Warner and Repatriation Commission
[2001] AATA 110
•15 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 110
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2000/26
VETERANS' APPEALS DIVISION )
Re ROBERT JOSEPH WARNER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)
Date15 February 2001
PlaceAdelaide
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is entitled to special rate as and from 27 April 1998.
(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – special rate – sub-paragraphs 24(1)(c) and 24(2)(a) of the Veterans' Entitlements Act 1986 considered – alone test – meaning of "ceasing to engage in remunerative work" – meaning of "undertaking" – nature of "work" and being "employed" considered - effect of taking leave from work on qualification for special rate – effect on qualification for special rate of ceasing work previously for non war-related reasons – medical evidence on PTSD considered
Veterans' Entitlements Act 1986 s.24
Industrial and Employees Relations Act 1994
Re Rogers and Repatriation Commission (AAT 5374, 14 September 1989)
Sheehy v Repatriation Commission (1996) 41 ALD 205
Cavell v Repatriation Commission (1988) 9 AAR 534
Banovich v Repatriation Commission (1986) 6 AAR 113
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Paff v Speed (1961) 105 CLR 549
Re Hornery and Repatriation Commission(1998) 28 AAR 193
REASONS FOR DECISION
15 February 2001 Senior Member J.A. Kiosoglous MBE Dr J. T.B. Linn (Member)
This is an application by Mr Robert Joseph Warner (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 15 November 1999 (T2) which affirmed a decision of a delegate of the respondent dated 10 June 1998 (T19) to continue the applicant's pension at 90% of the general rate.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T28), together with seven exhibits, six lodged by the applicant (Exhibits A1-A6) and one lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant, who also called Dr P. Thorpe, General Practitioner, and Dr B. Rowe, Psychiatrist. The applicant was represented by Mr G. Hemsley, of counsel, and the respondent was represented by Mr G. Doube, a departmental advocate.
The issue before the Tribunal is whether or not the applicant is entitled to pension at the special rate pursuant to section 24 of the Veterans' Entitlements Act 1986 (the Act). The respondent concedes sub-paragraphs 24(1)(a) and 24(1)(b) of the Act, leaving the issue for the Tribunal as to whether the applicant satisfies sub-paragraph 24(1)(c) of the Act.
history of the applicationThe applicant was born on 1 August 1948 and served in the Australian Army, including service in Vietnam. The applicant has post-traumatic stress disorder (PTSD), sensorineural hearing loss, seminoma and embryonal carcinoma of right testis (operated) with lymphatic spread accepted as war-caused disabilities.
On 24 April 1998 the applicant completed and signed a claim form (T4) which was treated by the respondent as an application for an increase in pension. On 10 June 1998 the delegate of the respondent decided to continue the applicant at 90% of the general rate. This decision was affirmed upon review by the VRB on 15 November 1999 (T2) which stated (inter alia) in its reasons for decision:
"…
The Board therefore considered the thirst [sic] of the essential tests. The veteran's employer, Telstra, in a letter dated 9 April 1997 informed the veteran that, after considering his re-training and redeployment options it could not offer him continuing employment. Telstra terminated the veteran's employment on 11 April 1997.
The Board has considered the pattern of the veteran's Leave. It appeared to the Board that, effectively, the veteran did not work after 19 July 1995. The veteran's wife suffered a stroke on 17 July 1995.
The veteran's local medical officer, in completing a medical report for Service Pension suggested that there were multiple factors affecting the veteran's ability to undertake employment,:
"including (his) wife's massive CVA leading to hemiplegia".
While Mr Francis suggested that the veteran may have been undergoing psychiatric treatment at around the time he effectively ceased work in July 1995, the Board is not aware of any evidence establishing that pattern, and in any event, his treatment with Dr Rowe did not commence until July 1997 or later. By this time he had been retrenched from his employment.
For those reasons, the Board is not reasonably satisfied that the veteran ceased to engage in remunerative work solely because of his accepted disabilities. He therefore does not meet the third of the essential tests outlined above.
…"
applicant's evidence
The applicant told the Tribunal that after leaving the Army in December 1970 he worked as a driver and as a cooper prior to joining Telecom in 1975. In 1993 he was referred by Dr Thorpe, his General Practitioner to Dr J. Gabrynowicz, Psychiatrist, who treated him on two occasions in about 1994 and 1995. In his written statement the applicant said that he stopped attending Dr Gabrynowicz because he did not want to take the medication the doctor was suggesting.
The applicant stated that he only took occasional sick leave from Telecom, generally for either a migraine or as a result of his tension problems. On a couple of occasions he put down that he wanted sick leave to look after his wife although that was not actually the case. He further stated that he did not want his employers to know about his mental problems. The Tribunal notes the following from his written statement in relation to this issue (Exhibit A5):
"…
The records indicate that I had miscellaneous leaves to look after my wife from the 5th of July to the 7th of July 1995 inclusive.
Those three days were not because of my wife but because of my war service problems. Some work colleagues actually took me aside and suggested that I was losing the plot. This had happened previously and on occasions I took special leave and sometimes put down that I needed to care for my wife.
My wife had her stroke on the 17th of July. I then commenced taking long service leave from the 19th of July onwards and did not return to work.
…
I have always contended that I did not need to leave my employment as a consequence of her suffering the stroke nor did I need to leave my employment for the purposes of caring for her.
The reason for this was because she was hospitalized in one form or another for a period of three months following on from the stroke. She was in the QEH for 2 weeks and then the Griffiths Rehabilitation Centre at Hove. There was nothing that I could do in relation to her while she was in hospital.
I believe that I had no good reason to leave my work. If my wife needed my care, I would have been better off working during those three months and accruing leave pending her return.
I believe that I left my work essentially because of the effects of my Post Traumatic Stress Disorder and I have not been back to work since.
…
As a result of her stroke, my wife suffered a left side hemiplegia. She has limited use of her left arm but can walk (although not long distances).
Prior to her return to home, Domiciliary Care installed rails in the toilets and shower. The only thing I did was to widen the front steps (which took me a few days).
She then did 10 months at Payneham Rehabilitation Centre. Although this helped to refine her movement, essentially, she was the same then as she is now.
She is essentially self sufficient. She is able to wash and dry herself, to cook and clean, to use the bus and travel. She can shop on her own. The only thing that she really needs help with is doing up her bra because she cannot reach both hands behind her back.
My employment was terminated in April 1997. By that stage, she had completed her rehabilitation 8 months prior to my termination. There was no reason why I could not have gone back to work. My job was still available. I did not do so because I could not handle it. I just could not handle the everyday pressures which were just too much.
…"
The applicant stated that he used up his recreational and long service leave instead of sick leave because he was advised to do so by Personnel. He considered that in relation to his mental problems, the "less Telstra knew the better". He was afraid that if Telstra found out about his mental problems it would "dump him". Mr Doube suggested to the applicant that Telstra would take more care of someone with an identified disability, to which he replied "depends upon the disability".
The applicant stated that as from 11 September 1995 he began to use sick leave because the sick certificates only listed "medical condition" and did not have to identify his condition. He told the Tribunal that he did not feel awkward about being on sick leave from that time onwards. He further stated that he then used up his holiday entitlements because Telstra brought in a policy that one could not accrue holidays beyond a certain point unless one could demonstrate that one was travelling overseas. He told the Tribunal that it was merely a series of coincidences that he stopped work around the same time that his wife was having problems.
The applicant was emphatic that he ceased working with Telstra on 6 July 1995 and that whether or not the period 6 to 17 July 1995 was documented, he was on sick leave for a "medical condition" from 6 to 17 July 1995, and did not work for that period.
The applicant stated that he did not seek employment anywhere else during his leave period or after he finished working with Telstra. He told the Tribunal that he could have returned to work in 1995 if he was only facing his wife's problems, and if not for his PTSD.
dr p. thorpeDr Thorpe, General Practitioner, first saw the applicant in May 1994 and has prepared six reports in relation to this matter. In the latest report dated 15 June 2000 (Exhibit A3) he stated (inter alia):
"…
… I first met Mr. Warner on 9th May 1994 when he presented in a state of anxiety which was interfering with his work and home life. …
Mr. Warner subsequently consulted with me on 1/5/95 for a medical problem, but I did not see him again until 9/9/95 after his wife's stroke. At that consultation he requested a month off work to care for his sick wife. This pattern recurred through the latter part of 1995 and early 1996 until 12/3/96 when I noted he was depressed and was placed on a trial of anti-depressants.
He continued to see me regularly for treatment of his hypertension and depression, and in May 1997 I referred him to Dr. Barry Rowe, psychiatrist, for further management of his post traumatic stress disorder.
It would be my opinion that Mrs. Warner's stroke adversely affected Mr. Warner for some period of time, such that his war-caused disability was aggravated. However, I would argue that the cessation of work in April 1997 was due solely to his previously diagnosed post traumatic stress disorder, and on the 2/6/97 I wrote a letter reiterating this to Mr. Robert Davis from Commonwealth Department of Veterans Affairs.
