Tronc and Repatriation Commission
[2007] AATA 1940
•12 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1940
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600599
VETERANS' APPEALS DIVISION )
Re KENNETH TRONC Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date12 November 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]........................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – intermediate and special rates of pension – veteran able to undertake remunerative work on a part-time basis or intermittently – veteran made redundant - veteran not prevented by reason of incapacity from war-caused conditions alone from continuing to undertake remunerative work that he was undertaking –-pension payable at 90% of the general rate – decision affirmed
Veterans’ Entitlements Act 1986 ss 15, 19(5C), 19(9), 21A, 23(1), (2) and (3), 24 (1) and (2), 119(1), 120(4) and (6)
Flentjar v Repatriation Commission (1997) 26 AAR 93
REASONS FOR DECISION
12 November 2007 Mr RG Kenny, Member Background
1. On 12 October 2005, Kenneth Tronc lodged a claim in accordance with s 15 of the Veterans’ Entitlements Act 1986 (the Act) for an increase in the pension paid to him in relation to his war-caused disabilities of post traumatic stress disorder, alcohol dependence or abuse, hypertension and gout. A delegate of the Repatriation Commission (the respondent) determined that he was entitled to be paid, in accordance with s 21A of the Act, pension at 90% of the general rate but not at the intermediate rate or the special rate, as provided for in s 23 and s 24, respectively, of the Act. That decision was affirmed by the Veterans’ Review Board and Mr Tronc seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Issues and Legislation
2. Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case: see s 120(4) and s 119(1) of the Act, respectively. In that process, neither party bears an onus of proof: see s 120(6) of the Act. The procedure to be followed is provided for in s 19 of the Act. Subsection 19(5C) requires the rate of pension to be assessed from time to time during the assessment period. The term assessment period is defined in s 19(9) of the Act as the period starting on the application day and ending when the claim or application is determined. It is not disputed that the application day in this case was 12 October 2005 and that the assessment period runs from that day until the matter is determined by the Tribunal.
3. The issue raised by Mr Tronc in this case is whether he meets the criteria for payment of an earnings-related rate of pension under s 23 or s 24 of the Act. It is not in dispute that Mr Tronc was under 65 years of age at the time of his claim or that he is in receipt of pension at a rate greater than 70% of the general rate. Accordingly, he meets the preliminary requirements of s 23(1)(aa), (aab) and (a)(i) of the Act for the intermediate rate and of s 24(1)(aa), (aab) and (a)(i) of the Act for the special rate. In issue is whether Mr Tronc meets the incapacity component in either ss 23(1)(b) or 24(1)(b) of the Act. For the intermediate rate, this is that the incapacity from his accepted disabilities is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently. For the special rate, it is that he is totally and permanently incapacitated, that is to say, his incapacity from his accepted disabilities is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
4. In the event that either of those requirements is met, it will also be in issue whether Mr Tronc meets the requirements of either s 23(1)(c) or s 24(1)(c), respectively, of the Act. These are identical and comprise two limbs which require that he:
·is, by reason of incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking (first limb); and
·is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity (second limb).
Evidence
Mr Tronc
5. Mr Tronc gave the following evidence. After leaving the Australian Army in 1967, he had a variety of jobs until 1974 as a factory hand and storeman. From 1974 until 1996, he did kitchen work at a Brisbane hospital and, during this period, he also undertook part-time work as a barman at the Queensland Turf Club (QTC). In 1996, he accepted full-time employment with the QTC which he continued until the end of September 2005. During his time with the QTC, he carried out a range of functions in the main office. These comprised banking, organizing the mailing activities, answering the telephone and greeting members of the racing profession and the public who attended the office. Throughout his nine years of full-time employment with the QTC, he was also responsible for managing and working in the racing committee’s bar where he served drinks to QTC Board members and their guests. For Saturday race meetings, he was assisted in this work by other staff but, for less crowded week-day racing events, he worked alone.
6. In the year or so before Mr Tronc ceased full-time work at the QTC, there was a change in the nature of the office work he was required to do. The focus for the office became one of club promotion and marketing and he felt that he was not able to deal with this changed working environment which, nevertheless, he continued to perform. The changes in the QTC practices were heralded in by a new Chief Executive Officer (CEO), Stephen Ferguson, who was appointed early in 2005. On one occasion, about two weeks before ceasing work, Mr Tronc refused to carry out a week-day shift at the bar for a special function which he considered to be additional to his normal race meeting duties. He discussed the matter with Mr Ferguson and told him of his war-caused psychiatric conditions. Two weeks later, he was called into Mr Ferguson’s office and was advised that he, along with two others, had been made redundant. At the time, he was offered a continuing part-time position as barman on racing days. He rejected this offer because he felt that his accepted alcohol-related disability might have made it difficult for him to carry out the duties of barman. As it was, he would start his normal day's work with a drink of scotch whiskey in order to settle his nerves for the day.
7. Mr Tronc was treated by psychiatrist, Dr Janis Carter, from May 2005 and had discussed with her the difficulties he had in coping with stresses at work. After he had been made redundant at the QTC, he again saw Dr Carter who told him that he was not well enough to work. He has not attempted to obtain any employment since his QTC employment was terminated. Mr Tronc had wanted to continue working with the QTC but realized that he was beginning to experience health difficulties which would have prevented him from continuing for any length of time.
