Whitehead and Repatriation Commission

[2007] AATA 2077

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2077

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2006/29

VETERAN’S   REVIEW   DIVISION		)
Re		SIMON WHITEHEAD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal       J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

Date20 December 2007

PlaceCanberra

Decision The decision of the Repatriation Commission made 8 February 2003 is affirmed.

...…..............................................

J.W. Constance, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Intermediate Rate pension – Post-traumatic Stress Disorder - Whether the Applicant is incapable of undertaking remunerative work – Whether work performed was remunerative or therapeutic – Applicant had capacity for work in various positions – Decision Affirmed

Veterans’ Entitlement Act 1986 (Cth), ss 23, 28

Bertram v Repatriation Commission [1986] AATA 2783

Repatriation Commission v Hendy [2002] FCAFC 424

REASONS FOR DECISION

J.W. Constance, Senior Member

Dr M.D. Miller AO, Member

20 December 2007

INTRODUCTION

1.      On 8 February 2003 the Repatriation Commission decided that Mr Whitehead was entitled to a pension at one hundred per cent of the General Rate under the Veterans’ Entitlement Act 1986 (Cth).  The Commission refused Mr Whitehead’s application for an Intermediate Rate of pension.

2.      The Veterans’ Review Board has affirmed the Commission’s decision.  Mr Whitehead now seeks a review of the decision by this Tribunal.

3.      For the reasons which follow the decision under review will be affirmed.

EVIDENCE AND FINDINGS OF FACT

4.      Unless otherwise stated the following findings of fact are based on the evidence of Mr Whitehead.  We have decided the matter to our reasonable satisfaction as required by subsection 120(4) of the Act.

5.      Mr Whitehead is sixty-two years old.  He served in the Australian Army from 1965 until 1970.  His service included two tours of Vietnam.

6.      In 1975 Mr Whitehead joined the Department of Defence where he worked in a clerical and administrative capacity for the next twenty-one years.  He worked in the Establishments and Recruiting areas and then in the School of Work-Study.  He was trained as a work-study practitioner and worked on projects designed to make the Department’s, and particularly the Navy’s, processes more efficient.  Mr Whitehead described his work as “problem solving and effectiveness or efficiency.” [1]  As part of his work he assisted with the training of Defence personnel.

[1] Transcript 20.9.07 p-15.

7.      .For approximately the last ten years of his time at Defence, Mr Whitehead worked as an officer processing and advising on claims for production of documents under the Freedom of Information legislation.  He gained promotion in this area and at the time of his retirement he was in charge of the Freedom of Information Unit for the Navy.  He took an active role in establishing this unit.  He was very successful in this position, as he had been in his previous positions.

8.      There were two or three occasions during his time in the Public Service when Mr Whitehead reacted to people coming up behind him when he was unaware of their approach.  On these occasions he struck the person or grabbed his arm.  None of these incidents had serious consequences.

9.      Mr Whitehead was retired from the Public Service in 1996 following a restructure of the area in which he was working.  There were no positions available for him in the new structure as he did not have tertiary qualifications.  He applied for several positions in the Public Service but was unsuccessful by reason of his lack of tertiary qualifications.

10.     In December 1997 Mr Whitehead was employed by Casino Canberra as a Security Officer.  This work involved guard duty, delivering cash and casino chips, customer relations and crowd control.  As part of his training he obtained an industrial 24-hour concealed weapons permit.  He commenced in a part-time position and progressed to full-time.  He was promoted to the position of Supervisor and undertook the training of other security officers.

11.     In August 2000 Mr Whitehead fell whilst at work at the Casino and injured his arm, shoulder and neck.  He continued working after this incident.  Following a stressful incident (which involved the potential for physical violence) Mr Whitehead took time off work on the advice of his supervisor, commencing on 15 February 2001.  He did not return to work at the Casino.  During his absence from work Mr Whitehead received compensation payments on the basis that his incapacity to work was a result of the injuries he received in the fall.

12.     By letter of 9 November 2001 the Casino’s insurer advised both Mr Whitehead and the Casino that compensation payments to Mr Whitehead would cease in January 2002.[2]  The insurer determined that the injuries suffered in the fall were no longer the cause of any incapacity for work.

[2] Ex.A8.

13.     By letter of 13 November 2001 the Casino terminated Mr Whitehead’s employment.[3]  The Casino stated that the reason for the termination was that Mr Whitehead was unable to provide medical evidence that he was fit to perform his duties as a Security Officer at the time.[4]  This information had been requested of Mr Whitehead by letter of 29 October 2001.  Mr Whitehead did not respond to this letter.  He gave evidence that he did not respond as the insurer had already requested that he attend a medical review, and that he believed that in these circumstances a response was unnecessary.