…"
In oral evidence in support of his reports, Dr Thorpe told the Tribunal that the applicant's wife was suffering headaches and was referred to a neurologist on or about 3 July 1995, which resulted in an angiogram appointment within days of 3 July 1995, leading to the operation on 17 July 1995.
Dr Thorpe stated that the next consultation he had with the applicant was on 9 September 1995, at which time nothing is recorded about the applicant's symptoms, and a notation appears in his records that the applicant asked for one month off to care for his wife. Dr Thorpe told the Tribunal that the applicant's health was certainly quite poor in September 1995, and he considered that it was a combination of the applicant's health problems and his wife's illness that 'tipped the applicant over the edge" at that stage, causing him to need time off work.
Dr Thorpe told the Tribunal that the applicant's condition was deteriorating in late 1995 and early 1996. He stated that the applicant suffered from quite severe psychiatric symptoms which caused major coping disabilities, meaning that he was not in a fit state to adequately cope with his wife's problems. He further stated that the applicant's wife's recovery was quite good in the circumstances, and that she did not require the applicant to stay at home to care for her. He gave evidence that by 1997 the applicant's wife was almost completely self sufficient.
Dr Thorpe stated that as at April 1997 the major cause of the applicant's cessation of work was his PTSD. He further stated that the applicant's wife's stroke was the straw that pushed the applicant's PTSD condition "over the edge". He considered that the wife's stroke affected the applicant in 1995, and that as at the time of his report dated 26 March 1997 (T7), it was not having any effect upon the applicant's ability to work, and that the problem was almost 100% PTSD.
Dr Thorpe considered that the applicant's behaviour when first presenting in 1994 was a good example of how someone with this type of PTSD can allow relatively minor problems to become overwhelming. He considered that the applicant's depression and anxiety are conditions interlinked with the PTSD.
Dr Thorpe gave evidence as to the various certificates issued to the applicant. He stated that he could not find any record of a certificate between 7-17 July 1995, and that the certificates for 10 November 1995, 12 and 13 January 1996 do not indicate if the time off was for the applicant's own problems or to care for his wife. In relation to the periods 19 December 1996, 18 January 1997 and 19 February 1997, the notation indicates that a certificate was issued for war service related sickness, which means that those certificates were for PTSD. There is no entry to indicate what the certificates dated 6 March 1997 and 12 March 1997 were for.
dr b. roweDr Rowe, Psychiatrist, first saw the applicant on 22 May 1997 and on a monthly basis thereafter. He prepared four reports in relation to the present matter. In the latest report dated 19 June 2000 (Exhibit A2) he stated (inter alia):
"…
Mr Warner clearly ceased actively engaging in remunerative employment with Telstra long before seeing me and hence I can only construe his reasons for leaving work based on his retrospective recollections and the evidence in the documents you already possess. …
Mr Warner has suffered from chronic post traumatic stress disorder, dysthymia, agoraphobia and alcohol dependence (in partial remission) since his involvement in the Vietnam war. These conditions all undermine his capacity to cope and make him more vulnerable to other life stressors. Mr Warner told me that he was having substantial difficulties maintaining his occupational functioning prior to his wife's stoke [sic]. It is likely [given the nature and extent of his psychiatric conditions] that his work capacity at that time was significantly undermined by his war related psychiatric conditions. It is likely that the stressors surrounding his wife's serious illness substantially aggravated his underlying war related psychiatric disabilities, particularly his post traumatic stress disorder. Thus, in my opinion, on the balance of probabilities, it is likely that Mr Warner ceased engaging actively in remunerative employment because he was already having trouble coping at work because of his war related psychiatric condition and this condition was aggravated by the added stressor of his wife's illness.
…"
In oral evidence in support of his reports, Dr Rowe told the Tribunal that the applicant told him that he was having difficulty coping at the workplace. He stated that the applicant had a number of symptoms of PTSD, most notably irritability, aggressiveness, loss of interest, intrusive memories and estrangement which contributed to his being unable to return to work. His inability to return to work was also worsened by the PTSD related chronic depression and agoraphobia.
Dr Rowe considered that the applicant's wife's stroke was a contributing factor to the initial decision of the applicant not to attend the workplace, and that the wife's stroke caused a deterioration in the applicant's pre-existing PTSD condition. He considered that as at April 1997 the PTSD was the major factor in his being unable to return to work. He further considered that, at that time, the wife's stroke only played an indirect role, by having contributed to the reason he initially needed time off in 1995. He stated that this time off had then given the applicant time to reflect upon the fact that his psychiatric problems would not enable a return to work. As at April 1997, Dr Rowe did not consider that the wife's stroke was making the applicant's PTSD any worse. The wife's stroke had been a stressor which was not present by April 1997.
