Wass and Repatriation Commission

[2005] AATA 440

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 440

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/459

VETERANS’ APPEALS DIVISION		)
Re		ARTHUR DAVID WASS

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date17 May 2005

PlaceBrisbane

Decision The decision under review is set aside. The applicant ceased remunerative work due to his war-caused injuries alone. The applicant is entitled to a pension at the special rate under s 24(1)(c) of the Veterans Entitlements Act 1986.

....................[Sgd]......................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veteran’s Entitlements – application for special rate pension – applicant satisfies the “alone” test – decision under review set aside.

Veterans’ Entitlements Act 1986 ss24, 119

Flentjar v Repatriation Commission (1997) 48 ALD 1; (1997) 26 AAR 93; BC9705934

Peacock v Repatriation Commission [2004] FCA 1149

REASONS FOR DECISION

Senior Member B J McCabe

17 May 2005

Introduction

1.      Mr Arthur Wass suffers from a range of conditions that the respondent has accepted are related to his war service, including post traumatic stress disorder (PTSD), lumbar spondylosis and alcohol abuse. He says he was forced to cease remunerative work because of those conditions in 1998. He applied for a pension at the special rate under the Veterans’ Entitlements Act 1986 (the VEA), but his application was rejected. The respondent says Mr Wass is entitled to a pension at 100% of the general rate. The Veterans’ Review Board affirmed the respondent’s decision. The applicant has asked the Tribunal to reconsider the matter.

2.      The real question in this case arises out of s 24(1)(c) of the VEA. Is the applicant able to satisfy the so called “alone” test? The applicant also contended he was able to take advantage of the ameliorating provision in s 24(2) because he continued to look for work but was unsuccessful because of his accepted conditions.

3.      I am satisfied in all the circumstances that the applicant’s accepted conditions explain his inability to continue in remunerative work. It follows he is able to satisfy the “alone” test in s 24(1)(c).

Material before the Tribunal

4. The Tribunal was provided with the material required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:

·Statement of Arthur David Wass dated 13 December 2004 (exhibit 2)

·Report of Dr J Rogers dated 8 October 2004 (exhibit 3)

·Bundle of medical certificates dated 17 October 2000 – 16 July 2001 (exhibit 4)

5.      The applicant gave evidence in person. Dr Rogers, the applicant’s treating psychiatrist, also gave evidence in person. Mr Keith Reid gave evidence over the telephone. Mr Reid is the human resources manager at BHP Billiton’s Goonyella mine, where the applicant worked.

6.      Mr Wass was represented by Mr Honchin of counsel. Mr Stoner represented the Commission.

The factual background

7.      I have already noted the applicant suffered from a number of war-caused injuries. His PTSD and alcohol abuse disorders were a particular source of difficulty.

8.      Mr Wass worked as a miner after leaving the Army. He commenced work at the Goonyella mine on 22 October 1985. He mostly worked as an overburden driller. His job required that he drill holes in the face of the open cut mine to prepare for blasting.

9.      The applicant said he was difficult to work with throughout his time at Goonyella. He was irritable and often argued with workmates. He said he would lose his temper and storm off the job when someone upset him. He also drank heavily. He told Mr Stoner in cross-examination that he drank around 12 stubbies of beer each day, although he said he might drink more when friends came to visit him at home. That happened at least once a week.

10.     BHP commenced random drug testing during the applicant’s employment at the Goonyella mine. The applicant said he passed the test on three occasions but was “borderline” in doing so. Mr Wass said he usually had a couple of beers before work. BHP had a three-strikes-and-you’re-out policy but the applicant never failed a drug test at the mine.

11.     Mr Wass says he was given regular warnings while working for BHP. He said he was taken aside by Mr Hayward, his supervising foreman, every two to three weeks during the latter part of his time at Goonyella and told to change his behaviour (T4 folio 90). Mr Wass believed those discussions ensued after complaints were made about him. The applicant said Mr Hayward would tell him to cut back his drinking or there would be “problems”. The applicant said he never found out what those “problems” would entail. Mr Wass said Mr Hayward never told him he could be sacked. This pattern of conduct occurred over a two year period. The applicant was never subjected to formal disciplinary or rehabilitative action.

12.     The applicant’s drinking problem did not improve despite the warnings. He was regularly absent from work as evidenced in the applicant’s attendance history (T4 folios 58-60). In 1998 Mr Wass accepted Voluntary Early Retirement (VER). He stated that both Mr Hodgon, his union delegate, and Mr Hayward encouraged him to take VER. Mr Wass said his job involved a high level of concentration and his drinking had led to him damaging machinery on several occasions. He felt it was only a matter of time before he was caught out by the random drug testing.

13.     The applicant commenced casual employment at several mines after taking VER at the Goonyella mine. He drove a bulldozer at the Gregory mine, worked at another BHP mine, and then went to work at the Oakey mine for a short period.

The medical evidence

14.     Dr Rogers examined the applicant for the first time on 16 January 2001. He has provided 3 reports that are before the Tribunal:

·Report of Dr J Rogers dated 22 January 2001 (T4, folio 32)

·Report of Dr J Rogers dated 13 February 2004 (T4, folio 88)

·Report of Dr J Rogers dated 8 October 2004 (exhibit 3)

15.     The Commission raised some concerns about Dr Rogers’s objectivity. The Commission’s statement of facts, issues and contentions argued Dr Rogers’s opinion is largely speculative and that Dr Rogers advocated his patient’s case. The Tribunal should always approach the evidence of a treating psychiatrist with caution. Dr Rogers gave evidence in person and was cross examined by the respondent. After hearing him in the witness box I am satisfied Dr Rogers was presenting a balanced view of the applicant’s condition and its causal effect on the applicant ceasing work.

