatriation Commission (1986) 11 ALN 77
Re Hornery and Repatriation Commission (1998) 52 ALD 317REASONS FOR DECISION
27 June 2003 Mr I R Way, Member 1. This is an application by Ralph Thompson (the applicant) for review of a decision of the Repatriation Commission made on 8 November 2001 and affirmed by the Veterans’ Review Board on 14 May 2002, which assessed the applicant’s disability pension at 100% of the General Rate. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
§ Exhibit A1 Report of Dr K G McNamara dated 1/2/00
§ Exhibit A2 Applicant’s employment statement dated 11/10/02
2. The applicant gave oral evidence and evidence was given by telephone by Dr H C Wright, the veteran’s LMO, and Dr G Knight, Consultant Occupational Physician. The applicant was represented by Mr D Lee and the respondent by Mr M Smith.
3. The issue before the Tribunal is whether the applicant’s disability pension is correctly assessed at 100% of the General Rate and in particular whether the applicant’s pension should be assessed at the Special Rate.
4. The applicant was born on 11 March 1939 and lodged his claim for disability pension and medical treatment on 18 September 2001, at which time he was 62 years old.
5. The applicant served in the Australian Regular Army from 3 February 1965 to 4 February 1985, having prior to this time had a period of National Service training and CMF training from 1957. He was commissioned in the CMF and when he resigned from the Army at his own request in 1985, he had attained the rank of Major. During his service in the Army the applicant saw service in Vietnam in 1965 and 1966.
6. The standard of proof applicable in this matter is provided for in sub-section 120(4) of the Veterans’ Entitlements Act 1986 (the Act) and pursuant to this sub-section the matter is to be determined by the Tribunal to its reasonable satisfaction or, in other words, on the balance of probabilities: Repatriation Commission v Smith (1987) 74 ALR 537.
7. The applicant has the following conditions accepted as war-caused:
Accepted prior to 2000:
§ Plasmodium vivax malaria;
§ bilateral sensorineural hearing loss;
§ bilateral tinnitus;
§ osteoarthrosis of the left ankle;
§ impotence;
§ peptic ulcer disease;
§ gastro-oesophageal reflux disease; and
§ post traumatic stress disorder.
With effect from 18 June 2001:
§ chronic solar skin damage;
§ acquired cataracts in both eyes;
§ macular degeneration affecting both eyes;
§ carotid arterial disease;
§ irritable bowel syndrome; and
§ atherosclerotic peripheral vascular disease.
With effect from 23 October 2001:
§ hypertension;
§ alcohol dependence; and
§ psoriasis.
The following conditions have also been diagnosed:
§ osteoarthrosis of the right shoulder;
§ osteoarthrosis of both wrists; and
§ painful back with sciatica.
The following conditions have been diagnosed, but have not been accepted as war-caused:
§ refractive error
§ presbyopia
§ hypertensive heart disease
§ localised osteoarthrosis of the right ankle
§ internal derangement of the right knee
§ calcaneal spur (right); and
§ ganglion right foot.
8. The assessment period in this matter is from 18 September 2001, the date of lodgment of the applicant’s claim, to the present date (the relevant period).
Legislative Framework
9. The legislative framework in respect of special rate of pension is relevantly provided in the Act as follows:
“24 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
(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 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; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reasons; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to I paragraph (b).”
Applicant’s Evidence
10. The applicant told the Tribunal that he left school with the Leaving Certificate when he was seventeen years of age and, in addition to three months continuous National Service training and continuing part-time National Service training and CMF service before joining the Army, worked part-time with his mother in the clothing trade learning to be a bulk cutter and designer and then entered the printing trade where he learned to use and print continuous paper for computers.
11. During his Army service he served in the infantry corps having a number of regimental and staff appointments including eight years service in Papua New Guinea. It was the applicant’s evidence that he was part of the advance party from 1RAR which had the task of establishing the Task Force base in Vietnam and that he subsequently saw service there with 5RAR. He said he saw active combat, saw enemy killed and had the task at one stage of identifying own troops who had been killed. He said he took part in the aftermath operations following the battle of Long Tan. The applicant told the Tribunal that he was “absolutely” comfortable during his Army service, that he had enjoyed his service in Papua New Guinea (post Vietnam), being able to avoid the anti-Vietnam feelings that were prevalent in Australia.
12. In respect of his employment after discharge from the Army in February 1985, the applicant summarised the various jobs he had and the attempts he made to secure employment as follows (Exhibit A2):
“1985-87
Small printing business owner operator Lakemba NSW. One man operation – had difficulties with customers and family aggressive, drinking heavily – sold business.
1988-92
Management rights Surfers Paradise [25 floor high rise]. This included holiday lettings, a convenience store and sub-news agency, a 7 day operation. Ran business myself with one staff member. Had continuous difficulties with clients and Body Corporate. Could not cope with people – continued heavy drinking. Finally sold business due to my inability to cope with my aggression and constant panic.
1993-95
Real Estate - Management Rights sales – Dave Allen Real Estate. Tried to change my attitude and feelings towards clients and staff. My marriage was now falling apart due to my aggression. My son died in Sept 94 and I blamed myself for his death because of my service in Sth Vietnam [agent orange] and I still hold myself responsible. I fell apart completely – could not handle people at all – marriage over divorced – drinking increased – arguments, panic attacks and aggressive to people – sold business.
1996-97
Small business management rights sales with friend – Peter Stuart. I was not contributing to business – he purchased a small building for himself – business folded.