Dr Rowe stated that since he first saw the applicant in May 1997, he was necessarily dependent upon the history given to him by the applicant, but stated that he has found the applicant to be honest and open, and has found the applicant's story to be internally consistent.
Dr Rowe stated that the absence of treatment of the applicant at various times does not equate to an absence of problems. He considered that a medical certificate referring to the applicant's wife might not reflect the real reason the applicant had time off, as his clinical experience suggests that one of the last things people want to disclose to employers is that they have psychiatric problems. He did not suggest that this was necessarily the case, but thought that the applicant's wife's stroke provided good validity for the applicant to get time off.
applicant's submissionsMr Hemsley submitted, on behalf of the applicant, that it was the applicant's PTSD which led to him stopping work in 1995, given that the evidence suggests that his wife did not require assistance whilst in hospital and the rehabilitation centre, and that the wife's stroke was a stressor which pushed the applicant's PTSD over the edge.
Mr Hemsley submitted that the Tribunal should not look to 1995 in any event, and should concentrate on April 1997, which is the date at which the applicant ceased employment with Telstra. He further submitted that Dr Rowe's evidence was unchallenged that as at April 1997 PTSD was the operative condition causing the applicant to be unable to return to employment, as the wife's stroke had disappeared as a stressor by then. He also submitted that the principles behind the legislation suggest that the approach to be adopted is to consider that prior to April 1997 the applicant had the opportunity to return to work freely available to him, and did not suffer a loss of salary or wages before that time.
respondent's submissionsMr Doube submitted, on behalf of the respondent, that the phrase in sub-paragraph 24(1)(c) of the Act "prevented from undertaking" is an active verb that refers to something the person is doing. He further submitted that the Tribunal should look to the time and dates that the applicant stopped attending the workplace.
Mr Doube submitted that the applicant was inconsistent in his evidence to the Tribunal as against what the applicant had told Dr Rowe. He further submitted that there is a striking coincidence between the applicant's wife's problems and the applicant's time off, and that by reference to the employment records and evidence before the Tribunal, the applicant clearly took time off for his wife's health. In his submission it is simply not credible that the applicant took time off in September 1995 for PTSD alone given the evidence before the Tribunal. He also submitted that it is not sufficient that PTSD may have been the major or predominant cause of the applicant not returning to work, referencing sub-section 24(2) of the Act.
Mr Doube submitted that, as at July 1995, there was no apparent stressor contributing to the applicant's PTSD that would have resulted in the applicant needing time off, and that the time off work prior to March 1996 was related to his wife's problems, as it is only around March 1996 that the applicant's condition had deteriorated to the extent that treatment was contemplated.
Mr Doube gave the example of a veteran who lapsed into a unaccepted disabilities related coma whilst at work, submitting that if that person were to later claim for a pension, one could not say that it was war-caused problems that resulted in the veteran being prevented from undertaking remunerative work. He submitted that the Tribunal must look at the times and dates that the applicant stopped attending the workplace.
discussion and findingsThe Tribunal notes that the respondent concedes that sub-paragraphs 24(1)(a) and 24(1)(b) of the Act are satisfied and accordingly, the Tribunal so finds that to be the case. The Tribunal also notes that the date of effect is not in dispute, and is agreed at 27 April 1998.
Before the Tribunal then, is the question of whether or not the applicant satisfies sub-paragraph 24(1)(c) of the Act. That sub-paragraph states:
"24(1)
…(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
…"
Sub-paragraph 24(1)(c) of the Act is to be read in conjunction with sub-section 24(2) of the Act which states:
"(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."
The Tribunal found it was difficult to make an assessment of the veracity of the applicant's evidence. Some of his oral evidence to the Tribunal was in conflict with the documentary evidence, particularly in relation to the dates in and around July 1995. He was certainly very emphatic as to the reasons why he required time off, particularly concerning the periods in July and September 1995. The Tribunal is mindful of Dr Thorpe's evidence that the applicant is a "dogmatic character" who is certainly now convinced that he ceased attending work in 1995 purely as a result of his PTSD. The Tribunal appreciates the effect the applicant's PTSD has had on him. Whilst the Tribunal does not make any adverse finding as to credit, it treads warily in respect of his evidence as to the reasons for his time off in 1995, and prefers the documentary evidence in areas of dispute.
In relation to the medical evidence, the Tribunal found Dr Rowe to be a highly impressive witness, and prefers his evidence in any areas of dispute. It is cognisant of the fact that he only began treating the applicant in May 1997, but found his conclusions as to earlier events to be based upon sound reasoning, factoring in his clinical experience, albeit necessarily reliant to a large degree upon what the applicant had told him.
