Walker and Repatriation Commission
[2006] AATA 290
•29 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 290
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/319 & S2003/223
VETERANS' APPEALS DIVISION ) Re ROBERT WILLIAM WALKER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell
Dr E T Eriksen (Member)Date29 March 2006
PlaceAdelaide
Decision The Tribunal affirms the decisions under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – rate of pension – special rate – post-traumatic stress disorder – diabetes – reasons for ceasing employment – inequitable work conditions – external factors playing a part in decision to leave work – dissatisfaction with aspects of employment – alone test not satisfied – decision affirmed
VETERANS AFFAIRS – veterans’ entitlements – alcohol abuse – whether war-caused – severe stressors – clinical onset of alcohol abuse condition – Deledio test applied – SoP not satisfied – decision affirmed
Veterans’ Entitlements Act 1986 ss 9, 13, 24, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward and Anotherv Repatriation Commission (2003) 131 FCR 473
Stoddart v Repatriation Commission (2003) 74 ALD 366
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Rehabilitation Commission v Braund (1991) 23 ALD 591
Jackman v Repatriation Commission, Federal Court, 30 June 1997
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47Repatriation Commission v Van Heteren (2003) 75 ALD 703
Statement of Principles Instrument No 76 of 1998
REASONS FOR DECISION
29 March 2006 Senior Member L Hastwell
Dr E T Eriksen (Member)1. Robert William Walker (the applicant) is a Vietnam veteran. He asks the Tribunal to review two decisions of the respondent (the Commission). The first application in time relates to a decision of the Commission made on 29 June 2001, and affirmed by the Veterans’ Review Board (the VRB) on 7 August 2002, which assessed the rate at which pension is payable to the applicant for various war-caused conditions at 100 percent of the general rate.
2. On that occasion the Commission recorded diagnoses of diabetes mellitus with retinopathy, bilateral sensorineural hearing loss and post-traumatic stress disorder (PTSD).
3. The applicant seeks a review of that decision and says that he is entitled to a pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (the VE Act). If the applicant is successful in his claim, the date of effect would be the first pension payday after the applicant ceased his employment in January 2000.
4. The second application is for review of a decision made by the Commission on 16 September 2002, and affirmed by the VRB on 19 March 2003, that alcohol abuse and hypertension from which the applicant suffers, are not related to his defence service.
5. The Commission concedes the condition of alcohol abuse, and the only issue for determination is whether that condition is war-caused within the meaning of the VE Act.
6. The Commission concedes that if the Tribunal finds that the condition of alcohol abuse is war-caused, then they accept that the condition of hypertension is also war-caused.
7. After the hearing had commenced, the matter was adjourned for a decision to be made by the Commission as to whether a condition of generalised anxiety disorder was also related to operational service. The diagnosis of this condition arose out of evidence given by Dr Ewer for the applicant in the course of the first day of the hearing.
8. When the hearing resumed, a further application for review had been lodged with respect to a decision made by the Commission in relation to that condition (S2005/240). That third application for review was also before the Tribunal. A consent order was then made with respect to that third application for review and the Tribunal went on to consider the first two applications.
legislation relating to rate of pension
9. For the purposes of determining whether the applicant is entitled to a pension at the special rate, the legislation to consider is ss 24(1) and (2) of the VE Act. The relevant sections provide as follows:
“(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(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; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, 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:
(i)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)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(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.”
issues relating to rate of pension
10. The Commission acknowledges that the applicant satisfies the first criterion under s 24 of the VE Act (namely, a determination of entitlement to a pension at a rate higher than 70 percent of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, to prevent the applicant from undertaking remunerative work for periods aggregating more than 8 hours per week).
11. It is also acknowledged by the applicant that he had not sought to engage in remunerative work, and so the ameliorating provisions of s 24(2)(b) are not applicable.
12. The sole issue for determination therefore with respect to the first application for review is whether the applicant satisfies s 24(1)(c) of the VE Act, that is:
·whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
·whether in consequence he is suffering a loss of salary or wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
13. A further issue arises out of s 24(2)(a)(i) of the VE Act as follows:
·Did the applicant cease to engage in remunerative work for reasons other than his incapacity from that war-caused injury or war-caused disease, or both?
legislation relating to whether the condition of alcohol abuse is war-caused
14. Section 9(1) of the VE Act provides for when an injury or disease is taken to be war-caused, and provides as follows:
“(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
15. Section 13(1) of the VE Act provides that where a veteran has become incapacitated from a war-caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran. In this case the applicant seeks to include a compensable condition as he is already a recipient of a pension.
issues relating to whether the condition of alcohol abuse is war-caused
16. The issue before the Tribunal on the second application is whether the condition of alcohol abuse is war-caused for the purposes of the VE Act. Both parties accept the diagnosis of the applicant’s condition.