1997
Onwards; I have applied for over 150 different jobs – sending resumes to business, making phone calls etc. Jobs such as telephone marketing, sales, warehouse work, retail sales etc, so many and varied – have lost confidence in that the refusals just continue – reasons vary from age to qualifications. I still cannot manage crowds of people.
Summary. I sense I am in a constant state of conflict with people and become aggressive towards them. I fell I have now become a complete loner. With assistance of Mr Neil Harcourt, I have commenced some veterans support work [half day per week] and I feel a degree of satisfaction in this work – when I work alone – however I find I must bite my tongue at times so as not to offend veterans, for whom I am attempting to support.”
13. In his oral evidence the applicant corrected the period of employment with Peter Stuart to commence in 1985 and conclude in September 1996 when Peter Stuart sold the business.
14. He said that he initially tried to revive his employment in the printing trade choosing to work for himself, missing the comfortable Army environment and needing to ease his transfer back into civilian life. He said he did manage to establish the business on a small scale but was not able to knuckle down, he was frustrated with customers changing their minds and felt he was not running the business in a proper sense.
15. After selling the printing business and before moving to Queensland the applicant said he and a friend had bought and operated a taxi for some months. He said this was a short term venture until he could sell his house in Sydney. He said he had married in 1967, separated in early 1995 and was divorced later at the end of 1995.
16. He said that his mother died early in 1987 and that, after selling the printing business, his wife had wanted to move to Queensland.
17. He said he did not consider attempting to go back into the printing business in Queensland as he was concerned about new technologies and high costs of equipment. He told the Tribunal that he looked for jobs in the tourist trade and ended up buying management rights for a large apartment block in Surfers Paradise. He said he ran this business principally on his own, employing an office person as required. His wife was not part of this business, she being engaged otherwise within the accounting profession.
18. He said the rewards in the business were good particularly during Expo but that the airline strike in 1989 had a big impact on his profitability. He said it took three years to get out of the business and he finally disposed of his rights with part of the trade being transfer of ownership to him of a house in Ashmore. He said that overall he had made a loss in the venture and that he then wanted to get away from the hospitality business and move north but that did not happen, his wife having a business in Brisbane which she did not want to leave. At this stage he said he would have been drinking 10 to 12 stubbies of beer a day. The Tribunal notes that the VRB recorded the applicant said that one of the reasons for selling was that “he also became exhausted as a result of the long hours” (T4/44).
19. The applicant told the Tribunal he was approached by Dave Allen, a real estate agent whom he knew, with the prospect of handling the sale of management rights for him. He said that having had five years in the industry he agreed to work for Dave Allen on a commission basis. He said it was not as easy as he thought it would be and found himself becoming increasingly more aggressive to Dave Allen, his staff and customers. His drinking continued and was causing a problem with his marriage and his work. He said he made between $30,000 to $60,000 per annum, depending on business and that he could have made a lot more but for his drinking. He said that with the help of friends he attempted to change his attitude realising he needed to accept responsibility for his family and the future of his children. He told the Tribunal that at this stage there was no suggestion of the underlying cause of his aggression and his excessive drinking.
20. It was during this period that the applicant’s twenty-six year old son suddenly and completely unexpectedly died on 27 September 1994. The applicant said he had spoken to his son by telephone at 7.30am on this day and that at 8.00am received a call from his son’s fiance to say that he was dead. The applicant said that he strongly feels responsible for the death of his son and blames his exposure to agent orange during his service in Vietnam for genetic defects in his son. He told the Tribunal, with some emotion, of seeing his son’s body in the coffin at the time of burial and “losing the plot”, having immediate visions of body bags in Vietnam and having to open the bags to identify his soldiers. It was the applicant’s evidence that his PTSD came to the fore after discussion with the Surfers Paradise RSL Advocate, Mr Neil Harcourt.
21. Shortly after his son’s death the applicant ceased work for Dave Allen.
22. The Tribunal notes that the VRB records the applicant having told them:
“The veteran was the approached by Dave Allen to work with him in a business marketing management rights. He remained with Dave Allen for 3 years, initially getting along well with him, however he formed the opinion that some of the business practices employed were unethical. Although he was financially fairly successful in this business, he and Dave Allen agreed to a parting of the ways because the veteran’s dissatisfaction with the business practices mentioned.”
and that the applicant, when referred to the above passage, said he did not wish to change the record.
23. In respect of working with Peter Stuart from February 1995 to September 1996, the applicant said that after leaving Dave Allen he had to do something to survive and he thought he could achieve something with Peter Stuart in the same type of business he had been operating with Dave Allen. However, he did not. He was still showing aggression to customers when going to long lunches and eventually Peter Stuart sold the business and took up another venture. It was during this period that the applicant separated from his wife and eventually they were divorced.
24. On divorce, the applicant said that the family home at Ashmore was sold and the proceeds used to repay a loan of $180.00 taken out by his wife to establish her business, and that he also gave his wife 10 acres of property at Nerang, which he valued at approximately $500,000.00. He said he came away from the divorce with very little and was now in rented accommodation.
25. In respect of seeking work after leaving Peter Stuart in September 1996, the applicant said he read the local Bulletin newspaper daily and applied for jobs advertised therein that he thought would be suitable including, (in addition to what he stated in paragraph 12 above), jobs in factories, cleaning and in the hospitality industry. He said he did not apply for real estate type jobs because of changes in the legislation. He told the Tribunal the last time he applied for a job was late 2001 and that he had had an unsuccessful interview, the job being in control of warehouse supplies for a cabinet making business. On further reflection about when he applied for this job the applicant said that his application would not have been after the remembrance date of son’s death (27 September). However he was unable to recall exactly when he had the interview.
