Watson and Repatriation Commission
[2007] AATA 1688
•23 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1688
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600655
VETERANS' APPEALS DIVISION ) Re JOHN WATSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, RFD, Senior Member
Dr G Maynard, Member
Date 23 August 2007
PlaceBrisbane
Decision The Tribunal determines:
(1) The part of the decision dated 18 July 2005 which is presently under review is set aside and we find that alcohol dependence and irritable bowel syndrome are conditions which are related to Mr Watson’s operational service. We affirm that part of the decision in relation to depressive disorder; and
(2) That pension at the Special Rate under Division IV of Part II of the Veterans’ Entitlements Act 1986 is not payable.
……………[Sgd]……………………
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – operational service in the Australian Army – alcohol dependence – depressive disorder – irritable bowel syndrome – Statements of Principles – medical evidence – clinical onset – severe stressor – special rate of pension considered
Veterans’ Entitlements Act 1986 (Cth) ss 6D, 7, 9, 24, 120, 120A, 196B,
Fogarty v Repatriation Commission [2003] FCAFC 136
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission (2003) 74 ALD 366
Repatriation Commission v Stoddart [2003] FCAFC 300
Delahunty v Repatriation Commission (2004) 38 AAR 511
Gerzina v Repatriation Commission (2003) 79 ALD 400
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Cavell v Repatriation Commission (1988) 9 AAR 534
Hall v Repatriation Commission (1994) 33 ALD 461
Fox v Repatriation Commission (1997) 45 ALD 317REASONS FOR DECISION
23 August 2007 Dr KS Levy, RFD, Senior Member
Dr G Maynard, MemberIntroduction
1. Mr John Watson sought recognition of a number of disabilities which he claims are service-related, by an application dated 24 November 2004. After this was partially rejected on 18 July 2005, he sought a review of that decision by the Veterans’ Review Board, and as a result, the original decision was affirmed on 29 June 2006. He has appealed to the Administrative Appeals Tribunal for review of this decision on 15 September 2006.
Background
2. Mr Watson enlisted in the Australian Army on 20 February 1961 and was discharged on 14 March 1967. Following recruit training and undertaking corps training at the infantry centre, he was posted to 2RAR. Less than two months later he was posted to Malaya for a period from 27 October 1961 to 2 July 1963, which constitutes operational service. He was involved in counter-insurgency operations on the Malaya/Thai border.
3. The claim dated 24 November 2004 which this appeal is related to, sought acceptance of service-related disabilities for the following conditions:
· Ischaemic heart disease
· Hypertension
· Diabetes mellitus
· Malignant neo-plasm of the colorectum
· Post Traumatic Stress Disorder (PTSD)
· Alcohol dependence
· Depressive disorder
· Irritable bowel syndrome
4. The decision of 18 July 2005 determined that these claimed disabilities would all be regarded as service-related disabilities with the exception of alcohol dependence, depressive disorder and irritable bowel syndrome. A decision of the Veterans’ Review Board dated 29 June 2006 also granted Mr Watson a service-related pension at the rate of 90 percent of the General Rate. Therefore, this application seeks a review of the conditions not previously approved, that is, alcohol dependence, depressive disorder and irritable bowel syndrome. The other condition previously sought for recognition, PTSD, has since been withdrawn.
5. Mr Watson has been employed in a variety of occupations since ceasing military service – motor mechanic, share farmer (on two occasions), a milk run, manager of Bells Tyre Service, and part-time maintenance person. In the early 1990’s he suffered a series of heart attacks and had coronary bypass surgery in 1995. He worked part-time on his share farm for a short period after his heart surgery. Following a business partner taking $12,000 from the business, the business could not then continue to operate and Mr Watson then ceased work and has not looked for work or undertaken any work since that time.
Issues
6.The issues for determination by the Tribunal are:
(i)Whether the following conditions are war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (“the Act”):
(a)Alcohol dependence
(b)Depressive disorder
(c)Irritable bowel syndrome
(ii)Whether pension is payable at the Special Rate under Division IV of Part II of the Act?
