Trewartha and Repatriation Commission
[2007] AATA 2080
•20 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2080
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600282
VETERANS’ APPEALS DIVISION ) Re Kenneth Trewartha Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member B J McCabe Date20 December 2007
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and decides in substitution that the applicant satisfies the requirements of s 24 of the Veterans’ Entitlements Act 1986. The Tribunal remits the question of date of effect to the respondent for reconsideration.
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SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – special rate pension – war-caused condition obstacle to obtaining employment – ameliorating provision available to applicant – decision under review set aside
Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION
20 December 2007 Senior Member B J McCabe 1. Ken Trewartha is a sick man. He suffers from a range of health conditions, including post traumatic stress disorder (PTSD). I will not list them here: suffice to say the respondent has accepted those conditions are related to Mr Trewartha’s war service. He receives a disability pension under the Veterans Entitlements Act 1986 (the Act) paid at 100% of the general rate. He wants to be paid at the higher rate, known as the special rate.
2. Applications for a disability pension paid at the special rate are assessed under s 24 of the Act. The respondent accepts (and I accept) the applicant’s health conditions are real, and that they prevent him from working. The respondent concedes that all of the requirements imposed under s 24(1) have been satisfied apart from the requirements in s 24(1)(c). This case revolves around the application of s 24(1)(c) to the facts.
3. For reasons I will explain, I am satisfied the applicant is entitled to receive a special rate pension.
the factual background
4. The applicant was born on 14 April 1944. He was 59 years of age at the time of his original application for a special rate pension and 63 years of age at the time of the Tribunal hearing. He joined the Army in 1956 and rendered operational service on several occasions during the 1960s. He worked as a radio operator, signalman, military policeman and intelligence analyst. He left the military in June 1980 but commenced work with the Department of Defence in a civilian capacity shortly thereafter. He remained with the department until 2000.
5. The applicant’s work at the Department of Defence need not be described in detail here. He was involved in intelligence gathering and analysis. He worked in Melbourne and then Canberra until 1996. He was in charge of a small section of analysts for most of this period. He told the hearing his work relationships towards the end of his time in Canberra were being damaged by his behaviour. He said he had a short fuse and snapped at people and even threatened them. (At the hearing, he recounted one example of bad behaviour to illustrate the point: he told how he threatened to punch a senior officer in the face when the officer turned up late to a meeting the applicant was conducting: transcript at p 12.) The applicant said he realised he was difficult to work with but pointed out he worked in an organisation full of unusual and occasionally difficult people: transcript at pp 11-12. Even so, his supervisor told him his behaviour was such that he was unlikely to be promoted.
6. After consulting his wife, Mr Trewartha decided to seek a transfer to Alice Springs to work at a defence facility located nearby. He explained the posting was attractive because it was a new type of work for his organisation. He said he thought the experience would put him back on track for a promotion when he returned to Canberra with the possibility of an attractive overseas posting in due course: transcript at p 7. He said there was no retirement age and he anticipated working for some time: transcript at p 11.
7. Mr Trewartha and his wife and son arrived in Alice Springs in 1996. He said they moved into a free house and he received a pay-rise and other benefits. He said the lifestyle was good, and he and his wife decided they would stay in Alice Springs indefinitely: transcript at pp 10-11.
8. The new role required Mr Trewartha to manage a range of people and resources. He said his formal title was ‘deputy manager of resources’ although he occasionally acted in the role of manager. His job involved more than administration. It also required him to analyse intelligence that was collected and make strategic decisions based on that information. He said that in the past his work was essentially that of “an office worker”; after 1996, his work was of a more dynamic kind: transcript at p 9.
9. Mr Trewartha said the job involved intense pressure. He said his decisions had life and death consequences: transcript at p 9. He said he initially revelled in the responsibility but it soon became a burden: transcript at p 10. He started to snap at people. He recalled being overcome on one occasion and departed for the toilet, leaving his deputy in charge because the applicant could not stand the responsibility any longer. He said he was regularly going home in tears where he would drink himself into oblivion: transcript at p 13. He says he finally told his managers he could not continue with the work. It appears he was particularly upset by the need to act in a more senior role. He explained in his evidence, and I accept, that covering gaps in this was a necessary part of the job.
10. Mr Stoner, for the respondent, questioned Mr Trewartha about his interactions with workmates during this period. The applicant accepted he did not find himself in a serious confrontation with workmates on a regular basis. He told the hearing he felt like confronting workmates on an almost daily basis, but the confrontations were comparatively rare: perhaps once every few months: transcript at p 21-22.
11. His managers asked him to stay on for up to six months. He said he knew they would have difficulty replacing him: there were few individuals with his training and experience who were prepared to work in the Northern Territory. He says he reluctantly agreed to stay in the short term. He says he knew he could have obtained work with a contractor doing a similar job for much more money but he did not think he could handle it because of the stress.
12. I note the applicant’s supervisors were keen for him to stay. I do not know if they were perturbed by what he described as his increasingly erratic behaviour; but – as the applicant indicated in his testimony – the supervisors might have been accustomed to dealing with erratic, highly strung people.
13. Mr Trewartha says he effectively limped to the end of the six month period before he formally resigned in 2000. He immediately left the Northern Territory for his holiday home in Falls Creek in Victoria. His wife and son stayed behind in Alice Springs. He said it was a dark time. He had suicidal thoughts. He drank a great deal. He stayed there for about six weeks before his wife convinced him to return to Alice Springs.
14. The family’s income was substantially reduced after Mr Trewartha’s resignation. They survived on his wife’s salary while he did not work. His son was unable to continue his education at the private school he had been attending. The applicant felt able to seek work again in 2002 in order to improve the family’s financial position. In March 2002, he became a court reporter in the courts in Alice Spring. The applicant says he lasted about three weeks: he said he found it unbearably stressful. He said he was constantly worried he would make errors in the course of his work. He decided to quit. He says he told his employer that he had trouble hearing, and resigned: T documents, p 135-136.
15. Mr Trewartha then took a position working in the office of a local nursery in April 2002. It was an unhappy experience. He said he was constantly worried about making errors with the banking. He was becoming more and more anxious. He said he had difficulty dealing with customers and workmates. He said he was frequently in tears: T documents at p 136. He left after a short period.
16. The applicant has not worked since leaving the nursery. He has not tried to find a job. As he explained in his statement dated 11 August 2004 (T documents at p 136):
Just the thought of having to cope with any sort of responsibility and/or the requirement to interact in any way with others makes me anxious and unhappy.
the law and its application
17. The Full Federal Court explained in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 that one must ask several questions to determine if the applicant is able to satisfy the requirements in s 24(1)(c).
18. The first step is to identify “the remunerative work that the veteran was undertaking”. The Tribunal is not restricted to the work the applicant was doing immediately before he left the workforce; looking back over a longer time frame might give a more accurate picture. I think that is appropriate in this case: his last job involved low-level clerical skills. That is not a fair representation of the work he had been doing up until 2002. The respondent has implicitly accepted that but still contends Mr Trewartha was engaged in mid-level clerical and administrative work. I disagree. While the applicant agreed his work in Canberra was of an administrative nature, I accept it had an analytical component that would not normally be present in a purely administrative job. While working for the Department of Defence in the Northern Territory, he worked as a manager and analyst. He also had experience operating sophisticated technology and was involved in making operational decisions. He performed managerial, analytical, technological and administrative tasks involving high levels of stress.
19. At the second step, one is required to consider whether the veteran’s service-related incapacity prevents him from continuing to undertake that work during the course of the assessment period. After hearing the applicant’s evidence, and after reviewing the medical reports, I am satisfied the applicant’s psychiatric conditions in particular prevent him from continuing to undertake that work. (I note the reports of Drs Ewer and Mulholland suggest the applicant was able to work up until as late as 2002, but the doctors accept he has since become incapable of working.)
20. The third step requires that I consider whether there are any other reasons why the applicant could not continue that work. The respondent argued Mr Trewartha was approaching the end of his working life and proposed retiring in any event. The respondent also pointed out the Department of Defence did not record any dissatisfaction with his performance which could be attributed to his accepted conditions. I was also told the applicant had indicated in a number of the documents (eg, his claim for a pension dated 11 June 2002: T documents at p 27) that he ‘retired’ from his work with the department.
21. I am satisfied from the evidence that Mr Trewartha’s skills were in demand, and he had at least some hope of advancement in the bureaucracy. He had not made any preparations for an early retirement: I accept his family life, with a young son, was arranged on the basis he would continue working and drawing a healthy income. I accept his departure from the Department of Defence was unplanned, and it was not explained by his age or a lack of motivation or interest in his former work.
22. The respondent pointed out Mr Trewartha retired exactly 20 years after he commenced work with the department. I am not persuaded he planned to retire after achieving that milestone. If he had done so, he would have done more to prepare his domestic arrangements.
