Valliant and Repatriation Commission
[2010] AATA 941
•4 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 941
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5276
VETERANS’ APPEALS DIVISION ) Re John Valliant Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member A K Britton
Dr M E C Thorpe, MemberDate24 November 2010
PlaceSydney
Decision The decision under review is affirmed .....................[sgd]..................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – pensions – special rate pension – intermediate rate pension – “alone” test – whether full-time and part-time work in same job different forms of “remunerative work the veteran was undertaking” – ameliorate provisions – reason veteran ceased work
Veterans’ Entitlements Act 1986 (Cth) – ss 19, 23, 24, 28
Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286
Chambers v Repatriation Commission (1995) 36 ALD 207
Owen v Repatriation Commission (1995) 38 ALD 241
Flentjar v Repatriation Commission (1997) 48 ALD 1
Carter v Repatriation Commission [2001] FCA 992
Repatriation Commission v Haskard (2002) 126 FCR 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Re Mitchell and Repatriation Commission [2007] AATA 2087
REASONS FOR DECISION
24 November 2010 Senior Member A K Britton
Dr M E C Thorpe, Member1. Veteran, Mr John Valliant has made a claim under the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a pension at the “special rate” or, in the alternative, the “intermediate rate”. He served in the Australian Army from 1968 to 1973, including ten months active service in Vietnam. He contends that he meets the criteria for a special rate pension, in that he is incapacitated for work because of his accepted “war-caused” conditions — post traumatic stress disorder (PTSD), bilateral hearing loss and atopic dermatitis.
2. In August 2008, the Repatriation Commission, the respondent in these proceedings, increased Mr Valliant’s pension to 90 per cent of the general rate, but refused his claim for payment at the “special rate”.. The Veterans’ Review Board affirmed that decision. Mr Valliant has now applied to the Administrative Appeals Tribunal for review of that decision.
3. The Commission opposes Mr Valliant’s claim, and argues that his accepted conditions are not of such severity as to render him incapacaple of working eight hours per week or to prevent him from engaging in remunerative employment that he had been undertaking.
Eligibility criteria for Special Rate pension
4. Section 24 of the Act sets out several criteria that must be satisfied before a pension is payable at the “special rate”. It is agreed that all but those specified in ss 24(1)(b) and 24(1)(c) are satisfied:
(1) This Section applies to a veteran if:
...
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that 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 of that incapacity ...
5. The terms “war-caused injury” and “war-caused disease” are defined by s 9 of the Act. As noted, the Commission has accepted that Mr Valliant’s conditions of PTSD, bilateral hearing loss and atopic dermatitis are “war-caused diseases”. For convenience, we will refer to these as “war-caused conditions”.
6. The phrase “incapacity of a veteran from a war-caused injury or a war-caused disease” is taken by the Act to mean a reference to the effects of that injury or disease and not a reference to the injury or disease itself: s 5D(2).
Is Section 24(1)(b) satisfied?
7. Section 24(1)(b) will be satisfied if Mr Valliant’s incapacity from war-caused conditions is of such a nature of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Section 28 provides that in determining whether Mr Valliant is incapable of undertaking remunerative work for the purposes of s 24(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).
8. Whether Mr Valliant satisfies these criteria must be assessed by reference to the “assessment period”: that is, from the date on which his claim was received, 29 May 2008, to the date his claim is ultimately determined: ss 19(5C) and 19(9) of the Act. If, at any time during that period, he 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 time: Leane v Repatriation Commission [2004] FCAFC 83 at [31].
9. By the combined operation of ss 24(1)(b) and 28, the following issues must be addressed:
1. What are Mr Valliant’s vocational, trade and professional skills, qualifications and experience?
2. What are the kinds of remunerative work a hypothetical person with Mr Valliant’s skills, qualifications and experience might reasonably undertake?
3. To what degree have Mr Valliant’s war-caused conditions reduced his capacity to undertake the kinds of remunerative work referred to in (2) above?
4. Have any or all of Mr Valliant’s accepted war-caused conditions rendered him incapable of performing remunerative work for periods aggregating more than eight hours per week?
