Tokarczyk and Repatriation Commission
[2011] AATA 355
•26 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 355
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1301
VETERANS' APPEALS DIVISION ) Re Ted Tokarczyk Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member A K Britton and Dr M E C Thorpe Date26 May 2011
PlaceSydney
Decision The decision under review is affirmed .......................[sgd]..........................
Senior Member A K Britton
CATCHWORDS
VETERANS’ ENTITLEMENTS – pensions – intermediate rate pension – whether war-caused incapacity alone prevents the veteran from undertake remunerative work of 20 hours – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) – 19(5C), 19(9), 23(1)(b), 23(1)(c), 28(b), 28(c)
Leane v Repatriation Commission (2004) 81 ALD 625; [2004] FCAFC 83
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Chambers v Repatriation Commission (1995) 55 FCR 9; (1995) 36 ALD 207
REASONS FOR DECISION
Senior Member A K Britton
Dr M E C Thorpe, Member1. Veteran, Mr Ted Tokarczyk, has applied to the Administrative Appeals Tribunal for review of the decision made by the Repatriation Commission, the respondent in these proceedings, and affirmed by the Veterans’ Review Board, to refuse to grant his claim for a pension at the “special rate”.
2. Mr Tokarczyk served as a clerk in the Australian Army in Vietnam for just over 12 months, commencing in 1969. He suffers from an accepted “war-caused disease” namely, post-traumatic stress disorder (PTSD).
3. In these proceedings, Mr Tokarczyk amended his original claim and now seeks a pension at the “intermediate rate”. Under the Veterans’ Entitlements Act 1986 (Cth) (the Act) the eligibility criteria for a pension at the “intermediate rate” and “special rate” are identical except that to satisfy the latter the veteran must be incapable of undertaking remunerative work for periods aggregating eight hours per week, while to satisfy the former he or she need only be incapable of undertaking 20 hours of remunerative work per week.
4. The Commission opposes Mr Tokarczyk’s claim and argues that his long history of exemplary service in the NSW Police Force and more recently as a Returning Officer in the 2011 NSW State Election, is inconsistent with the assertion that he meets the criteria for a pension at the intermediate rate.
background
5. Mr Tokarczyk is 63 years of age. In 1963 he joined the administrative arm of the NSW Police Force where he worked until called up for National Service in October 1969. After serving in Vietnam for about 12 months he returned to his former role within the NSW Police Force.
6. Mr Tokarczyk retired from the NSW Police Force in August 2008 when he reached age 60. On reaching this age he became entitled to a pension at the maximum rate payable under the applicable Police Force scheme — 60 per cent of his pre-retirement salary, as adjusted. Although Mr Tokarczyk’s substantive position was classified as a Grade 7/8, his pre-retirement salary for pension purposes was deemed to be that of a Grade 9/10 employee — the grade immediately below the Senior Executive Service. This was because prior to retirement, Mr Tokarczyk had routinely been called upon to perform higher duties.
7. From 1997 until his retirement, Mr Tokarczyk worked regularly as a relieving manager within Local Area Commands of the NSW Police Force. In that role he was responsible for, among other things, the budget and general management of the Command and supervision and rostering of civilian staff. His substantive position involved dealing with complaints made against individual police officers. The Commissioner of Police commended Mr Tokarczyk’s history of service within the NSW Police Force. There is no evidence, and nor is Mr Tokarczyk aware of, any complaints or concerns about the quality of his work during any period of his employment with the Police Force, including the period immediately before his retirement.
8. In 1994, Mr Tokarczyk came under the care of psychiatrist Dr Graham Altman who diagnosed him as suffering from PTSD. Shortly after that diagnosis was made, Mr Tokarczyk was commenced on anti-depressant medication. Since 1994, Mr Tokarczyk has been seeing Dr Altman three to four times a year.
