Whalan and Repatriation Commission
[2004] AATA 1387
•22 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1387
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/513
VETERANS' APPEALS DIVISION ) Re TREVOR WHALAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date22 December 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – rate of pension payable – special rate – applicant has ceased to engage in remunerative work – applicant prevented from continuing to undertake remunerative work by reason of war-caused incapacity alone – Tribunal not satisfied that applicant has suffered a loss of wages or earnings on his own account that he would not have suffered if not incapacitated by war-caused conditions – decision under review affirmed.
Veterans’ Entitlements Act 1986 s 24(1)(c) and 2 24(2)(b)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Banovich v Repatriation Commission (1986) 69 ALR 395
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96
Starcevich v Repatriation Commission (1987) 18 FCR 221
Repatriation Commission v Graham [2004] FCA 1287
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
Peacock v Repatriation Commission [2004] FCA 1449
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Re Laugher and Repatriation Commission (1985) 11 ALN N56
Tomlin v Repatriation Commission, Federal Court, 1 August 1997, NG 950/1995; [1997] FCA 705
REASONS FOR DECISION
22 December 2004 Deputy President D G Jarvis 1. Trevor Whalan served with the Royal Australian Army between 19 August 1971 and 19 January 1972. The Repatriation Commission has accepted that he has a number of war-caused disabilities, namely post-traumatic stress disorder (“PTSD”), tinea and bilateral sensorineural hearing loss with tinnitus. The Commission does not accept that chronic solar skin damage was war-caused, but the Commission’s position was not challenged in the proceedings before me.
2. On 7 June 2002, Mr Whalan lodged an application for an increase in his disability pension. On the same date he also lodged a claim for a pension in respect of his hearing loss and severe tinnitus, which claim was subsequently accepted. On 12 November 2002 the Commission assessed that the pension payable for all of Mr Whalan’s accepted conditions continued to be 100% of the General Rate. The Veterans’ Review Board (“VRB”) affirmed this decision on 1 July 2003. Mr Whalan applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, and claims to be entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (“VE Act”).
Issue for Determination
3. The issue before me is whether Mr Whalan satisfies s 24(1)(c) of the VE Act, that is:
· whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
· whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
4. It was common ground that Mr Whalan satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a higher rate than 70% of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves, alone, render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in s 24(1)(a)(i) and s 24(1)(b) respectively of the VE Act.
5. Mr Whalan was last employed in early July 2002. Mr Whalan has not sought to engage in remunerative work after that, and it was accepted that the ameliorative provisions of s 24(2)(b) have no application.
Evidence and Findings
Mr Whalan’s Evidence
6. Mr Whalan gave evidence in person and also tendered a written statement which was admitted as exhibit A2. Exhibit A3 is an employment summary prepared by the respondent, but with the exception of the final line. The summary was not disputed by the applicant, and I have drawn from that document in summarising Mr Whalan’s employment history.
7. Mr Whalan was born on 23 June 1950. He left school in 1965 and commenced employment with Peacock Sawmills as a mill hand. From 1968 until 1970 he was a porter for the South Australian Railways. As a porter he was required to load and unload goods, serve customers, clean railway switches and perform general yard duties. In 1970, at the age of 20, Mr Whalan was conscripted into the Australian Army. During his time with the Army he was exposed to events which resulted in the acceptance of his claims for PTSD, tinea and hearing loss.
8. After his discharge from the Army, Mr Whalan returned to work for Peacock Sawmills as a mill hand. He was mainly engaged in the sawing of 8 inch logs from the “tailing out” end of the mill bench.
9. In 1974 Mr Whalan secured employment with the PMG, which during his employment later became Telecom. He was initially employed as a linesman and was required to change insulators and run new subscriber lines, as well as to climb telegraph poles. He undertook various machinery courses and became a cable jointer for the last eight years of his employment with Telecom. The cable jointer position required some pole climbing, but mainly involved joining cables underground.
10. In 1989, Telecom closed the Gladstone depot from which Mr Whalan had been based. He was offered the opportunity to work in Port Pirie, some 45 minutes drive from his home in Laura, but he decided to take a package because it was too far to drive and he did not like the manager and some of the Port Pirie staff. Mr Whalan said in effect in evidence-in-chief that his PTSD was at the heart of his reasons for ceasing work with Telecom. However, later in his evidence, he said that the staff concerned gave him a hard time, but he agreed that this, and his assessment of whether he liked other people at work, were “probably not” related to his PTSD.
11. Between 1989 and 1993, Mr Whalan and his wife leased and ran the Wirrabara Hotel, which is the only hotel in that town. Mr Whalan’s duties involved cleaning beer lines, cleaning generally, re-stocking, stock control and serving customers. Mrs Whalan conducted the book keeping. Mr Whalan explained that he enjoyed the hotel work for a couple of years, but after that he became increasingly aggressive towards drunken customers. He was more controlled inside the hotel premises, but outside of the building he engaged in physical confrontation with a customer on at least one occasion, and yelled at customers on four or five occasions. Mr Whalan said that by 1993, he had had enough of the hotel environment. At the same time poker machines were being introduced, and the rent had increased, whereas the business had experienced a downturn. Mr and Mrs Whalan decided not to renew their lease at that time, but it was Mr Whalan’s evidence that were it not for his PTSD he “could be” managing a hotel still.