10. Vocational, trade and professional skills, qualifications and experience: On leaving the Army at age 25, Mr Valliant worked for a short period as a production engineer before setting up a small construction business specialising in residential building. The latter continued in various guises until about 2000. Between 1975 and 1985, Mr Valliant also managed a family earthmoving business. In 2003, he went on to work for the construction company AV Jennings, initially as a site manager and later in a more senior position. He was dismissed in November 2007 and a few weeks later obtained a similar position at a smaller commercial construction company, Commercial Building Group. He was dismissed from that position in May 2008.
11. Mr Valliant currently holds a licence to work as a builder in NSW. On his account, he has not worked in a “hand-on” capacity in the building industry since the late 1970’s, and since that time has worked exclusively in management or supervisory-type roles.
12. Kinds of remunerative work: Section 28(b) requires us to identify the range of employment that a notional person with Mr Valliant’s skills, qualifications and experience as identified above, might reasonably undertake. All of Mr Valliant’s skills and qualifications, regardless of the means by which they were acquired or developed, are to be taken into account in determining the opportunities for remunerative work available to him: Chambers v Repatriation Commission (1995) 36 ALD 207 at 220. Mr Valliant’s skills, qualifications and experience are to be assessed independently of his war-caused incapacity: Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286; Chambers at 218.
13. The Commission contends that a person with Mr Valliant’s skills, qualifications and experience could, among other things, undertake maintenance or handyman-type work. For convenience, we will use the term “maintenance type work” to describe this class of employment. Mr Valliant contends that he has neither the physical strength nor the skills or experience to undertake maintenance type work, not having worked in the area since the late 1970’s.
14. In Chambers, the Full Court considered the application of s 28(b) in circumstances where further training is necessary:
[A] veteran who had no special skills, qualifications or experience relevant to a specialised occupation could not be regarded as capable of undertaking remunerative work in that occupation simply because he or she was intelligent enough to undertake the extensive retraining necessary to acquire the skills or qualifications required for employment. However, where some new learning or certification involved a relatively small increment on existing skills and qualifications the veteran would be considered to be capable of remunerative work. … The reasonableness of the requirement for further training or certification was covered by s 28(b).
15. There is no evidence that Mr Valliant has maintained his skills by dabbling in home maintenance or the like. While he has gained extensive and varied experience in the construction industry over the past three decades, it has been at a managerial or supervisory level. Given the passage of time since Mr Valliant last worked “on the tools”, in our view something more than a “relatively small increment” on his existing skills and qualifications would be required for him to be able to undertake this class of employment. In our view significant retraining would be required. We are not satisfied that maintenance type work constitutes the kind of employment that Mr Valliant “might reasonably undertake”.
16. We consider that supervisory or managerial type work in the building industry constitutes the “kind of work” that the notional person with Mr Valliant’s skills etc “might reasonably undertake”. By using this term, we are not intending to convey that the kind or employment Mr Valliant “might reasonably undertake” is confined to the type of work he had previously undertaken — that is, large scale complex building projects which involved the supervision of hundreds of employees and contractors. Rather, it would extend to supervisory/managerial work on smaller projects.
17. Degree to which war-caused conditions reduced Mr Valliant’s capacity to undertake remunerative employment:Section 24(c) directs us to assess the degree to which, if any, Mr Valliant’s war-caused impairment has reduced his capacity to undertake supervisory or managerial type work in the building industry.
18. It is uncontroversial that in respect of Mr Valliant’s capacity for employment, PTSD is the most significant of his war-caused conditions. In our view, his other accepted conditions — hearing loss and dermatitis — neither separately, nor in combination, reduce Mr Valliant’s capacity to undertake supervisory or managerial type work in the building industry to any material degree.
19. In a report dated 5 May 2009, Dr U Subhas, Mr Valliant’s treating psychiatrist (since 2004), stated that Mr Valliant “cannot work even if he wanted to”. In an earlier report dated 18 December 2008, he wrote “[I] doubt whether he would be able to get back to any meaningful employment, considering his ongoing problems with PTSD”. Occupational physician, Dr Robin Chase, who assessed Mr Valliant at the request of the Commission, did not agree with Dr Subhas’ opinion that Mr Valliant was totally unfit for all work, but agreed that he could not return to the type of work he had been undertaking in the construction industry which involved working long hours and managing large numbers of employees and contractors. He thought that Mr Valliant might be able to return to that work providing he did not work full-time. In his opinion, there was a correlation between the number of hours Mr Valliant could work and the level of stress the subject job entailed — the more stress the job involved, the fewer hours he would be able to work and vis a versa.