Stephen Ferguson
8. Mr Ferguson gave the following evidence. He was appointed CEO of the QTC in January 2005 at a time when major changes were being made in the organization of the racing industry in Queensland. Much of the work previously undertaken by individual clubs, such as the QTC, was taken over by a central body and this meant that the focus of the club's activities changed dramatically in order for it to generate revenue from sources other than from the conduct of horse-racing. Part of this process involved a review of staffing needs. There was insufficient work for the number of staff employed and this included the particular duties carried out by Mr Tronc. In 2005, it became clear that there was simply no full-time job left for Mr Tronc or, indeed, for two other employees and the three of them were made redundant in September that year. Mr Tronc was a “fantastic committee barman", was “very popular amongst the Directors, members and staff” and there had been no dissatisfaction with his work. The sole reason for the termination of Mr Tronc’s employment with the QTC was that his overall position no longer existed. Mr Tronc was offered the opportunity to continue on a casual basis with the bar work but he declined this offer. In the event that racing administration had not centralized its activities to change the nature of the QTC’s activities, Mr Tronc would have been able to continue in his employment.
Janis Carter, psychiatrist
9. Dr Carter was treating Mr Tronc for about four months before he became redundant with the QTC. She saw him a few days after he became redundant and prepared a report on 5 October 2005 in which she declared that he was totally and permanently incapable of working because of his psychiatric conditions of post-traumatic stress disorder, alcohol abuse and depressive disorder. Dr Carter described the depressive disorder as being comorbid with Mr Tronc’s post-traumatic stress disorder. She said that, when she saw him in October 2005 and since then, Mr Tronc has not been capable of working 8 hours per week in any capacity. She also considered that it would not have been appropriate for Mr Tronc to take up the casual bar work offered to him by the QTC after terminating his full-time position because of his alcohol dependence and she noted that that he had been consuming alcohol during his working day. However, she conceded that she had not advised him to refuse the casual position and was not aware of the reason for his refusal because she was “not there” at the time. In a further report, dated 30 January 2007, Dr Carter referred to refusals by Mr Tronc to do extra work, to breaking down in front of his boss, to then losing his job and to the explanation given that it was because the company was under financial stress and was unable to “carry him”.
10. Dr Carter conceded that any connection between the loss of job and Mr Tronc’s actions had been in the nature of an hypothesis advanced by her and based upon her own speculation. In cross-examination, Dr Carter was unable to explain Mr Tronc’s sudden decompensation, over a few days, from being able to work satisfactorily on a full-time basis to being unable to work at all only a few days thereafter. Dr Carter also expressed the opinion that, if Mr Tronc had not been made redundant in 2005, he would have continued in employment for a period but that his capacity would have deteriorated thereafter.
Peter Mulholland, psychiatrist
11. Dr Mulholland prepared a report, dated 31 May 2007, after having seen Mr Tronc a few days earlier. He disagreed with the conclusion reached by Dr Carter that Mr Tronc was not capable of carrying out any remunerative work. He was of the opinion that Mr Tronc was capable of engaging in employment for at least 8 hours per week on a regular basis although he conceded that he would not be capable of working for more than 20 hours per week. He considered that the reason for this was the effect upon him of his accepted disabilities of post traumatic stress disorder and alcohol abuse or dependence as well as a chronic depressive disorder that he considered to be secondary to the other psychiatric conditions.
Consideration
Incapacity: s 23(1)(b) and s 24(1)(b) of the Act
12. Paragraph 24(1)(b) of the Act requires that the incapacity from Mr Tronc’s war-caused diseases be such that it, in itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. On Dr Mulholland’s evidence, this requirement is not met. In his detailed report and in his oral evidence, his opinion was that Mr Tronc could work for at least 8 hours per week. Dr Carter did not agree with this because of the effects of Mr Tronc’s psychiatric conditions. Neither did Mr Tronc's general practitioner, Dr T Brett, who also gave evidence. However, Dr Brett’s evidence was that he was concerned with Mr Tronc’s physical disabilities and that, from the perspective of psychiatric analysis, he relied entirely on the report completed by Dr Carter. Accordingly, I do not accept his evidence as being independent of that from Dr Carter.
13. Dr Carter was not consistent in the evidence she gave about Mr Tronc’s work capacity. She declared that, a few days after he lost his job, he was not able to work. In her evidence, she also said that, if Mr Tronc had not been made redundant in 2005, he would have continued in employment for a period thereafter albeit with his capacity deteriorating. A few days before Dr Carter declared that Mr Tronc was incapable of performing any work, he was, in fact, working on a full-time basis. In a statement prepared by him in November 2005, he wrote that he was working for 8 hours per day and 38/40 hours per week until 30 September 2005. Mr Ferguson’s evidence was that he was performing that work in a satisfactory manner. Whilst a person might undergo the dramatic change in work capacity over the short period described by Dr Carter, there would need to be some explanation of this. Dr Carter was given the opportunity to provide such explanation but was unable to do so. Also, Dr Carter was under the impression that Mr Tronc was consuming alcohol during his work shift and expressed concern that a person with an alcohol-related condition should take up bar work. However, Mr Tronc’s evidence was that he would have a scotch whiskey at the start of his shift.
14. Because of the inconsistencies in her evidence, I do not accept Dr Carter‘s opinion in relation to Mr Tronc’s capacity to work. Rather, I accept the evidence of Dr Mulholland where it differs from that of Dr Carter. Based on that evidence, I am satisfied that Mr Tronc does not meet the requirements of s 24(1)(b) of the Act during the assessment period. This means that he is not eligible to be paid the special rate of pension under s 24 of the Act.
15. In the event that Mr Tronc met the requirements of s 24(1)(b) of the Act, his claim in relation to the special rate of pension would be unsuccessful because of s 24(1)(c) of the Act for the same reasons as are applicable to s 23(1)(c) of the Act and which are set out below.
16. Dr Mulholland’s evidence was that Mr Tronc was precluded from working for more than 20 hours per week because of his psychiatric disabilities. In accordance with s 23(2) of the Act, this is equivalent to working on a part-time or intermittent basis. That analysis is sufficient for him to fall within the terms of s 23(1)(b) of the Act which relates to the intermediate rate of pension. Accordingly, consideration must be given to s 23(1)(c) of the Act.
Continuing to undertake remunerative work: s23(1)(c) of the Act
17. For the purposes of applying s 24(1)(c) of the Act, which is expressed in the same terms as s 23(1)(c) thereof, the Federal Court in Flentjar v Repatriation Commission (1997) 26 AAR 93 said that a proper consideration of the provision requires consideration of a series of questions. Modified to meet the circumstances of s 23(1)(c) of the Act, these are:
1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 23(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 other than on a part-time basis or intermittently?
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?
18. It is not disputed that the relevant remunerative work that Mr Tronc was undertaking was that of a clerical or administrative nature as well as that associated with bar work. Also, I am satisfied that the incapacity from Mr Tronc’s war-caused conditions is sufficient to prevent him from continuing to undertake that work other than on a part-time basis or intermittently.
19. The only matter raised by Mr Kelly in relation to the third of those questions was the contribution made by Mr Tronc’s depressive disorder to his being prevented from continuing to undertake his work. This is not a condition which has been determined to be related to Mr Tronc’s war service. Whilst I accept that this is a psychiatric condition separate from alcohol abuse/dependence and post traumatic stress disorder, the evidence of both Dr Carter and Dr Mulholland was that it was related to the latter condition. In that situation, I am satisfied that it should not be relied upon to provide a negative response to the third of the questions posed above.
20. Favourable responses to the first 3 questions posed in Flentjar mean that the first limb of s 23(1)(c) of the Act is met in Mr Tronc’s case. This means it is not necessary to consider to s 23(2)(b) of the Act which serves to ameliorate the operation of that first limb.
21. Question 4 reflects the second limb of s 23(1)(c) of the Act (see paragraph 4 above). As it stands, it must also be answered affirmatively. However, it is qualified by the terms of s 23(3)(a) of the Act which, in so far as relevant, reads:
“(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; ….
22. I am satisfied that Mr Tronc’s circumstances are embraced by the terms of s 23(3)(a)(i) of the Act. In that regard, I accept the evidence of Mr Ferguson. I am satisfied that there was no dissatisfaction with the work Mr Tronc did for the QTC especially in relation to the committee bar. I am also satisfied that Mr Tronc and, indeed, two other employees, were made redundant due to the changing nature of the employment environment in the QTC during 2005. Because of those changes, the services of Mr Tronc and two other employees were no longer required. There was no longer a full-time position available for him. The reason for Mr Tronc’s rejection of the offer of part-time work is not clear on the evidence. However, I do not accept that it was because of his war-caused alcohol abuse problems or other war-caused conditions. This was the very work he had been undertaking for more than 10 years on a part-time basis and then, on a full-time basis, for a further 9 years both on Saturday race meetings, with the assistance of other staff, and during week day race meetings, on his own. In his evidence, he said that he had wanted to continue in his employment with the QTC and this involved him, largely, in bar work. Mr Ferguson’s assessment of him in that capacity was that he was “fantastic” and “very popular” with those who used the bar facility. I am satisfied that the reason which prevented Mr Tronc from continuing to undertake remunerative work that he was undertaking is that his position at the QTC was no longer available for him. This was unrelated to any incapacity from his war-caused disabilities. .
Earnings-related rates of pension
23. I am satisfied that Mr Tronc does not meet the requirements for the payment of the intermediate rate or special rate of pension under s 23 and s 24, respectively, of the Act because, specifically, the terms of the second limb of s 23(1)(c) of the Act and of s 24(1)(b) and (c) are not met. This means that pension is not payable to him under those provisions.
Decision
24. The Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed:……………………………………………..
Mr S O’Grady, Legal Research OfficerDate of Hearing 17 October 2004
Date of Decision 12 November 2007
For Mr Tronc Mr R Richards
For the Respondent Mr J Kelly, Departmental Advocate
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