TIMOTHY PEARSON and REPATRIATION COMMISSION
[2009] AATA 856
•6 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 856
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4205
VETERANS' APPEALS DIVISION ) Re TIMOTHY PEARSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy RFD, Senior Member Date6 November 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]..........
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Rate of pension payable – Posttraumatic Stress Disorder – Applicant did not cease work because of service related conditions alone – Decision under review affirmed.
Evidence Act 1995 (Cth), ss 76, 79, 136
Veterans’ Entitlements Act 1986 (Cth), ss19, 23, 24, 28, 120(4), 120(6)
Australian Securities and Investments Commission v Rich (2005) 218 ALR 764
Browne v Dunn (1893) 6 R 67
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Hussein v William Hill Group [2004] EWHC 208 (QB)
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 564/1996
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Strickland (1990) 22 ALD 10
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Tomlin v Repatriation Commission, Federal Court, 1 August 1997, 705/1995
REASONS FOR DECISION
6 November 2009 Dr KS Levy RFD, Senior Member INTRODUCTION
1. The Applicant, Timothy Pearson, made a claim for disability pension with respect to a “psychiatric condition” on 11 August 2005. In a decision dated 26 September 2005, the Repatriation Commission determined that conditions of anxiety disorder, alcohol dependence and alcohol abuse were not related to service. On 15 March 2007, the Veterans’ Review Board varied the diagnosis of alcohol dependence and alcohol abuse to alcohol abuse only and affirmed the remainder of the decision.
2. On 25 October 2007, the Administrative Appeals Tribunal (“the Tribunal”) approved consent orders between the parties and determined that anxiety disorder and alcohol dependence/alcohol abuse were war-caused with effect from 11 May 2005. The Tribunal then remitted the matter to the Repatriation Commission for assessment of pension. Subsequently, in a decision dated 5 December 2007, the Repatriation Commission increased Mr Pearson’s disability pension to 70% of the general rate with effect from 11 May 2005. On 18 August 2008, the Veterans’ Review Board determined that disability pension at 70% of the general rate should apply from 11 May 2005 but that it should be increased to 80% of the general rate from 26 December 2007.[1]
[1] Exhibit 5.
3. The present application is for review of the Veterans’ Review Board decision of 18 August 2008. In question is whether the intermediate rate or special rate of pension is applicable as provided for by ss 23 and 24 of the Veterans’ Entitlements Act 1986 (“the Act”), respectively.
EVIDENCE
4. Mr Pearson was born on 19 March 1948. Now 61 years of age, he was 57 years of age on the “application day”. Relevantly, after being unsuccessful in pursuing the military career of his choice in the British Army, he emigrated to Australia and joined the Australian Regular Army in 1968. He undertook a three year engagement and was discharged in 1971. He was employed in the intelligence corps and served in South Vietnam on operational service from 25 June 1969 to 18 June 1970. He has accepted service injuries or diseases as follows:
· Bilateral sensory neural hearing loss with tinnitus;
· Intertrigo of the groin;
· Anxiety disorder;
· Alcohol dependence or abuse;
· Posttraumatic stress disorder.
5. Conditions of bilateral presbyopia and bilateral hypermetropia have been rejected as not being related to Mr Pearson’s service. On return from South Vietnam, Mr Pearson worked with the Army in Canberra until his discharge in 1971. Following that, he was employed by the “Asia and Pacific Council” and set up a directory of consulting engineers. He left there after a year and said, “I could not cope with this job and hated it.” His evidence is also that he could not handle the pressures of working for someone else. He then set up his own business, “Clean Pane”—a cleaning business that was initially operating on a weekend basis only. He went door to door offering to clean windows. At the time, he was married; his wife was working full-time doing administrative work for a private company. She had a secure position, which allowed for him to set up his business and yet for them both to still live comfortably. Shortly after setting up “Clean Pane”, he was offered a subcontract from a cleaning contractor. He later tendered for contracts independently and got a number of government cleaning contracts. He then owned and managed a cleaning business from 1972 to 1986. He also commenced another business, operating a service station from 1983 until 1993. All of these businesses were conducted in Canberra and mainly managed from his home. His various homes over time were mostly located outside main residential areas. He said working from home in more isolated locations was mainly a coping mechanism and he had few friends.