20. While the consensus of medical opinion is that Mr Valliant is unfit to return to the type of work he had recently been undertaking, there is an apparent difference of opinion over the degree to which PTSD has reduced his capacity to undertake supervisory or managerial-type work in the building industry. While Dr Chase believes he could do so, providing he worked part-time, Dr Subhas’ opinion on this issue is not entirely clear. A fair reading of his most recent reports suggests that his comments were directed at the type of work Mr Valliant had been undertaking prior to leaving CBG. It is unclear whether the reference to “meaningful employment” (“[I] doubt whether he would be able to get back to any meaningful employment…”) in Dr Subhas’ report of 18 December 2008 was intended to extend to work such as part-time supervisory work in the building industry on less demanding projects.
21. While the evidence makes plain that Mr Valliant’s war–caused impairment has reduced his capacity for employment, we are not persuaded that it has completely reduced his capacity to undertake supervisory or managerial type work in the building industry. In reaching that opinion, we have had regard to the fact that there is no evidence that Mr Valliant’s condition has gone into freefall after leaving CBG close to two years ago. At that time, he had been working full-time in a senior role with significant responsibility. Since leaving CBG, Mr Valliant has managed to undertake a number of tasks such as landscaping his two and a half acre property and writing a children’s book, which require a degree of concentration and organisational skills. While these solitary pursuits are perhaps less demanding insofar as they can be pursued at a self-determined pace, it suggests that PTSD has not left Mr Valliant completely functionally impaired.
22. In our opinion, while Mr Valliant’s war-caused impairment has plainly reduced his capacity to undertake supervisory or managerial type work in the building industry. it has not reduced his capacity to such an extent that he could not work at least eight per week in aggregate in that capacity.
23. Summary: We find that Mr Valliant’s accepted war-caused conditions have not rendered him incapable of performing remunerative work of eight hours per week in aggregate. It follows that s 24(1)(b) is not satisfied and accordingly Mr Valliant’s claim for a special rate pension must be refused. Given this finding it is strictly speaking unnecessary to consider whether s 24(1)(c) is satisfied. However, as that issue was fully ventilated before us, we will proceed to deal with whether s 24(1)(c) is met lest we be wrong in relation to the s 24(1)(b) issue.
Is Section 24(1)(c) satisfied?
24. Section 24(1)(c) will be satisfied if, on the balance of probabilities:
(i) By reason of his war-caused incapacity alone, Mr Valliant is prevented from continuing to undertake remunerative work that he was undertaking; and
(ii) He is 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.
25. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, Branson J (with whom Beaumont and Merkel JJ agreed) described the issues raised by s 24(1)(c) as being:
(1) What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(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?
(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?
Relevant “remunerative work” Mr Valliant was undertaking’
26. The phrase “remunerative work that the veteran was undertaking” in s 24(1)(c) is a reference to “the type of work which the veteran previously undertook and not to any particular job”: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. It is not restricted to Mr Valliant’s last employment: Banovich at 402-403.
27. As noted, Mr Valliant has worked in senior management positions in the construction industry in both an employed and self-employed capacity. In our view, the “relevant remunerative work” Mr Valliant had been undertaking could be best described as “construction industry management at a senior level”.
28. An issue not addressed by either party is whether the phrase “the remunerative work that the veteran was undertaking” in the context of s 24(1)(c) is a reference to the type of employment alone, or to key features of that employment — including the quantity and frequency of work performed — as well. In contrast to s 24(1)(b), s 24(1)(c) does not refer to hours of work.