17. In determining that issue the Tribunal must determine:
·whether the applicant experienced a severe stressor as defined in the relevant Statement of Principles for alcohol dependence or alcohol abuse at any time during his operational service; and if so
·whether the applicant experienced such a stressor within the two years immediately before the clinical onset of his alcohol dependence or abuse.
background
18. The applicant was born on 28 April 1947. He served in the Royal Australian Navy (the Navy) between 11 January 1963 and 11 January 1983. He has operational service in Vietnam on the following dates:
8 April 1967 to 22 April 1967
24 April 1967 to 12 May 1967
19 May 1967 to 14 June 196720 December 1967 to 3 January 1968
19. The applicant has defence service from 7 December 1972 to 11 January 1983.
20. The applicant has a number of accepted disabilities, namely diabetes mellitus with retinopathy, bilateral sensorineural hearing loss and PTSD. That latter condition has been accepted since November 1999.
21. The applicant ceased work with his last employer in January 2000 and he has not sought work since that time.
summary of the evidence
22. The applicant was represented by counsel and gave oral evidence. The applicant called the following witnesses, Dr R Mohindra, Dr M Ewer, Mr Rodney Baker and Mr John Lennon. The respondent did not call any witnesses.
23. The T documents for each application were received into evidence as were various exhibits, which will be referred to where relevant.
24. The applicant was 15 years of age when he joined the Navy, initially training to become a fitter and turner specialising in heavy diesel engines. He described himself as an outgoing person during his teenage and early adult years and he gave evidence about his various duties during his early years in the Navy.
25. He described three incidents that occurred while he was engaged in periods of operational service. These occurrences were summarised in the applicant’s statement of facts, issues and contentions at paragraphs 11.1, 11.2 and 11.3.
26. The applicant’s evidence was that each of these experiences occurred on his first trip to Vietnam when he was on board HMAS Sydney (the Sydney) between 8 April 1967 and 22 April 1967. One occurred on the afternoon of the first day while the vessel was at anchor in Vung Tau Harbour. He was off watch and sitting on the sponsons when he observed aircraft bombing the mainland jungle on the side of the harbour. There were a lot of ships in the harbour and a lot of patrols, mainly American. These were friendly aircraft. He described feeling apprehensive and scared. He said that he was fearful that the Sydney could be mistakenly hit by friendly fire. He watched these planes bomb the jungle for around 30 to 45 minutes. There was some minor discussion among crew about this. He thought about it while on watch that night and wondered what would happen if the vessel was hit. When shown a map of Vung Tau Harbour (Exhibit R2) he acknowledged that the mainland where the bombing was occurring was probably 15 to 20 miles away from the vessel.
27. The second incident that the applicant described occurred on the first morning in Vung Tau Harbour. The applicant was on watch in the engine room, which was situated low down in the ship, when he heard what he described as explosions alongside the machinery he was operating and outside the hull. When he first heard this noise he said that he was “waiting for the water to come in”. He claimed to have no idea what the explosions were and commented on stories that he had heard about the Viet Cong and their methods of attacking vessels. He said that they were not massive explosions, but enough to scare him. The explosion upset the action of the pump he was operating and what he described as an “operational glitch” occurred with the machinery. It took him a while to “steady” the machinery.
28. There were eight other sailors in the engine room at the time with their own machinery to look after and he was advised by one of them that it was a “scare charge”. He knew what a scare charge was. He had been told that sometimes scare charges were used against divers.
29. The third incident he described as occurring when the Sydney went to action stations the night before they reached Vung Tau Harbour on that particular voyage, being his first trip to Vietnam. There had been rumours about a Russian submarine in the area and there was a call to action stations. He was in the mess playing cards. The ship was shut down once action stations were called and everyone went to their allocated position. At the time his action station position was the mess deck on the fore deck of the ship. He moved to his allocated position and the compartment was shut down. He said that he had visions of submarines firing torpedoes, ships sinking and men drowning. He was unable to swim and felt scared. The vessel remained at action stations for at least 4 hours. He sat in the compartment with eight or nine other men and discussed what was going on. After 4 hours the action stations came to an end with a call to stand down, which he described as “anti-climatic”. There was a loud speaker to the compartment, but there was very little received through the loudspeaker in that time.
30. When cross-examined about this incident the applicant admitted that his memory was poor and that he was “re-constructing” events. When it was put to him that the Report of Proceedings for April 1967 (Exhibit R1) did not report any genuine (ie not “for exercise”) calls to action stations in that month, he became less certain about when the incident occurred and admitted his memory may be faulty because of the significant time that had elapsed since the incident. He said the incident must have occurred at some other time. He also told the Tribunal that at no stage in the year following while he was still on the Sydney could he recall discussing this event with any of the eight or nine persons who shared the compartment with him during the call to action stations.
31. The applicant conceded that he had been at other calls to action stations and had not been fearful or concerned.
32. The applicant gave evidence about his drinking pattern during his years in the Navy. He described drinking to excess on occasions while serving aboard the Sydney. His particular recall was of an occasion in Singapore when he and a number of his colleagues engaged in a serious drinking session. His drinking habits changed during the 13 months he served on the Sydney in that he developed a greater liking of rum. There were no spirits on board the vessel, but there was a daily beer issue of one large can of beer per person a day. During periods of shore leave he would sometimes drink spirits to excess. He acknowledged that he did not suffer any medical problems during this time. He was not in trouble with the police and he was not in any trouble with the Navy. At the time he was also applying for acceptance into submarine training.
