Tomlinson and Repatriation Commission
[2008] AATA 219
•19 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 219
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0941
VETERANS’ APPEALS DIVISION ) Re Maxwell Tomlinson Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member Bernard J McCabe Date19 March 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review. The Tribunal decides in substitution that the applicant is entitled to receive a pension paid at the special rate. The Tribunal directs parties to makes submissions as to the date of effect within 14 days of the decision. .......................[Sgd].......................
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – special rate pension – whether applicant’s war-caused conditions prevented continued engagement in remunerative work – whether applicant’s war-caused conditions resulted in a loss of salary, wages or earnings – applicant suffers post traumatic stress disorder – set aside decision under review – decision in substitution that applicant receive special rate pension.
Veterans’ Entitlements Act 1986 (Cth), ss 24(1)(c), 24(2)(b)
Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1
REASONS FOR DECISION
19 March 2008
Senior Member Bernard J McCabe
1. Mr Maxwell Tomlinson is an ex-serviceman. His post traumatic stress disorder (“PTSD”) and alcohol dependence conditions have been accepted as being related to his war service, and he receives a pension pursuant to the Veterans Entitlements Act 1986 (“the VEA”). The pension is currently paid at the general rate. Mr Tomlinson says he should be paid at the higher special rate because his war-caused conditions prevent him from continuing to work.
2. The criteria for assessing applications for special rate pensions are set out in s 24 of the VEA. This case turns on the operation of s 24(1)(c) of the VEA. The Repatriation Commission (“the Commission”) conducted its case on the basis that the other requirements in s 24(1) were satisfied, and I accept that is so. Mr Tomlinson argues he satisfies s 24(1)(c) because his war-caused conditions were the only obstacle to him continuing in work. He says he suffered a loss of wages or earnings as a result.
3. I am satisfied Mr Tomlinson is able to satisfy all of the requirements set out in s 24. He is therefore entitled to receive a pension at the special rate. I explain my reasons below.
The facts
4. Mr Tomlinson was born in 1941. He undertook eligible service in the RAAF. He was 62 years of age at the time of his application to the Commission.
5. The applicant worked for the Northern Territory Department of Lands (“the department”) from 1980 to 1998. He struggled with a variety of health problems in the latter years of his employment. He had a back problem that caused him to take time off work during 1996 and 1997. He had a laminectomy in 1997 but says the condition did not prevent him from continuing to work. He also had a heart condition that caused him to take an extended period of sick leave in 1998. Neither of these conditions was related to his service.
6. Mr Tomlinson was an executive officer during the last two years of his employment. He was responsible for managing a section that dealt with the various boards and tribunals administered by the department. He explained in his oral evidence that each of those bodies had a secretary who handled routine paperwork, but more important matters were referred to him. He was assisted by a number of competent departmental staff. He said he enjoyed considerable autonomy within the department.
7. I accept Mr Tomlinson’s work during this period was properly described as clerical and administrative work with a managerial component.
8. Mr Tomlinson said he had been a heavy drinker since his service in the RAAF. The drinking was not a barrier to his advancement within the department in the early days, but he says it had started to become a significant problem from 1996 to 1998. He told the Tribunal at the hearing that he would often leave the office at lunch and become intoxicated. He said he was unable to return to work several times each week. He delegated more and more work to his staff. He said they covered for him. He felt increasingly dissatisfied with his job and had difficulty dealing with new technology. His hearing problem (also an accepted condition) added to his hardships. He said he had trouble hearing what was said at meetings, which left him feeling frustrated. The constant ringing in his ears disrupted his concentration. The applicant also said in his statement that he was becoming more anxious when dealing with people and more withdrawn[1]. In his oral evidence, he spoke of spending less time with friends and attending fewer social functions. He said his wife described him as anti-social.
[1] Exhibit 2.
9. After his return to work in 1998 following a period of sick leave, the applicant learned he was to be replaced in his job by a more senior officer. The applicant said he was being moved sideways. During cross-examination, he said the change left him feeling embarrassed and angry. He also learned the Northern Territory public service was offering voluntary redundancy packages as part of a downsizing initiative. He discussed his future with a more senior officer who encouraged him to apply for one of the redundancy packages. During the course of his oral evidence, Mr Tomlinson said he was aware he could have applied for a transfer but the prospect of starting a new job was unappealing. He also said it was unclear what opportunities would be available; there were not many jobs on offer as a result of the downsizing, and other departments were reluctant to take on someone who was obviously not being accommodated by his own department.
10. Mr Tomlinson said in his evidence that the prospect of moving out of Darwin was also attractive at the time he was considering the redundancy. He had acquired an interest in a block of land at Bynoe Haven in the late 1980s. Bynoe Haven is about 120 kilometres from Darwin. He had begun work on basic accommodation, and said it had long been his plan to retire to the property. He had been spending more time there on his own when he could prior to the redundancy; moving there was an attractive option, he said.
11. The applicant took a voluntary redundancy package from the department in 1998. He was 57 years of age at the time. His wife, Judy, negotiated a redundancy package at about the same time. The couple moved into a caravan on the property soon after. The site is isolated: the nearest neighbours are four or five kilometres away.
12. Mr Tomlinson insisted he did not intend leaving the workforce when he moved to Bynoe Haven. He said he discussed employment opportunities with Mr John Young, the manager of Mine Site and Industrial Relocations, a local business. Mr Young’s letter confirms that the applicant was offered work within his organisation on a number of occasions[2]. The letter records Mr Young’s understanding that the applicant’s PTSD condition makes him unsuitable for employment. The applicant told the Tribunal he was unable to commit himself to working for Mr Young as he could not guarantee he would be in a state to get out of bed in the mornings. The applicant attributed this to his accepted medical conditions.
[2] Exhibit 1 at 140.
13. Mr Tomlinson also approached the manager of the Crab Claw Island Fisherman’s Village (“the Village”), another nearby business. The manager’s letter confirms that the applicant’s health is an obstacle to him obtaining employment[3]. The applicant told the Tribunal he attempted working at the Village in a variety of roles, but he was unable to stay the course because of his PTSD.
[3] Exhibit 1 at 141.
14. The applicant said he understood he would be able to obtain employment at short notice from either employer if his health conditions did not prevent him from working. He said there was a shortage of suitable labour in the area, and his age and background were not obstacles. I have no reason to doubt his evidence about the state of the labour market in the area, and I accept it.
15. The medical evidence requires careful consideration. I start with the report of Dr Parker, who is the applicant’s treating psychiatrist. Dr Parker originally diagnosed the applicant as suffering from PTSD, alcohol dependence and major depression[4]. Depression is not an accepted condition because it is not related to the applicant’s service. (Dr Parker suggests that it is connected to his heart and diabetic conditions[5].) Mr Herman, for the Commission, invited me to conclude that depression was an obstacle to the applicant undertaking remunerative work, which would make it impossible for him to satisfy the so-called “alone” test in s 24(1)(c). Mr Piper, for the applicant, pointed out that Dr Parker’s more recent report says the major depression condition is now under control[6]. He says the major depression contributes about 5% to his current disability.
[4] Exhibit 1 at 73.
[5] Exhibit 1 at 117.
[6] Exhibit 1 at 121 – 124.
16. I turn next to the reports of Drs Moore and Crompton. Dr Moore’s report suggests PTSD is the major problem[7]. Dr Crompton’s report says a back condition, depression and heart disease all contribute to the inability to work, although he identifies the applicant’s alcohol problem as the one factor which ultimately makes the applicant unfit[8]. Drs Moore and Crompton are both general practitioners.
[7] Exhibit 1 at 126ff.
[8] Exhibit 1 at 132.
The law
17. Section 24(1)(c) has two limbs that require a decision-maker to pose several questions. Those questions were discussed by the Full Federal Court in Flentjar v Repatriation Commission[9]. Under the first limb, I am required to satisfy myself that the veteran’s war-caused conditions prevent him from continuing to engage in remunerative work during the claim period. The effect of the legislation is that Mr Tomlinson cannot succeed if other factors or conditions unrelated to his war service have also been an obstacle to continuing work. The second limb requires that I consider whether the inability to undertake work because of war-caused conditions has resulted in a loss of salary, wages or earnings that the veteran would not be suffering but for the war-caused conditions. Section 24(2)(b) makes it clear the veteran cannot satisfy this aspect of the test if his loss of salary or wages can be attributed wholly or in part to something other than his war-caused conditions.
[9] [1997] FCA 1200; (1997) 48 ALD 1 at 4 – 5 per Branson J.
Application of the law to the facts
18. I have already found Mr Tomlinson was engaged in clerical and administrative work with a managerial component when he worked at the department. I am satisfied after reviewing the medical evidence that Mr Tomlinson’s war-caused PTSD, alcoholism and hearing problems, taken together, made it impossible for him to continue work of the kind he was doing with the Northern Territory public service. I acknowledge Dr Parker’s early reports suggested the applicant also suffered from major depression in the late 1990s. That condition may have contributed to his desire to retire from the public service when he did, but it ceased to be a significant obstacle after the condition was successfully treated during the course of the claim period. I also acknowledge the applicant experienced other health problems before and throughout the claim period; however, the medical evidence suggests they did not make him unfit for the work he had been doing. I also acknowledge the applicant appeared be de-motivated at the end of his time with the public service, and he was apparently attracted to the idea of leaving Darwin for a fresh start at Bynoe Haven. The public service certainly did not make a determined effort to retain his services, although that is unsurprising if the applicant’s performance was adversely affected by his war-caused conditions and the public service was downsizing at the time.
19. To the extent there is any inconsistency between the opinions of the general practitioners and the applicant’s treating psychiatrist, I prefer the opinion of the treating psychiatrist. Dr Parker has had the opportunity to observe the applicant over time, and he is an expert in the field of psychiatry.
20. It follows I am satisfied the applicant’s war-caused conditions were the only factors that prevented him from continuing to undertake clerical and administrative work during the claim period. I also accept that the war-caused inability to continue working has led to a loss of earnings that he would not otherwise have suffered. The evidence establishes work was readily available to the applicant if he were in a position to take it. His move to Bynoe Haven did not prejudice his ability to make money during the assessment period. His problem was that he could not take advantage of the opportunities that were available to him because of (and, on a proper view of the evidence, only because of) his war-caused conditions.
Conclusion
21. The decision under review is set aside. The Tribunal decides in substitution that the applicant is entitled to receive a pension paid at the special rate. The parties did not make any submissions as to the date of effect. I invite them to do so within 14 days of this decision.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
Signed: ...................................[Sgd].............................................
Michael Buckingham, AssociateDate of Hearing 10 December 2007
Date of Decision 19 March 2008
Solicitors for the applicant Pipers Barristers and Solicitors
Solicitors for the respondent Departmental advocate