12. In approximately 1993 Mr and Mrs Whalan purchased a mobile home and travelled around Queensland. They stopped in Airlie Beach and Mrs Whalan commenced employment at a motel in Shute Harbour. Mr Whalan was unemployed for three months but eventually found work as a bar manager at the Metropole Hotel in Prosperpine. He said he now regrets having accepted this position because he again had difficulties with customers and found managing six young female staff problematic. After a while he again became aggressive and violent with the customers. Mr and Mrs Whalan quit their positions some 11 months after Mr Whalan started at the Proserpine Hotel, and travelled to Darwin in their mobile home.
13. In Darwin Mr Whalan was unemployed for approximately six months until he was employed as a shed hand at Neata Glass. His initial duty was to smooth the edges of glass louvres, but eventually he was required to construct window frames even though he had not been trained for such work. He made several mistakes while constructing some frames and this resulted in a deterioration of his relationship with his employer. In 1996, after working as a shed hand for about 12 months, Mr Whalan resigned from that position.
14. About a week after leaving Neata Glass, Mr Whalan commenced employment with Paspaley Pearls Properties Pty Ltd (“Paspaley”) as a personal gardener. His duties involved maintaining the grounds of the Paspaley family’s homes, washing eight cars per week, cleaning three swimming pools and two spas per week, and using an industrial outdoor vacuum cleaner at the Paspaley office. He gave evidence that he was pretty difficult to get along with at work and used to argue with the foreman. He also said that he told the foreman about his Vietnam service and that Paspaley should have known he had PTSD. On 25 November 1999 Mr Whalan fell in the course of his employment and injured his right knee. He ceased working as a gardener on that day and was treated and rehabilitated pursuant to the Northern Territory’s workers’ compensation legislation. After an initial investigation, followed by a deterioration of his knee, Mr Whalan underwent a series of operations. The history of Mr Whalan’s knee treatment is recounted in the notes of Diane Knox, a psychologist to whom Mr Whalan was referred by Paspaley’s insurers for rehabilitation and knee pain management, in paragraph 25 below. In short, Mr Whalan underwent a total knee replacement followed by further operations as a result of complications. Some time in 2001 Mr Whalan was provided with pearl net mending work by Paspaley Pearls for four to six weeks, but he did not work for that employer again after the netting work was completed. Mr Whalan said that he thought he could have “handled” gardening duties at that time, as he does that task at home now without restriction, but Paspaley Pearls had employed another gardener in the interim.
15. It was not until about January 2002 that Mr Whalan returned to the workforce to a courier position with Mawpump Pty Ltd (“Mawpump”). The courier position was in the context of rehabilitation and commutation of the compensation monies, and was organised by the Northern Territory Injury Rehabilitation Service (“IRS”). Mr Whalan commenced at around 16 hours a week (although I note that Mr Whalan put it as high as 20 hours a week at one point in his evidence). He was mainly required to drive a vehicle delivering and picking up parcels, and he occasionally operated a forklift. In examination-in-chief, Mr Whalan said that while he was working for Mawpump his left hip was causing him “niggling pain”, but his knee did not impact on his ability to engage in activities. Mr Whalan kept a walking stick in the car in case he had to walk long distances, but he said he did not have cause to use it. The courier work was gradually reduced to eight hours a week and came to an end in early July 2002, when Mr Mawson terminated Mr Whalan’s employment. Mr Whalan initially said that he thought his work was terminated because he forgot to complete his tasks on a couple of occasions, he was late to work several times, and Mr Mawson could not afford to help him any longer. In the course of cross-examination, Mr Whalan said that a reduction in demand for Mawpump services contributed to the reduction in his hours, although he conceded that this was an assumption on his part. At one point Mr Whalan said that his knee condition was part of his decision to cease working (after he lost the job with Mawpump), but later he said that his knee was not part of the reason for ceasing work, and PTSD was the only reason. Mr Whalan also explained that by the time he finished working for Mawpump his hip was causing him problems, but not to the point that it had stopped him doing his work at Mawpump.
16. On 9 July 2002 Mr Whalan entered into a Deed of Settlement in respect of his workers’ compensation claim. The settlement included compensation for loss of future earning capacity (see exhibit A4). Mr Whalan was somewhat confused about the sequence of most events, and was particularly uncertain about the timing of this settlement. In cross-examination, Mr Whalan conceded that Paspaley’s decision to settle his claim was “probably not” connected with his PTSD.
17. Mr Whalan said that he and his wife came back to South Australia on 22 July 2002. By that time his hip had deteriorated, but he only kept a walking stick at hand for walking longer distances. In August 2002 he underwent a hip replacement at the Royal Adelaide Hospital. One reason he gave for the move from Darwin to South Australia was the need for family support. Mr and Mrs Whalan initially rented in Kadina and, after about seven months, they bought a house in Wallaroo. Their new residence is a transportable home on a block of land. Mr and Mrs Whalan have landscaped the garden, and Mr Whalan carried out such work as creating footpaths, moving 50 tons of soil, planting lawns, moving moss rocks and building borders.