26. The Tribunal notes that, in completing a DVA employment report dated 1 July 1999 in respect of seeking employment since ceasing last employment, the applicant stated (T4/34):
“Tried sending CV to over 9 different positions offered from working in hospitality industry to seeking employment in the building trade – no replies were received from most – 2 replied that they sought other qualifications.”
27. In cross-examination, the applicant was referred to this statement and said that it was true that he had applied for at least 150 jobs and that he had had interviews for 20/30 positions.. He said that at this time he thought he was capable of undertaking the work for which he applied and that the usual reasons for not getting a job was a lack of qualifications or being over-qualified. He said he was reluctant to mention his age. However, his date of birth was on his CV and, that although age was not mentioned in interviews, he thought most employers wanted someone younger than him.
28. The Tribunal notes that the applicant is currently working four to five hours per week assisting other veterans in claiming entitlements; that he says he is currently drinking six to eight middies of beer by lunch time daily; and that, in addition to receiving disability pension of 100% of the General Rate, he is in receipt of a DFRDB pension, a part service pension and rent assistance.
29. When asked to sum up how he currently felt about job prospects the applicant said that he was disillusioned with himself, felt angry and frustrated with himself, that he had poor self confidence, that he was a loner and shied away from others and that he would find it difficult to take on any job. He said he was not on any medication at present in respect of his psychiatric condition, being able to cope day to day having little interaction with others.
Medical Evidence
30. Dr H C Wright, the applicant’s LMO, filled out a departmental report in respect of permanent incapacity, dated 24 November 1998 (T4/29-31). In this report Dr Wright, amongst other comments, recorded the applicant as suffering from poor memory, impaired concentration, depressed, displaying evidence of anxiety and PTSD and gave a prognosis that these conditions were deteriorating. Likewise Dr Wright noted the applicant as suffering from osteoarthritis of ankles and right shoulder and painful back with bilateral sciatica, these conditions being permanent and deteriorating. In a subsequent report dated 21 February 2002 (T4/82), Dr Wright stated:
“This is to certify that Mr Ralph Thompson has been a patient of mine for a number of years and I have treated him for a wide variety of complaints.
I have been requested to comment on his ability to undertake remunerative work of more than eight hours per week because of his accepted disabilities alone. To say that his ability to work is prevented by his non-accepted disabilities is absolute nonsense.
His hypertension and hypertensive heart disease are well controlled at present. His calcaneal spur and right ankle problems are minimal and cause very little restriction at present.
Mr Thompson is still able to play golf on a regular basis.
In my opinion, to say that his anxiety state prevents him from working when he is already accepted for Post Traumatic Stress Disorder is again complete and absolute nonsense.”
31. In his oral evidence, Dr Wright said he had been treating the applicant since July 1995 when the applicant came to him for a general checkup and he continues to see the applicant every two to three weeks. He said he thought the main reason for the applicant coming to see him initially was because he was depressed and distressed. He said he formed the opinion that the applicant was probably suffering from PTSD and that this condition was overlying most of his problems. In respect of the applicant’s musculo-skeletal problems, Dr Wright said that these were now all under control with medication and not causing the applicant much concern. He said that he first prescribed anti-inflammatory medication for the applicant in December 1996 and shortly thereafter he considered the applicant’s conditions to be under control. Likewise he said that his hypertension was controlled, the spur on his foot had been removed and the ganglion right foot had been drained. It was Dr Wright’s opinion that the applicant’s PTSD and his alcohol abuse were not controlled adequately, however, all other conditions were 100% controlled, and if it was not for the applicant’s PTSD and alcohol habit, he probably could work. In so opining Dr Wright took the Tribunal through all of the applicant’s non-accepted conditions and the medications that he was prescribing for him. He said it was his firm opinion that it was only the applicant’s PTSD and alcohol abuse that prevented him from working.
32. It was Dr Wright’s evidence that he had been treating veterans for over 50 years, had treated such cases and tried to help veterans as much as possible. When asked if that coloured his opinion regarding veteran’s conditions he said it does not and in respect of this particular case it was “a very real thing”.
33. Dr Wright examined the applicant in respect of capacity to work and, on 19 April 1999, recorded the applicant’s musculo-skeletal problems as follows:
“This poor veteran has numerous musculo-skeletal problems including damage to his neck, back, coccyx, R wrist, R heel, right and left ankles, R shoulder and fingers of his R hand due to jumping out of a helicopter during his service years in Vietnam.”
34. Furthermore, Dr Wright, at this time, gave a functional rating of “overwhelming effect” (the highest possible rating) for the applicant’s osteoarthritis of both ankles.
35. In cross-examination Dr Wright was taken to these ratings and asked to comment on them in the light of his earlier evidence that these conditions had been 100% controlled from early 1997. Dr Wright was unable to throw any light on this inconsistency. However, he maintained his firm view that the applicant’s osteoarthritic conditions had been rapidly bought under control, that the applicant currently had no complaints of ankle pain and that he regularly plays nine holes of golf.
36. When asked to comment on the sort of work he thought the applicant would be qualified to do, Dr Wright said he thought the applicant’s qualifications and experience suited him to office and selling/marketing type work. When asked to speak on his current suitability to undertake work as a carpark attendant or cleaner, Dr Wright opined that because of the need to react to clients, a carpark attendant’s job was not appropriate and that the applicant was not trained to be a cleaner.