9. According to Mr Tokarczyk, he originally consulted Dr Altman because he constantly felt tired, had difficulty concentrating (especially when reading), was finding it hard to relax and was constantly on edge. On his account, those symptoms eased somewhat following the commencement of medication and counselling. However he claims that in the six months or so prior to his retirement he found it difficult to remain focussed and meet deadlines and uncharacteristically found it necessary to take work home. Furthermore he claims that he found it difficult to relax and experienced dizziness, light headedness and mild panic attacks “for no apparent reason”. He said that while those symptoms were not new they had become more pronounced shortly before his retirement. According to Mr Tokarczyk, towards the end of his time within the Police Force he often felt frustrated with work and people and managed this by leaving the office and going for a walk.
10. According to Mr Tokarczyk he had planned to work until he reached age 63 because this would have enabled him to repay a debt he had incurred of $35,000. He abandoned this plan because he felt he could not continue on account of his health. He denied that the reason he resigned was because he qualified for the maximum pension entitlement. He described himself as a workaholic and said work was “the only thing going for me at the time”. When he retired, Mr Tokarczyk lived alone and had few interests outside work.
11. Mr Tokarczyk did not seek treatment for, or take time off in relation to, his PTSD, in the six month period immediately prior to his retirement. Indeed he took very little sick leave in the decade before he retired and never for PTSD.
Post-retirement employment
12. Mr Tokarczyk’s only paid work since retiring from the Police Force has been with the NSW Electoral Commission working on the 2011 NSW State election. He worked full time as a Returning Office for just over seven weeks. That employment ceased the day before the commencement of the hearing in these proceedings. In addition, prior to that block of employment, Mr Tokarczyk worked for a number of days, over the preceding six months, to locate suitable accommodation for the Electoral Commission’s offices, recruit staff and undertake refresher training.
13. Mr Tokarczyk has worked as a Returning Officer in every NSW government election since 1981. On his account, he found the first five weeks of his recent stint with the Commission straightforward and manageable. However he claims that he found the final two weeks, being the weeks immediately before and after poll day, trying. He claims that in this period he became angry about trifling matters such as computer problems was often ruminating about work and unable to sleep. During this period Mr Tokarczyk increased his usual dosage of anti-depressant medication, in accordance with the advice of Dr Altman to do so when faced with stressful situations.
14. On questioning, Mr Tokarczyk identified rostering and allocating work to staff as the parts of his job he believed caused him to become stressed in his final two weeks with the Electoral Commission. As he explained, in the electorate for which he was responsible, the successful candidate, a former Labor premier, only won by a couple of hundred votes. He explained that because the vote was extremely close it had been difficult to predict how long the count would take and therefore the number of staff required. Mr Tokarczyk said he had no difficulties with other parts of the job such as liaising with the media and party officials and ruling on disputed and informal votes.
15. Mr Tokarczyk said that despite these difficulties he believed that he had successfully performed the role of Returning Officer. He said he had no reason to believe that the Commission had any concerns with his performance.
16. Mr Tokarczyk works as a volunteer for the Vietnam Veterans’ Association for about two days a week, between 9.30 am and 2.30 pm. The work involves filing, managing correspondence and phone calls. Mr Tokarczyk described the work as “a breeze”, involving only a couple of hours “real work” each day, largely autonomous and not subject to intrusive management.
17. Mr Tokarczyk claims that while he felt “knocked about” by his recent work as a Returning Officer nonetheless after a break he intended to reconsider whether he could return to work. He said that if he could find the “right job” — something not too stressful — he would like to work part time. He said that part-time work in his area of expertise was not an option within the NSW Police Force. He thought he would probably be able to cope in a job if it was like the first four weeks of his most recent employment with the Electoral Commission, however in his opinion those type of jobs don’t exist: “you have to take the peaks and troughs”.
Medical evidence
18. The medical evidence as to whether Mr Tokarczyk suffers from a psychiatric condition and is incapacitated for work is inconsistent. For the purpose of these proceedings he was assessed by psychiatrists Drs Anthony Dinnen and John Roberts and occupational physician, Dr Robin Chase. Each prepared written reports and gave oral evidence. Also before us were a number reports prepared by Dr Altman. In his most recent report dated 9 April 2009 Dr Altman wrote that he believed Mr Tokarczyk incapable of undertaking any remunerative employment on account of his psychiatric condition. Dr Altman did not give oral evidence. Dr Dinnen believes Mr Tokarczyk could work eight hours per week; on the other hand, Drs Roberts and Chase believe he could work full time.