6. Mr Pearson started drinking in South Vietnam. Working mainly in base areas, he had access to regular supplies of alcohols. He continued drinking after he left the Army, drinking at least six full-strength cans of beer per day. Mr Pearson said that as his business grew, he became “less able to cope with pressure” and so drank even more. He said he sold his business because he “could no longer cope”. He stated that “I also encounter difficulty coping with my staff, most of them were casuals.” He said that he consequently employed someone to manage his staff. His first marriage broke down because of heavy drinking in 1983 or 1984. By that time he owned a 40 acre rural property at Lake George, on which he built a small “hut”. He lived there for the first 18 months after the breakdown of his marriage. In 1984 or 1985 he purchased another rural property (at Braidwood), which contained two houses. Both properties ran sheep and he had a manager looking after them. Also in 1984, he purchased an industrial estate in Fyshwick where he operated a discount service station. His evidence was that he had employees physically running the service station but that he conducted the business mostly over the telephone from the hut at the Lake George property. At that time also he would go to the local pub to drink at night, possibly even every second night. He would occasionally drink with an acquaintance or else he would drink alone. He avoided drinking in groups.
7. In 1988, Mr Pearson married his second wife. They were introduced by his parents. It was then that he bought the rural property at Braidwood, which he subsequently sold. He then moved to metropolitan Canberra. By 1993, he said he could not cope with his marriage or running his businesses. He leased out the service station, which gave him financial security. He then purchased a yacht at Southport (Queensland) and sailed to Lizard Island and then to Tasmania for 11 months. His wife visited him every couple of months. She then instituted proceedings for a property settlement. Shortly after, the company conducting his service station was wound up by the Australian Taxation Office. Mr Pearson then sailed to Keri Keri, New Zealand. Family Court Orders were made and served on him in New Zealand. As a result, his yacht was impounded by the New Zealand High Court. He then secured a position as a manager of a Dick Smith Electronics store owned by Esmond Hart.
8.
In New Zealand, Mr Pearson accepted the position of general manager of the Dick Smith dealership. Mr Hart, with some guidance from Mr Pearson, purchased an old cinema with an attached licensed café/bar. Mr Pearson noted this was the first time he had been employed (as opposed to self-employed) since 1972. His duties as general manager involved purchasing stock and supervising staff. It was a hands-on role. He received a small salary plus a share of the profits for 12 months. He told the Tribunal he could not take orders and found it frustrating working for the business owners. The purchase of the additional business by Mr Hart resulted in a dilution of the profits of the Dick Smith business and, consequently, his share of profits dwindled. He did not cope well with Mr Hart’s interference and said that at that time he also had some difficulty dealing with staff. There were five staff employed in the shop. Mr Pearson said that after 12 months he was sacked by
Mr Hart, although it was called a redundancy. He attributes this to Mr Hart and his wife, who did not like confrontation. He said his own style of interaction with them was confrontational and that he was removed because he was not compliant. He subsequently won a legal action and received $7,000 for his share of the profits originally promised to him.
9. While at Keri Keri, Mr Pearson met a former Australian serviceman who said that his condition might probably be due to his military service in South Vietnam.
10. Mr Pearson then returned to Australia in November 2001. He applied for a number of managerial positions. He was not interviewed by any prospective employer except when he applied for two low-level sales positions at a hardware distributor in Brisbane. He undertook the interview and then a psychological test, as requested. He was unsuccessful in securing that position.
11. Mr Pearson formed a relationship with a lady called Chris in 2003. In September 2005, he commenced a de facto relationship with her and lived at her rented residence at Calamvale. That residence was on 2.5 acres. He continued to drink heavily there and was not entitled to any Centrelink benefits because of her assets. The relationship with Chris broke up in October 2006.