Standard of proof and Statement of Principles
7. A standard of reasonable hypothesis is applicable to assessing the conditions claimed to be related to operational service (s 120(1) and s 120(3)). With respect to non-operational service and pension assessment, the applicable standard is that of reasonable satisfaction, that is, on the balance of probabilities under s 120(4) of the Act. (Fogarty v Repatriation Commission [2003] FCAFC 136 at [35]).
8. The standard against which the facts are assessed for claims made after 1994 are determined in accordance with any Statement of Principles (SoP), which are in existence and have been determined by the Repatriation Medical Authority under s 196B of the Act (s 120A). The relevant SoPs in this case are:
(i) Alcohol Dependence/Alcohol Abuse – SoP Number 76 of 1998
(ii) Depressive Disorder – SoP Number 17 of 2007
(iii) Irritable Bowel Syndrome – SoP Number 103 of 1996
There is also an accrued right under SoP 58 of 1998 in relation to the condition of depressive disorder.
Evidence
9. Mr Watson asserts that there are two incidents which arose during his operational service in Malaya and which are the cause of his current disabilities and which would entitle him to compensation under the Act. These are:
(i)While on patrol and sleeping at night on one occasion, he awoke to find his platoon sergeant (who was drunk and had previously been drinking rum), was standing on Mr Watson’s bed and said “I am going to kill you.” While it was dark, he thought he could see the platoon sergeant holding something in his hand. This person then went away and nothing happened.
(ii)After returning from a night out with other soldiers, he was asleep but was awakened by other soldiers returning from their social activities in town. One of those soldiers was a big man who had a machete in his hand and chased Mr Watson. Mr Watson hid in the toilet and was threatened by this person from outside the cubicle. Mr Watson slept the rest of the night sleeping in the jungle.
10. He informed the Tribunal that he had previously been a light drinker or non-drinker before he joined the Army. He then drank alcohol to excess after he joined and this was exacerbated further while he was on operational service.
11. The applicant was clearly disenchanted with military service. Some of his service in Malaya seemed to be ameliorated by the fact that he also got married during that time and took his wife back to Malaya with him, where he then lived in married quarters. Nevertheless, the military environment was still part of his social life and the emphasis on drinking alcohol was problematical for him, and this was demonstrated by his evidence that he was late for his own wedding as he had been drinking. Mr Watson said he drank for self-preservation while in the Army. He referred to even melting down boot polish in order to get alcohol, particularly when he was away on patrol.
12. His service record showed that he was not always a model soldier and was disciplined more than once. He also was convicted of a military offence and sentenced to 21 days in a military jail. Mr Watson said that this was one of the first times he actually enjoyed his military service.
Medical Evidence
Dr Athey
13. Evidence was provided by Dr Athey, consultant psychiatrist, who also had examined the applicant and provided a report dated 18 January 2005. He noted that the applicant, at that time, reported drinking 20 standard drinks a day which was the equivalent of a full bottle of whiskey per day. Despite being aware that it was having an adverse impact on his health, he could not resist the impulse to drink alcohol. There was no reported family history of heavy drinking or any psychiatric illness, with the exception of his sister who had a psychiatric condition.
14. Dr Athey reported that it was difficult to determine, in the context of heavy drinking, whether there was any underlying personality disorder involved. From the history taken by Dr Athey, he formed the view that Mr Watson had displayed a long-standing difficulty with authority and therefore, it was not easy to determine whether his present condition was attributable to military service or to other personality factors. However, Dr Athey did state that it did not appear that Mr Watson experienced difficulty in coping with life generally before his Army service.
15. It was clear he had difficulty in settling down since he had been discharged from the Army. He has been married to his wife of more than 40 years, and the marriage appears to be relatively stable. He also has two children but appears to be virtually estranged from them. Dr Athey describes some features of a depressive disorder but formed the view that some of this would be due to the consequence of his drinking alcohol.