18. Mr Whalan gave evidence that his knee is now “as good as ever”, and walking is not a difficulty. Although there can be some knee stiffness and he does not have full movement in the joint, he said he is able to help out farming friends in his local area and engage in “odd jobs”. Mr Whalan is not prescribed any medication in respect of his knee or hip. He said that the knee condition stopped affecting his ability to work about 12 months after the last operation in February 2001, and he did not recall any doctor telling him that he would never be able to work again. Mr Whalan also said that his hip does not cause him any difficulties now. However, he said he thought that he would have problems securing work because of his PTSD, his age and because he lives in a regional area.
19. In answer to questions posed by me, Mr Whalan said that he had not tried to work since he returned to South Australia because he wanted to get everything at the new house “sorted out”. He said that the work on the house and gardens was completed about six months ago. Mr Whalan also said that he had sufficient funds in the bank, and he receives a part pension, such that he has not needed to seek work. I asked Mr Whalan whether he has decided that he will not go back to work, or if he was undecided; he replied “I haven’t really decided, I think it’s going to be hard for me to try and get a job at my age but if it all goes bad, I will probably have to”. In reply to the question “So you really haven’t decided that you won’t look for work?” Mr Whalan said, “No, I haven’t”.
Mr Mawson’s Evidence
20. Kevin Mawson from Mawpump Pty Ltd gave evidence by telephone and provided two statements, which were admitted into evidence as exhibit A3. Mr Mawson confirmed that he employed Mr Whalan as a “man Friday” in January 2002 at the behest of IRS. In the main, Mr Whalan was a courier and was required to pick up and deliver parcels. He said that before Mr Whalan was able to commence employment at Mawpump, IRS sent three inspectors to the workplace in order to ascertain whether the duties and equipment would be suitable to someone with Mr Mawson’s knee injury. IRS also made it clear that Mr Whalan was not to engage in any heavy lifting, but he was classified as fit for light duties. Mr Mawson also said he saw that Mr Whalan was in physical distress after some delivery runs. He linked this distress to Mr Whalan’s knee condition, but he also knew that Mr Whalan’s hip was causing some pain. Despite the work restrictions and the presence of pain, Mr Mawson said that Mr Whalan was physically able to undertake the work.
21. Mr Mawson said that Mr Whalan was a good employee but there were “hiccups”. In his oral evidence he said that Mr Whalan had a “very short fuse”, and was the subject of complaints from suppliers and staff. In the two documents comprising exhibit A3 Mr Mawson said that there were regular customer complaints about Mr Whalan, his behaviour unnerved other employees, and his hours of work were reduced from 16 to 8 hours per week.
22. Mr Mawson also said that it was too hard having an employee with Mr Whalan’s emotional problems. He felt that IRS had required too much of him as an employer and he would not agree to take on another employee under that scheme. But it was his evidence that it was his assessment that the work was mentally too much for Mr Whalan, as well as the complaints from suppliers, that led Mr Mawson to terminate Mr Whalan’s position with Mawpump. He said further in evidence that Mr Whalan’s inability to follow instructions also contributed to the decision to end his employment. Mr Mawson said that the position was terminated in May 2002, but he was uncertain of the date without his records.
Medical Evidence
23. Various medical reports were included in exhibit A3 and additional medical records were tendered by the respondent as exhibits R1 and R2. Dr Brotherton was also called by Mr Whalan to give evidence by telephone.
Ms Knox’s Notes
24. Portions of the notes of Dianne Knox, psychologist, were admitted into evidence. In a report dated 12 February 2004, Ms Knox records that she first interviewed Mr Whalan on 9 July 2001 during which time she was informed about his PTSD (exhibit R1, folios 1 to 2). She went on to provide a “Pain Management Program” and a “Sleep Better Program” for Mr Whalan.
25. Ms Knox’s records include a report from Dr Howard Flavell to Dr Wal Tracey dated 19 September 2001 in which Dr Flavell reports that, as at that date, Mr Whalan was able to drive an automatic vehicle but not particularly far. He also provides a helpful summary of Mr Whalan’s medical history, at folios 20 to 22:
“… a right total knee replacement was performed by Mr Menz on the 18/12/00. He was discharged from hospital on the 24/12/00 and referred for physiotherapy. The physiotherapist apparently fully extended his knee and he developed substantial knee swelling. He was admitted to Wakefield Street Hospital and was thought to have haemorrhaging to his joint. He was transferred from there to the Sports Med Hospital and apparently his knee was cleaned out. He was discharged after a week and then because of restricted flexion he had a manipulation under anaesthetic. In early March 2001 I understand that he saw yourself and you felt that he had an infection and he was commenced on antibiotics. He returned to Adelaide where his knee joint was reopened and flushed. He spent three weeks in hospital with Pick line and saw Dr PC Lee (infectious diseases doctor). Some time prior to this he had noted substantial pain in his hip and lower back region. He was ultimately discharged from hospital in late March 2001 and was informed that he would have to take penicillin for a protracted period. His hips and back pain continue to give him significant pain. He returned to Darwin and was treated with physiotherapy which was stopped a couple of months ago because apparently nothing further could be offered.