12. Mr Pearson provided a supplementary statement on 2 June 2009. He stated that he now lives in Manly. He also stated that he genuinely wanted to work and that he applied for many sales positions and senior management positions. He was unsuccessful in all of those applications.
medical evidence
13. Specialist medical evidence was obtained from Dr William Hurley (in a report dated 2 September 2005); Dr Jonathan Hargreaves (in reports dated 25 September 2006 and 7 November 2006); and Dr Philip Morris (in a report dated 12 June 2007). The medical evidence assesses three incidents that Mr Pearson claims are the basis for his psychiatric condition. The incidents are:
· While returning in a jeep from an American base to the Australian headquarters in Nui Dat, Mr Pearson heard a burst of bullets. He could not see where it came from and neither he nor the driver of the vehicle were injured. They did not report the incident even though Mr Pearson admitted that he was obliged to do so.
· On another occasion while travelling in a jeep, Mr Pearson drove past a group of Army of the Republic of Vietnam soldiers standing by the body of a dead woman lying in a ditch.
· One day at Nui Dat, from a distance of about 30 metres, he saw two wounded Australian soldiers unloaded from a helicopter. He said they had been injured by explosives in a minefield.
14. In respect of the first incident, Mr Pearson did not tell Dr Hurley (although he subsequently told Dr Hargreaves) that he was not supposed to be in that area—he was getting alcohol. That may account for his not reporting the matter. However, he did tell Dr Hargreaves and Dr Morris in subsequent consultations that the jeep had been hit by a bullet, which was only discovered the next day.
15. In relation to the third incident, Mr Pearson told Dr Hurley that even from 30 metres the sight of the injured soldiers was: “Horrific! Blood and guts everywhere.” However, on being further questioned by Dr Hurley, he said, “No, I didn’t see any guts, just blood.” He described the same incident to Dr Hargreaves by saying that he was shocked by the injuries, which included severe leg and chest wounds. In the final consultation with Dr Morris, he described two wounded soldiers being unloaded from a helicopter about 30 metres from him and said that he was not close enough to see the actual details of their injuries. However, he also told Dr Morris that he went to the local club and got drunk after he witnessed this sight.
16. Dr Hurley provided diagnoses of alcohol dependence and abuse and generalised anxiety disorder. While he had some doubt about the onset of the alcohol dependence and abuse, he determined that the onset of these conditions occurred in South Vietnam. He said Mr Pearson could work for more than 20 hours per week. Dr Hargreaves diagnosed posttraumatic stress disorder (“PTSD”) as well as alcohol abuse. In his first report, Dr Hargreaves provided an impairment rating of “FIVE” in relation to occupation. That rating is defined in the Guide to the Assessment of Rates of Veterans’ Pensions (5th ed) as: “An employed veteran will have major difficulties at work, which may be manifested by job modification or restriction of career opportunities. The disorder may contribute to the loss of a job.” Six weeks later, Dr Hargreaves issued a further report and changed that rating to “EIGHT”, which is defined as: “The veteran cannot work”. Dr Morris diagnosed alcohol dependence and anxiety disorder (not otherwise specified), and said onset of both conditions was in 1999. His assessment of impairment was that Mr Pearson could work part-time for about 10 to 15 hours per week in suitable duties.
CONSIDERATION
17. I have considered all of the evidence and all of the relevant law in making a determination in this matter.
18. The facts in issue require one to reconcile the reports of the medical experts; to consider whether Mr Pearson can work at all; and, if so, to consider whether he can work more than eight hours per week. Also, the assessment of this matter is to be made during the assessment period, which starts on the application day and ends when the claim or application is determined: s 19(9) of the Act. The assessment is made in accordance with the standard of proof set out in s 120(4) of the Act, i.e. according to the standard of reasonable satisfaction. There is no onus of proof on either party: s 120(6) of the Act.