33. When the applicant transferred to HMAS Stalwart (the Stalwart) in February 1968 he continued enjoying the daily beer ration and he described occasionally buying the beer rations of non drinkers. He was on the Stalwart only three weeks before being accepted for submarine training.
34. The applicant was required to undergo psychological testing to be accepted for submarine training. No one raised the issue of alcohol with him at that time. He was the most junior person to be accepted into that particular intake.
35. His submarine training took place in the United Kingdom (UK). The Royal Navy issued a ration of 1/8th of a pint of rum each day and he would drink that and then during the evenings they would offer him a drink in the bar. He recalls drinking rum and beer at the time. He claimed that during his period in the UK he was going to the bar seven nights per week. Alcohol caused him no medical or physical problems during this period, but he admitted to getting into the occasional “scuffle”.
36. In 1972, while undergoing some further submarine training in the UK he was found to have high blood sugar levels and was hospitalised for a short period. He was put on a strict calorie controlled regime as he was found to have high blood sugar and hypertension during a routine medical. He had put on excessive weight at the time. The doctors did not mention alcohol as being a factor in his medical condition and his evidence was that at the time he had “an inkling” that his alcohol consumption may be affecting his blood sugar levels. He considered his alcohol consumption to be above average, but he said that he was not suffering any negative consequences from the effects of alcohol at that time.
37. Prior to 1976 the applicant said that he was not aware of any problem resulting from his consumption of alcohol. It was around 1976 that he realised it would affect his performance if there had been any occurrence of what he described as “a fatal nature” on the vessel. By 1976 he claimed to be drinking up to 20 cans a day while on the submarine. On some days the ship was dry and no one could have a drink. He conceded that he only had access to the beer when the Captain decreed a beer issue. His drinking peaked around 1976 and thereafter fluctuated over the years. It increased again during the period that he was unemployed after leaving the Navy in 1982.
38. He described his work history after leaving the Navy in 1983. He was unemployed for a period of time, and he then worked at the Vickers Cockatoo Dockyard as a quality control technician for a period of 9 months. He then moved to Navy Quality Assurance where his role was to peruse survey documents and vet submarine engine parts for either repair or replacement. He became a technical officer grade one with Navy Quality Assurance and he continued in that work until 1988.
39. In 1988 he separated from his first wife. He then gained employment with the Australian Submarine Corporation (the ASC) in Adelaide. He worked for the ASC from 1988 until January 2000 when he resigned his employment. His first position with the ASC was as a maintenance analyst for approximately 4 years. By the time he left the ASC in 2000 he had been a sub-safe material officer for around 5 years, and was responsible for the water-tight integrity and safety aspects of the submarines during the launching and then docking and undocking of the submarines. He also wrote a lot of documents for procedures.
40. The applicant described himself as being very stressed by 1999. He had planned long service leave for July/August of that year and was going on a four wheel drive trip. At the last moment his employer asked him to defer his trip because of a change in the submarine schedule. He declined to do so and he left instructions as to how to deal with the situation while he was away. Upon his return six weeks later he said that “little or nothing had been done along the lines that I had recommended”.
41. A statement of the applicant (Exhibit A3) describes the period after he returned from long-service leave. He was expected to complete paperwork when he had no first hand knowledge of the work that had been done. He was also suffering complications with his diabetes. His position involved working long and unusual hours as he had to be available when the submarines docked and undocked, which usually occurred at high tides. He saw his doctor and he discussed his options, retirement being one of them. He asked his employer for a less stressful job and a position with less responsibility, but nothing was available. He asked if he could be made redundant for health reasons, but that request was declined. He took some time off because of his blood sugar problems. He decided to leave work, and resigned effective from January 2000.
42. The applicant was cross-examined further about his role at the ASC and his reasons for leaving. He confirmed his unhappiness at the situation when he returned from long-service leave in August 1999. He asked the ASC for either a change of position to a less stressful job or for a redundancy, but they were inflexible and would not alter his position. He commented in evidence as follows:
“I asked for a – a sideways move and I was told in full circumstances that this was not a company policy and that led me to making the decision that I couldn’t – I couldn’t go back to work there, I couldn’t work under those conditions and so I – I tendered my resignation.”
43. The applicant remarked that he was working very long hours at the ASC (from 90 to 120 hours per fortnight) with an average fortnight being in excess of 90 hours. He was on call 7 days a week for 24 hours a day. He described as a “sore issue” the fact that any overtime he received was at a flat hourly rate. It was his view that it was a matter of “manpower-dollars” and the ASC would rather work him and his assistant, Mr Lennon, very long hours than put on additional assistance for them. Subordinate workers were paid overtime at penalty rates and he considered that he should be paid overtime at penalty rates.