He indicated that at present his worst pain is in his hips and back. He indicated that he had never had this problem before and indicated that he thought it had started around February 2001 … Aggravating factors include walking – he is able to walk about 100 metres but has to use a walking stick. His sitting tolerance is half an hour at maximum and standing tolerance about ten to fifteen minutes …
He also has substantial pain in the right lateral aspect of his knee radiating to the distal thigh … Aggravating factors include walking substantial distances and he indicated that he was unable to get comfortable at night …
…
Quite clearly he has a very substantial disability and given the current nature of his difficulties, the severity of his pain, his age and limited transferable work skills it is difficult to see him being employable at the current time… .”
26. Ms Knox’s records also include a workers’ compensation medical certificate dated 18 October 2001 in which Mr Whalan is recorded as being totally unfit for work from 18 October 2001 to 18 November 2001 (exhibit R1, folio 18).
Dr Tracey’s Medical Records
27. The medical notes of Dr Wal Tracey, a general practitioner, were also tendered in evidence as exhibit R2. A report from Dr David Millons, surgeon, dated 14 June 2000 appears at folios 61 to 67 and records, amongst other things, that “the impression is that there is very marked osteoarthritic change in the left hip. It is interesting that he claims to have no problems with his hip”. Further on Dr Millons reports that:
“What one could reasonably state is that at this stage Mr. Whalan is quite unfit for work with little prospects of being restored to the workforce until his lower limb joint problems are sorted out.
…
I think it unlikely that he will ever be able to return to his pre-injury employment as a gardener without restriction.”
28. At folio 15 of exhibit R2 there is a notation of a letter dated 9 November 2001 from Dr H Flavell, Director of Rehabilitation Services at Royal Darwin Hospital, that records Dr Flavell’s view that as at that date he:
“… [did] not believe it [would] be possible for him to be employed on a full-time basis in the open market work setting and he is apparently electing to tread down a commutation pathway if possible and I would be very supportive of this occurring.”
29. Folio 9 of Dr Tracey’s notes is a record of a letter from Dr Jock McLaren to Dr Tracey dated 15 March 2002. Mr Whalan gave evidence that he was referred to Dr McLaren due to his PTSD. In his report, Dr McLaren opines that:
“… at present [Mr Whalan] is working eight hours as a courier driver which, I think, would be unwise due to frequently getting in and out of the vehicle. If he slips and twists his knee, he will be in real trouble.”
30. At folio 5 of Dr Tracey’s records there appears a notation of a letter dated 12 June 2002 from Mr Matthew Sharland, orthopaedic surgeon, that records as follows:
“It has been 5 months since he stopped his antibiotics with regards to his right knee and it remains quiet suggesting that the infection has been eradicated. At the same time his left hip has markedly deteriorated. I have arranged for him to see Prof Howie with regards to an opinion when he comes to Darwin on 2 July 2002 … we should be able to push on to do his hip replacement over the next month or two … .”
31. A further record appears at folio 34 of R2 referring to a report dated 19 July 2002 in which Professor Donald W Howie, professor of orthopaedics and trauma, writes:
“Thank you for asking me to review this 51 year old, married, unemployed gardener who presents with on-going problems of stiffness of his right total knee replacement … and also problems of increasing left outer hip pain and a limp of eighteen months duration.
…
In particular, the hip is painful at extremes of motion and has a flexion range of only 10-70 degrees and no adduction or abduction. His outer hip pain is significant.
…
He is moving to Adelaide and the plan is for hip replacement in two months time and to manage his knee replacement on its merits … .”
Other Medical Evidence
32. In evidence before me, Dr Brotherton confirmed the contents of a “Medical Report – Ability to work (for disability pension purposes)” form that he completed on 19 July 2002 (see exhibit A1, T6, page 87 to 90). Dr Brotherton also explained that whilst another general practitioner was responsible for Mr Whalan’s work cover related injuries, he was the consulting doctor on other issues. In the medical report referred to above, Dr Brotherton recorded that as at July 2002 Mr Whalan’s right leg was “a major disability, [Mr Whalan is] unable to walk any distance and requires a stick or forearm crutches to manage.” The report also notes Mr Whalan’s imminent hip replacement surgery, but Dr Brotherton gave evidence that, in his opinion, the knee was the principal disability at that time. In his own evidence, and in answer to a specific question in cross-examination, Mr Whalan said he did not disagree with Dr Brotherton’s opinion.
33. Dr N McLaren, consultant psychiatrist, provided two reports that were included in exhibit A1. The first report is dated 5 October 2000 (exhibit A1, T13, pages 74 to 75) and records that:
“…the present work assessment is complicated by the fact that his employer is obliged to find work for him. I have no doubt that, in his present mental condition, this man is quite incapable of finding work on the open market. He would be quite unfit for security work. He could not do any sort of console work as he can’t deal with the general public and, because of his paranoid thinking, would be unfit to handle money or in anything which required making rapid decisions.
With his present physical condition he is, of course, unemployable, but that is work-related, not due to service. He cannot do anything that involved walking around, lifting or carrying, operating heavy machinery, driving long distances, etc … .”