19. In a report dated 21 October 2010, prepared before Mr Tokarczyk’s recent employment with the Electoral Commission, Dr Dinnen opined that Mr Tokarczyk’s “symptoms of anxiety and depression” preclude him from working in his previous employment as a “clerk in administration”. He wrote that he believed that Mr Tokarczyk was incapable of working more than eight hours per week and to do so on a regular basis would “worsen his condition”. In oral evidence, Dr Dinnen said that Mr Tokarczyk’s recent employment had caused him to change that opinion and that he believed Mr Tokarczyk could probably work eight but not 20 hours per week on an on-going basis. He said his opinion that Mr Tokarczyk was fit for full-time work was based largely on his self-report, in particular of an increase in symptoms towards the end of his employment with the NSW Police Force.
20. According to Dr Dinnen, the predominant presentation of Mr Tokarczyk’s PTSD was anxiety with depressive features. In his opinion, his reported symptoms of PTSD, namely, feeling lightheaded and depressed, suffering from anxiety attacks, dizzy spells and intrusive memories of service (which Mr Tokarczyk reported had decreased in severity) impacted upon Mr Tokarczyk’s fitness for employment. He did not agree with Dr Roberts’s opinion that the dosage of the anti-depressant, LOVAN taken by Mr Tokarczyk — 20 mg per day — was “sub-therapeutic”. He thought that accumulated stress was the most likely explanation for Mr Tokarczyk’s reported sleep disturbance in the final weeks of his employment as a Returning Officer.
21. Dr Roberts not only disagreed with Dr Dinnen about Mr Tokarczyk’s fitness for work, he questioned the diagnosis of PTSD. Dr Roberts based that opinion largely on what he believed to be the lack of evidence of “physiological concomitants” of PTSD and reduced or worsening functional capacity.
22. Dr Chase, while accepting that Mr Tokarczyk suffered from what he characterised as a mild form of PTSD/anxiety condition, thought he could nonetheless probably work full time.
eligibility criteria for a pension at the intermediate rate
23. Section 23 of the Act sets out several criteria that must be satisfied before a pension is payable at the “intermediate rate”. It is agreed that all but those specified in ss 23(1)(b) and 23(1)(c) are satisfied:
(1) This Section applies to a veteran if:
...
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking--if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
24. Whether Mr Tokarczyk satisfies ss 23(1)(b) and 23(1)(c) must be assessed by reference to the “assessment period” — that is, the period commencing on the day on which his claim was received (1 June 2009) and ending on the day his claim is ultimately determined: ss 19(5C) and 19(9) of the Act. If, at any time during that period, Mr Tokarczyk satisfies all criteria, he will have an entitlement to the special rate pension from that time, notwithstanding that he fails to satisfy all criteria at some subsequent point in time: Leane v Repatriation Commission (2004) 81 ALD 625 at 633.
IS SECTION 23(1)(B) SATISFIED?
25. Section 23(1)(b) will be satisfied if Mr Tokarczyk’s incapacity from PTSD is of such a nature of itself alone to render him incapable of undertaking remunerative work for periods aggregating 20 hours per week or more. Section 28 provides that in determining whether Mr Tokarczyk is incapable of undertaking remunerative work for the purposes of s 23(1)(b), we must 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 in paragraph (b).
26. The following questions are posed by the combined operation of ss 23(1)(b) and 28:
1. What are Mr Tokarczyk’s vocational, trade and professional skills, qualifications and experience?
2. What are the kinds of remunerative work a hypothetical person with Mr Tokarczyk’s skills, qualifications and experience might reasonably undertake?
3. To what degree has Mr Tokarczyk’s PTSD reduced his capacity to undertake the kinds of remunerative work referred to in (2) above?