In relation to the periods of time off in 1995, the Tribunal is not satisfied that the only reason the applicant had time off was PTSD related. There is simply too much of a coincidence between the periods of time off in both July 1995 and September 1995 and the applicant's wife's problems to conclude that PTSD alone was the reason he required time off. Significantly, his wife returned home on 8 September 1995, and Dr Thorpe's notes record attendance by the applicant on 9 September 1995 requesting a month off to care for his wife. There is no mention of the applicant's health problems in relation to that consultation. The Tribunal accepts that the applicant was suffering from PTSD in September 1995, and that the PTSD was being made worse by his wife's stroke. Due to the circumstances of this case and the concerns as to the testimony of the applicant outlined above however, the Tribunal is not prepared to completely ignore the documentary evidence and conclude that asking for a month off was purely a cover for PTSD problems. Whilst Dr Thorpe considered that PTSD was clearly a major factor as at that time in 1995, he did not conclude that the applicant's wife's stroke was not a factor in the reasons for the applicant taking time off in 1995. Whilst the stroke was clearly a stressor which aggravated the applicant's PTSD, the Tribunal finds that taking all of the evidence before it into account, on the balance of probabilities, the applicant took time off in 1995 partly for the purpose of caring for his wife.
As at April 1997 however, the picture is somewhat different. The applicant's statement indicates that as at that time, his wife was self sufficient with the exception of needing help with her bra. Dr Thorpe also indicated in his evidence that the applicant's wife did not need the applicant to stay at home to care for her as, in his opinion, she had made a good recovery in the circumstances. The applicant notes in his statement that after 10 months at Payneham Rehabilitation Centre, his wife had refined her movement, and had completed her rehabilitation by about August 1996. Dr Thorpe referred the applicant to Dr Rowe due to a deterioration in his condition in late 1995 through early 1996. By mid 1996 he clearly had severe psychiatric symptoms, which had been exacerbated by his wife's stroke. That event was "the straw breaking the camel's back" to use Dr Thorpe's language. Clearly then, the stroke was a contributing factor to the worsening of the PTSD.
Once the applicant's wife had rehabilitated however, the applicant remained off work until April 1997, at which time his employment was terminated. Dr Thorpe considered that by March 1997 the applicant's wife's stroke was no longer a factor in his not returning to work, explaining that his notation of "multiple factors including wife's massive cva" in his report dated 26 March 1997 (T7/28) referred to July 1995. As at the time of that report in March 1997, Dr Thorpe did not consider that the applicant's wife's stroke was having any effect upon the applicant's ability to work, the problem "being almost 100% PTSD". Dr Rowe considered on his assessment of the situation, by April 1997 the applicant was aware that he would not be able to cope at the workplace, as he had had time away from work to reflect upon the fact that his psychiatric problems would not enable a return to work, and that his psychiatric problems would get worse. Dr Rowe further considered that the applicant's other psychiatric problems such as chronic depression and agoraphobia were PTSD associated conditions. As at April 1997 Dr Rowe opined that the wife's stroke was only playing an indirect role because it had contributed in 1995 to the need for time off, which in turn had created the window of time in which the applicant could reflect upon his not coping in the workplace.
The Tribunal has taken all of the medical evidence into account, and finds Dr Rowe's account of the situation as at April 1997 to be compelling. The Tribunal finds that as at April 1997, and for a number of months prior to April 1997, the applicant's wife's stroke was in no way preventing him from returning to work. She had been rehabilitated some eight months previously. In the absence of any need to care for his wife, the only other reason before the Tribunal as to why the applicant was prevented from continuing to work as at late 1996 leading into early 1997 is because of his psychiatric conditions, which, in Dr Rowe's opinion are all associated with his severe PTSD. The respondent proffered no other explanation as to why the applicant was prevented from resuming the work he had been undertaking subsequent to his wife's rehabilitation. Taking into account its assessment of the medical evidence and in the absence of any other explanation, the Tribunal finds that subsequent to his wife's rehabilitation in or about August 1996, the applicant, by reason of his war-caused PTSD and associated conditions alone, was prevented from resuming the remunerative work that he was undertaking. The Tribunal notes that, in coming to this conclusion, it has been mindful of the fact that the applicant's wife's stroke was a significant stressor in aggravating the applicant's PTSD. It cites with approval the conclusion of the Tribunal in Re Rogers and Repatriation Commission (AAT 5374, 14 September 1989) wherein it was held that a veteran may satisfy the alone test, notwithstanding the fact that an accepted disability has been exacerbated by a non-accepted disability, so long as the accepted disabilities alone are the case of the inability to engage in remunerative work.
