Watkins and Repatriation Commission

[2004] AATA 542

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 542

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/58

VETERANS’     APPEALS        DIVISION

Re:         DIANNE FAY WATKINS

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             28 May 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

VETERANS’ AFFAIRS ‑ widow's entitlement ‑ pension at special rate ‑ post traumatic stress disorder ‑ carcinoma of oesophagus ‑ whether substantial cause of inability to work 

Veterans’ Entitlements Act 1986 s 24, 119

Cavell v Repatriation Commission (1988) 9 AAR 534

Flentjar v Repatriation Commission (1997) 48 ALD 1

Fox v Repatriation Commission (1997) 45 ALD 317

Repatriation Commission v Hendy [2002] FCAFC 424

Smith v Repatriation Commission (1999) 58 ALD 158

REASONS FOR DECISION

28 May 2004  G. D. Friedman, Member

1.      This is an application by Dianne Fay Watkins (the applicant), widow of Arthur William Watkins (the veteran), for review of a decision of the Veterans’ Review Board (VRB) dated 25 November 2002.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 20 June 2001 to assess the veteran’s disability pension at 100 per cent of the general rate. 

2.      At the hearing of this matter on 12 May 2004 Mr D. De Marchi, solicitor, represented the applicant and Mr K. Herman, an advocate with the Department of Veterans’ Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T17), three exhibits (Exhibits A1‑A3) lodged by the applicant and four exhibits (Exhibits R1‑R4) lodged by the respondent.

4.      The issue before the Tribunal was whether the applicant is entitled to pension at the special rate.

BACKGROUND

5.      The veteran was born on Woodlark (Muyua) Island in Papua, now Papua New Guinea, on 3 June 1944.  He left school at the age of fifteen and worked for a steamship company and the Commonwealth Department of Works before joining the Australian Army (the army) on 10 August 1964.  He served in Malaysia and Vietnam and his service includes operational service under the Veterans’ Entitlements Act 1986 (the Act).

6.      After his discharge on 14 August 1984 the veteran worked as a machine operator before obtaining employment as a farm hand with a lawn farm.  After several years he commenced work as a farm hand with a horse trainer and remained there for about ten years before ceasing in about 1999.  He then did voluntary work on a part‑time basis.  The veteran developed cancer of the oesophagus in about 2000 and died on 28 October 2003.

7.      The veteran suffered from the following disabilities, for which the respondent had previously accepted liability: essential hypertension; allergic conjunctivitis; depressive disorder; bilateral sensorineural hearing loss; psychoactive substance abuse or dependence; malignant neoplasm of the oesophagus; post traumatic stress disorder (PTSD); and CA oesophagus with bilateral lung and chest wall metastases.  The veteran also suffered from the following disabilities, for which the respondent did not accept liability: presbyopia; arthritis left shoulder following recurrent dislocation; lumbar spondylosis; osteoarthrosis of the right shoulder; rheumatoid arthritis; localised osteoarthrosis affecting both shoulders; and varicose veins of the right leg. 

8.      On 17 January 2003 the applicant applied to the Tribunal for review of the VRB decision.  The effective date of the claim is 9 January 2001.

EVIDENCE

9.      The applicant gave oral evidence that she married the veteran in 1983.  She stated that he had suffered shoulder injuries while playing rugby during his service in Malaysia.  The applicant told the Tribunal that she was aware of the veteran‘s PTSD, and he became short‑tempered and anxious when working with other people.  She noted that he was reluctant to socialise or visit relatives, and became increasingly reclusive.  She said that the veteran enjoyed his work with the horse trainer but became worried that when operating a tractor for extended periods his poor concentration and dizziness might result in injury to himself, other persons or valuable animals.  She said that this was the main reason he stopped working.

10.     Mr P. Allen, who served with the veteran in Vietnam, gave oral evidence that he and the veteran spent considerable time together in the 1980s and 1990s.  He stated that he could not recall the veteran mentioning shoulder pain at any time.  