34. A further report dated 23 August 2002 (exhibit A1, T17, pages 91 to 92) includes the following observations:
“In April this year, he was working part-time as a driver as part of the requirements of his rehabilitation program. I felt this program was very unsuitable for him in view of his obesity and the difficulty with his joints …
…
In answer to your question, his present mental state is stable and no further recovery is expected. I have not provided any medical certificate to him. On the basis of his mental state alone, he would have the capacity to work more than eight hours a week, specifically up to twenty hours a week in suitable work but the major restriction on him is physical and is unrelated to his military service. Strictly from the point of view of his mental state, I would feel that he is probably now better than he was several years ago.”
35. Dr Andrew Madsen, Mr Whalan’s present treating doctor reported in a note dated 25 November 2002 that “Trevor Whalan’s hip and knee problems do not affect his ability to perform clerical duties. If it was not for the PTSD, Trevor would be able to do clerical duties” (exhibit A1, T25, page 131).
36. On 27 March 2003 Dr Ewer reported on the effects of Mr Whalan’s PTSD on his everyday life (exhibit A1, T29 pages 141 to 147). The report indicates that PTSD has a far reaching and catastrophic effect on many facets of Mr Whalan’s life. Dr Ewer records that Mr Whalan provided a past medical history that involved bowel polyps, diverticulitis, a total knee replacement, a total hip replacement and obesity. Dr Ewer reviewed Mr Whalan’s impairment rating and was of the view that Dr McLaren under-estimated Mr Whalan’s disability from PTSD, whereas Dr Madsen over-estimated the impact of PTSD on Mr Whalan.
Legislation
37.Section 24(1)(c) of the VE Act provides as follows:
“24(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; and
… .”
38. The second aspect of s 24(1)(c), namely that the veteran, by reason of being prevented from undertaking remunerative work in consequence of his war-caused condition, is suffering a loss of salary or earnings which the veteran would not otherwise be suffering, is affected by the deeming provisions s 24(2)(a) of the VE Act. This provides:
“24(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
… .”
The expression “remunerative work” is defined in s 5Q(1) of the VE Act to mean “any remunerative activity”.
Respondents’ Submissions
39. On the test to be applied in the first part of s 24(1)(c) of the VE Act, the respondent submitted that Mr Whalan was not prevented from continuing to engage in the types of remunerative activities he had previously engaged in because of his PTSD alone. He referred in particular to Mr Whalan’s locality, his age, his time out of the workforce, hip problem, knee problem and obesity. The respondent also asserted that Mr Whalan had in fact chosen not to engage in remunerative work because he wished to complete the garden of his new house in Wallaroo. In summary, Mr Crowe urged me to accept that at no stage in the assessment period was it Mr Whalan’s PTSD alone that prevented him from engaging in the relevant types of work.
40. As for the second part of the test in s 24(1)(c) which is connected to s 24(2)(a), the respondent submitted that Mr Whalan’s cessation of work at Mawpump could not have only been due to his PTSD, as the point at which he ceased work was around the time that he settled his worker’s compensation claim in July 2002; it was also around the same time that he moved to South Australia with his wife in order to gain more family support; and shortly afterwards he underwent the hip operation. He also submitted that on Mr Mawson’s evidence, Mr Whalan’s psychological condition was only “part” of the problem with his work.
Consideration
41. The Commission, and this Tribunal standing in the shoes of the Commission when determining an application for review, must determine the application made by Mr Whalan in accordance with s 19 of the VE Act. Under s 19(5C) it is necessary to assess the rate or rates at which the pension would have been payable from time to time during the “assessment period”. That expression is defined in s 19(9) of the VE Act to mean period starting on the application day (namely 7 June 2002) and ending when the application is determined.
42. In considering the application of s 24(1)(c) of the VE Act, I refer first to the analysis of Branson J (with whom the other members of the Full Court of the Federal Court agreed) in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
“1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity?”
43. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 120(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
44. As regards the first question in Flentjar, the reference to “remunerative work that the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Banovich v Repatriation Commission (1986) 69 ALR 395. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial: Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 454 per Fox J. It is relevant to consider any “substantive” remunerative work that the veteran has undertaken in the past, but this may not necessarily include work that the veteran had undertaken in the far distant past, as this may not be a relevant comparison: Repatriation Commission v Graham [2004] FCA 1287.
45. In the present matter, Mr Whalan has not engaged in many different jobs since leaving school. The types of work which he has previously undertaken and which are potentially relevant are as follows:
(a) work as a general mill and factory hand;
(b) work as a telephone line cable jointer;
(c) work as a hotel or bar manager;
(d) work as a general manual labourer and gardener; and
(e) work as a courier.
It is not clear whether Mr Whalan could be said to have successfully undertaken the last category of work, since his work with Mawpump was subject to the limitations to which I have referred above, and was provided to him by way of rehabilitation. However, I will assume for the purpose of this decision that work as a courier can be regarded as a type of work which Mr Whalan had previously undertaken for the purposes of s 24(1)(c) of the VE Act.