29. In Re Mitchell and Repatriation Commission [2007] AATA 2087, Deputy President Jarvis concluded that a veteran who had previously worked in a particular vocation on a full-time basis, but was only able to work in that same vocation part-time on account of accepted conditions, satisfied the “alone” test in s 24(1)(c). After referring to Carter v Repatriation Commission [2001] FCA 992 and Repatriation Commission v Haskard (2002) 126 FCR 1, the Deputy President observed at [70]:
In Carter, Branson J referred to the proposition that the paragraphs of s 24 that her Honour was there considering dealt with two distinct issues. That is the position in the present matter. Section 24(1)(b) deals with the extent of incapacity for remunerative work (as well as causation), and s 24(1)(c) deals with whether there are other causes that are contributing to incapacity (as well as whether loss results from incapacity). It could often happen that upon becoming disabled, a veteran would turn to part-time work in the same field of work that he or she had previously undertaken on a full-time basis. If a veteran satisfies the criterion dealing with the extent of incapacity for remunerative work in s 24(1)(b) it seems to me that it would not be appropriate to characterise part-time work as “remunerative work that he or she was (previously) undertaking” for the purpose of s 24(1)(c) where he or she had previously undertaken work of the same kind on a full-time basis. To adopt that interpretation might often lead to veterans being deprived of pension at the special rate, even though they satisfied the criteria for being totally and permanently incapacitated provided for in s 24(1)(b)
30. We concur with the Deputy President’s view. Reading s 24(1)(c) in context, the second limb — requiring a loss on the part of veteran due to their disability — manifests an intention to compensate the veteran where the war-caused disability results in a loss of income. If “remunerative work” were to be interpreted as referring to the type of work only, a veteran who had suffered a clear loss of earnings due to a significantly-diminished capacity to work in a particular field in which they had previously been employed would not satisfy the test. In Carter, Branson J — referring to the distinct but related provision s 24(2A)(d) — expressed a similar view regarding the validity of this outcome.
31. By contrast, a veteran who lost the capacity to work in a field in which they had previously worked full-time, but was still able to work in another field full-time and establish a consequential loss, would still satisfy the test in s 24(1)(c) (see Starcevich v Repatriation Commission (1987) 18 FCR 221). This differential effect — despite the potential for a veteran forced to work part-time in a field to suffer a substantially-greater loss of income — would be an illogical result.
32. Taking into account the statutory context and the beneficial intent of the legislation, in our opinion the term “remunerative work” in s 24(1)(c) should be interpreted to mean the type and incidence of work previously undertaken by the veteran, including the hours worked.
33. For these reasons, we find that the “relevant remunerative work” Mr Valliant was undertaking was “full-time construction industry management at a senior level”.
Is Mr Valliant by reason of his war-caused conditions prevented from continuing to undertake construction industry management work?
34. As noted, the weight of medical opinion is that Mr Valliant’s psychiatric conditions now prevent him from undertaking full-time management work in the construction industry. We will return to consider the extent, if any, that depression prevented Mr Valliant from continuing to work, and proceed on the basis that the second step in Flentjar is satisfied.
Is PTSD the only factor preventing Mr Valliant from continuing to undertake construction industry management work?
35. The third step in Flentjar requires us to be satisfied that Mr Valliant’s war-caused conditions are the only factors preventing him from continuing to undertake construction industry management work. In applying the test, we must take into account any factor that might play a part in Mr Valliant’s being prevented from continuing to undertake remunerative work: Repatriation Commission v Hendy (2002) 76 ALD 47. As noted, it is uncontroversial that of Mr Valliant’s war-caused conditions, PTSD is the most significant in terms of his capacity for employment and also that his non-accepted physical conditions, the most significant being osteoarthritis of the knees, do not materially impact on his capacity for remunerative employment.
36. Mr Valliant asserts that PTSD alone prevents him from undertaking full-time management work in the construction industry. The Commission on the other hand contends that other factors including depression, age, retirement plans and the state of the labour market also prevent Mr Valliant from returning to the work he had previously been undertaking.
37. As the Commission points out, in Mr Valliant’s case depression has not been accepted as a “war-caused disease”. It is therefore necessary to examine the incapacity, if any, that resulted from that condition.