The vexed issue for the Tribunal is whether or not it applies the alone test as at the time the applicant stopped attending the workplace (in or about July 1995) or as at the time he was terminated from employment (April 1997). This case is somewhat unique, in that the applicant spent over eighteen months on leave of various kinds prior to his termination, without actually returning to the workplace in that period of time. The Tribunal must determine at what stage the veteran was prevented from "undertaking remunerative work that he was undertaking" and for what reason. Both parties indicated to the Tribunal that they had been unable to find any firm precedent on this issue.
The Tribunal notes that the Macquarie Dictionary (3rd ed) defines "work" (inter alia):
"work … 1. exertion directed to produce or accomplish something; labour; toil. … 6. employment; a job, especially that by which one earns a living. …"
"Undertaking" is also defined (inter alia):
"undertaking … 1. the act of one who undertakes any task or responsibility. 2. a task, enterprise, etc., undertaken. …"
"Undertake" is defined (inter alia):
"undertake … 1. to take on oneself (some task, performance, etc.); take in hand; essay; attempt. 2. to take on oneself by formal promise or agreement; lay oneself under obligation to perform or execute. …"
It is worth noting that the notion of "work" being akin to "employment" or "a job" as appears in the above dictionary definition finds support in the Second Reading Speech introducing the Special Rate legislation in 1985:
"…
… If a person has had the usual span of working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable. …"
(Tribunal's emphasis)The Tribunal is also mindful of the comments of the Full Federal Court in Sheehy v Repatriation Commission (1996) 41 ALD 205 at p209 (inter alia):
"…
We are able to dispose of the appeal briefly. We address first, the veteran's second submission: the question of construction. In our opinion, the words "undertake" and "undertaking" in para 24(1)(c) import the notion of "performance" or of a "successful" or "effective" undertaking of work. The following considerations support that construction.(1)The infinitive form "to undertake" and the past imperfect tense "was undertaking" are used with the same connotation: in both instances a "process" or "course" is involved.
(2)If the veteran's submission that the expression "was undertaking" is satisfied by the undertaking of an obligation to work for remuneration were to be accepted, apparently a veteran would never be "prevented from continuing to undertake" remunerative work, since the veteran would always be able to continue to undertake such obligations.
(3) The notion of "ceas[ing] to engage in remunerative work" in para 24(2)(a)(i) and the notion of being prevented "from engaging in remunerative work" in para 24(2)(a)(ii) are intended to refer respectively to the "remunerative work that the veteran was undertaking" and the remunerative work that the veteran is "prevented from continuing to undertake" referred to in para 24(1)(c), and since the notion of "engaging" in remunerative work means performing such work, the notion of "undertaking" it has the same meaning.
…"
In consideration of this passage from Sheehy, the Tribunal is mindful of the facts of that case, which involved a veteran over the age of 65 years, who had performed two short periods of work (one week and two weeks respectively). One of the issues for the court in that case was whether or not that amount of work constituted "undertaking remunerative work" for the purposes of sub-paragraph 24(1)(c) of the Act. This present matter is a case which is different again on its facts. In this case, the veteran was continuing to be employed up until April 1997, but he simply was not performing any work as and from July 1995. Significantly, he remained on leave of one sort or another until his termination in April 1997.
In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, Burchett J stated (inter alia) at p539:
"…
…The tendency of that is to distract the tribunal from its true task – 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.
…"The notion of "loss of remunerative work" implies something that is no longer available to the veteran. This may be for whatever reason, be it, for example, age or incapacity, either from accepted or non-accepted disabilities. It is this reason that ultimately decides whether or not sub-paragraph 24(1)(c) of the Act is satisfied, but it is the loss of such work that gives rise to the question as why such work was lost. "Loss" implies more than being absent from work for a period of time, and has a meaning more along the lines of termination or a leaving of the job. "Loss" in this sense is also expressed by the Full Federal Court in Banovich v Repatriation Commission (1986) 6 AAR 113 at p120 (inter alia):
"…
… It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity – and by that incapacity alone – from continuing in that field of remunerative activity.
…"
(Tribunal's emphasis)In the present matter, the applicant's time off between July 1995 and April 1997 was taken as recreation leave, long service leave, normal sick leave and war service sick leave. All of these types of leave were entitlements properly flowing under his terms of employment as a Commonwealth employee of some years standing. There is nothing before the Tribunal which suggests that prior to April 1997, the applicant was unable to return to his employment (excepting of course, his and his wife's health at varying times).