16.     Dr Rogers has been treating Mr Wass since January 2001. Dr Rogers diagnosed PTSD and alcoholism in his report dated 22 January 2001. He affirmed this view in his report of 13 February 2004. Dr Rogers opined the applicant’s work performance was declining because of these accepted conditions.

17.     Dr Rogers stated in evidence he believed Mr Wass was under extreme pressure to resign due to his drinking and its adverse effect on his ability to work. He opined the applicant felt that if he did not jump he would be pushed. Dr Rogers said the applicant was totally and permanently incapacitated for work at the time of his first consultation (T4 at folio 32). It is likely the applicant was totally incapacitated some time before the applicant left the employment of BHP.

18.     I accept the applicant would have been unable to continue working because of his accepted conditions as Dr Rogers suggests. There is no evidence of any other conditions that could have debilitated the applicant.

Evidence of Mr Keith Read

19.     Mr Read gave evidence in person. He is the human resources manager at BHP’s Goonyella mine. Mr Read joined BHP in August 2002. He did not work at the Goonyella mine during the applicant’s term of employment. He gave evidence about the internal practice and procedures at the mine.

20.     Mr Read indicated there was nothing on the applicant’s employment file that indicated his job was in jeopardy. In evidence Mr Read was taken to a statement of a Matthew Gleeson – a senior employee relations officer at BHP - (T documents folio 40) which indicated the applicant had an excellent attendance record and performed his duties safely at all times. Mr Read indicated the letter was a standard letter written for employees who left the mine voluntarily.

21.     The respondent questioned why there was no mention of any employment problems on the applicant work file. Mr Read indicated it was common for middle managers to deal with staff problems locally and on an informal basis. He said matters dealt with informally would not make their way onto an employee file. In some cases, managers would turn a blind eye to problems.

22.     Mr Read said BHP did not terminate people easily. He said there is now an elaborate process for dealing with drug and alcohol problems amongst BHP employees. Mr Read said BHP’s processes were in a state of flux when Mr Wass left the company. Rehabilitative processes were not suggested to Mr Wass nor were they readily available at the time.

Consideration of the evidence

23.     I accept the applicant’s account of his service at the Goonyella mine. He has a range of accepted conditions including PTSD and alcohol abuse which undoubtedly affected his capacity to work as an overburden driller. On occasion machinery was damaged and he was informally counselled by supervisors over such incidents. The evidence of Mr Hayward and Mr Hodgon is consistent with Mr Read’s description of the work environment at the Goonyealla mine. I accept matters were dealt with “in house” without formal documentation being kept. I also accept that BHP was a very tolerant employer, and that managers might turn a “blind eye” to problem employees over an extended period.

24.     The evidence of the applicant and Mr Read puts this case in the same class as Peacock v Repatriation Commission [2004] FCA 1149. In that case the applicant’s survival in his job was attributed to an unusually tolerant employer. That is the case here. It is likely that other employers would have terminated Mr Wass’s services long before BHP acted.

25.     Mr Stoner submitted that the applicant should not be entitled to a pension because he could have continued remunerative work after taking VER. I do not agree. While the evidence indicated that BHP very rarely terminated their employees, the VER arrangement was a convenient opportunity for BHP to remove the applicant from their workforce. Both Mr Hayward and Mr Hodgon encouraged the applicant to accept the VER. Mr Read said the procedures for detecting and dealing with drug and alcohol problems were not properly in place when the applicant was an employee. I am satisfied it was only a matter of time before his employment would have come to an end if he had not taken VER. In any event, I accept Mr Wass ceased being able to carry out the work he was employed to do some time before he took early retirement.

The legislation

26.      The “alone” test is set out in s 24(1)(c) of the Act. It provides:

(1) This section applies to a veteran if:

…

(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…

27.     The Full federal Court explained the correct approach to the test in the course of its decision in Flentjar v Repatriation Commission (1997) 48 ALD 1. The Court explained (at 4-5) that the issues before the Tribunal were:

1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?

2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

28.     The applicant worked as a miner, specifically an overburden driller. He worked in that capacity since leaving the Army. I accept the evidence of Dr Rogers (and Mr Wass himself) that the applicant is unable to continue undertaking that work by reason of his war-caused injuries. In all the circumstances I am satisfied the applicant’s war-caused conditions are the only factors preventing him from undertaking remunerative work. On the applicant’s evidence it was clear he was unable to continue remunerative work sometime before he left BHP, but his tolerant employer kept him on the books. He is able to satisfy s 24(1)(c).

Conclusion

29.     The decision under review is set aside. The Tribunal finds the applicant ceased remunerative work due to his war-caused injuries alone. The applicant is entitled to a pension at the special rate under s 24(1)(c) of the Veterans Entitlements Act 1986.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate: Sam J Appleton

Date of Hearing  9 March 2005, Townsville
Date of Decision  17 May 2005, Brisbane
The applicant was represented by Mr Honchin of Counsel.
Mr Stoner appeared for the respondent.