38. As noted in his most recent report, Dr Subhas provided a diagnosis of “chronic PTSD and Co-Morbid Major Depression”. In an earlier report dated 19 April 2007, he noted that Mr Valliant was prone to Major Depression and had been suffering from the condition when he started seeing him in 2004. Dr Subhas thought the condition severe enough to warrant anti-depressants and on his recommendation, Mr Valliant commenced taking them for a short period in 2007. According to Dr Subhas, Mr Valliant was unable to tolerate their use. In addition, Mr Valliant was apparently reluctant to continue to use anti-depressants because of his belief that they had a detrimental impact on a family member. In a letter dated 7 December 2007, Mr Valliant’s treating doctor thanked Dr Subhas for his continuing care of Mr Valliant’s “PTSD and Depression”.
39. Dr Subhas’ most recent report, dated 5 May 2009, reveals that in his opinion depression contributed to Mr Valliant’s incapacity for employment. After setting out his diagnosis of “chronic PTSD and Co-Morbid Major Depression” and providing a history of Mr Valliant’s battle with both PTSD and depression, he wrote that “he would not last long in a job because of the abovementioned problems”. Dr Chase agreed that Mr Valliant suffered from depression and that it had contributed in part to his incapacity for employment.
40. As noted by Dr Subhas and confirmed in oral evidence by Dr Chase, depression and PTSD are commonly co-morbid conditions. DSM-IV (the American Psychiatric Association, “Diagnostic and Statistical Manual of Mental Disorders, (4th ed) — a manual accepted in Australia as an authoritative psychiatric text) states, at p 465, that “PTSD is associated with increased rates of Major Depressive Disorder”.
41. A fair reading of Dr Subhas’ reports indicates that he believed that depression contributed to Mr Valliant being prevented from continuing to undertake remunerative work. It is unclear however the extent to which he considered that depression, as distinct from PTSD, contributed towards Mr Valliant being prevented from continuing to undertake that work. It may be that he thought that the symptoms or behavioural manifestations of Mr Valliant’s depression contribute to only a small degree to his incapacity for employment, or were common to those that emanated from his PTSD. From what is before us, it is not possible to say.
42. It may also be that by using the term “co-morbid” to describe Mr Valliant’s condition — “chronic PTSD and Co-Morbid Major Depression” — Dr Subhas intended to convey that, in his opinion, Mr Valliant’s depression was caused by, or related to, his PTSD. This raises the question of whether the symptoms or behavioural manifestations of depression that contributed to Mr Valliant’s incapacity for employment can be taken into account in the assessment of his “incapacity from war-caused injury or war-caused disease”. (This issue was discussed by Finn J in Owen v Repatriation Commission (1995) 38 ALD 241 at 249. There His Honour held that a non-accepted shoulder injury which was allegedly the sequela of an accepted back injury could not be taken into account as a war-caused condition when applying s 24. Cf the approach taken by Madgwick J in Hendy)
43. Neither party called Dr Subhas to give oral evidence. We gave consideration to whether it was appropriate to request that Dr Subhas appear to clarify his opinion about the role played by depression in preventing Mr Valliant from returning to remunerative employment and its relationship with his PTSD. We decided, however, not to do so, because even if his evidence was favourable to Mr Valliant on this point, the claim could not succeed given our conclusion in relation to s 24(1)(b) and our finding that for the reasons that follow, the remaining elements of s 24(1)(c) are not satisfied.
Does s 24(2)(b) apply?
44. Section 24(2)(b) operates to ameliorate the first limb of s 24(1)(c) and provides:
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
45. On Mr Valliant’s account, he put his name down at an employment agency after losing his job at the Commercial Building Group but received no response from the agency. He claims that at his level of seniority, employment in the construction industry can only be obtained via employment agencies and not by direct approaches to employers. It is unclear from the evidence whether he persevered in continuing to seek employment after being advised by Dr Subhas not to continue to work.
46. There is no evidence of the steps, if any, taken by the unnamed employment agency to obtain employment for Mr Valliant, or of the steps, if any, he took to follow up his application with the agency. Nor is there any evidence that the agency and/or any prospective employer was aware that Mr Valliant suffered from PTSD. Accordingly, even if it is assumed that Mr Valliant genuinely sought to engage in remunerative work after May 2008, the second element of s 24(2)(b) is not met, as there is no evidence that Mr Valliant’s incapacity was the substantial cause of his inability to obtain remunerative work.
Is Mr Valliant suffering a loss of salary, wages or earnings on his own account?
47. The fourth step in Flentjar requires that we be satisfied that Mr Valliant, by reason of being prevented from continuing to undertake full-time senior management work in the construction industry, is suffering a loss of salary, wages or earnings on his own account that he would not be suffering were it not for his war-caused incapacity. Section 24(2)(a) provides that a veteran 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 if he or she:
(i) 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) Is incapacitated, or prevented, from engaging in remunerative work for some other reason.
Ceased to engage in remunerative work
48. Mr Valliant asserts that the only plausible explanation for the decisions made by AV Jennings and the Commercial Building Group to terminate his employment was because PTSD had adversely effected his work performance. He therefore asserts that he ceased to engage in remunerative work because of his war–caused incapacity. The Commission disagrees.
49. To assess his hypothesis, it is necessary to examine Mr Valliant’s employment history in some detail. Until about 2000, he had been running a small construction company for a number of years. During the last ten years of this period, he had been running a family business in tandem. On his account, he found he could no longer cope with the stress of dealing with clients, staff, sub-contractors and legal disputes, and decided to get out in order to preserve his health. As the Commission points out, there is some evidence to indicate that around that time Mr Valliant had been incapacitated for work as a result of a motor vehicle accident. (See Exhibit R6, in particular statement of claim filed on behalf of Mr Valliant in the NSW District Court, November 2001 and consent orders made in July 2002.)
50. Throughout his four year employment with AV Jennings for over four years. He Mr Valliant was promoted on a number of occasions and awarded significant salary increases. According to Mr Valliant, the termination came “out of the blue”. He said he was extremely shocked, especially given that he had never received any criticism about his work and, as mentioned, had been promoted within the company. He testified that he had been managing well at the time of his dismissal even though he had been under some stress and working long hours. On his account, a member of AV Jennings’ staff told him “off the record” that the reason he was dismissed because he had not been keeping up with work schedules. In a clinical note made on 11 December 2007 Dr Subhas recorded that Mr Valliant was told by a construction manager that his contract had been terminated because he “wasn’t suited to the job” and that he believed that the construction manager was “jealous of him”.
51. In answer to a request made by the Department under s 128 of the Act, AV Jennings advised that the reason for Mr Valliant’s termination was “[N]not able to carry out work due to employee’s contract”. AV Jennings also provided a copy of Mr Valliant’s employment file. It sheds no further light on why Mr Valliant was dismissed.
52. In December 2007, Mr Valliant commenced employment in a similar position with the Commercial Building Group. He was dismissed from that position in May 2008. The notice of termination stated:
Confirming our discussion today, CBG has made an amicable agreement with you that due to performance your employment will be finalised within four weeks from today…
53. Mr Valliant disputes that an “amicable agreement” was reached, and claimed that he was told that he must work out his four weeks notice unless he was prepared to forfeit a months’ salary. On his account, the owner told him he was unhappy with his performance as he was not prepared to “take risks to get the job done” and “was obsessed with the safety of personnel”. He said that over the course of his employment he had a number of run-ins over “safety-related issues”. Mr Valliant believed that the company’s safety procedures were deficient, citing as an example the decision not to move aged care residents from their care facility while significant renovations were in progress — a decision he challenged because he believed that it placed the residents at risk.
54. Mr Valliant testified that he could not recall any instances of poor performance on his part at either the CBG or AV Jennings. When asked in these proceedings why he had formed the view that he was dismissed because of PTSD, he replied that it was because he could think of no other explanation.
55. Apart from Dr Subhas’ clinical notes, there is no contemporaneous evidence to assist us in understanding the reason behind the respective decisions to dismiss Mr Valliant.
56. Dr Subhas’ clinical notes reveal that consistent with Mr Valliant’s testimony, he had difficulties sleeping, experienced flashbacks, nightmares, irritability and other related symptoms of PTSD throughout the period he was employed with AV Jennings and CBG. On his account, he had been experiencing these symptoms since returning from Vietnam, but found them more difficult to cope with as he grew older.