37. Dr Knight, Consultant Occupational Physician, saw the applicant on 17 October 2000 and provided a written report dated 20 October 2000 (T4/49-53).
38. In his written report Dr Knight took a detailed history of the applicant’s vocational background and activities of daily living.
39. The Tribunal notes that as part of this history, Dr Knight records:
“Mr Thompson is now aged 61 years but said he had sent out numerous resumes and continued daily scanning of newspaper job sections looking for suitable work for himself. He said he had applied for jobs such as a Marketing Manager for a paper firm, Marketing Manager for an ink producer, Production Supervisor for kitchen constructions, and a Time and Motion Assessor for a vehicle business. He said he has had no success thus far and was becoming quite frustrated. He said the prospective employers often seemed to indicate they were looking for younger applicants with greater potential for longer term employment. Mr Thompson said he still had applications open at Southport but had not yet listed at Centrelink.. He said he regularly reads and/advertises for jobs in the newspaper and rings any prospects but so far without success. He said he felt he could manage any of the suitable Management or Supervisory roles particularly within the building management and/or printing-allied areas. He said however his remunerative working abilities were physically impeded by his arthritic problems mainly in his left ankle but also in his right wrist and back to a lesser extent.”
And in respect of relevant disabilities said:
“MEDICAL CONDITIONS
Mr Thompson said he remains under regular fortnightly care of his GP, Cliff Wright. He said his only current medications include the anti-inflammatory Celebrex 100 mgs mane for his arthritic conditions involving the left ankle, right ankle, both wrists and his back. He is also on dexamethasone .5 mgs mane as well as Eleuphrat cream to control Psoriasis mainly affecting the palms of his hands. The only other medication is Lipitor 40 mgs mane to control his lipids and cholesterol.
Service-accepted Disabilities
In reviewing the extensive list of medical conditions with Mr Thompson in regards his work ability, the following service-accepted conditions were agreeable dismissed as not have any significant adverse impact. These include Peptic Ulcer Disease and Gastro-oesphageal Reflux Disease, Bilateral Sensorineural Hearing Loss and Bilateral Tinnitus, and Impotence. Mr Thompson said the immediately foregoing conditions were adequately controlled in terms of daily living and that his functional one-to-one hearing was adequate for day-to-day communication.
Mr Thompson said his PTSD was also largely self-controlled without medication or ongoing counselling but that he did have difficulty at times in controlling sudden anger and particularly if he was witnessing incompetent behaviour in others. Mr Thompson said the essential service-accepted condition affecting his working ability was that of arthritis of his Left Ankle. He said he was OK walking at this own pace, as earlier described but he would have great difficulty with any heavy physical work involving extensive walking, especially up and down steps or ladders and particularly if combined with heavy lifting.
Mr Thompson said he occasionally has recurrent feverish symptoms which he ascribes to the aftermath of Malaria, but not to an extent of affecting his overall work ability.
Further consideration of non-accepted disabilities follows:
Psoriasis
This condition is presently under fairly good control but occasionally flares particularly on each palm of hand causing some embarrassment but little functional impairment or disability in terms of manual dexterity.
Eye conditions
Mr Thompson said his Refractive Error and Presbyopia were such as to now require reading glasses. But no other functional disabilities.
Hypertension and Hypertensive Heart Disease
Mr Thompson said he was under no active treatment but regular follow-up monitoring by his GP Dr Wright and that these conditions were currently stable. He said he has been an ex-smoker for approximately 7-8 years.
Generalised Anxiety Disorder’
Mr Thompson said this was hard to differentiate from his PTSD, but in any case does not inhibit him from applying for suitable remunerative work as described earlier.
Osteoarthritis of the right ankle
Mr Thompson agreed he has mild problems with the right ankle compared to the left and that it would contribute similarly but to a lesser extent to physical limitations as described for his service-accepted left ankle.
Osteoarthritis of the right shoulder
Mr Thompson said his symptoms are largely controlled by the use of Celebrex now and that he is able to do most activities with his dominant right upper limb. He, however, said that lifting on the right side was somewhat reduced in combination with his bilateral arthritic wrists. He might have difficulty with repetitive work above shoulder height.
Osteoarthritis of both wrists
Mr Thompson said he has variable problems with pain and stiffness in the lower back with radiation down both legs, but usually only following occasions when he finds himself waking up after a sleep on one of his sides rather than his back. He similarly explained that he would have some limitations in more vigorous physical work, but able to cope with more sedentary Management or Supervisory work as earlier described.”
40. Dr Knight, following clinical examination of the applicant, opined:
“In my opinion, the only significant medical conditions contributing to reduced work capacity in Mr Thompson appear to include his service-accepted Osteoarthritis of the left ankle and his non-accepted Osteoarthritis affecting his right ankle, right shoulder, back and both wrists.
In my opinion Mr Thompson would remain permanently unfit to perform remunerative duties involving significant manual or physical tasks due to the combination of his orthopaedic conditions.
However, in consideration of Mr Thompson’s vocational, trade and professional skills, qualifications and experience as noted earlier, in my view he would be fit for remunerative duties of a clerical and sedentary nature such as Management and/or Supervisory roles such as he has previously undertaken and for a period in excess of 20 hours per week. According to the direct history provided by Mr Thompson to me on this occasion, his most unfortunate frustration is, in fact, being unsuccessful in securing suitable work despite fairly active searching, due primarily to employment market conditions and his age as well as restrictions from physically arduous work regarding orthopaedic disabilities.