[3] Ex.A6.

[4] Ex.A7.

14.     Mr Whitehead gave evidence that he believed that his employment was terminated because he suffered Post Traumatic Stress Disorder, of which his employer was aware.  On the evidence before us we are not satisfied that the reason for the termination of Mr Whitehead’s employment was that he suffered this condition.  We are unable to make a finding as to the reason for the termination.

15.     From about 1991 Mr Whitehead conducted a knife-sharpening business on a limited part-time basis.  After he ceased working for the Casino he attempted to establish the business on a full-time basis, however this attempt failed because of the established competition he encountered.  He continues to do some business and maintains his business name reistration and advertisement in the Yellow Pages.  Income from the business was included in Mr Whitehead’s tax returns.

16.     Mr Whitehead gave evidence that he found it difficult to conduct the business because of problems he experienced in remembering names of people and places and that, for this reason, the business failed.  He also said that there were obstacles for the business in the finance which was needed and the competition which it faced.

17.     For many years, going back before his Army service, Mr Whitehead has had an interest in sports medicine and in first aid.  After leaving the Army he undertook specific training with Sports Medicine Australia.  Between July 2001 and July 2004 Mr Whitehead accompanied the Australian Judo Team on trips to Germany, Korea, Japan, Fiji and New Caledonia.  These trips were up to three weeks in duration.[5]  Although he was not paid a wage for his services, Mr Whitehead was the full-time masseur for the team, including one visit to Korea for an Elite Training Camp in preparation for the 2002 Commonwealth Games.[6]  On other occasions Mr Whitehead received payment for his services as a masseur or sports trainer.[7]

[5] Ex.R4, p.133.

[6] Ex.R4, p.242.

[7] Ex.R4, p.134.

18.     Counsel for Mr Whitehead argued that we should find that Mr Whitehead’s work as a sports trainer/masseur should be found to be a “therapeutic hobby” rather than remunerative work.  We do not accept this proposition.  Mr Whitehead applied to the ACT representative rugby union and rugby league teams for positions of sports trainer.  In his 2003 taxation return he described his main business activity as sports trainer.[8]   On this basis we find that since 2001 Mr Whitehead has engaged in part-time remunerative employment as a sports trainer/masseur.

[8] Ex.R6.

Medical evidence and opinion

19.     In November 2001 Dr Scott, Occupational Physician, examined Mr Whitehead on behalf of the insurer for the Casino.  He reported [9] that Mr Whitehead should not undertake security work by reason of his psychiatric disorder but that, in his opinion he should seek work in less stressful environments where possible confrontation with others was less likely.

[9] Ex.A4.

20.     Mr Whitehead was examined by Dr McGrath, Musculoskeletal and Occupational Physician, in 2004 at the request of the Department of Veteran’s Affairs.  In his opinion Mr Whitehead had the capacity to work as a masseur/sports trainer “at least eight hours per week and probably a good deal more.” [10]

[10] Ex.R4, p.197.

21.     In April 2006 Mr Whitehead was assessed by Dr Chase, Occupational Physician.  This assessment was on behalf of the Department.  His report of 22 May 2006 is in evidence.[11]  In his view Mr Whitehead has had the symptoms of Post Traumatic Stress Disorder since the 1970’s, although for many years he ignored them.  His assessment of Mr Whitehead was that he has “a very broad range of skills and he could work as a sports trainer, masseur, or any clerical or administrative role up to middle management.” [12]  Taking into account Mr Whitehead’s disabilities, Dr Chase was of the opinion that he could work as a masseur for more than twenty hours per week, but that the post traumatic stress disorder was a barrier to his returning to security work.  Dr Chase did not refer specifically to his capability of undertaking clerical/administrative work but he did note that nothing in Mr Whitehead’s history suggested that he had any difficulty in coping with his career in the public service.

[11] Ex.R3.

[12] Ex.R3.

22.     Mr Whitehead was examined by Dr Lewin, Consultant Psychiatrist, at the request of the Department in July 2006.  He reported to the Department at the time of the examination.[13]  In the opinion of Dr Lewin, Mr Whitehead has suffered Post Traumatic Stress Disorder for between at least twenty and thirty years.  He considered that this condition rendered Mr Whitehead unsuitable for security work but that would be fit to work “almost full-time hours” in the position of a masseur and/or sporting coach.  This opinion was based on Mr Whitehead having worked with the Judo Team and having been able to maintain positive relationships with team members.

[13] Ex.R1.

23.     Dr White, Consultant Psychiatrist, first assessed Mr Whitehead in 1999 and reviewed him in September 2006.  He diagnosed Mr Whitehead as suffering Post Traumatic Stress Disorder with an onset very soon after his first tour of Vietnam.  In his opinion Mr Whitehead was unfit for any employment of more than eight hours per week by reason of his psychiatric condition.