57. Dr Subhas’ clinical notes suggest that as the decade progressed, Mr Valliant became increasingly unhappy in his employment. He recorded:
April 2006 — Mr Valliant was worried he might be made redundant
6 June 2006 — Mr Valliant was disappointed that he didn’t get a position as general manager, and was disillusioned with work
26 August 2006 — Mr Valliant was hoping to stay in employment … so far as it’s okay
4 December 2006 — Finding it hard to stay in employment, and unhappy with job
20 February 2007 — Unhappy in his job – he has been demoted … unhappy
14 April 2007 — Working hours 6:30 am to 7:30 pm … even on Saturdays till 5 pm … not handling long hours; suggested he take off work to recuperate; anxious/depressed.
12 June 2007 — Mr Valliant reported that the man who got his job had been ignoring him, and felt he needed to get another job. He had been trying to get another role through an Agency … unhappy with job … disillusioned with DVA
17 Aug 2007 — work is going well … but uncertain how long he is going to be there.
16 Oct 2007 — unhappy in his job …
12 Feb 2008 — looking well-gets moody and irritable … uncertain how long he can stay in employment.
14 April 2008 — been worrying about his future … anxiety attack at work … wants to keep working for at least another two years
58. In his report dated 5 May 2009, Dr Subhas wrote that Mr Valliant had coped “reasonably well” while employed with AV Jennings, but “had problems, as he felt uncomfortable being with people“ once he was brought into an office environment. He also wrote that Mr Valliant was “losing confidence in his work, getting depressed and started feeling he was a failure”. He recorded:
Unfortunately, the ongoing difficulties dealing with the trauma of incidents that happened in Vietnam took a toll on his work performance. He was getting moody and irritable and Intrusive Thoughts and Flashbacks were beginning to affect him. He was having Restless Sleep, which not only affected him but his wife as well. Survival Guilt always haunted him.
I have seen Mr Valliant go through Severe Depression as well, and he was reluctant to take anti-depressants because of what happened to his brother.
…
… Mr Valliant cannot work and even if he wanted to, in my opinion, he would not last long in a job because of the abovementioned problems.
59. There is no direct evidence that PTSD adversely effected Mr Valliant’s work performance at either AV Jennings or CGB. Mr Valliant urges us to draw that inference, arguing that it is likely, given his significant experience and proven track record in the construction industry, that any poor performance must be attributable to his PTSD. In addition, he points to Dr Subhas’ opinion that by 11 June 2008 he was unable to stay in employment.
60. Mr Valliant believed that the decisions made by both AV Jennings and CGB were brutal and unjustified. On questioning, he could not point to any examples of poor performance on his part. None are mentioned in Dr Subhas’ notes. It is possible that because of his psychiatric condition, Mr Valliant lacked insight and was unable to recognise that his health had adversely affected his performance. Equally, it is possible that his performance was not lacking and that the reason he was dismissed was, as he apparently believed at the time, because AV Jennings had set unreasonable schedules, or because CBG disagreed with his approach to safety issues. From what is before us, we can at best speculate on the reasons his former employers decided to dismiss Mr Valliant and the part, if any, his health played in those decisions. In our view, the evidence taken as a whole does not support an inference being drawn that Mr Valliant’s condition played a role in his employment ceasing with either AV Jennings or CGB.
61. Nor could we be satisfied that since ceasing work with CBG, Mr Valliant ceased to engage in remunerative work because of incapacity from his war-caused conditions. On his own evidence — and notwithstanding Dr Subhas’ advice — he has attempted without success to obtain work through an employment agency.
62. We are not satisfied that Mr Valliant ceased to engage in remunerative work because of his war-caused incapacity. As Mr Valliant does not satisfy the fourth step set out in Flentjar, his claim for special rate pension must fail.
Is Mr Valliant eligible for a pension at the intermediate rate?
63. Mr Valliant does not meet for the criteria for an intermediate pension under s 23 of the Act, as he does not satisfy s 23(1)(c), which is in identical terms to s 24(1)(c).
Summary
64. Given that we have concluded that Mr Valliant does not satisfy the criteria for either a special or intermediate rate pension, the decision under review must be affirmed.
I certify that the 64 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 BrittonDate of Hearing: 30 September 2010, 1 October 2010
Date of Decision: 24 November 2010
Representative for the Applicant: Mr K Foster,
Vietnam Veterans Association of Australia
Solicitor for the Respondent: Mr A Carter,
Sparke Helmore
11
1