16. Dr Athey concluded that Mr Watson had a formal diagnosis of alcohol dependence and major depressive disorder. He described the date of onset for alcohol dependence as being related to his Army service and probably related to the period of operational service in Malaya. In relation to depression, he thought that this was accompanied with behavioural difficulties over his adult life, but that there may be a secondary consequence to his alcohol consumption. He thought that the consequential effect of alcohol may have led to the family difficulties and then ultimately, to his depression.
17. Dr Athey described Mr Watson’s depression as multi-factorial in origin and said that it was not directly related to his military service. Instead, he attributed the propensity to drink alcohol as being a significant factor in the development and maintenance of the depressive disorder.
18. Dr Athey also concluded that Mr Watson is now not capable of working and that while his service-related illnesses account for that to some degree, he emphasised that his incapacity for work is also strongly related to his psycho-pathology. He said that Mr Watson was too irritable in his interpersonal interactions; he had a memory impairment and concentration difficulties; he cannot control his anger; and his qualifications and experience were limited. It was noted the prospects of improvement are limited. In the final analysis Dr Athey said that Mr Watson was not able to work even eight hours per week.
Dr Gray
19. Dr Gray is also a consultant psychiatrist. He noted that the applicant reported going on leave with the intention of being heavily intoxicated, even while on his recruit training. This early pattern established was quickly maintained and it got worse on his operational service in Malaya, which was very early in his service career. Mr Watson told Dr Gray that he often felt at risk of being killed or injured on night patrols when he was in Malaya.
20. His mental state was such that he perceived negative behaviour towards him by others. His mood was dysphoric rather than being depressed in Dr Gray’s opinion. He said there was no evidence of abnormality in cognitive or intellectual functions or perceptions. However, he lacks insight into his own condition, particularly, to the contribution of his own manner of relating to others in the context of managing his life’s difficulties. He appeared not to accept that he had any control over managing these difficulties.
21. Dr Gray noted some evidence of “oppositional and mildly antisocial behaviour” prior to joining the Army.
22. In conclusion, Dr Gray also noted Mr Watson’s irritability and short temperedness. He said it was not necessarily related to his dysphoric or depressed mood but that it may be more indicative of his alcohol dependence. He noted that these personality characteristics were present before he began drinking.
23. In relation to the two incidents which the applicant relies upon as being events which help establish the standard set out in the SoPs, Dr Gray thought these probably played a part in the development of his alcohol dependence, but they were not the only factors involved. He said the alcohol had a soothing effect on his anxiety about Army service. Also, he noted that the social milieu in the Army of drinking and ready access to alcohol made a significant impact on developing alcohol dependence in addition to the incidents relied upon. Therefore, in relation to the depressive condition, Dr Gray concluded that this bore a relationship to the use of alcohol but he thought both the alcohol dependence and the depressive disorder were not primarily related to the two specific incidents submitted by the applicant.
Consideration
24. I have taken into account all the evidence, oral and documentary. I have also considered the statutory and case law material which is relevant in determining the issues.
25. Mr Watson, to be successful, must have suffered a war-caused injury or war-caused disease as defined in s 9 of the Act. For that purpose he must have “eligible war service” or “operational service”. Section 7(1)(a) deems operational service as eligible was service. Mr Watson’s service in Malaya is operational service by virtue of s 6D(1)(b) and therefore he has eligible war service for the purpose of s 9.
Assessment of Claims
Diagnoses
26. In respect of alcohol dependence, both psychiatrists who provided evidence, Dr Athey and Dr Gray, concluded that Mr Watson has alcohol dependence, albeit that he is currently in remission. I accept that evidence as undisputed. Both psychiatrists provided reasons for their opinions and we accept that the evidence complies with the principle set out by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. We accept that evidence and determine that Mr Watson has alcohol dependence.
27. In respect of the depressive condition, Dr Athey concluded that the applicant had a major depressive disorder and Dr Gray described his mood as being more dysphoric than depressive. Both doctors discussed their reasoning comprehensively and both determined that the mood disorder is multi-factorial and attributable to factors other than his military service, although it is also partially attributable as a secondary effect of his alcohol dependence. In those circumstances we accept that he has a depressive disorder, but on the basis that it is not primarily attributable to the incidents of operational service, but it may be a consequence of alcohol use.
28. In relation to irritable bowel syndrome evidence of Dr Aldridge attests to this condition. It seems apparent that it is related to his alcohol dependence and more specifically, as a consequence of surgery. We accept that he has a diagnosis of irritable bowel syndrome also.
When was clinical onset of these conditions?
29. In relation to alcohol dependence, we have considered the reports of Dr Athey and Dr Gray and accept that onset of alcohol dependence occurred while Mr Watson served in Malaya.
30. In relation to the depressive disorder, both psychiatrists emphasise that there are factors involved other than military service. In particular, Dr Gray stated “I am not at all convinced that the nature of Mr Watson’s depressive disorder is other than that consequent to his heavy alcohol intake”. Neither specialist specified a date of onset for this condition. However, the logical progression of the condition as outlined by Dr Athey, and with which Dr Gray has similar conclusions and descriptions of the condition, implies that the date of onset must be sometime after the applicant had established a pattern of drinking and also after his family life had developed and his children were starting to grow up. We therefore conclude that the date of onset must be much later than his operational service and as his children grew up and his drinking was excessive. We therefore find that the date of onset of depression would be ten years after completion of his operational service. We would therefore place the date of onset of this condition as being 1 July 1973.
31. In relation to irritable bowel syndrome, this has occurred chronologically after the applicant’s surgery for bowel cancer. We therefore find the date of onset of irritable bowel syndrome was in 1995.
Issue 1 – Are the claimed conditions war-caused?
Are the SoPs satisfied?
32. In assessing the applicant’s claims in relation to the first issue for the Tribunal’s determination, we must follow the steps set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98. The Court set out four steps to be followed in applying the legislative provisions involved. These are:
“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.”
33. In relation to alcohol dependence, in respect of this condition, there is material which shows an apparent connection between the applicant’s alcohol dependence and circumstances of his military service. A hypothesis of reasonable connection therefore exists. Step 1 is therefore satisfied. In relation to Step 2, the Alcohol Dependence or Alcohol Abuse SoP Number 76 of 1998 has been authorised by the Repatriation Medical Authority under s 196B(2) of the Act.
34. In relation to Step 3, Mr Watson has submitted two incidents during which he says that he felt in fear of his life. There is also a general context of intimidation and/or a perception of being ridiculed or being victimised in some way.
35. It is submitted by the applicant that he satisfies Factor 5(b) of SoP Number 76 of 1998. This requires Mr Watson to establish that he has experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse. The term ‘experiencing a severe stressor’ is defined in Clause 8 of that SoP as follows:
“8. For the purposes of this Statement of Principles:
‘experiencing a severe stressor’ means, 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;”
36. There must therefore be an “event”. This means there must be a manifest activity or “happening” (per Mansfield J in Stoddart v Repatriation Commission (2003) 74 ALD 366. The test to be applied is one of objective reasonableness, although account must be taken of subjective interpretation by the applicant in making that assessment also. The “event” must be such as to divert the person’s conscious awareness to the incident and must affect the person emotionally in a negative respect.
37. The definition requires assessment of the risk of actual or threat of death or serious injury to an applicant. The objective assessment relates particularly to the word “threat” in that definition. There is not a requirement that there be an actual threat of death or serious injury only, but the circumstances must lead to the person, or a person who subjectively, in the applicant’s circumstances, “….. perceiving a threat of death or serious injury or to physical integrity” (see page 378). His Honour excluded reliance on “idiosyncratic and personal perceptions of events….” (see page 378). This assessment must be viewed to some degree, through the eyes of the particular applicant, whose age and experience and, where there is acceptable evidence of, the persons psychological characteristics and their experience and influence within the military unit in which they serve (see Delahunty v Repatriation Commission (2004) 38 AAR 511 per Tamberlin J). The assessment must also take account that the events “…. might evoke intense fear, helplessness or horror”. There must therefore be a sense of very deep emotional pain or “…. a shuttering with terror and repugnance….” and a perception of danger or an absence of personal safety (Gerzina v Repatriation Commission (2003) 79 ALD 400 at 406). The assessment of the subjective element must take account of the perception of a reasonable person in the applicant’s circumstances. This would include personality dimensions and personal coping mechanisms (Delahunty v Repatriation Commission (2004) 38 AAR 511).
38. We conclude therefore there is a reasonable hypothesis based on the incidents submitted by the applicant and the expert psychiatric evidence of the applicant’s psychological functioning. We therefore conclude Step 3 is satisfied.
39. In relation to Step 4, this is concerned with whether the hypothesis is disproved beyond reasonable doubt based on the factual evidence. We note the pre-military service account provided to the psychiatrists by Mr Watson and his dispositional factors towards defiant or oppositional behaviour, prior to his military service. Neither psychiatrist diagnosed a personality disorder. So there may have been a propensity for alcohol use, to help him cope with Army life, which he did not like. His service in Malaya made his military experience particularly distasteful.
40. Turning then to the incidents submitted by Mr Watson. They may have been stressful and he may have felt under threat. The respondent argues that these were not threats in the same sense that are envisaged by the examples in the SoP, where one might come under threat because of military operations with the enemy. Here, it was internal rivalry and ‘bastardisation’ in the context of the principles laid down in Stoddart. Objectively, we do not believe the incidents themselves are sufficient to meet the standard set out in the SoP. However, superimposing a subjective interpretation in the context of bastardisation, an unenjoyable two year posting in Malaya and taking account that he had some tendency towards opposition to authority, the excessive drinking may be attributable to the aggregate effect of these.
41. Under s 120(1) of the Act, where a hypothesis is established, it will be a reasonable hypothesis, unless there is evidence to disprove the hypothesis where other facts are shown to be inconsistent with the hypothesis or other facts which tend to show an inconsistency with the facts which support the hypothesis on the evidence available. We are of the view that we cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining the applicant’s alcohol dependence is not war-caused.
42. In relation to depressive disorder, a hypothesis could be raised and therefore Step 1 is satisfied. There is in existence an SoP which deals with this condition, which is SoP Number 17 of 2007. We accept therefore that Step 2 is therefore also satisfied. In relation to Step 3, it has been argued that Factors 5(b) and 5(c) of SoP No 58 of 1998 are relevant. We believe these equate to factors 6(b), 6(c), and 6(f) of SoP No 17 of 2007. We note, however, the evidence of the psychiatrists which we have accepted, that this condition is not primarily related to his military service but is secondary to the condition of alcohol dependence. It is clear that the first incident, while it might have been alarming at the time, it was of short duration and nothing adverse happened to the applicant. In relation to incident two, this may have been more distressing but the onset of the depressive disorder must occur within two years (1998 SoP), 5 years (2007 SoP), or 1 year (2007 SoP) of the incidents in Malaya. Taking account of the evidence of the psychiatrists, we determine that the standard of proof of a reasonable hypothesis as set out in either of the SoPs is not satisfied in relation to incident number two.
43. Irritable Bowel Syndrome. We have found that the condition of alcohol dependence meets the requirements of Factor 5(b) of the Irritable Bowel Syndrome SoP Number 103 of 1996. Irritable bowel syndrome is a related consequence of that condition but also is related to the consequence of surgery for bowel cancer, a condition which has already been accepted as a disability related to service. In the circumstances, we therefore accept that this condition is satisfied.
Issue 2 – Is the applicant entitled to a Special Rate of Pension?
44. The applicant submits that he is entitled to the payment of pension at the Special Rate because of his inability to work as a consequence of his heart condition alone. He says that the three conditions under consideration here, alcohol dependence, depressive disorder and irritable bowel syndrome do not play any role in his inability to continue in remunerative employment since 1995.
45. We make the following findings of fact as being relevant to this issue –
(i)The applicant had a heart condition and bypass surgery in 1995.
(ii)He continued to work following that surgery on a part time basis for a period of time.
(iii)Mr Watson ceased work following a business partner taking $12,000 from the business, following which the business ceased operations as it was not viable.
(iv)Mr Watson has not since looked for work.
(v)The applicant is now 66 years of age but was 63 years and six months when he made application for pension at the Special Rate.
46. To succeed, s 24 must be satisfied. Sections 24(1)(aa) and 24(1)(aab) are both satisfied. Section 24(1)(a)(i) is also satisfied as Mr Watson already is in receipt of pension due to having an incapacity of at least 70 per cent of the General Rate. He must also satisfy s 24(1)(b). We accept this also is satisfied on the basis of Dr Athey’s certification that Mr Watson cannot work eight hours per week. The applicant must also satisfy s 24(1)(c) in addition to the above. That subsection requires that an applicant must have ceased work because of his war-caused injury or war-caused disease alone and that he must now be suffering a loss of salary or wages which would not have occurred if he were free of that incapacity. To determine whether those provisions are satisfied, the requirements of s 24(2) are relevant. These have been set out in four steps or questions which must be answered by the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1, where Branson J set out these tests at pages four to five:
“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?
47. In relation to Question 1 above, the term “remunerative work” is not defined in the Act. It has been held to refer to “…..the substantive remunerative work that the veteran had undertaken in the past (Repatriation Commission v Hendy (2002) 76 ALD 47 at 54), also, in Repatriation Commission v Van Heteren (2003) 75 ALD 703 at 708 where on referring to the authorities of Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 and Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225, Finn J said that “….. the ‘remunerative work’ to which the paragraph refers is the remunerative work undertaken by the veteran before he or she was prevented from continuing to undertake that work…. the Act requires identification of that type of work as part of the veteran’s demonstration that he or she has suffered a real and substantial loss consequent alone upon war-caused incapacity: see Starcevich’s case at page 225. It is that remunerative work and not remunerative work at large with which s 24(1)(c) is concerned”.
48. Based on Mr Watson’s previous occupations since leaving the Army, he has been employed in mechanical/automobile occupations or as a farmer or driver.
49. It is therefore now over 20 years since he was employed in the tyre business and over 30 years since he was employed as a mechanic. It might then reasonably be regarded that his current general remunerative work would involve that as a driver or farmer.
50. In relation to Question 2 of Flentjar, we agree that the applicant is now prevented from continuing to undertake the work which he might have otherwise continued. We accept that he is prevented from working because of his war-caused injuries, albeit that there is some overlap and influence of other factors which the expert medical opinion shows that are not primarily related to his operational service.
51. In relation to Question 3 of Flentjar’s case, this question relates to whether the war-caused incapacity is the only factor which prevents Mr Watson from continuing to undertake remunerative work. If the inability to continue remunerative work is not caused by the war-caused incapacity alone, then the applicant is ineligible for the Special Rate of pension. In determining this question, the guiding principle is:
“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.” (Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 per Burchett J).
52. The evidence shows that Mr Watson was able to continue work following recovery from his coronary bypass operation while that continued part-time, he ceased work as a result of his business partner taking $12,000 from the business and as a consequence, the farm business could not continue trading. Mr Watson then received social security benefits and has not again looked for work since 1995. We note the chronology of those events would indicate that the cessation of work was not caused by his heart condition, and owing to business factors, the cessation of work was not the only reason which prevented him from continuing to undertake remunerative work. In fact, we note that alcohol dependence also may have been a contributing factor also, but based on the psychiatric evidence, which we have accepted, the inability to continue work was affected by his personality and inability to interact effectively in the workplace. These latter aspects were found to emanate from characterological effects which were in existence well before he joined the Army. Therefore, even though we find Mr Watson is no longer capable of working, the incapacity arising from war-service is not the only reason for his inability to continue in remunerative work.
53. Even with “an eye to reality”, there were a number of reasons why Mr Watson might not have been able to continue in employment following the cessation of his share farming business. However, they were not the reason why he ceased business, or not the reason alone. In hindsight, considering the position in 1995, it is not apparent that he was incapacitated from work for more than eight hours per week on the basis of his war-caused injuries alone. Therefore, this question is not satisfied.
54. Question 4 of Flentjar’s case is concerned with whether the applicant suffered a loss of wages. Section 24(2)(a) provides that the applicant will not be suffering a loss of salary or wages for the purposes of s 24(1)(c) if:
(i)The veteran has ceased to engage in remunerative work, for reasons other than his war-caused incapacity; or
(ii)The veteran is incapacitated or prevented from engaging in remunerative work for some other reason.
55. In relation to s 24(2)(a)(i), while there is some co-morbidity of other conditions with his war-related injuries, he ceased work because of financial reasons and business difficulties. It is true that he also had service related conditions that would have militated against his continuing in any other line of work, but the initiating factor in ceasing work was not the war-caused condition alone.
56. In relation to s 24(2)(a)(ii), we must consider whether there is “some other reason” such as age or mobility which may have been a factor in his decision to cease work. There may be some aspect of such factors which might be inherent in the clinical conditions suffered by Mr Watson in relation to his inability to now work, but there are no “other reasons” which are apparent in the decision to cease work.
57. In this context there is a requirement to satisfy s 24(2)(b) also. The decision to not look for work since 1995 must be viewed in the context of whether the service-related disabilities were the “substantial cause” of not being able to continue with remunerative work. A common sense view is necessary in making an assessment in this context (see Hall v Repatriation Commission (1994) 33 ALD 454 at 461 per Spender J). We must also consider the test outlined by Kiefel J in Fox v Repatriation Commission (1997) 45 ALD 317 at 319 to 320. The test outlined there was whether “the substantial cause” was the service-related disability. Her Honour regarded the definite article in that term as requiring “…. a stronger and more direct causal connection between the incapacity and the inability to obtain remunerative work”.
58. In this case, when the applicant ceased work he had had a coronary bypass operation but he was still able to continue working part-time and ceased work only after business failure. He argues that his heart condition is the only relevant medical condition and that alcohol dependence, depressive disorder and irritable bowel syndrome are not relevant in his inability to continue work since 1995. But his health in relation to his heart condition alone, appeared to have improved such that in 1998 there is a report of his cardiac condition having been significantly improved. Of course, he now suffers a number of other conditions as well as incontinence which would practically prevent him from working now. However, the capacity for work and his service-related incapacities in 1995 are different to some of the conditions which he now suffers. The substantial cause of his inability to work might be regarded as being the accepted conditions, although there is strong psychological evidence that the reason for his inability to work is related to personality and interpersonal factors. His heart condition plays a part as do his other service-related conditions, but there are personality predispositions which Dr Athey and Dr Gray both say are influential.
59. There is undoubtedly a two-way interaction effect with the service-related causes and his psychological conditions. His age and service-related conditions are now at a stage notwithstanding his psychological problems which prevent remunerative work. His physical disabilities seem to us, on the balance of probabilities, that they are now the substantial cause.
60. On the balance of all of these factors, s 24(1)(c) is not satisfied as the legal requirement that his cessation of work must be due to war-caused injuries or war-caused disease alone, has not been met.
61. However, we note that since the original decision, that the applicant’s pension has now been increased to 100 per cent of the General Rate with effect from 19 February 2006.
62. In the circumstances therefore, our findings in relation to the issues for determination are as follows:
(i)The part of the decision dated 18 July 2005 which is presently under review is set aside and we find that alcohol dependence and irritable bowel syndrome are conditions which are related to Mr Watson’s operational service. We affirm that part of the decision in relation to depressive disorder; and
(ii)That pension at the Special Rate under Division IV of Part II of the Veterans’ Entitlements Act 1986 is not payable.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD, Senior Member and Dr G Maynard, Member
Signed: .....................................................................................
F. Kamst, Legal Research OfficerDate/s of Hearing 20 June 2007
Date of Decision 23 August 2007
Counsel for the Applicant Mr R J Anderson
Solicitor for the Applicant Mr T O’Connor
Respondent Mr J Kelly, departmental advocate
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