46. I next refer to the second question in Flentjar (supra). As I have recorded in paragraph 4 above, the Commission acknowledges that s 24(1)(b) has been satisfied. I referred in paragraph 9 above to Mr Whalan’s work as a general mill and factory hand. There is very little evidence before me as to the possible effects of PTSD on his ability to undertake that type of work. In particular, it has not been established that the work would necessarily involve working closely with other persons, and I am not satisfied from the evidence before me that Mr Whalan’s PTSD prevents him from undertaking that type of work. It is also not clear on the evidence before me that Mr Whalan’s war-caused conditions prevent him from working as a cable jointer, but it is not necessary to determine that question in view of my findings on other issues, to which I will refer below. I am satisfied that Mr Whalan, by reason of his war-caused injury, is prevented from continuing to undertake the remaining types of work as are identified in paragraph 45 above.
47. The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone”, in the absence of ambiguity, should not have other words substituted for it. The word “alone” as it appears in s 24(1)(c) requires a practical decision as to whether the veteran’s being prevented from undertaking remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran’s case for pension at the special rate.
48. In Cavell (supra, at page 539), Burchett J said further that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was:
“… to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”.
In Forbes (supra), RD Nicholson J said (at [39]):
“The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
49. The potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 as follows (at [37]):
“The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … [H]aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
50. I will now consider, in the light of the above authorities, whether there are factors other than Mr Whalan’s war-caused PTSD that contribute to his being prevented from undertaking the types of remunerative work that I have identified at paragraph 45 above. I have indicated above that it is not clear that Mr Whalan is prevented by his PTSD from working as a telephone line cable jointer, but I note that Mr Whalan has not engaged in this type of work for some 15 years. Even if I am wrong in my finding as to the relevance of Mr Whalan’s PTSD to this type of work, I consider that owing to the time he has spent out of this type of work and advancements in technology that would have occurred over that time, he would no longer be capable of performing the work of a cable jointer.
51. The respondent submitted that the state of Mr Whalan’s knee and his hip was a further factor in preventing Mr Whalan from undertaking work as a hotel or bar manager, work as a general manual labourer and gardener, and work as a courier. There is conflicting evidence before me as to the state of Mr Whalan’s knee just prior to, and at the commencement of, the assessment period. Mr Whalan said that his knee was no longer a problem from about 12 months after his last knee operation. The last knee operation was in March 2001 according to Dr Flavell (paragraph 25 above), although Mr Whalan puts it at February 2001. Accordingly, on Mr Whalan’s evidence, his knee was no longer an issue as at February (or March) 2002. As against this, Dr Brotherton confirmed that Mr Whalan’s knee was his principal disability as at 19 July 2002 (see paragraph 32 above). I note that Mr Whalan did not disagree with Dr Brotherton’s assessment when it was put to him in cross-examination. Dr Brotherton’s view is also in accordance with the opinion of Dr Howie at paragraph 31 above. Mr Matthew Sharland’s report of 12 June 2002 in which Mr Sharland notes that at that stage the right knee had been “quiet” for five months is somewhat at odds with the other two reports, although I note that this opinion is in respect of infection, and does not comment explicitly upon any pain or disability in the knee.
52. I am mindful that Mr Whalan was genuine in his endeavours to recall events and the order in which they occurred, but his evidence as to his medical chronology was generally confused, as was his evidence as to the timing of the settlement of his work-cover claim. Nevertheless, if Mr Whalan’s knee was in fact “as good as ever” by February or even March 2002, as he asserted, then Dr Brotherton and Professor Howie would have to be wrong in their assessments. Furthermore, a full recovery from the knee condition in early 2002 is not consistent with the limitations placed on Mr Whalan’s employment at Mawpump such that his tasks were tailored to his knee problem. I consider that it was Mr Whalan’s confusion about relevant times and dates, and not deception or falsehoods on his part, that have led to this contradiction in the evidence. I prefer the medical evidence referred to above, and find that Mr Whalan’s knee had not recovered as at July 2002. In any event, Mr Whalan’s hip had by then become a significant disability, probably more significant than his knee problem, and neither condition was war-caused.
53. Mr Whalan’s claim for an increase in his rate of pension was lodged on 7 June 2002. It is clear from the medical notes, and Mr Whalan’s own evidence, that at that time he had a serious and debilitating hip condition. He was also, on his own evidence, still working for Mawpump in Darwin at that time. It would appear that a hip replacement took place in August 2002, and it seems improbable that Mr Whalan would have fully recovered from that operation to a point where he could undertake manual labour, or work as a hotel or bar manager or courier, any sooner than six months later. Therefore it would not have been until January 2003 that Mr Whalan could have been free of any disability from his hip condition. In making this finding I am mindful of the November 2002 medical report from Dr McLaren that records that Mr Whalan’s knee and hip problem were such that they did not affect his ability to perform clerical duties. Putting aside the suitability or otherwise of this type of remunerative work, I infer that Dr McLaren was also of the opinion that non-sedentary work would not have been suitable for Mr Whalan as at November 2002 because of his hip condition.
54. The types of remunerative work for which Mr Whalan has the requisite skills, qualifications and experience are identified in paragraph 45 above, and none are sedentary in nature. I find for the above reasons that at least until January 2003, Mr Whalan’s hip was a factor in his inability to engage in the types of remunerative work referred to in paragraphs 45(c), (d) and (e) above (as well as work as a general mill and factory hand, in case my previous conclusion as to this type of work is wrong).
55. However, Mr Whalan gave evidence that he made a good recovery from his hip operation and from his earlier knee operations, and I accept this evidence. In approximately February 2003, being seven months after they started renting in Kadina, Mr and Mrs Whalan moved into their transportable home at Wallaroo. Mr Whalan said that he focussed on the completion of his garden up until about six months before the first day of the hearing of this matter, and on the basis of this evidence it appears that he completed the garden in about January 2004. The garden activities and the assistance he provided to his farming friends indicate that Mr Whalan’s knee and hip did not prevent him from engaging in physical labour at least from February 2003.
56. I must determine whether Mr Whalan is eligible for a payment at the special rate by reference to the entire assessment period. The assessment period commenced when he lodged his claim form in June 2002 and concludes on the day of this decision. From February 2003 until now, Mr Whalan has been residing at Wallaroo, which is a regional town, and he is now 54 years old. The respondent urged me to decide that Mr Whalan’s locality and age were further factors in his being prevented from continuing to engage in remunerative work. Mr Whalan said he was also concerned about these factors. Against this, Mr Ower pointed out in a submission filed (with my leave) after the hearing that other decisions in which the age of the veteran has been a factor were usually concerned with a more advanced age, and Mr Whalan does not fall into the same category. It is common in my experience for people of Mr Whalan’s age to be employed, and I think I am entitled to take account of my experience as to this issue. Further, the effect of age is a question of fact to be determined on the facts of each case: Banovich v Repatriation Commission (supra), at 404. No evidence has been led before me as to the state of the labour market in Wallaroo or the surrounding region, and I am not disposed to find that the locality in which Mr Whalan’s resides is a factor in his being prevented from engaging in remunerative work, particularly when such remunerative work is as general as the type identified in paragraph 45(d) above. He has only been out of the workforce for some two and a half years, and I have already found that his hip and knee were not a problem as of February 2003. Accordingly, I find that Mr Whalan has been prevented, from and after February 2003, from continuing to engage in the remunerative work in the categories of hotel or bar manager, general manual labourer and gardener, and courier (and, if it is relevant a general mill and factory hand), due to his war-caused PTSD alone.
57. I do not think that the fact that he spent about 12 months from February 2003 to January 2004 laying out his new garden was a factor which prevented him from engaging in remunerative work, within the meaning of s 24(1)(c). It was his election to do this, but he need not have spent his time establishing his garden instead of working. I think the position is analogous to Peacock v Repatriation Commission [2004] FCA 1449, where it was held that access to superannuation benefits at age 55 was an inducement for the veteran to retire, but did not prevent him from working.
58. The fourth question in Flentjar (that is, the “loss” issue, being the second aspect of s 24(1)(c)) entails a consideration of whether the veteran is suffering a loss of income that he or she would not have been suffering if not affected by the war-caused disability. I must also consider the effect of the deemed “no loss” provisions of s 24(2)(a), which require an assessment of the reason(s) that a veteran has ceased to engage in remunerative work, and the reason(s) why he or she is incapacitated or prevented from engaging in remunerative work.
59. In Repatriation Commission v Van Heteren (2003) 75 ALD 703 Finn J considered the relevance of the deeming provisions of s 24(2)(a)(i). His Honour said at [25]:
“This question is not answered simply by finding that, in the assessment period, the veteran is unable to engage in any remunerative work. It in fact presupposes that he or she may well not be: cf 24(1)(b). And because of the deemed ‘no loss’ provisions of s 24(2)(a)(i) which apply where the veteran has ceased to engage in remunerative work for reasons other than his or her war-caused conditions, it requires an examination of the reasons why the veteran ceased work.”
I also refer in this regard to Re Laugher and Repatriation Commission (1985) 11 ALN N56, which indicates that under s 24(2)(a) the veteran’s own reasons for ceasing work may be relevant, unlike the more objective test imposed by s 24(1)(c).
60. The loss test is, in effect, a two step process. Under the first step, I must first determine what work, if any, Mr Whalan would have been engaged in were it not for his war-caused conditions and whether he is suffering a loss as a result of being prevented from undertaking that work. The second step arises from s 24(2)(a) of the VE Act; s 24(2)(a)(i) requires a determination as to whether he ceased to engage in remunerative work for reasons other than his incapacity from PTSD, and s 24(2)(a)(ii) requires a determination of whether the veteran is incapacitated, or prevented, from engaging in remunerative work for some reason other than his PTSD.
61. The determination of what Mr Whalan probably would have done if he had none of his service disabilities is a hypothetical question, but must be answered not by constructing an imagined life for a hypothetical man, but on the basis of all of the evidence before me: Tomlin v Repatriation Commission, Federal Court, 1 August 1997, NG 950/1995; [1997] FCA 705.
62. Mr Whalan’s earlier employment as a general mill and factory hand came to an end many years ago. Further, he left this work, and his work as a telephone line cable jointer, for reasons which I am not satisfied were related to his PTSD, and I am not satisfied that he would have continued in those positions if he had not been affected by his war-caused conditions. I have also considered, but dismissed, the possibility that if it had not been for his PTSD he might have continued to work as a hotel manager or bar manager. He gave up the lease of the Wirrabara Hotel in 1993 not only because of his difficulties with customers, but also because poker machines were being introduced, the rent of the hotel had increased, and the business had experienced a downturn. Further, his period as a bar manager of the hotel in Prosperpine was of comparatively short duration, and apparently came to an end, at least in part, because his wife had quit her position. They were ready to, and did, move on.
63. I also consider it probable that even if Mr Whalan had not been affected by his PTSD, Mr and Mrs Whalan would in any event have left Darwin and returned to Wallaroo, and would have established their new home at Wallaroo, as in fact occurred. They left Darwin very soon after Mr Whalan’s employment with Mawpump was terminated. This employment itself was for only eight hours a week by the time it was terminated, and it was rehabilitative employment following his serious knee injury at Paspaley Pearls. He had received a payout from his claim arising from this injury not long before the termination of his work at Mawpump. Mr Whalan had to undergo a hip operation, and that was to be carried out in Adelaide, not Darwin, within a short time of the termination of his employment at Mawpump. He did not have any other work in Darwin to return to after recovering from his hip operation. He also gave evidence that he and his wife left Darwin because they lacked family support, and they apparently wanted to return to the mid-north of South Australia to receive such support. Mr Whalan said that he had two sisters who lived close to Wallaroo, and his brother was in Whyalla. He said he sees his two sisters every week, and sees a third sister who lives at Streaky Bay once every month or six weeks.
64. The question then arises as to whether, if it had not been for Mr Whalan’s PTSD, he would at any time during the assessment period have commenced working again. I would not have expected him to do so until he had recovered from his hip operation and laid out the garden of his new house at Wallaroo. This in fact took until January 2004, on my above findings. As to whether he would have worked after that, I refer to the evidence of Mr Whalan recounted in paragraph 19 above. It appears from this evidence that at the time when he gave this evidence he had not decided to go back to work, but was keeping his options open. Doing the best I can on the evidence before me to determine the hypothetical question of what he would have done if he had not been affected by his war-caused conditions, I find that he would still have been in his present situation following his relocation to Wallaroo from Darwin; that is, taking into account that he had been through a period of convalescence following his hip operation, and had established his new home at Wallaroo and laid out his garden, and having regard to his financial position as described when he gave his evidence, I find that even if he had not been affected by his war-caused conditions he would not have commenced or sought work at least up to the time when he gave the evidence referred to above. There has been no request to update this evidence since then, and I infer that the position as described by Mr Whalan still stands as of the date of this decision. I accordingly find that Mr Whalan has not suffered a loss as a result of being prevented from undertaking remunerative work by his war-caused conditions.
65. The conclusion which I have reached in the previous paragraph makes it unnecessary for me to consider the further questions raised by s 24(2)(a), which if sub-paragraphs (i) or (ii) of that subsection apply, would mean that Mr Whalan is taken not to be suffering a loss as a result of his incapacity. However, for the sake of completeness I will briefly address these further questions.
66. I have outlined in some detail the medical evidence relevant to Mr Whalan’s physical disabilities during his period of employment by Mawpump. It appears likely that Mr Whalan had not completely recovered from his knee surgery at the time when he was working with Mawpump, and it also appears that his knee, together with his deteriorating hip condition, would have caused him pain and difficulty in carrying out his work with Mawpump. Mr Whalan himself referred to having forgotten to complete tasks on a couple of occasions, being late for work several times, and a reduction in Mawpump’s business. If Mr Whalan had given up his work with Mawpump, there is evidence which strongly suggests, as Mr Crowe contended, that there were other reasons apart from Mr Whalan’s war-caused PTSD for his having ceased to engage in remunerative work. However, Mr Whalan’s employment was terminated by his employer. It is therefore necessary to consider his employer’s reasons for terminating Mr Whalan’s employment. I find from Mr Mawson’s evidence that he dismissed Mr Whalan not because of any difficulty from his knee or hip or because of the matters to which Mr Whalan referred in his evidence, but because Mr Whalan had upset Mawpump’s customers. I find that this, in turn, had occurred because of his PTSD. Accordingly, I find that Mr Whalan did not cease to engage in remunerative work for reasons other than his war-caused condition. As to s 24(2)(a)(ii), it follows from my findings in paragraph 55 above that from and after February 2003, Mr Whalan was not incapacitated, or prevented, from engaging in remunerative work for a reason other than his war-caused incapacity. The deemed “no loss” provisions of s 24(2)(a) are therefore not applicable.
Summary and Conclusion
67. For the above reasons, I find that from and after February 2003, Mr Whalan was prevented from undertaking remunerative work because of incapacity from his war-caused conditions alone. However, I further find that he has not suffered a loss of wages or earnings on his own account that he would not have suffered if he were free of that incapacity. It may be that at some future time Mr Whalan will suffer such a loss and will otherwise qualify for pension at the special rate, but on my findings he has not suffered any such loss during the assessment period.
Decision
68.I affirm the decision under review.
I certify that the 68 preceding paragraphs are a true
copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
B Bills Admin AssistantDate/s of Hearing 22 July and 26 August 2004
Date of Decision 22 December 2004
Counsel for the Applicant Mr S D Ower
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe
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