19. The main provisions relevant to this application are ss 23 and 24 of the Act. Section 23 is concerned with a person who is capable of working 50% or more of the ordinary hours worked on a full-time basis, or who is capable of working for 20 hours or more per week. Only Dr Hurley, who assessed Mr Pearson in 2005, has suggested that he could work more than 20 hours per week. In addition, neither
Mr Pearson nor the Respondent has made any submission about the applicability of s 23. I therefore make no finding in relation to s 23 and do not consider it further.20. Both Mr Pearson and the Respondent have mainly concentrated their submissions in relation to s 24 of the Act. Section 24(1) is satisfied in respect of subss (aa), (aab) and (a). Sections 24(1)(b) and 24(1)(c) are the major areas in contention. Section 24(1)(b) requires that a veteran be 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
Section 24(1)(b) of the Act
21. The first task arising from s 24(1)(b) of the Act is to establish Mr Pearson’s capacity to undertake remunerative work. This is done by having regard to the following matters, as outlined in s 28 of the Act:
(a)The vocational, trade and professional skills, qualifications and experience of Mr Pearson:
·This provision is to be given a broad meaning in relation to skills and experience. It includes formal training and experience in employment, together with aptitudes and abilities which the person has acquired innately, “independently of employment or training“: Chambers v Repatriation Commission (1995) 55 FCR 9 at 23. Applied to the present case, Mr Pearson has experience in intelligence gathering (essentially, administrative skills), cleaning (manual work) and managing his own business as well as a business in New Zealand (management/supervisory skills in retail sales);
(b)The kinds of remunerative work referred to in paragraph (a) which Mr Pearson might reasonably undertake:
·
This is a consideration of the reasonableness of options for a person in Mr Pearson’s position undertaking different kinds of work. It includes not only the kind of work the veteran has been undertaking but could include other relevant work which a person in Mr Pearson’s position could undertake “reasonably”. This work must of course be able to be regarded as “vocational, trade and professional” in character (as per
s 28(a) of the Act). While I accept that the psychiatric assessment indicates Mr Pearson is probably now less tolerant of working with others, the evidence of Dr Hurley and Dr Morris indicates that
Mr Pearson could be capable of at least 10 to 15 hours per week in a management role where he is “in control”. Accepting Dr Morris’ view that Mr Pearson’s employment would have to be in suitable duties, for the purposes of this subsection the kinds of remuneration work he might reasonably take is managerial work, or perhaps administrative work in a low stress environment;
(c)The degree to which Mr Pearson’s impairment has reduced his capacity to undertake the kinds of remunerative work:
·This assessment is focussed only on the impact of war-caused injury or disease and this test is concerned with how many hours of work per week the person can perform.
22. The evidence above notes the differences in the diagnoses and conclusions of the three medical experts. In the end, there is little or no difference in the diagnoses despite the use of some different language. However, there is certainly a difference in the assessment of Mr Pearson’s capacity for work.
23. The most notable difference is contained in the report of Dr Hargreaves. He revised his original assessment in a report dated 7 November 2006 (six weeks after his initial report) by stating that Mr Pearson cannot work at all. During cross-examination, Mr Stoner (for the Respondent) pressed Dr Hargreaves as to why he did so and also why his second report was addressed to an advocate of the Returned and Services League of Australia. Dr Hargreaves denied that the second report showed he had acquiesced to pressure but stated it was where Mr Pearson asked him to send this report. In light of the differences in some of the accounts given by Mr Pearson to the various psychiatrists, and as a consequence of the examination and cross-examination of Dr Hargreaves, I asked him to explain why he concluded that Mr Pearson cannot work at all due to PTSD (rather than personality factors). He replied, “I can’t give a solid answer whether a personality factor is highly significant or not”, but referred to Mr Pearson being a person of significant ability who could have achieved more with his life. He thought something other than personality factors had affected Mr Pearson and that Vietnam was the only other reason he could find.
24. How does one resolve the difference of opinion between Dr Hargreaves and the other two experts? Mr Stoner suggested that Dr Hargreaves’ opinion should be given less weight than that of the other doctors. I note that Dr Hurley had long consultations and saw Mr Pearson three times. Equally, Dr Morris gave a very full report. However, I have concluded that Dr Hargreaves’ opinion is outweighed by the opinions of the other doctors. Only Dr Hargreaves was called to give oral evidence, the reports of the other doctors being accepted by both parties. Section 76 of the Evidence Act 1995 (Commonwealth) provides that opinion evidence is not admissible. An exception to that rule exists in section 79 of that Act for an expert’s “specialised knowledge … that is wholly or substantially based on that knowledge.” Section 136 of that Act then provides a general discretion to limit the use of evidence if there is a danger that it is either unfairly prejudicial to a party or misleading or confusing.
25. One of the most informative authorities by way of principle in this area is the judgement of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, where His Honour held that after establishing that the opinion proffered falls within the domain of “specialised knowledge” (and after the Court being satisfied the person giving the opinion is appropriately qualified to give expert evidence), then:
so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” fact, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” … applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge”. If the Court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.[2]
[2] Makita v Sprowles at 743-744 [85]. This reference relates to the statutory authority in s 79 of the Evidence Act 1995.
26. The Federal Court has adopted a less rigorous approach as to admissibility of such evidence: see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [87] per Weinberg and Dowsett JJ. More recently, in Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 at [136], Spigelman CJ in the New South Wales Court of Appeal held, after considering Heydon JA’s judgement in Makita v Sprowles (supra), that “[t]he fact that the expert’s opinion was at one time—or even still is—reinforced by undisclosed facts and reasoning processes is irrelevant to the admissibility of the opinion (although those matters may go to weight)”. He noted further at [156] that “it may be the case that with respect to particular matters, the underlying fact or facts said to be the basis of specific opinion, whether final or of an intermediate character, are so weak that the probative evidence of the opinion will be extremely weak.”
27.
In Hussein v William Hill Group [2004] EWHC 208 (QB), psychiatrist
Dr Hussain diagnosed the plaintiff with PTSD after an assault by a customer using a cardboard tube carrying posters. No external physical injuries were apparent. The Court held that Dr Hussain (the expert witness) was biased and so rejected most of the propositions in his report. The Court found expert witness bias on the basis that the plaintiff did not describe any symptoms to another psychiatrist to whom he was referred for independent assessment. The trial judge rejected Dr Hussain’s expert opinion.
28. I have considered the relevant balancing factors. The development of PTSD is such that victims’ inability to recognise their condition (or to describe it) is often indicative of PTSD rather than its absence.[3] However, in such a case, there are often indicia which support or weaken a diagnosis. The same can said of some of the conclusions drawn by a psychiatrist, such as the degree of disability or incapacity of a person with this condition.
[3] See the criteria for PTSD in the Diagnostic and Statistical Manual of Mental Disorders (4th ed).
29. In the light of the law to be applied, I have examined more closely the evidence of the Applicant and that of the experts. In the present case, Mr Pearson’s claims are based on his need to be alone, particularly in the early days after he was discharged from the Army. He attributes this to his operational service experience. He then ran a company for a very long time, building it up to a very successful operation and negotiated cleaning contracts with government departments. He would then drink each day, commencing about 4 pm, often to excess.
30.
Mr Pearson’s businesses grew and diversified. After marriage failure and changing business circumstances, he sailed a yacht to New Zealand. There, he took a job as a manager. He apparently displayed personality traits which encouraged the proprietor to develop the businesses further. He seemed to have been successful in that role (based on his achievements as described in evidence). He also socialised each night in a bar in one of the business premises. There were obviously personality differences between Mr Pearson and his employer. However, the ‘aloneness’ factor said to be present when running his cleaning business and the service station seems to me to be inconsistent with Mr Pearson’s later work pattern in New Zealand. In considering Dr Hargreaves’ explanation of the apparent difference in Mr Pearson’s work life and mental state, I did not find him deliberately biased. However, I am not convinced that all of Dr Hargreaves’ opinion is “wholly or substantially based” on his specialised knowledge, and I find the explanation of his reasoning wanting to some degree in that it does not fully satisfy the requirements laid down by Heydon JA in Makita v Sprowles. Dr Hargreaves agreed with Mr Stoner that while his second report is based on the applicant not wanting to work under the orders of someone else, that is not a criteria for establishing PTSD. He also agreed he could not exclude that some personality factors were operative in relation to the applicant’s work experience in New Zealand. The reasoning of
Drs Hurley and Morris, and their conclusions as to Mr Pearson’s capacity for work being greater than eight hours per week, is in my view to be preferred and seems more consistent with my observation of Mr Pearson and his evidence.
31. Based on my analysis of the factors in s 28 of the Act and rejecting the opinion of Dr Hargreaves, I find as a fact that Mr Pearson can work more than eight hours per week. Therefore, he does not satisfy the test in s 24(1)(b) of the Act.
Section 24(1)(c) of the Act
32. Section 24(1)(c) of the Act requires that:
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.
Therefore, s 24(1)(c) requires Mr Pearson’s inability to continue to undertake remunerative work, and the consequential loss of salary or wages, to be attributable to war-caused injury or war-caused disease, or both, alone. There are therefore two limbs to be considered.
33. The first limb in s 24(1)(c) of the Act is concerned with a veteran being prevented from continuing to undertake remunerative work. The assessment of this limb is amplified in s 24(2)(b) of the Act, which relates to a veteran under 65 years of age and is often referred to as an “ameliorating” provision. The veteran must show “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 …” The second limb in s 24(1)(c) of the Act is in turn amplified in s 24(2)(a) of the Act. That latter provision relates to the loss of salary or wages and provides that a veteran will not satisfy the second limb if he or she has ceased work for some reason other than the war-caused injury or war-caused disease.
34. In Repatriation Commission v Hendy (2002) 76 ALD 47 at 54, the Full Court of the Federal Court described the task for the Tribunal in considering the application of s24(1)(c) of the Act to a claim before it as “...to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period.” It is “a hypothetical exercise” to determine the “alone” test. The resolution of the legal issues is assisted by a four stage test that was set out in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 (per Beaumont, Branson and Merkel JJ):
1.What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
Question 1
35. Mr Harding (for the Applicant) and Mr Stoner both submitted that the remunerative work Mr Pearson was undertaking was that of: a cleaning contractor; the manager of a discount service station (not a hands-on role); the manager of a cinema café/bar; and the manager of an electronics distribution store. The type of remunerative work that should apply to Mr Pearson was not in dispute. However, given his age and length of experience, I do not think it appropriate that manual work (such as cleaning) be included— not only because of Mr Pearson’s age but also because it would be denigrating him to some degree. Therefore, I find that the appropriate remunerative work for Mr Pearson is a “management role”, whether in retail or in a service oriented business.
Question 2
36. The second question is whether Mr Pearson’s war-caused injury or war-caused disease (or both) prevents him from continuing to undertake the work identified in Question 1, above. Dr Hurley said that Mr Pearson did not cease work because of the two diagnosed psychiatric conditions. However, I think a fair reading of the expert evidence as a whole is that Mr Pearson’s PTSD and alcohol abuse are, at least in part, attributable to his military service. Therefore, Question 2 must be answered “yes”.
Question 3
37. Question 3 is concerned with whether the war-caused injury or disease assessed in Question 2 is the only factor preventing Mr Pearson from continuing to undertake remunerative work. This is the “alone” test.