An employee's entitlement to remuneration generally depends upon the performance of work by the employee (Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435). Performance in this regard, must be considered to be inclusive of any accumulated entitlements an employee may have acquired. A worker remains entitled to wages for whatever period prescribed by the relevant award, industrial agreement or legislation, in the event that the employee is unable to work due to sickness. This entitlement is also to be found at common law (Paff v Speed (1961) 105 CLR 549 per Windeyer J at 566). Generally, an award will provide a cumulative annual amount of sick leave. Under current South Australian legislation for example, there is a prescribed minimum sick leave entitlement established in Schedule 3 of the Industrial and Employees Relations Act 1994, which provides (inter alia):
"…
3. Accrual of sick leave entitlement
(1) An employee's entitlement to sick leave accrues as follows -
(a)for the first year of continuous service - entitlement to sick leave accrues at the rate of 5/26 of one day for each completed week; and
(b)for each later year of continuous service - an entitlement to 10 days' sick leave accrues at the beginning of each year.
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Similar provisions are made for recreation leave and long service leave, and as a long-standing Commonwealth public servant, the applicant clearly had a substantial amount of accumulated leave of varying descriptions. The entitlement to all of this leave formed part of the applicant's "employment", as such entitlements are part and parcel to being a Commonwealth public servant.
Mr Doube and Mr Hemsley both put forward hypothetical situations to aid the Tribunal and it is worth considering Mr Doube's example concerning a veteran lapsing into a coma at work. To slightly alter the scenario, if a veteran lapsed into an non war-related coma at work in January 1999, clearly that coma would prevent a veteran from undertaking remunerative work that he or she was undertaking. That veteran may have accrued sick and long service leave however, and might be able to use all of that leave to recuperate such that by January 2000 they have recovered from their coma. If, as at January 2000, that veteran was prevented from returning to work solely due to war-caused disabilities, surely this Tribunal would be expected to simply disregard the coma altogether, and look to January 2000, given that the person was using legitimate leave entitlements between January 1999 and January 2000. In effect, because the coma occurred whilst the person was using legitimate leave entitlements, it is no different than if the person had taken a year of long service leave to travel the world. If upon their return, they were unable to undertake the work because of war-caused disabilities, one would not say that they stopped work because they went on holiday. They would be unable to work because of war-caused disabilities. Again, if the person has accrued leave owing, then that would be a legitimate entitlement constituting part of their employment.
In ReHornery and Repatriation Commission (1998) 28 AAR 193, the Tribunal considered a case where a veteran had not worked for many years (bringing into being sub-paragraph 24(2)(b) of the Act) but also had an earlier non war-related back problem which had caused some incapacity for work. In relation to sub-paragraph 24(1)(c), the Tribunal stated (inter alia) at p209-210 and p212:
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The Tribunal accepts the submission made by Mr Vincent that Banovich and Starcevich support the view that eligibility to entitlement under s 24(1)(c) may be re-established.
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The Tribunal has already found that the fact that a veteran has at a previous point of time ceased to engage in remunerative work for reasons other than his or her incapacity from war-caused disability does not prevent eligibility arising later. Section 24(2)(a)(i) does not operate so as to bar Mr Hornery's entitlement to pension at the Special Rate.
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As contemplated in Re Hornery, there are two aspects to which the Tribunal must give attention. An enquiry must be made as to why, as at the date of application, the applicant is prevented from continuing to undertake remunerative work that he was undertaking, and secondly, whether the veteran ceased to engage in remunerative work for reasons other than incapacity from war-caused injury or disease. It is that second aspect relating to sub-paragraph 24(2)(a)(i) that is primarily in dispute here. In that regard, what is significant about Re Hornery, is that the cessation of work for a non war-related problem is not necessarily regarded as final where that non war-related problem has ceased to be an issue, and has been overtaken by a war-related problem.
With that in mind, the Tribunal turns to consider the issue of when and why the applicant ceased to engage in remunerative work.
In the Tribunal's opinion, one must look at the notion of being "employed" in relation to what that state of being actually entails. "Work", in the sense of being remuneratively engaged, encompasses performance of duties for which remuneration is paid, subject to the terms and conditions of the employment contract, which is read in conjunction with the relevant award/employment agreement, bearing in mind the overarching industrial legislation. That "subject to" means that an employee can be excused in a sense, from the performance requirement, in the event that they satisfy the criterion which gives rise to an entitlement to leave. The sense of "loss" contemplated by Burchett J in Cavell then must take into account the exercise of legitimate entitlements by employees. The fact that accrued sick leave is taken by an employee does not give rise to a right of termination by the employer, as not only does that person continue to be employed during the period of leave, but remains entitled to remuneration in respect of that period.