In summary, with regard to your specific queries, I am not able to confirm that Mr Thompson’s service-accepted disabilities alone prevent him from undertaking remunerative work for periods aggregating more than 8 hours per week or 20 hours per week. I would classify him as fit for suitable remunerative duties as earlier described, if he could secure such duties for somewhere in excess of 20 hours per week.
Finally, if Mr Thompson were free of his listed service-related disabilities, the non-service related disabilities, as discussed above, would also contribute to a reduction in heavy physical or manual duty from the orthopaedic contribution, but not significantly limit him from other remunerative and suitable duties as described.”
41. In his oral evidence Dr Knight said that at examination the applicant seemed composed and functionally quite able. He said he found the applicant to be an excellent historian, forthright, articulate, focused and quite together mentally. He said there was no indication of the applicant being under stress and he demonstrated that he was organised and mentally coherent. Dr Knight confirmed that the applicant’s non-service related conditions would impact on him in carrying out physically arduous tasks including maintenance work involving repetitive work above shoulder height. He said that at the time he saw him, he thought the applicant would be capable of being a carpark attendant and possibly a cleaner. However, with respect to the latter he would need to look at the specific jobs. When asked to assume that the veteran’s PTSD was significantly worse then he had found, Dr Knight said that such a condition would impact on his work capability including dealing with the public as a carpark attendant.
42. In cross-examination Dr Knight accepted that he had made no mention of the applicant’s drinking problems and did not know why this was so. He denied that he produced medico-legal reports concentrating on physical aspects rather than mental aspects (or rather than taking a whole person approach), in order to produce reports for the DVA and in this case failed to listen to the applicant with attention and concern to pick up on alcohol consumption.
43. Dr Knight said that during the interview the applicant had been remarkably composed and had elected to emphasise the left ankle and not mental problems and as such the veteran had discounted any mental problems at the time. Dr Knight also made the point that he was not a qualified psychiatrist.
44. The Tribunal notes that the applicant said that he had seen Dr Knight only once, for 45mins to 1 hour, and, apart from discussing his right leg problem and assessing his ability to walk and climb stairs, Dr Knight did not discuss anger, did not listen to him and he (the applicant) left annoyed and cranky with the view that the examination had been a complete waste of time and Dr Knight was not looking to help veterans.
45. Dr M Katz, Consultant Psychiatrist, saw the applicant on 10 January 2002 and on the basis of this consultation expressed the opinion that:
“Ralph retired early from the workforce predominantly as a result of his nervous ill health on the basis of his accepted condition of Post Traumatic Stress Disorder as Ralph’s other physical disturbances which had been prevailing then had not prevented Ralph from being an active member of society and Ralph is now unable, by his own report and history above, to be engaged in regular employment although he is able to function in a voluntary capacity on his won terms for a limited number of hours per week which is presently less than eight hours per week.
Ralph has also had a history of heavy daily alcohol ingestion over several decades commencing during his Army service years, and at a level that would fulfil the criteria for the additional diagnosis of Alcohol Abuse according to DSM IV Diagnostic Manual of Mental Disorders which in turn may have contributed to the level of interpersonal disturbances described by Ralph in association with the accepted condition of Post Traumatic Stress Disorder and Ralph would certainly benefit from continuing to see his General Practitioner for further follow up and management of his nervous symptoms that may require the use of Cipramil from time to time to bring them under control.
…
On the basis of my assessment of Ralph Thompson I have also assigned him a GARP score of 32 in relation to the diagnoses of Post Traumatic Stress Disorder and Alcohol Abuse, as per the enclosed worksheets”. (T4/77)
46. The Tribunal notes that Dr Katz first saw the applicant on 8 January 2001 following his referral by Dr Clifford Wright for treatment of post traumatic symptoms and furthermore that Dr Katz reported:
“During his Army career Ralph reported that he began to drink very heavily which subsequently led to a regular alcohol habit of eight to ten stubbies of beer daily with a superimposed binge drinking pattern, and both of which Ralph said he has curbed following the death of his son to a level now of about half the amount while Ralph also gave up heavy regular smoking around the time of his son’s death with Ralph commenting that he felt he had been dependent upon alcohol until more recent years when he has been able to have one to two alcohol free days during the week.”
47. In respect of the applicant’s employment, Dr Katz took a history from the applicant in the following terms:
“Following his discharge from the Army in 1986 Ralph said he initially built up a small printing business in Sydney and then moved up to the Gold Coast where he bought management rights in which function Ralph worked for five years however by ralph’s report this became increasingly stressful as a result of running an attached convenience store and newsagency that led to Ralph working seven days a week, eighteen hours a day whereafter Ralph became involved in the real estate industry briefly until he said he could no longer accept the unethical behaviour of his partners in business, and since which time Ralph said he attempted to enter the workforce in a number of capacities including in his old profession of the printing business however by Ralph’s account he had difficulty working around people with Ralph describing himself as being angry, fearful, and paranoid as well as hypersensitive that led to interpersonal altercations and road rage behaviour until, Ralph said, he felt he was no longer able to be productive in the workforce and do justice to his employer with Ralph electing to retire from the workforce in 1997.
Ralph stated that he had always been keen to remain an active and productive person in society and he subsequently involved himself in volunteer policing for a period while more recently he has been engaged in helping other veterans through the Veterans Associations with Ralph remarking that being active helps to distract him fro the intrusive thoughts relating to his Vietnam service.”