44. During this period, the applicant’s sugar levels and his ability to control his diabetes were causing him difficulties and he wanted less responsibility and less stress. He conceded that his employer’s refusal to negotiate his working conditions was part of the reason that he was now not working. His diabetes was affected by stress and the fact that he was often confined to a desk. This meant that he was not having enough exercise to keep his blood sugar levels at a reasonable level
45. After leaving the ASC the applicant did not work more than 40 hours a week again. He and his wife quickly sold their home and moved to a caravan park with the idea of doing some work in the Riverland. His drinking problem worsened for a period of time, and apart from some seasonal fruit picking work that he did in 2000/2001, he has not worked since leaving the ASC. He said that at no stage did his drinking affect his performance at work at the ASC, although he acknowledged that he continued to drink to excess during the period leading up to his resignation from the ASC.
46. The applicant agreed that he had a fairly respected career in the submarine service.
47. Mr Rodney Baker gave evidence for the applicant. He has known the applicant personally and professionally since 1970, and was his superior when the applicant decided to leave his employment. He described the applicant in Exhibit A6 as being professional and very diligent. He first noticed “mental health problems” in the applicant some 18 months prior to the applicant leaving the ASC. He said that he would become very short tempered and would “fly off the handle” at small things. Despite this he had no cause to reprimand him.
48. Mr Baker acknowledged that in the period leading up to his resignation the applicant was working very long hours and was under stress. He said that the applicant requested that he be made redundant and his understanding was that this was for financial reasons. He claimed that he had suggested a less stressful position, but that the applicant indicated he would prefer a redundancy. His impression was that the applicant had “had enough of working”. He described the applicant as a seasoned drinker and said he never saw him with a hangover and alcohol never affected his work performance.
49. Mr Baker was referred to an email contained in Exhibit R4 dated 1 February 2000, in which he made the comment that the applicant left his job because of stress due to poor financial decisions and health reasons rather than because of the workload becoming too hectic. He recalled the email and repeated that he considered a combination of stress and external influences such as financial difficulties were the reason that the applicant left his employment.
50. Mr John Lennon gave evidence on behalf of the applicant. A statement of his evidence was also contained at Exhibit A5. He worked closely with the applicant at the ASC. He confirmed the applicant’s evidence about the hours and pressures of the applicant’s position. He was aware that the applicant’s diabetes was becoming more problematic and he knew that he had some time off for medical reasons in the period before he left his employment.
51. Medical evidence was given by Dr Ewer and by Dr Mohindra for the applicant. The Tribunal also had regard to the reports contained in the T documents and in particular the reports of Dr Ewer, Dr Mohindra and Dr Atchison.
52. Dr Ewer’s evidence was that he first saw the applicant in April 2000 on a referral by the Department of Veterans’ Affairs. He recounted that the applicant gave him a history of six stressful incidents on that occasion, and they are set out in his report of 18 April 2000 (Exhibit A1/T8). In relation to the scare charge incident he said that the applicant described being frightened and he said “It wasn’t horror or shock. It was right on the borderline”.
53. In relation to the experience where the applicant saw gunfire and explosions, Dr Ewer reported that the applicant first told him that this had occurred at night, and in relation to the call to action stations incident, he said that the applicant described feeling “very anxious and apprehensive”.
54. He confirmed that the applicant provided him with a history of drinking and had told him that his alcohol intake had increased dramatically after he had been to Vietnam once.
55. Dr Ewer said that based on what the applicant had told him at his interview he formed the opinion that the applicant showed the symptoms of alcohol abuse. He thought that the symptoms of that condition probably began around 1970.
56. At the time that Dr Ewer saw the applicant in early 2000, the applicant reported drinking alcohol every day of the week. He reported drinking two glasses of wine a day on a regular basis, six glasses of wine a day twice a week, and occasionally a whole bottle of spirits.
57. Dr Ewer saw the applicant again in July 2000. In a report dated 10 July 2000 some defence service experiences were described to Dr Ewer. Ultimately, these experiences were not relied on at the hearing.
58. In early 2000 and after the applicant had ceased work, Dr Ewer was of the view that he could work 8 to 20 hours per week. By the middle of that year he considered that he could not work more than 8 hours per week.
59. In a subsequent report of 17 January 2003, Dr Ewer stated that the alcohol abuse had commenced after the applicant’s first trip to Vietnam. This was contrary to the evidence given by the applicant to the Tribunal. Dr Ewer referred to being given a history of “violence, vomiting and falls” associated with the applicant’s alcohol abuse. The applicant gave no such evidence himself, and referred to “minor scuffles” as being the only problem he faced with his drinking.
60. It was clear that Dr Ewer’s medical conclusions were based solely on the history reported by the applicant at the time and on his assumption that history was correct. He did not question or probe that history at all. He did not see any of the applicant’s service medical records.
61. Dr Mohindra gave evidence by telephone. The Tribunal had a copy of his medical notes with respect to the applicant. Dr Mohindra was the applicant’s general practitioner between 1994 and April 2003, with a gap in consultations between August 2001 and April 2003 as the applicant moved away from the area. He confirmed that he had completed an Ability to Work Form on 18 August 2001 in which he had indicated that, in his view at that time, the applicant was able to work more than 20 hours per week (Exhibit A1/T25/118). In a subsequent report dated 28 July 2003 he commented that at that time he did not have available to him Dr Ewer’s reports of 18 April 2000 and 10 July 2000.