In this highly unusual case, the applicant took a variety of accrued sick leave, long service leave and recreation leave between July 1995 and April 1997. There is no suggestion however, that he was taking anything but his legitimate entitlements. It is clear from the documentary evidence (T26) that he continued to be remunerated for the entire period. He continued to be "employed" throughout this period, and was simply exercising the accrued entitlements he had under the terms of his employment. He had not "lost" work until April 1997, at which time he was terminated. Whilst, as a general proposition, one must be performing work to receive remuneration, the applicant, by exercising his legitimate entitlements to leave, fell into the exception to this rule, as contemplated in The Laws of Australia Vol 26: Labour Law at p98 (inter alia):
"…
Another obvious exception to the rule that service (or possible readiness and willingness to serve) are required for the payment of wages is the case of authorised leave. Payment for authorised leave will be in accordance with the contract or any applicable award, industrial agreement or legislation…
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Equally, it stands to reason that the sense of "performance" contemplated by the Full Federal Court in Sheehy must be equally inclusive of the exercise of legitimate leave entitlements. Such an exercise constitutes part of the "performance" of employment.
The Tribunal is satisfied, bearing in mind the above principles, of what constitutes employment, and so finds that the applicant did not cease to engage in remunerative work until April 1997. He continued to be employed and remunerated up until this time. It is clear from the termination notice dated 9 April 1997 (T25) that the applicant's employer considered him to still be employed up until that date. The evidence clearly establishes that the applicant could have returned to work, at least from mid 1996, but for his war-related disabilities. The Tribunal is satisfied, noting its findings in paragraph 38 herein, and so finds that for the purposes of sub-paragraph 24(2)(a)(i) of the Act, the applicant did not cease to engage in remunerative work for reasons other than his incapacity from his war-caused disabilities.
Even if it were to be said that the applicant ceased work in July 1995 for the reason of his wife's illness (which clearly was a factor in his time off at that stage), the Tribunal notes that, consistent with Re Hornery, this would not bar the applicant pursuant to sub-paragraph 24(2)(a)(i) of the Act. Whilst his wife's stroke contributed to the reasons for him ceasing to attend work in July 1995, this reason was no longer operative in or about mid 1996. The evidence before the Tribunal establishes that the wife was almost entirely self sufficient as at that time, and that continuing problems with returning to work related to the applicant's PTSD. As from mid-1996 onwards, the applicant ceased to engage in remunerative work solely due to his PTSD (albeit exacerbated by the stroke), as there is no other operative factor for him to have continued to be absent from work.
In relation to sub-paragraph 24(1)(c) of the Act therefore, the Tribunal is satisfied that the medical evidence before it clearly supports the fact that by reason of his PTSD alone, the applicant is prevented from continuing to engage in the remunerative work that he was undertaking. Mr Doube did not put any submissions regarding the labour market, age or other like factors as at the time of the applicant's application, and the Tribunal cannot find any other factor as at that time, aside from his severe PTSD, that would prevent him from continuing to engage in the remunerative work that he was undertaking. As at the date of application, the applicant was only 48 years of age, and had a great deal of experience in his field as a Telecom technician. If it were not for his PTSD, and its associated conditions alone, the applicant would be able to be engaged in remunerative work in the capacity of a Telecom technician and the Tribunal so finds. The Tribunal also finds that, as a result of his inability to engage in such remunerative work, the applicant has suffered a loss of salary or wages. The Tribunal notes that it is sufficient that there is a causal relationship between the war-caused incapacity and loss of wages, such that the fact that the applicant was on half pay for certain of his leave periods does not affect the second limb of sub-paragraph 24(1)(c) of the Act. In any event, whether or not the leave was at full or half pay, it was still approved leave for the purposes of the applicant being employed. Accordingly, the Tribunal finds that the applicant satisfies sub-paragraph 24(1)(c) of the Act.
In light of this finding, and with the respondent conceding sub-paragraphs 24(1)(a) and 24(1)(b) of the Act, the Tribunal finds that the applicant is qualified to receive pension at the special rate as and from 27 April 1998.
decisionFor the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is entitled to special rate as and from 27 April 1998.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr J.T.B. Linn (Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 16 & 17 January 2001
Date of Decision 15 February 2001
Counsel for the Applicant Mr G. Hemsley
Solicitor for the Applicant -
Counsel for the Respondent Mr G. Doube
Solicitor for the Respondent DVA
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