48. Dr K G McNamara, Consultant Psychiatrist, provided a written report dated 1 February 2000 about the applicant. (Exhibit A1) In that report Dr McNamara refers to a report of Dr Maxwell Katz dated 7 January 1999 and on the basis of Dr Katz’ report concludes that there is no doubt that the applicant suffers from significant chronic post traumatic stress disorder with a past history of secondary alcohol abuse and determined a GARP disability rating for these two conditions of 29 points.
49. Neither Dr Katz or Dr McNamara were made available to give oral evidence or to be questioned about their reports.
Submissions
50. It was submitted for the applicant that he clearly meets section 24(1)(a) of the Act.
51. It was further submitted that, based on the evidence of the applicant and the medical evidence, the Tribunal would be satisfied that the applicant’s incapacity, because of his accepted disabilities, is such as to alone render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week. It was therefore submitted that the applicant meets the criteria in section 24(1)(b) of the Act.
52. In respect of section 24(1)(c) of the Act, Mr Lee referred the Tribunal to Forbes v Repatriation Commission [2000] FCA 3825, where his Honour Justice Nicholson said (at par 24):
“the requirements of s24(1)(c) of the Act have been considered by the Full Court in Flentjar v Repatriation Commission (1988) 48 ALD 1 at 4-5. There, Branson J, with whom Beaumont and Merket JJ agreed said:
‘In my view the issues before the Tribunal in this case were as follows:
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, the only factor or factors preventing the veteran from continuing to undertake that work?
3.If the answers to question 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?’.”
53. Mr Lee also referred the Tribunal to Repatriation Commission v Alexander [2003] FCA 399 where the application of section 24(1)(c) of the Act was considered.
54. It was contended for the applicant that following the approach set out in Forbes above, the applicant satisfied the criteria in section 24(1)(c) in that it is his war-caused PTSD and alcohol dependence that alone prevent him from continuing to undertake remunerative work. It was further submitted that if the Tribunal were to find that the full rigour of section 24(1)(c) could not be satisfied, then pursuant to section 24(2)(b) of the Act (the ameliorating provision), the applicant’s PTSD and alcohol dependence are the substantial cause of his inability to obtain remunerative work and that it is open to the Tribunal to find that the applicant, at the relevant time, was genuinely seeking work, thereby satisfying section 24(1)(c).
55. It was submitted therefore that the applicant should be paid disability pension at the Special Rate.
56. Mr Smith, for the respondent, submitted that the Tribunal’s attention must focus on the assessment period, namely from 18 September 2001 to date of application to the present date. Furthermore, it was submitted that as the applicant’s alcohol dependence contributed to his difficulties in working, any grant of Special Rate pension cannot be backdated earlier than the date of acceptance of his alcohol dependence, namely 23 October 2001. In so submitting, Mr Smith referred the Tribunal to Repatriation Commission v Maloney (1993) 30 ALD 449.
57. The respondent conceded that the applicant clearly meets the criteria of section 24(1)(a) of the Act. However, it was submitted that section 24(1)(b) and section 24(1)(c) were not satisfied in this case.
58. It was submitted that the Tribunal would be satisfied that it should accept the opinions of Dr Knight rather than those of Dr Wright in respect of capacity to work, Dr Knight being an occupational specialist. It was also submitted that the Tribunal should take into account the inconsistencies in the various opinions expressed by Dr Wright about the effects of the applicant’s non-accepted arthritic conditions. Furthermore, the respondent contended that both of the psychiatric opinions before the Tribunal rated the applicant’s PTSD and alcohol dependence at a GARP score of approximately 30, this being only a moderately severe rating and that this was not inconsistent with the opinions of Dr Knight.
59. The respondent drew the Tribunal’s attention to the fact that the applicant ceased work in September 1996 at which time, on the latest opinion of Dr Wright, he was 100% free of all conditions other than PTSD and alcohol dependence, whereas, on the other hand, in an earlier opinion of Dr Wright, the applicant’s conditions in both his ankles, as at 19 April 1999, had an overwhelming effect on all relevant system functions.
60. Mr Smith submitted that the applicant was capable of working full-time at the time of ceasing work and that, in leaving his prior employment with Dave Allen, significant factors leading to this action were the death of his son and his dissatisfaction with the work ethics. Likewise, a significant factor in him ceasing work with Peter Stuart was because Peter Stuart sold the business. It was therefore submitted that pursuant section 24(2)(a) of the Act, he had ceased work for reasons other than his incapacity from war-caused disabilities. In so far as the ameliorating provisions of section 24(2)(b), it was contended that on the evidence before the Tribunal it could not be said that the applicant was genuinely seeking work at the relevant time. Furthermore, it was submitted that the applicant in applying for jobs, including interviews, did not achieve employment for reasons related to his qualifications and age, not because of his accepted disabilities.
61. In summary it was submitted that the applicant ceased work because of the closure of the business he was working for; that he had significant non war-caused disabilities; that although he genuinely sought work immediately after his loss of employment, his war-caused incapacity was not the substantial cause of his inability to obtain remunerative work, rather that his age, lack of suitable qualifications and his non war-caused disability played a major role.