11.     In a written report dated 5 May 2003 (Exhibit A1) Dr E. Cole, psychiatrist, stated:

I don’t think there can be any question about the fact that Mr. Watkins is no longer capable of working and certainly he would be incapable of working more than eight hours a week.  However, a number of factors have contributed to this incapacity, including his shoulder injury and the fact that he is suffering from a life threatening illness which has resulted in symptoms including weakness and breathlessness…I note also that he was having considerable difficulty carrying out his duties because of his inability to concentrate, his inability to handle pressure and his quick temper…Once again his shoulder injury contributed towards his incapacity for work, but it seems reasonable to suggest that by the time he stopped work completely his nervous symptoms alone would have been sufficient to prevent his working more than eight hours a week.

12.     In a written report dated 22 April 2003 (Exhibit A2) Dr J. Hofland, consultant in rehabilitation medicine, stated that the veteran presented with a long history of symptoms related to PTSD with irritability and depressive symptoms as well as alcohol abuse.  She said that these interfered with the veteran’s ability to work in civilian life, and he was unable to work indoors, in company and under pressure.  Dr Hofland noted that the veteran worked on a lawn farm for five years, but that left shoulder pain restricted him physically.  In her examination of the veteran Dr Hofland observed:

Range of movement of both shoulders is restricted, especially for abduction and internal rotation.  His range of movement is functional for personal care.

She concluded:

…

Notwithstanding his shoulder injury he continued to work for another 15 years or so.  He left his last job, as he was becoming increasingly unwell with dizziness and loss of concentration.  He tried part-time, but could not manage that either.

…

13.     In a written report dated 19 May 2003 (Exhibit R3) Dr R. Horsley, occupational physician, noted that the veteran had multiple non‑accepted conditions including significant osteoarthritis affecting both shoulders, and stated that:

…He ceased work because he was having difficulty concentrating on the plant and machines.  He tended to go over boundary lines and forget what he was doing.  He also had discomfort secondary to his bilateral shoulder arthritis...

Dr Horsley said that the veteran had ceased his previous job at the lawn farm because of the physical component and the aggravation to his shoulder condition.  In her examination of the veteran Dr Horsley found that his right shoulder had a loss of range of three quarters, and his left shoulder had half the normal range.  Dr Horsley observed that above shoulder activities, overreaching, pushing, pulling and repetitive lifting exacerbated his shoulder discomfort, and that the discomfort was in both shoulders, and radiated into the upper arm bilaterally.   

14.     In a written report dated 19 August 2003 (Exhibit R4) Dr Horsley noted that on 9 August 2000 the veteran’s treating doctor had completed a work ability form which stated that the veteran had significant and markedly reduced mobility affecting his shoulders.  Dr Horsley stated that this would have a significant impact on his capacity for work if he was without the carcinoma of the oesophagus.  She concluded that if the veteran did not have carcinoma of the oesophagus, his capacity for work would be impacted upon by the non‑accepted conditions.

15.     In a written report dated 27 May 2002 (T10, page 32) Dr B. Holwill, consultant psychiatrist, stated that the veteran’s shoulder injuries incapacitated him for work, although he suggested that it was not the only contributing factor.  Dr Holwill stated:

…He ceased work partly due to the pain in his shoulders, but also due to his deteriorating concentration, low mood and irritability.  These all relate either directly, or at least in a significant part to the psychiatric conditions of post traumatic stress disorder and substance abuse… His psychiatric conditions alone would render him totally and permanently incapacitated for any form of employment.

16.     In a work ability report to the Department of Veterans’ Affairs dated 2 February 2000 (T14, page 65) Dr A. Slutzkin, the veteran’s treating doctor, stated that the reason the veteran left his last occupation as a farm hand was dizziness, pain from arthritis, poor concentration, depression and poor sleep.

17.     In a written report dated 28 May 2001 (T4, page 11) Dr C. J. Percival, consultant psychiatrist, diagnosed PTSD and alcohol dependence, and recommended a vigorous trial of antidepressant medication, together with a cognitive behavioural approach such as participation in PTSD courses.

CONSIDERATION OF THE ISSUES

18. Section 24 of the Act makes provision for payment of pension at rates higher than 100 per cent of the general rate:

24(1)   This section applies to a veteran if:

(aa)…

(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)…

(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

…

(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.