38. The “alone” test must be based on whether the incapacity is fundamentally attributable to service related incapacity, not to something else: Cavell v Repatriation Commission (1988) 9 AAR 534 at 539. It is not a rigid test but must be applied reasonably, “guided by commonsense with an ‘eye to reality’”: Jackman v Repatriation Commission, Federal Court, 30 June 1997, 564/1996 per Tamberlin J. Section 24(1)(c) of the Act will not be satisfied if the veteran ceases work for a reason other than the incapacity attributed to the war-caused injury or disease (such “other” reasons must have employment consequences and be the dominant cause preventing Mr Pearson from continuing to undertake remunerative work). However, the presence of a non-war-caused factor will not necessarily be fatal to a claim, provided the war-caused condition is “… by far and away the more dominant of the causes …”: Forbes v Repatriation Commission (2000) 101 FCR 50 at 57 [40]. This position was affirmed by the Full Court of the Federal Court in Repatriation Commission v Hendy.
39.
In assessing whether Mr Pearson’s war-caused injury was by far and away the more dominant of the causes, I note Mr Harding’s submission that Mr Pearson ceased work because of the war-caused disability. Counsel also submitted that
Dr Hurley’s conclusion glossed over Mr Pearson’s work history. I agree that
Dr Hurley’s report did not document that history but I do not put much weight on that factor in light of other evidence, and also because both parties were prepared at the outset to tender Dr Hurley’s reports and not require his attendance for cross-examination. If his evidence was to be challenged seriously, he should have been called and given an opportunity to explain his evidence: Browne v Dunn (1893) 6 R 67. Dr Hurley did, however, form a quite specific conclusion that Mr Pearson did not cease work because of his psychiatric conditions. Reaching a conclusion on that issue is, of course, one of the essential functions for an expert report if it is going to be of any assistance. Dr Hurley did note that Mr Pearson had made several unsuccessful attempts to return to work but also noted that he received unemployment benefits until “… he became financially dependent on the income of his lady partner and could claim Centrelink benefits no longer. He has since, by choice, remained unemployed.” However, I note and agree with Mr Harding’s submission that the most important question in this matter is what the operative reason is for Mr Pearson’s cessation of work.
40.
Mr Stoner, while submitting that a concession could be made if
Dr Hargreaves’ report is accepted, said that such a concession could only apply (if at all) with effect from 7 November 2006. He submitted, however, that Dr Hurley’s report should be preferred. He also noted that solitude is not the only characteristic of PTSD. I agree with that latter submission, which has been dealt with above in considering the differences in the expert evidence. Mr Stoner also submitted that one would need to consider the type of work sought by Mr Pearson and whether the management jobs he applied for were consistent with his background. Although that may have been a useful line of enquiry, little evidence existed in that regard other than that which Mr Pearson provided to the Tribunal.
41. It was also submitted on behalf of Mr Pearson that the assessment contained in the first limb of s 24(1)(c) of the Act is affected by age and other factors. The age of 65 is generally regarded as a reference point as that is the common retiring age, but many other circumstances will affect the Tribunal’s assessment of the relevance of age: Repatriation Commission v Strickland (1990) 22 ALD 10; Flentjarv Repatriation Commission. Time out of the workforce is relevant, as is the Applicant’s retirement intention: Tomlin v Repatriation Commission, Federal Court, 1 August 1997, 705/1995. As Dr Hurley indicated in his report, Mr Pearson was comfortable with his then lifestyle (at least from the time he lived with his lady partner Chris) and did not want treatment for his condition.
42. I therefore am satisfied to the standard of reasonable satisfaction that Mr Pearson did not cease work because of his service related conditions alone. I accept the psychiatric reports as indicating that he has also been motivated to cease work by the significant impacts of divorce and bankruptcy.
Question 4
43. This question relates to the second limb of s 24(1)(c) of the Act, which concerns a loss of salary or wages. It is unnecessary to consider this question given the answer to Question 3 above.
CONCLUSION
44. The evidence presented has not satisfied the statutory tests. The decision under review is therefore affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD, Senior Member
Signed: .........................[Sgd].............................................
Mátyás Kochárdy, Research AssociateDate of Hearing 9 September 2009
Date of Decision 6 November 2009
Counsel for the Applicant Mr Anthony Harding
Solicitor for the Applicant Mr Terence O'Connor
Solicitor for the Respondent Mr John Stoner
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