62. Dr Mohindra saw the applicant on a number of occasions during 1999 with respect to issues such as gout, diabetes and stress at work. He understood that the applicant’s parents were not well during that time, and in particular he noted an attendance in August 1999 where the applicant was very stressed and saying that he could not cope at work. He had no record or memory of whether he offered the applicant any medication for psychiatric problems. He made the comment that a large part of his work was counselling and mental health work and he would offer medication to most people in the position of the applicant. He first referred the applicant to Dr Ewer in June 2000.
consideration of application relating to whether the condition of alcohol abuse is war-caused
63. In this application, the Tribunal must determine whether the condition of alcohol abuse, from which it is acknowledged the applicant suffers, is war-caused. Section 9 of the VE Act has already been referred to in paragraph 14. It is common ground that the applicant undertook operational service as defined in s 626F of the VE Act. The determination of whether his asserted condition of alcohol abuse is war-caused is made by applying ss 120(1) and 120(3) of the VE Act. These sections provide as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
64. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
65. The claimed condition of alcohol abuse is the subject of SoPs. The relevant SoP in this case is Instrument No 76 of 1998. The applicant relies on factor 5(b) “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse”. “Experiencing a severe stressor” is defined at paragraph 8 of that SoP in the following terms:
“… the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
66. I refer to the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
67. I have considered all of the material before me, and I am satisfied that the material points to an hypothesis connecting the condition of alcohol abuse with the applicant’s operational service. That hypothesis is that the applicant experienced one, two or three severe stressors in the course of operational service and developed the problem of alcohol abuse within 2 years of those incidents.
68. Whether there is a reasonable hypothesis is dealt with by s 120A of the VE Act. An hypothesis is only reasonable if it is assessed with the relevant SoP and that SOP must uphold the hypothesis before it can be regarded as reasonable.
69. Three stressors are described by the applicant, and Dr Ewer in his evidence stated that the applicant was possibly suffering from alcohol abuse by 1970.
70. For the above reasons, I consider that the hypothesis raised by the material before me is consistent with factor 5(b) of the relevant SoP, and so by virtue of s 120A(3) of the VE Act, the hypothesis connecting the applicant’s alcohol abuse with the circumstances of his operational service is reasonable within the terms of the third step in Deledio (supra).
71. I now turn to the fourth step in Deledio. This involves making findings of fact from the material before me, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the incapacity in question was war-caused.
72. The Tribunal must first look to each of the incidents complained of and determine whether they come within the definition of “a severe stressor” as set out in the SoP.
73. The first incident complained of was where the applicant watched aircraft firing on the mainland some miles away. He observed “the exchange of gun fire and explosions”.
74. The definition of “a severe stressor” refers to “an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity which event or events might evoke intense fear, helplessness or horror”.
75. The Tribunal has already referred to the applicant’s evidence with respect to the first incident at paragraph 26. The first description of this event to Dr Ewer is at Exhibit A1/T8/40. The applicant described witnessing gunfire in the distance, seeing tracer bullets being shot from aeroplanes to the ground and hearing explosions in the distance. He told Dr Ewer that he found the incidents distressing and frightening. The applicant’s evidence was that he was aware at all times that this was friendly fire, and further that he stood and watched it for some 30-45 minutes. He did not seek any shelter or protection or express concern to any third parties at the time.
76. The Tribunal finds as a matter of fact and beyond reasonable doubt that in this instance the applicant did not experience, or witness and was not confronted with, an event that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event might evoke intense fear, helplessness or horror. The incident occurred a considerable distance away. It involved no direct threat to the applicant or to anyone else on the vessel. It was highly speculative for him to have contemplated the possibility of distant friendly fire somehow mistakenly coming in his direction.
77. The Tribunal is satisfied, beyond reasonable doubt, that the event in question did not involve the applicant experiencing a severe stressor. The Tribunal accepts that initially he may have felt concern and some mild anxiety for a short period. However, it was not an event that comes within the definition of a severe stressor within the terms of the SoP.
78. The second incident referred to occurred when a scare charge was dropped by the ship. This was, on the applicant’s description, a brief incident. He heard an explosion or explosions outside the hull, there was a glitch in the machinery that he was operating and he was told it was a scare charge by one of the other people around. It would appear that it was a momentary event at the best. On his own evidence he was given an assurance by someone present as to what had occurred. He was not confronted with an event that came within the definition of a severe stressor as set out in the SoP. Dr Ewer commented in his evidence in relation to that event:
“I think the subjective test was marginal. He said he was very frightened. It wasn’t horror or shock. It was right on the borderline.”
79. In Woodward and Anotherv Repatriation Commission (2003) 131 FCR 473 the Court discussed this issues and approved the views of Mansfield J in Stoddart v Repatriation Commission (2003) 74 ALD 366. They said at pages 497-498:
“… Mansfield J held that the AAT had erred in requiring that a “threat” be one that, judged objectively and remote from the circumstances and state of knowledge of the person experiencing it, has a real or actual prospect of resulting in death or serious injury. His Honour considered that by doing so the Tribunal had thereby imported into the concept of “threat” in the applicable SoPs more than was demanded by their wording and their purpose: see at [41].
…
Mansfield J concluded that the AAT erred in law in its understanding of the expression “experiencing a severe stressor” in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, etc, if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.”
80. The real issue for the Tribunal in this case is whether the event described when judged objectively, from the point of view of a reasonable person in the applicant’s position experiencing it, was capable of conveying and did subjectively convey to the applicant the risk of death or serious injury. The Tribunal is satisfied, beyond reasonable doubt, that this test is not satisfied with respect to the second stressor complained of.
81. The sound of an explosion outside the hull could to a reasonable person in the applicant’s position cause an immediate fright and some concern as to personal safety. However, the Tribunal is not satisfied that the incident as described was an event that fits the definition of a “severe stressor” as set out in the SoP. If no reassurance or explanation was received by the applicant then perhaps the concern may persist. In this case the applicant was given an explanation for the sound. He acknowledged in his evidence that it was not a major explosion or explosions and he got on with his job of steadying the machinery that he was operating. The Tribunal is also satisfied, beyond reasonable doubt, and finds as a fact that the applicant did not experience feelings of intense fear or helplessness or horror when this event occurred, but rather had some momentary anguish or concern as to what was happening until he was given an explanation that it was a scare charge.
82. The applicant’s evidence with respect to the action stations incident was not satisfactory. His evidence was that this incident occurred during his first tour of duty by reference to a particular event, ie his arrival the next day in Vung Tau Harbour for the first time. It subsequently became clear that there was no record in the Record of Proceedings of such an event occurring during that tour of duty. In the Tribunal’s experience a Record of Proceedings is more likely than not to be accurate, particularly when it comes to a reference to a genuine action stations incident. In his evidence the applicant agreed that he may be mistaken as to when the incident occurred and that he had only a reconstructed memory of this event. The argument that he was experiencing his first ever genuine action stations event, hence he suffered a significant level of fear and distress at experiencing such an event for the first time, could not be made out on the evidence. He could provide nothing more than a fairly vague non-specific recollection of an event. He acknowledged that he never discussed this event subsequently with any of the people that were present with him during the incident which he alleged had taken place over a number of hours as they sat confined in their action stations positions.
83. The Tribunal is satisfied, beyond reasonable doubt, that the action stations incident was at the best vaguely recalled by the applicant. The applicant was trained to deal with action stations situations. He gave evidence that he was involved in a number of calls to action stations (that were not for exercise) during his time in the Navy, and that he never felt fear, helplessness or horror. The Tribunal has insufficient material before it to make any finding that the action stations incident that occurred was a severe stressor or that the incident evoked the level of fear required by the SoP such that the provisions of the SoP with respect to alcohol abuse would be invoked.
84. In the event that the Tribunal is in error with respect to its findings with respect to any of the three incidents alleged, the Tribunal will consider the issue of clinical onset of alcohol abuse in this case.
85. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded at page 670 that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
86. The Tribunal is satisfied, beyond reasonable doubt, based on all available evidence that the earliest that the applicant began to show any indication of alcohol affecting his health was from 1972 onwards. Dr Ewer was vague about when the clinical onset of alcohol abuse occurred. In his evidence, he said that he felt the applicant may have been showing signs of abuse by around 1970 (which in itself falls outside the 2 year period for the first two incidents alleged). Nevertheless, the applicant’s own evidence was quite clear. He did not consider he had a problem with alcohol until 1976. He passed psychological testing in 1968 to be accepted into submarine training, he had further training overseas in the 1970s, and there was no suggestion that his medical records ever showed any indicators of alcohol abuse. He was hospitalised in 1972 for diabetes problems, and even then it appears that no medical adviser made any diagnosis that his drinking was affecting his health in any way.
87. Dr Ewer’s opinion must be seen in the context of being based solely on information provided to him by the applicant in early 2000, at a time when the applicant had commenced the process of application for a pension at the special rate. Dr Ewer’s first report refers to some of the criteria necessary to establish alcohol abuse (violence, falls and vomiting (Exhibit A1/T8/43)). Nevertheless, the applicant’s evidence was that he had no significant consequences of his drinking other than an occasional scuffle until much later. His own view was that as late as 1975 he had no feeling that he had a problem with alcohol abuse and certainly no doctor had noticed such a problem.
88. In the circumstances the Tribunal is satisfied that the condition of alcohol abuse is not connected to the applicant’s defence service.
89. In the circumstances the Tribunal affirms the decision under review in application number S2003/223.
consideration of the application relating to rate of pension
findings of fact relating to rate of pension
90. The Tribunal made the following findings of fact:
(a) The applicant is a Vietnam veteran who had operational service for the period set out in paragraph 18 hereof. He also has eligible defence service from 7 December 1972 until 11 January 1983.
(b) The applicant suffers from the following accepted conditions – PTSD, bilateral sensorineural hearing loss and diabetes mellitus with retinopathy.