19. Mr De Marchi submitted that on the balance of probabilities the applicant satisfies s 24(1)(c) of the Act [Smith v Repatriation Commission (1999) 58 ALD 158]. He said that the applicant gave clear and credible evidence that the veteran enjoyed physical activities and that his decision to cease work was due mainly to PTSD. Mr De Marchi said that there was no material before the Tribunal that evaluated the effects of the shoulder injuries, and the veteran had continued tasks such as chopping wood after stopping work. He submitted that the Tribunal should take into account s 119 of the Act, in that the veteran’s death prevented him from pursuing his claim and giving evidence.

20. Mr De Marchi submitted that the veteran was unable to work because of PTSD, and the carcinoma of the oesophagus prevented him from contemplating a return to remunerative employment. Mr De Marchi said that the veteran satisfied the requirements of s 24 of the Act for eligibility for pension at the special rate.

21.     Mr Herman acknowledged the seriousness of the veteran’s longstanding PTSD, including poor concentration identified in the 1980s, but stated that the veteran had continued working for 15 years after his discharge from the army.  Mr Herman pointed to the numerous references, in the clinical notes (Exhibit R1) and various medical reports, to the non‑accepted conditions such as varicose veins and arthritis affecting the veteran’s shoulders, and said that these had affected the veteran’s ability to work.  He submitted that the Tribunal is required to take into account any relevant factor, including medical evidence [Repatriation Commission v Hendy [2002] FCAFC 424] in considering the application of s 24(1)(c) of the Act.

22.     The Tribunal reached its decision taking into account the oral and written evidence and the submissions made at the hearing.

23. The Tribunal finds that the applicant satisfies s 24(1)(a) and (b) of the Act. In respect of s 24(1)(c) of the Act, the Tribunal notes that in Flentjarv Repatriation Commission (1997) 48 ALD 1 the Full Court of the Federal Court emphasised that the war‑caused disabilities must be the only factor preventing the veteran from continuing to undertake the remunerative work that he or she had been undertaking.

24. The Tribunal notes that s 24(2)(b) of the Act is applicable in this case as an ameliorative provision in respect of s 24(1)(c), because the veteran had not reached the age of 65 at the time of his application. With respect to the phrase the substantial cause in s 24(2)(b) of the Act, in Fox v Repatriation Commission (1997) 45 ALD 317 Kiefel J stated at page 319‑320:

…

The words "the substantial cause" require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be "a substantial cause" has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as "substantial"… The definite article in s 24(2) of the 1986 Act (compare Repatriation Act 1920 Sch 2, as amended in 1985), requires a stronger and more direct causal connection between the incapacity and the inability to obtain remunerative work…

25.     There was no dispute that the veteran had been suffering from PTSD for a considerable time as a result of his experiences during operational service.  The Tribunal accepts the applicant’s evidence that the veteran ceased employment as a farm hand because of symptoms of PTSD including his poor concentration, and an inability to deal with people or everyday situations.  The Tribunal also accepts her evidence that the veteran enjoyed physical activities but suffered from dizziness, and that after ceasing full‑time employment he undertook tasks around the house such as chopping wood.  The Tribunal notes that he also performed voluntary work at the bowling club for some time.

26.     However, the Tribunal takes into account the compelling medical evidence from Dr Cole, Dr Hofland, Dr Horsley, Dr Holwill and Dr Slutzkin that the veteran’s non‑accepted conditions, particularly his shoulder injuries, had a significant impact on his ability to obtain remunerative work.  The Tribunal finds that the combined expert evidence carries greater weight than the evidence of the applicant

27. On the basis of all the available material, and taking into account s 119 of the Act, the Tribunal is not reasonably satisfied that the accepted conditions were the substantial cause of the veteran’s inability to obtain remunerative work. Further, the Tribunal is not satisfied, on the evidence presented, that the veteran had been genuinely seeking to engage in remunerative work as required by s 24(2)(b) of the Act.

28.     For these reasons, and taking into account the requirement to make a decision that is practical and based on all the material [Cavell v Repatriation Commission (1988) 9 AAR 534], the Tribunal finds that the applicant does not satisfy s 24(2)(b) and s 24(1)(c) of the Act.

29. Therefore, the applicant does not satisfy all relevant criteria in s 24 and the claim cannot succeed.

DECISION

30.     The Tribunal affirms the decision under review.

I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  12 May 2004

Date of decision:  28 May 2004
Advocate for applicant:                Mr D. De Marchi
Solicitor for applicant:                  De Marchi & Associates
Advocate for respondent:            Mr K. Herman

Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs