Townson and Repatriation Commission
[2002] AATA 354
•16 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 354
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/68
VETERANS' APPEALS DIVISION )
Re JAMES RUSSELL TOWNSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr K L Beddoe, Senior Member
Date16 May 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that section 24 of the Veterans' Entitlements Act 1986 is satisfied with effect from 18 January 2001.
.................(Sgnd).............................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlements - Disability Support Pension – whether veteran's accepted disabilities alone prevented him undertaking remunerative work - whether veteran should be paid Disability Pension at the Special Rate
Veterans' Entitlements Act 1986 s 24
REASONS FOR DECISION
16 May 2002 Mr K L Beddoe, Senior Member
By a determination notified on 8 December 1999 the respondent Commission assessed the applicant's disability pension at 100% of the General Rate. The Veterans' Review Board subsequently affirmed the decision. The applicant has applied for review in this Tribunal on the basis that he satisfies section 24 of the Veterans' Entitlements Act 1986 ("the Act") and should therefore be paid Disability Pension at the Special Rate.
At the hearing the respondent conceded that paragraphs 24(1)(a) and 24(1)(b) of the Act had been satisfied but put in issue paragraph 24(1)(c).
Paragraph 24(1)(c) provides, in effect, that the section applies if, inter alia, the veteran is by reason of his accepted disabilities alone prevented from undertaking remunerative work that the veteran was undertaking thereby suffering a loss of income that the veteran would not be suffering if he were free of those accepted disabilities.
At the hearing Mr Honchin appeared for the applicant and Mr Stoner represented the respondent Commission. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits.
Oral evidence was given by the applicant.
By an application dated 9 August 1999 the applicant applied for an increase in disability pension. At date of application the applicant was 54 years of age. As already noted pension was increased to 100% with effect from 12 August 1999 (the date of lodgment of the claim).
On 8 December 1999 the respondent notified determination of the claim and the applicant sought review by the Veterans' Review Board on 4 January 2000.
The Veterans' Review Board notified its decision to affirm the decision under review on 5 June 2000 and the applicant lodged an application for review in this Tribunal on 18 January 2001. That application was out of time but an order extending time by consent was subsequently made. Because of the late application and the operation of sections 15 and 177 of the Act the date of effect for any increase in pension is 18 January 2001.
At the date of hearing the applicant was aged 56 years. He served in the Australian Army from 6 April 1964 to 6 April 1976. That service included service in South Vietnam from 20 May 1966 to 26 April 1967.
The following disabilities have been accepted as war caused:
(a)diabetes mellitus;
(b)bilateral sensori-neural hearing loss with tinnitus;
(c)post traumatic stress disorder;
(d)chronic bronchitis and emphysema.
The only non-accepted disability is Arthralgia (no incapacity found). In his report dated 15 September 1998 Dr Laister concluded that there was no evidence of arthritis in the applicant's joints. Dr Laister found the joints "quite subtle". I have decided this matter on the basis that the rejected condition is of no relevant effect because I prefer Dr Laister's opinion to the applicant's self diagnosis.
The applicant gave evidence about his work history since discharge from the Army which can fairly be described as a downward slide to very menial work. I accept that the applicant maintained a strong desire to work and he maintained his place in the workforce by accepting less demanding work as a way of coping with his disabilities. As he said in his evidence he was happy to take any work that was available. That work included clerking, storeman duties and selling real estate.
In 1992 he commenced working for Queensland Nickel Pty Ltd at Yabulu. The position was as a janitor and he occupied the position for two years. In 1994 the company employed contractors to do the cleaning work and the applicant was therefore redundant.
However, the company transferred the applicant to a position of Trades Assistant. The applicant found the position physically demanding and sought more sedentary duties. Such duties were not made available to the applicant and when it became apparent that he could not longer cope with the trades assistant work he was retrenched. I accept that it is more likely than not that the applicant was transferred to the trades assistant position to keep him in employment rather than because of his skills. The applicant said he was the only person in this category retrenched but the company said in a letter dated 14 June 2001, addressed to the respondent, that over 120 Award employees were made redundant effective 16 July 1996 because of a restructuring (Exhibit 1). At the time of retrenchment the applicant had 76 days sick leave accrued.
In 1999 the applicant lodged an Income Support Pension claim with the Department of Veterans' Affairs. The applicant explained, in some detail, why he was not able to work. The explanations are not inconsistent with his oral evidence before the Tribunal, albeit that both reflect a confused state of mind no doubt caused by the applicant's PTSD.