(c) The applicant suffers from a number of other health problems, including alcohol dependence or abuse, hypertension, chronic solar skin damage, non-melanotic malignant neoplasm of the skin, general anxiety and occasional gout.
(d) Apart from a brief period of unemployment after leaving the Navy, the applicant was gainfully employed until he resigned his employment effective from January 2000.
(e) The applicant has worked in the following areas:
· a fitter and turner specialising in heavy diesel engines.
· a submariner during his years with the Navy.
· a quality control technician working with submarines.
·a quality assurance officer where his role was to peruse survey documents and vet submarine engine parts for either repair or replacement.
· a maintenance analyst with the ASC.
·a sub-safe material officer with the ASC where his role was to ensure the water tight integrity and safety aspects of submarines during the launching and then docking and undocking. He also wrote procedures.
(f) The applicant’s health deteriorated in the late 1990s. The evidence points to ongoing problems with alcohol abuse, unstable diabetes, PTSD and its side effects, and a series of other personal issues peripherally referred to in evidence, including elderly ill parents and financial problems experienced by the applicant.
(g) The applicant worked long hours at the ASC. He was on call 7 days a week at the ASC during periods that he was working. He was paid at a flat rate for overtime, and not at penalty rates. He considered this to be unreasonable as he was working a 90-120 hour fortnight on a regular basis. He became angrier about this issue as time went on and as his health problems became more evident.
(h) The applicant was asked by his employer to cancel a holiday he had planned in July/August 1999. He declined to do so. He ensured that instructions were available for the people that would be performing his job while he was away in order that procedures would be correctly carried out during his period of absence.
(i) Upon his return from leave in August 1999, the applicant was angry and distressed to find that work had not been carried out along the lines that he had recommended and he was left with a significant amount of paperwork to do relating to work done while he was away.
(j) The applicant attended Dr Mohindra’s office on 18 August 1999 complaining of stress at work, that his parents were not well and that his father only had weeks to live.
(k) The applicant first tendered his resignation to his employer on 24 August 1999. His reasons for resigning were “instability of health and family reasons”.
(l) The applicant withdrew his resignation on the following day, 25 August 1999.
(m) In the second half of 1999 the applicant attended upon Dr Mohindra on a number of occasions. These attendances related to eye and nasal problems, diabetes, arthritis, digestive problems and skin lesions.
(n) In the weeks leading up to his resignation in January 2000, he attended the doctor on three occasions all of which related to skin lesions.
(o) During the latter half of 1999 the applicant discussed the possibility of a sideways shift at work with his employer whereby he could have a less stressful job on a similar pay level, but he was told that nothing was available.
(p) In the latter half of 1999 the applicant explored the possibility of a redundancy package for health reasons. He was advised that this was not possible and his employer would not offer him one.
(q) The applicant continued to have a significant drinking problem during 1999. It appears that this did not affect his day-to-day work capacity.
(r) The applicant’s exit interview (Exhibit R4) indicates that the reasons he gave for leaving his employment with the ASC were that he felt his job had become too hectic, it was too much for one person, management were not responding to issues raised by him, and he was frustrated to see blue collar workers standing around doing nothing and being paid penalty rates when he was not paid at penalty rates. He also indicated that he wished to leave and do things “he and his wife have always wanted to do”.
(s) The applicant’s employer described his work at the ASC in an employment questionnaire dated 23 August 2001 as being light, semi-skilled work. His employer on that occasion wrote that he chose to resign because he told his manager he suffered from hypertension.
(t) His immediate superior’s view, as stated in an email of 1 February 2000, immediately after his departure from the ASC, was that it was not the workload that drove the applicant out of his position, but rather stress due to poor financial decisions and health reasons. His immediate superior agreed that there was mismatch between working conditions of sub-safe personnel (the applicant) and what he referred to in the email as other ASC personnel in that the other ASC personnel had better conditions.
(u) The applicant sold his home in late 1999 or early 2000, and he and his wife purchased a caravan. He did some seasonal fruit picking work in the Riverland in the year 2000, but has not worked since around mid 2000. He and his wife move around Australia in a caravan and have not purchased another property.
91. Sections 24(1)(a) and (b) of the VE Act are satisfied in this case. The only issue for the Tribunal to decide is whether the applicant satisfies s 24(1)(c) of the VE Act. In making that determination the Tribunal must have regard to ss 24(2)(a)(i) and (ii) of the VE Act.
92. In considering the application of s 24(1)(c) of the VE Act, I refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at page 4. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
“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 account that he would not be suffering if he were free of that incapacity?”
93. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 19(1)(g)).