4. Has Mr Tokarczyk’s PTSD rendered him incapable of performing remunerative work for periods aggregating more than 20 hours per week?
Vocational, trade and professional skills, qualifications and experience:
26. Mr Tokarczyk left school after obtaining the NSW Intermediate certificate. In the early 1970s he undertook a three-year part-time administration course. He has extensive and broad experience as an administrator and manager. Within the NSW Police Force he was responsible for, among other things, budgeting and financial management, general administration and human resource management. The work he undertook for the NSW Electoral Commission was similar in nature.
Kinds of remunerative work a hypothetical person with Mr Tokarczyk’s skills, qualifications and experience might reasonably undertake:
27. Section 28(b) requires us to identify the range of employment a hypothetical person with the skills, qualifications and experience identified above, “might reasonably undertake”. That assessment is to be made independently of any disability that Mr Tokarczyk might suffer: Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138 at 141.
28. The Commission contends that the type of work that a person with Mr Tokarczyk’s skills, qualifications and experience “might reasonably” be expected to undertake is restricted to “upper level management work within the public service”. As Counsel for Mr Tokarczyk Mr Colborne properly points out, that proposition, while favourable to Mr Tokarczyk, sits uncomfortably with the long line of authority stemming from Chambers v Repatriation Commission (1995) 55 FCR 9, which cautions against a narrow approach in identifying the “kind of work” that falls within the scope of s 28(b). Moore and Sackville JJ (with whom Davies J agreed) said (at 19-25) that:
The phrase “remunerative work” is defined in the widest terms, to mean “any remunerative activity”. Thus the ultimate inquiry to which s 28 is directed is whether the veteran's war-caused capacity, of itself, has rendered that veteran incapable of undertaking any remunerative activity. It is in relation to this inquiry that s 28 specifies the matters — and the only matters — that are to be taken into account. The ultimate inquiry is not expressed to be whether the veteran's war-caused incapacity has rendered him or her incapable of undertaking employment of the kinds for which his previous work history provided training or relevant experience.
…
Section 28(b) focuses attention upon the range of employment opportunities that a hypothetical person with the skills, qualifications and experience referred to in s 28(a), might reasonably undertake. Section 28(c) requires the Commission to consider the extent to which the impairment actually suffered by the veteran in consequence of the war-caused injury or disease has reduced the veteran's capacity to undertake the “kinds of remunerative work” considered to be available under the test formulated in s 28(b).
The authorities strongly support the view that a narrow approach is not to be taken to the construction of either s 28(a) or s 28(b).
…
[Section] 28(b) specifically requires the Commission to have regard to the kinds of remunerative work a person with the relevant skills, qualifications and experience might reasonably undertake. A broad view of s 28(a) does not produce the result that opportunities for remunerative work must be considered, even where it would be unreasonable for a person with the veteran's skills, qualifications and experience to undertake that work. Section 28(b) requires the question of reasonableness to be addressed.
29. Applying those principles, in our opinion the type of work a hypothetical person with Mr Tokarczyk’s skills, qualifications and experience “might reasonably undertake” could best be described as “administrative and management work” and is not restricted to work at a senior level within the public service. While, in our opinion it would be unreasonable for a person with Mr Tokarczyk’s skills, qualifications and experience to undertake administrative and management work at a junior level, the same could not be said of work at a middle-management level. Nor in our view would it be appropriate to restrict the class of work a person with Mr Tokarczyk’s skills, qualifications and experience “might reasonably be expected to undertake” to work within the public sector.
30. We find that the kinds of remunerative work that a person with the skills, qualifications and experience referred to above might reasonably undertake is “administrative and management work” other than at a junior level. For convenience we will refer to this kind of work as “administrative and management work”.
degree to which ptsd has reduced Mr Tokarczyk’s capacity to undertake remunerative employment
31. Section 28(c) directs us to assess the degree, if any, PTSD has reduced Mr Tokarczyk’s capacity to undertake administrative and management work. The Commission contends that PTSD has not reduced Mr Tokarczyk’s capacity to work full time. Mr Tokarczyk does not agree but concedes he can probably work eight hours per week.