The applicant said, and I accept, that he was told by an employment officer that because of his PTSD condition he was no longer employable.
The applicant uses tobacco but does not use alcohol.
The Medical EvidenceDr Ian Fraser made a pro forma report to the respondent dated 26 August 1999. He was asked to assess medical impairment due to PTSD. He reported, inter alia, that the applicant suffered from loss of concentration and loss of short-term memory. He also reported that the applicant was currently unemployed because of PTSD.
Exhibit B is a copy of a report by Dr Likely, Consultant Psychiatrist, dated 1 October 1998. The report is addressed to the Department of Veterans' Affairs. Dr Likely saw the applicant on 1 October 1998 at the department's request. The report describes in some detail the history related by the applicant. Dr Likely diagnosed chronic PTSD Axis I and no disorder Axis II. As to Axis III, Dr Likely diagnosed, without explanation, non-insulin dependent diabetes mellitus, hearing difficulties, arthralgia and respiratory difficulties. Axis IV problems were described as stressor of chronic mental ill health. In view of the "no disorder" finding for Axis II I have understood this to refer to the Axis I condition ie PTSD. As to Axis V, Dr Likely assessed functioning as GAF 41-50.
The Applicant's SubmissionsBecause of the disabling effect of his PTSD his work history demonstrates a tragic decline over the years to very menial work. He was made redundant from the trades assistant position by his employer because he no longer had the capacity to perform even his modified duties. His sick leave record in Exhibit 1 does not show excessive leave. He was made redundant because of his accepted disabilities.
Even if the alone test is not satisfied, the terms of section 24(2) of the Act would be satisfied and in particular the accepted disabilities must be accepted as the substantial cause of the applicant's inability to obtain work.
The Respondent's SubmissionsAs to section 24(2) the test as to genuinely seeking to engage in remunerative work was explained by Spender J in Hall v Repatriation Commission (1994) 33 ALD 454 at 461 as follows:
"It seems to me that the question of whether a veteran has been 'genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to so seek' has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade. While it may be that Mr Hall was advised to pursue his attempts at seeking employment through the CES by advice which focussed on the desirability of efforts to seek remunerative work rather than on any realistic prospect that such work might be obtained, the report by the CES does not seem to cast doubt on the willingness of Mr Hall to accept work if any might be found for him."
The applicants history showed he could do remunerative work notwithstanding the accepted disabilities. His subjective belief is not relevant for the purposes of section 24.
ConsiderationIn Banovich v Repatriation Commission (1986) 69 ALR 395 at 402-3 the Federal Court (Fisher, Beaumont and Wilcox JJ) considered the forerunner of section 24 in the Repatriation Act 1920. Their Honours said:
"We accept that the loss referred to in para [1](b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment. There is no difficulty in regarding either circumstance as preventing the member 'continuing to undertake' remunerative work. But it is, in our opinion, erroneous to read the phrase 'remunerative work that the member was undertaking' as referring to a particular job with a particular employer. The term 'remunerative work' is used in the Schedule in a context which indicates an intention to refer to work generally: see, for example, para [1](b)(ii), para [2](b), para [3]. Consistently with that use, the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity – and by that incapacity alone – from continuing in that field of remunerative activity."
I am satisfied that since the time of the applicant's loss of employment by Queensland Nickel he has been unemployed because he was unemployable. The reason he was unemployable at all relevant times was his chronic PTSD. So much is made clear, in my view, by Dr Likely's report. The applicant lost his employment with an apparently sympathetic employer because of his PTSD, there being no other apparent cause. I say Queensland Nickel was sympathetic because it did not seek to retrench the applicant when his position of janitor was abolished, due to the use of contract cleaners. The company kept the applicant in employment until such employment was no longer tenable.
In the circumstances, I am satisfied, on the balance of probabilities, that the PTSD alone is responsible for the applicant being prevented from undertaking remunerative employment. There is a consequential loss of earnings that the veteran would not be suffering if he was free of the PTSD.
It follows I am satisfied that the terms of paragraph 24(1)(c) are satisfied. Paragraphs 24(1)(a) and 24(1)(b) have been conceded and no other issue arises to prevent section 24 operating in the applicant's favour.
The decision under review will be set aside and the matter remitted to the respondent with a direction that section 24 of the Act has been satisfied.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 20 September 2001
Date of Decision 16 May 2002
For the Applicant Mr Honchin
For the Respondent Mr Stoner
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