94. The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; Rehabilitation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission, Federal Court, 30 June 1997. As to this issue, in Jackman, Tamberlin J said:
“A presumption of continuance is not appropriate to the determination the AAT has to make under s 24(1)(c). It is well accepted that the relevant date of assessment is the date of application, not retirement: Banovich v Repatriation Commission (1986) 69 ALR 395. The AAT must make its determination as at the time of application, taking into account all considerations relevant to the specific case in question. Where the application date is close to the retirement date the weight to be given to the applicant’s circumstances at the time of retirement will be greater than in cases, such as the present, where there is a lengthy period of time between the dates. In such cases other significant factors such as age and time out of the workforce can become important and relevant considerations: Repatriation Commission v Wilson (1996) 43 ALD 77; Repatriation Commission v Braund (1991) 23 ALD 591. It is not sufficient for the AAT to be satisfied that at the date of retirement the applicant satisfied s 24(1)(c): Braund at 595. This is not the question before the AAT.”
95. As regard the first question in Flentjar (supra), the applicant was undertaking remunerative work until he ceased work voluntarily. He has particular skills in the area of submarines and has worked in various aspects of the submarine industry. The Tribunal refers to its findings as to the various sorts of work that the applicant was skilled to perform. He was able to do light, semi-skilled work in the submarine industry and possibly these skills would also provide him with employment in any industries involving diesel engines and engine parts.
96. The second question is whether the applicant is by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake the particular sort of work that he is skilled to do. That aspect is conceded by the Commission and so the primary issue for the Tribunal to determine is the third issue set out in Flentjar, namely whether it was the effects of the war-caused injury or war-caused disease, or both, that alone prevent the applicant from continuing to undertake the sort of work for which he is skilled.
97. On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at paragraph 33, the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.
98. In Cavell (supra), Burchett J said further, at page 539 that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was “… to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”.
99. In Forbes, RD Nicholson J said at paragraph 39: “The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
100. The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at paragraph 37 as follows:
“[37]… The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … (H)aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
101. It is conceded by the applicant that he has retired and does not seek remunerative work. He has ongoing significant health problems. At the time when he left work in January 2000 the Tribunal is satisfied that his incapacity from war-caused injuries played some part in him being unable to continue to work the very lengthy hours that he was working.
102. However, the critical question is whether the applicant has been prevented by his war-caused conditions alone from undertaking remunerative work. This question must be considered by reference to s 24(2)(a)(i), which provides in effect that in order to prove a loss of wages or earnings, a veteran must not have ceased to engage in remunerative work for some reason other than the veteran’s incapacity from war-caused conditions.
103. In Repatriation Commission v Smith (supra) Beaumont J, with whom Northrop and Spender JJ agreed, said at 337: “As has been said, the question posed by s 24(1)(c) is one of hypothetical facts. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities”.
104. In Repatriation Commission v Van Heteren (2003) 75 ALD 703 Finn J considered the relevance of the deeming provisions of s 24(2)(a)(i). His Honour said, at paragraph 25:
“… This question is not answered simply by finding that, in the assessment period, the veteran is unable to engage in any remunerative work. It in fact presupposes that he or she may well not be: cf 24(1)(b). And because of the deemed ‘no loss’ provisions of s 24(2)(a)(i) which apply where the veteran has ceased to engage in remunerative work for reasons other than his or her war-caused conditions, it requires an examination of the reasons why the veteran ceased work.”
105. The Tribunal is not satisfied that the applicant ceased his employment because of war-caused disabilities alone. The Tribunal is satisfied, on the balance of probabilities, that other factors were influential and part of the reason that the applicant ceased work when he did.
106. The Tribunal is satisfied, on the balance of probabilities, that a factor was the applicant’s significant disillusionment with his workplace conditions. He considered that he was not being paid appropriately for his overtime work and he was resentful that less skilled personnel were being paid penalty rates for overtime and after hours work.
107. There was also evidence before the Tribunal that the applicant and his wife were looking to a retirement when they would travel around in a caravan. His parents had been very ill and his father died in the year 1999. He asked his employer to provide him with a sideways shift and they declined to do so, saying that nothing was available. The applicant was not prepared to accept any reduction in salary and he was not happy at the prospect of working at a lower level of financial return as one of his issues with his employer was what he considered to be inappropriate financial return for his efforts.
108. The applicant was working a difficult roster which required him to be virtually on call 7 days a week. There is no doubt that his underlying health conditions made it more difficult for him to manage these hours as time went on. Nevertheless, had he been paid at a better rate for these hours, the Tribunal finds, on the balance of probabilities, that he would probably have maintained his employment longer.
109. The applicant was in average health. He was suffering the effects of PTSD and he had other health difficulties that included a significant drinking problem and the stability of his diabetes. His health problems, combined with his disillusionment at work, his desire to sell his house for financial reasons and take to the road with his wife in a caravan formed the basis of his decision to leave the ASC when he did. He decided to retire. It was not war-caused disabilities alone that gave rise to his decision to resign from the ASC.
110. The Tribunal is satisfied that non-service related factors as set out were influential in his decision to cease remunerative employment.
111. The Tribunal is not asked to make any findings with respect to s 24(2)(b) of the VE Act as the applicant has not sought work during the assessment period other than as set out.
112. In all the circumstances the Tribunal affirms the decision under review in application S2002/319.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Dr E T Eriksen (Member)
Signed: .........J Coulthard.............................................
AssociateDates of Hearing 11/12 October 2004 and 14/15 December 2005
Date of Decision 29 March 2006
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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