32. We accept, as submitted by Mr Colborne, that the question posed by s 28(c) is to what degree has PTSD reduced Mr Tokarczyk’s capacity to undertake administrative and managerial work safely i.e. without worsening or aggravating his condition.
33. Mr Colborne submits that if Mr Tokarczyk’s report of an increase in symptoms towards the end of his employment with the NSW Police Force and more recently the NSW Electoral Commission, is accepted, it follows that PTSD has incapacitated him to such an extent that he can no longer work 20 hours per week.
34. An assessment of the extent to which a psychiatric condition has reduced a person’s capacity to work is notoriously difficult. There are seldom any objective and verifiable signs or symptoms available to make that assessment. A person who to all appearances is performing well in their employment might be experiencing significant distress, anxiety and subsequent damage to their health. Assessment is further complicated by the fact that the triggers of distress and anxiety within an employment context are not universal. Mr Tokarczyk for example, in his recent role as Returning Officer, handled with ease tasks many would find stressful — managing the media and party officials and ruling on disputed votes. It was, however, the comparatively more mundane tasks of managing rosters and allocating work that he found difficult.
35. In our opinion, Mr Tokarczyk gave truthful evidence and did not embellish his account of feeling “knocked about” towards the end of his employment with the Police Force and the Electoral Commission. That he did not seek treatment during either period does not, in our opinion, cast doubt on the reliability of that claim, as we understand the Commission to suggest. By that stage he had been under the care of Dr Altman for some time and had available to him a number of “self-help” strategies.
36. The medical experts are polarised about Mr Tokarczyk’s capacity for “remunerative work”. Drs Roberts and Chase believe that Mr Tokarczyk is capable of working full time in an equivalent role to that he performed in the Police Force. Dr Altman believes he is incapable of working even eight hours. Dr Dinnen, who initially agreed with Dr Altman, has revised his opinion on the basis of Mr Tokarczyk’s recent employment.
37. In our opinion Drs Roberts and Chase failed to give appropriate weight to Mr Tokarczyk’s account of struggling in the six months or so prior to his resignation from the NSW Police Force. Equally, Dr Altman’s opinion is of limited assistance, as it is dated and at odds with his patient’s recent employment history, which demonstrates that Mr Tokarczyk is capable of working full time in a senior and demanding role at least for a short period. Dr Dinnen, in our view, failed to provide a cogent explanation for the basis on which he concluded that Mr Tokarczyk could not work more than eight hours a week.
38. While not determinative, Mr Tokarczyk’s own evidence about his functional capacity is relevant. Although cautious about his capacity to return to work, he does not share his treating psychiatrist’s pessimistic prognosis and thinks that in the “right job” he could probably work part time.
39. The extent to which Mr Tokarczyk’s PTSD has reduced his capacity for employment is a difficult question and involves a degree of speculation and conjecture. While we accept that he could not return to full-time work in the Police Force or an equivalent role, we are not persuaded that his condition has incapacitated him to such an extent that he would be unable to undertake administrative and management work on a part-time basis. It does not necessarily follow that because he found the last two weeks of full time employment with the NSW Electoral Commission a struggle, he is unfit to work reduced hours in a less senior role.
40. We find that PTSD has reduced Mr Tokarczyk’s capacity, but not to an extent that he is unable to “safely” work 20 hours per week on an on-going basis, in administrative and management employment.
41. It follows that s 23(1)(b) of the Act is not satisfied and Mr Tokarczyk does not qualify for a pension at the intermediate rate. Accordingly, we must affirm the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr M E C Thorpe, Member.
Signed: .................................[sgd]........................................
Associate to Senior Member BrittonDates of Hearing: 7 and 8 April 2011
Date of Decision: 26 May 2011
Solicitor for the Applicant: Mr G Isolani, KCI Lawyers
Counsel for the Applicant: Mr C ColborneRepresentative for the Respondent: Mr N Bunn, Department of Veterans’ Affairs
Counsel for the Respondent: Mr G Purcell
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