23. I acknowledge the reports of Drs Ewer and Mulholland suggest the applicant was still able to work at least part-time until 2002. Dr Mulholland’s report in particular suggests the applicant should have been able to undertake less stressful work that did not involve responsibility. Even the report of Dr Danesi suggests the applicant’s service-related conditions have only become an insuperable obstacle to undertaking work since about 2002. The respondent says these reports suggest the applicant had already left the workforce before his service-related conditions would have caused him to leave remunerative work.
24. I disagree. Whether or not the applicant could have undertaken any work in 2000-2002, his evidence given on oath at the hearing – which I accept – makes it clear he became unable to continue the work he had been doing. It is irrelevant at this point that he might have been capable of undertaking other, less stressful work of a different nature.
25. The history provided by the applicant in the course of his evidence before the Tribunal painted a bleak picture of a man who was unable to continue doing the sort of challenging work he had been doing because of his mental state. When he left Alice Springs in 2000, he effectively hid in Falls Creek where he considered suicide. While he might have recovered sufficiently to consider undertaking other, less stressful work over the next couple of years, he was plainly incapable of resuming the sort of work he had been doing after he left in 2000.
26. I accept his service-related conditions made it impossible for him to handle the stress and responsibility associated with the work he had been doing. I do not accept there were any other factors that explain his decision to cease that kind of work.
27. The last question posed in Flentjar requires that I consider whether the veteran is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of his service-related incapacity.
28. Section 24(2)(a) says one cannot satisfy this limb of the test if one has ceased engaging in remunerative work of any kind (as opposed to the remunerative work the applicant was undertaking) for reasons other than his war-caused conditions. I have already said I accept the applicant’s war-caused conditions provide a complete explanation for his inability to continue the unique and stressful work he had been undertaking. But the medical experts (apart from Dr Carter) suggest the applicant was fit to do some work during 2000-2002. I am persuaded by the evidence to that effect given in the reports of Dr Mulholland. Dr Mulholland had access to all of the material and he is independent and obviously objective.
29. While I accept the applicant’s war-caused conditions explain his departure from his job and the kind of work he had been undertaking up until 2000, I do not accept those conditions adequately explain his departure from the workforce (and his consequential loss of salary or wages) prior to 2002. His departure from the workforce explains (or partly explains) any loss. In those circumstances, s 24(2)(a) suggests s 24(1)(c) cannot be satisfied.
30. Mr Trewartha says he should be able to take advantage of the ameliorating provision in s 24(2)(b). That section permits the decision-maker to ignore the fact that other factors apart from the veteran’s war-caused conditions explain his ceasing work if he can establish he has been making genuine efforts to find a job but has been unsuccessful because of those war-caused conditions.
31. The sub-section refers to seeking remunerative work, as opposed to seeking remunerative work that the veteran was previously undertaking. I accept the applicant’s condition prevented him from seeking the sort of work he had been undertaking, but I have also accepted the medical evidence suggesting it was not an obstacle to obtaining remunerative work of a different, less challenging kind. I am not persuaded the applicant made a genuine effort to find remunerative work immediately after he left the department in 2000. On his own evidence, it was not until 2002 that he decided to re-enter the workforce in any capacity. By that point, the evidence of Dr Danesi at least suggests the applicant’s condition might have deteriorated to the point where he could not do anything. But the fact he obtained and started work in two different positions in early 2002 suggest the applicant was at least making a genuine attempt to find work at that point. Is the absence of effort between 2000 and 2002 fatal to his claim?
32. After hearing the applicant’s evidence, I am not persuaded his absence for a period from the workforce nor his age nor the injury to his knee described in his lifestyle questionnaire (T document at p 51) were an obstacle to him finding a job in 2002. He was able to get two jobs in short order once he decided to make a genuine effort to find employment. I accept his explanation that his inability to hold down either job when he obtained employment is attributable to his war-caused conditions. In both cases, his diminishing capacity to cope with any sort of stress – a feature of his war-caused psychiatric conditions in particular – was clearly the principal obstacle to doing the work and keeping the job.
33. It follows I accept the ameliorating provision is available to the applicant.
conclusion
34. The decision under review is set aside. The Tribunal finds in substitution that the applicant satisfies the requirements in s 24 of the Veterans’ Entitlements Act 1986 for the award of a pension at the special rate.
35. The applicant did not make any submission as to the date of effect. It is unclear whether there is any dispute on that point. I will remit that aspect of the decision for reconsideration to the respondent.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
Signed: .....................................................................................
Stephen A O’Grady, AssociateDate of Hearing 25 July 2007
Date of submissions 2 November 2007
Date of Decision 20 December 2007
For the applicant Ms Scott-Mackenzie, of counsel
For the respondent Mr Stoner, a departmental advocate
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