Vince and Repatriation Commission - [2002] AATA 296

DECISION AND REASONS FOR DECISION [2002] AATA 296

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/68

VETERANS' APPEALS DIVISION       )
           Re      JEFFREY CHARLES VINCE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date30 April 2002
PlaceHobart

Decision      The decision of the Veterans' Review Board dated 15 May 2000 be set aside and in substitution therefor a decision that Mr Vince be paid a disability pension at the Special Rate with effect from 14 June 1997.
  [Sgd B W Davis]
  Part-Time Member
CATCHWORDS
Veterans' Appeals - war-caused disabilities - pension - medical condition - remunerative work - loss of wages - general rate - special rate - impairment rating - Veterans' Review Board - Guide to Assessment of Rates of Veterans' Pensions (GARP).

LEGISLATION AND PRINCIPLES

Veterans' Entitlement Act 1986 - ss2, 23, 24

Guide to Assessment of Rates of Veterans' Pensions (GARP), Fifth Edition, 1998.

AUTHORITIES

Repatriation Commission v Deledio (1998) 391 FCA (22 April 1998).
Reilly v Repatriation Commission (1987) 12 ALD 533

REASONS FOR DECISION

30 April 2002 Associate Professor B W Davis AM (Part-time Member)
The Application

The applicant, Jeffrey Charles Vince, seeks review of a decision made by a delegate of the Repatriation Commission on 29 July 1998 as varied pursuant to s31 of the Veterans' Entitlements Act 1986 and subsequently affirmed by a decision of the Veterans' Review Board on 15 may 2000, whereby the applicant's rate of pension was increased to 100 per cent of the General Rate.
The Issue
The issue before the Tribunal is whether the applicant is entitled to pension at the Special Rate.
Background
Mr Jeffrey Charles Vince has been in receipt of pension at 100 per cent of the General Rate since 12 June 1998 for his accepted disabilities of:
Post traumatic stress disorder
Neurodermatitis
Bilateral sensori-neural hearing loss
The applicant contends that he is eligible the Special Rate of pension under s24 of Veterans' Entitlements Act 1986. He has a degree of incapacity of at least 70 per cent and claims to be unable to work more than 8 hours per week due to his war-caused disabilities alone. Mr Vince is 54 years old and contends that he has genuinely sought remunerative work, but his disabilities are the substantial cause of inability to obtain such work, thereby suffering loss of wages he would normally earn.
His last paid employment was as a warehouse foreman in November 1991, when back problems and post-traumatic stress disorder led to advice to him to quit. He suffers panic attacks in crowds, lifts and shops and has not worked since 1991, other than minor hours at his brother-in-law's chicken farm.
Evidence
At the Tribunal hearing conducted on 9 April 2002, the applicant was represented by Mr R M Webster and the respondent by Mr M C Castle
Mr Vince was sworn and gave evidence about his employment record, lifestyle and disabilities He comes from a large rural family, left school at age 14 years and worked primarily as an orchard hand and later truck driver. These occupations were largely solitary, so that he did not have problems with co-workers or supervisors.
When he commenced duties at his last place of employment, Sea Pak, he was employed initially as a transport driver, but soon promoted to foreman, where he supervised over 20 men within an extremely busy warehouse. This led to ongoing stress and conflict, with eventual inability to cope with the job. He drank to excess and his doctor suggested he should leave.
He ceased work in November 1991 and was granted disability support on the basis of a back injury, which he had suffered when working with EZ Industries some years earlier.
Both his first wife and second wife have jointly tried to help him with his alcohol problem. He eventually had treatment for his stress disorder and his depression is now reasonably well controlled with medication, but he has periodic panic attacks, especially in social situations with other people and in shops or crowds.
In addition to his work experience, military service in Vietnam between April 1967 and April 1968 led to a number of traumatic incidents, resulting in nightmares, irritability and severe depression. He was diagnosed by Dr Braganza, a consulting psychiatrist, in July 1998, as suffering from post-traumatic stress disorder (PTSD).
Mr Vince suffered a heart attack in October 1998, he has had hypertension and been on blood pressure medication for over 20 years and has also had a knee replacement. He continues to have lumbar problems.
The only work he currently engages in is to assist from time to time on his brother-in-law's poultry farm, but otherwise has not sought full-time work since ceasing employment in 1991. He considers it would be extremely difficult to achieve remunerative employment, given his medical situation and inability to deal with other people.
Under cross-examination by counsel for the respondent, Mr Vince admitted that his brother-in-law was reluctant to employ him, since the brother-in-law thought he could not work full-time. When questioned whether there were other sedentary forms of part-time work within his capabilities at say 8 hours per week or 20 hours per week, Mr Vince appeared hesitant, but argued there were few possibilities where he could work in isolation, without the stress of dealing with other people.
Mrs Vince was sworn and confirmed details of Mr Vince's evidence, noting that outbursts remained and that he could not readily cope with other people. She had been warned by Mr Vince and his medical practitioner not to awaken Mr Vince when asleep, as he immediately became aggressive.
Mr Vince's consultant psychiatrist, Dr Elaine Jenson, was affirmed and gave evidence by telephone, referring to case notes in response to questioning. She considers that Mr Vince is unfit for employment and that his PTSD alone would render him unfit for work with other people. When queried about the prospects of limited sedentary work, she considered few suitable opportunities would exist and would have concerns about his irritability and ability to cope with work situations, which might involve safety or other considerations with people.
In closing submissions Mr Webster argued that the applicant was prevented from remunerative work because of his PTSD and incapacity to handle social situations. Mr Castle, for the respondent, argued that Mr Vince claimed to have sought remunerative work, but there was no evidence he had done so, since 1991.
Legislative Provisions
Mr Vince was granted a disability pension at 90 percent of the General rate from 12 June 1998. This decision was reviewed by the Repatriation Commission and the decision made on 21 July 1999 to increase the pension to 100 percent of the General rate from 12 June 1998. The Veterans' Review Board subsequently affirmed this decision on 15 May 2000. In so doing it rejected any claim that the Special rate or Intermediate rate was applicable. Mr Vince has now sought review of the latter point, arguing that pension should be paid at the Special rate.
Relevant legislative provisions are detailed in ss22, 23 and 24 of the Veterans' Entitlement Act 1986, s22 dealing with the General rate, s23 the Intermediate rate and s24 the Special rate.
In the case of the Special rate, one of the criteria set out in s24(1)(b) is:
"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 alternative criterion is provided in s24(1)(c), namely:

"The veteran is, by reason of incapacity from 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; and
(d) Section 25 does not apply to the veteran."

Analysis

Mr Vince has been granted a disability pension of 100 percent of the General rate, based upon relevant provisions of the Act, reference to the Guide for Assessment of Rates of Veterans' Pensions (GARP) and procedures in accordance with that outlined in Repatriation Commission v Deladio [1998] 391 FCA, 22 April 1998.
The issue before the Tribunal is whether he should be granted a disability pension at the Special rate or Intermediate rate. This depends upon criteria specified in ss22, 23, and 24 of the Act; in particular whether his incapacity is such that it precludes him undertaking remunerative work of at least 8 or 20 hours per week. "Incapacity" if taken to mean that which arises from war-caused injury or disease alone. There are a number of AAT cases which have dealt with such determinations, e.g. Reilly v Repatriation commission [1987] 12 ALD 533, thus some guidance exists.
Evidence presented to the Tribunal and available in the T documents makes it clear Mr Jeffrey Charles Vince has significant medical problems of an ongoing nature and even if he actively seeks remunerative employment there are likely to be few activities where he could work largely alone and without undue stress. The Veterans' Review Board noted in its 15 May 2000 determination that Mr Vince had been undertaking some casual unpaid work of up to 4 days per week, they therefore concluded he could seek employment for 20 or more hours per week, provided he did not have to supervise other people or work with a number of people. But this seems to ignore the specific assessment made by Dr M C Braganza on 14 July 1998 that diagnosed Mr Vince's PTSD and stated that … "he is totally and permanently unfit for any work".
Mr Vince's consultant psychiatrist, Dr Elaine Jenson in a letter to Mr Alf Dilba, Pensions Officer, ANZAC House, dated 7 February 2000, informed him that she agreed with Dr Braganza's assessment and regarded Mr Vince as totally unfit for work. She reaffirmed this view in evidence to the Tribunal and indicated she would be concerned if Mr Vince did attempt remunerative work, because his symptoms might lead to safety concerns or other consequences.
Given the above, the Tribunal considers that the provisions of s24 of the Act have been met and Mr Vince should be granted a disability pension at the Special rate. The Tribunal therefore directs that the decision of the Veteran's Review Board of 15 May 2000 be set aside and in substitution therefor a decision that Mr Vince should be paid a disability pension at the Special rate with effect from 24 June 1997.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed:   K L Miller (         Personal Assistant)
Date/s of Hearing  9 April 2002
Date of Decision  30 April 2002
Counsel for the Applicant        Mr R M Webster
Counsel for the Respondent    Mr M Castle
Solicitor for the Respondent    Department of Veterans' Affairs