62. In so submitted Mr Smith referred the Tribunal to Repatriation Commission v Braund (1991) 23 ALD 591 where his Honour Justice Pincus said (at 595):
“It was enough to hold that in 1975 the applicant was prevented from continuing to work because of his war-caused disabilities. The critical question, on these facts, was whether, as at 28 February 1984 ‘date of applicant’ the respondent was within the description set out in section 24(1)(c) of the VE Act. He might well have retired because of war-caused incapacity in 1975, but nevertheless not have been able to show that his situation at the age of 70, 9 years later, was that he was prevented from working from the incapacity alone. If the respondent’s position in 1984 was that, incapacity or no, he would probably would not have worked for a living, then in my opinion the Tribunal should not have held him entitled to the Special Rate pension.”
Consideration
63. In considering Special Rate of pension his Honour Justice Burchett in Cavill v Repatriation Commission (1988) 9 AAR 539 stated:
“To distract the Tribunal from its true task – 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 any philosophical distinctions, but with an eye to reality, and as a matter in respect of which commonsense is the proper guide”
With respect, the Tribunal adopts this approach in consideration of this matter.
64. It is common ground in this matter that the veteran satisfies sub-section 24(1)(a) of the Act and on the material before it, the Tribunal so finds.
65. Turning then to the application of section 24(1)(b). In any subsequent consideration the Tribunal must have regard to the matters set out in section 28 of the Act. This section requires the Tribunal to take into account the vocation, trade and professional skills and experience of the veteran, the kind of work a person with such attributes might reasonably undertake and the degree to which the veteran’s war-caused disabilities have reduced his capacity to undertake this kind of work.
66. The Tribunal is mindful that it is the type of work in which the veteran has engaged that must be considered rather than his last form of employment or any particular job: Starcevich v Repartition Commission (1987) 18 FCR 221; Banovich v Repatriation Commission (1986) 69 ALR 395.
67. In this case, on the material before it, the Tribunal is satisfied that the applicant has vocational skills and experience in the printing industry, managerial, supervisory and clerical skills, and experience and qualifications in the real estate business in the marketing and sale of management rights. The Tribunal is satisfied that it is this type of work that needs to be considered in determining the degree to which the veteran’s war-caused impairments reduce his capacity to work.
68. Dr H C Wright, the veteran’s LMO, is firmly of the view that the veteran can not undertake remunerative work because of his PTSD and alcohol dependence and that these conditions alone render him unemployable. Dr Katz, Consultant Psychiatrist, saw the veteran in January 2002 and as at that time was of the opinion that the veteran was unable to work because of emotional and behavioural impairment. Dr K G McNamara, Consultant Psychiatrist, in February 2000 expressed the view that the veteran had “certainly lost any original vocation for which he was trained or experienced” and gave him a GARP rating of 6 in respect of occupation. Dr G Knight, Consultant Occupational Physician, has, at October 2000, found the veteran’s PTSD to not be significant in respect of his ability to work and took no record at all nor did he make any comment about the veteran’s use of alcohol. In his oral evidence, Dr Knight agreed that if the veteran suffered from significant PTSD and alcohol dependence, these conditions certainly would impact on his capacity to work.
69. After careful consideration of the applicant’s evidence, the medical evidence and medical opinions, and the submissions of both parties (and noting that the applicant’s PTSD was accepted as war-caused prior to 2000 and that his alcohol dependence was accepted from 23 October 2001), the Tribunal, on balance, is satisfied that it is because of the applicant’s war-caused PTSD and alcohol dependence alone that he is now rendered incapable of undertaking remunerative work of the type as described in paragraph 67 above. The Tribunal therefore finds the applicant satisfies 24(1)(b) of the Act.
70. Turning then to the critical issue in this matter, that is, whether the applicant satisfies the criteria in section 24(1)(c).
71. In the matter of Magill v Repatriation Commission [2002] FCA 744, the Federal Court recently addressed the approach that must be taken in the application of the provisions of section 24(1)(c) of the Act. A summary of what his Honour Justice Drummond said is set out below.
72. Section 24(1)(c) consists of two limbs, each of which must be satisfied. The first limb of the subsection provides:
“The veteran is, by reasons 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…”
This must be read with subsection 24(2)(b).
73. The facts in respect of a particular veteran may be such that this first limb is clearly satisfied. However, there may be circumstances where a veteran’s war-caused incapacity, while not being the sole cause of his inability to obtain work, nevertheless is the substantial cause and subsection 24(2)(b) provides for these circumstances. It is an ameliorating provision which sets out criteria which, if satisfied, allows a veteran to meet the alone criteria of subsection 24(1)(c).
74. In summary, subsection 24(2)(b) allows a veteran to meet the alone test if the veteran has been genuinely seeking to engage in remunerative work, that the veteran, but for his war-caused incapacity would be continuing to seek to engage in remunerative work, and the veteran’s war-caused incapacity is the substantial cause of his inability to obtain remunerative work in which to engage.
75. The second limb of subsection 24(1)(c) which must also be satisfied, requires the veteran to suffer a loss of salary or wages or earnings that the veteran would not be suffering if he were free of his war-caused incapacity.
76. The loss referred to in this section may be caused by a loss of existing employment or by an inability to obtain employment.
77. This second limb must be considered with subsection 24(2)(a). This subsection, that is subsection 24(2)(a), narrows the second limb in that a veteran will not satisfy that limb if, though suffering a loss of wages, salary or earnings that may be causally related to the veteran’s war-caused injury or disease, there are other reasons that are also causally related to the veteran having ceased to engage in work or related to the veteran being prevented from engaging in work.
78. In respect of section 24(1)(c) in its unameliorated form, the question before the Tribunal is whether the veteran’s war-caused disabilities are the only factors preventing the veteran from continuing to undertake the relevant remunerative work.
79. Consistent with what was said in Forbes and Alexander (supra) if non service-related conditions or circumstances are factors preventing the veteran from continuing to undertake remunerative work, albeit of secondary importance, the “alone” requirement of section 24(1)(c) can not be satisfied.
80. After careful consideration of all of the material before it and the submissions of both parties, the Tribunal, on balance is satisfied that there were significant non service-related factors in the veteran’s ceasing to work in the printing business. The Tribunal is also satisfied that the veteran changed jobs in his subsequent employment in the operating and selling of real estate management rights for reasons including significant reasons not related to his service. Furthermore the Tribunal is satisfied that a significant factor in the applicant ceasing work was the closure of the company for which he worked. The Tribunal is therefore satisfied that the veteran cannot bring himself within the full rigour of section 24(1)(c). In being so satisfied the Tribunal has not taken into account any of the applicant’s medical conditions not accepted as war-caused. The Tribunal is mindful that the VRB, in arriving at its decision that the veteran does not meet the criteria of section 24, took into account the veteran’s non accepted disabilities of osteoarthritis in the back, right shoulder and both wrists. The Tribunal notes that Dr CH Wright, in his oral evidence was firmly of the opinion that these conditions had been brought under control as a result of his treatment of the veteran and that with effect early 1997 they had no significant effect of his capacity to work. Dr Wright maintained this view even though, in 1999, as was pointed out at the hearing of this matter, he had rated the effects of the veteran’s osteoarthritis of both ankles as “overwhelming” in respect of his capacity to work. Dr Wright was not able to explain this inconsistency, however, as indicated above, the Tribunal has found it can be reasonably satisfied that the veteran does not meet the full rigour of section 24(1)(c) without proceeding to make a finding in respect of the veteran’s non-accepted osteoarthritic conditions.
81. Turning then to the ameliorating provisions of section 24(2)(b), the Tribunal is mindful that the evidence before it points to the applicant’s PTSD and alcohol abuse as being significant factors in his inability to obtain work. The question before the Tribunal is whether either or both of these conditions are the operative and predominate factor in the applicant’s inability to obtain remunerative work: Fox v Repatriation Commission (1997) 45 ALD 317 at 319-320; Re Sanfead v Repatriation Commission (1986) 11 ALN 77. After careful consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied that the applicant’s accepted war-caused disabilities and, in particular, his PTSD and alcohol dependence, are not the substantial cause of his inability to obtain remunerative work.
82. In arriving at this conclusion, the Tribunal has taken into account Dr Wright’s evidence of the functional impact of the veteran’s accepted disabilities; GARP ratings of the veteran’s emotional and behavioural conditions as determined by Dr Katz and Dr McNamara; and the very large number of job applications/interviews the veteran undertook with no success, principally (on the applicant’s own evidence) because of his age and his lack of appropriate qualifications. The Tribunal is satisfied that the applicant’s age, time out of the workforce and lack of appropriate qualifications are of equal significance to the veteran’s accepted war-caused disabilities in respect to his ability to obtain remunerative work.
83. For the sake of completeness the Tribunal has also considered whether within the provisions of section 24(2)(b) it can be said that the applicant has been genuinely seeking to engage in remunerative work.
84. In Re Hornery and Repatriation Commission (1998) 52 ALD 317, the Tribunal said (at 331-332):
“The wording of the provision … requires that the tribunal must be satisfied that Mr Hornery ‘has been genuinely seeking to engage in remunerative work’. The Tribunal agrees with Deputy President McMahon in Re Bonner and Repatriation Commission (1989) 17 ALD 680 as reported at 681 that ‘the use of the word ‘genuinely’ in the paragraph indicated the necessity for some objective signs of active pursuit of remunerative work. Mr Hornery’s active pursuit of remunerative work ceased in 1986 when he was granted invalid pension.
…
Section 24(2)(b) refers to a veteran who ‘has been genuinely seeking to engage in remunerative work’ and in the tribunal’s view, this being a special provision to ameliorate s 24(1)(c) in so far as its effect is that the alone test there does not apply, it was intended to apply where the veteran’s genuine and active pursuit of work, that is, his or her efforts to obtain work were brought to an end by incapacity from war-caused injury or disease. By saying that, the tribunal does not mean to say that incapacity from war-caused disease or war-caused injury must have supervened at such time as the veteran was seeking on a daily or weekly basis to find work but in the tribunal’s view it must supervene at such a time as the veteran can properly be said to have been genuinely seeking to find remunerative work, with there being ‘some objective signs of active pursuit of remunerative work’: Re Bonner, above.”
85. The Tribunal is satisfied that the veteran genuinely sought work after ceasing employment in September 1996 and that he continued to do so up until some time in the second half of 2001. The applicant was unable to be precise about when he had his last job interview but he was clear that it was definitely before the remembrance day of his son’s death on 27 September 2001. In this case the applicant lodged his claim for disability pension on 18 September 2001 and, on balance, the Tribunal is satisfied that the applicant was not genuinely seeking work during the relevant period and that he, in effect, had given up seeking work as a lost cause at the time of his application for disability pension and medical treatment.
86. It follows from the above reasons the Tribunal is reasonably satisfied that the applicant does not satisfy the requirements of sections 24(1)(c) and 24(2)(b) of the Act and therefore pension is not payable at the Special Rate.
87. The Tribunal affirms the decision under review.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 30 May 2003
Date of Decision 27 June 2003Solicitor for the Applicant Mr D Lee, Cass Legal Group
For the Respondent Mr M Smith, Departmental Advocate
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