24.     Dr Harrex, Consultant Occupational Physician, assessed Mr Whitehead in October 2006 at the request of his solicitors.  In his report of 15 January 2007[14] Dr Harrex expressed the following opinions:

·     Mr Whitehead had functioned well in his bureaucratic role;

·     he is unfit to return to his employment as a security guard by reason of his suffering post traumatic stress disorder;

·     he may be able to sustain permanent part-time work as a masseur provided it did not exceed twenty hours per week;

·     his psychiatric condition will prevent his maintaining any position on a full-time basis because his condition will cause him to have difficulties with personal relationships.

[14] Ex. A2.

RELEVANT LEGISLATION

25.     To be eligible for payment of the intermediate rate of pension Mr Whitehead must meet the requirements of section 23(1).  It is conceded by the commission that Mr Whitehead meets the requirements of subsections 23(1)(aa), 23(1)(aab) and 23(1)(a).  We are satisfied that these concessions have been properly made.

26.     Subsection 23 (1)(b) provides:

This section applies to a veteran if…

the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently…

27.     Subsection 23(2) provides:

Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

(a)     if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or

(b)     in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

28.     Section 28 provides:

In determining, for the purposes of paragraph 23(1)(b) … whether a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, is incapable of undertaking remunerative work … the Commission shall have regard to the following matters only:

(a)     the vocational, trade and professional skills, qualifications and experience of the veteran;

(b)     the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c)     the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

ISSUES FOR DETERMINATION

29.     To be eligible for a pension at the intermediate rate, Mr Whitehead must satisfy all of the six paragraphs of section 23(1).  It is not in issue that Mr Whitehead meets the requirements of subsections 23(1)(aa), 23(1)(aab) and 23(1)(a).  On the evidence these are appropriate concessions.

30.       The first issue for decision is whether Mr Whitehead meets the requirements of subsection 23(1)(b).  If he does it will be necessary to consider the further paragraphs of the subsection.  If he does not his application for an intermediate rate of pension fails.

REASONING

31.     It is necessary to consider Mr Whitehead’s eligibility during the assessment period, in this case the period commencing on 29 July 2002 and ending on the day of this decision.

Remunerative work which Mr Whitehead has some capability to undertake

32.     The Commission concedes that by reason of his war-caused injury Mr Whitehead is incapable of undertaking work in the security industry.  On the evidence before us we are satisfied that this is an appropriate concession.

33.     First we turn to consider the remunerative work which Mr Whitehead has some capacity to undertake.  The matters to which we are to have regard are limited by section 28 set out earlier in these reasons.  This section excludes from consideration such matters as the state of the labour market and work which a veteran may be able to undertake after retraining.

34.     The “work” referred to is not limited to a particular job but rather to a type of  work, and it is not limited to the type of work undertaken most recently undertaken:  Repatriation Commission v Hendy [2002] FCAFC 424. For work to be remunerative it is necessary that the worker receive some form of compensation for his or her efforts. It is not necessary that the work return a profit or that a business (being the work which is being undertaken) be successful. The Tribunal’s decision in Bertram v Repatriation Commission [1986] AATA 2783 illustrates the Tribunal’s approach in this regard and is consistent with our views in this matter.

35.      Based on the evidence before us we are satisfied that Mr Whitehead has at least some capacity to undertake work of a clerical and administrative nature in the public and private sectors, work as a sports trainer and/or masseur and operating his own his own knife-sharpening business.  Our reasons for this conclusion follow.

Clerical and administrative work

36.     Mr Whitehead had a successful career in the Public Service for twenty-one years during which he held senior positions which required a high level of administrative and clerical skills.  In his role as a work-study practitioner he exercised skills in analysis and planning which would enable him to undertake similar work in both the public and private sector.  Whilst his work in the Freedom of Information Unit was more specialised, he exercised administrative skills in establishing and operating the unit which would complement the skills he previously exercised.  In addition his specialised administrative skills would qualify him for work in both sectors.  We accept the evidence of Dr Chase that Mr Whitehead has “a very broad range of skills” which would permit him to work in “any clerical or administrative role up to middle management.” [15]Although Mr Whitehead retired from the Public Service in 1996 there is no evidence to suggest that he has lost these skills.  Dr Chase’s assessment of him was made in 2006.  We are satisfied that Mr Whitehead has had some capacity to undertake this type of work during the whole of the assessment period.

[15] Ex.R3.

Sports trainer/ masseur

37.     The evidence of Mr Whitehead and all the medical practitioners is that he has some capacity to engage in work as a sports trainer/masseur, and further we are satisfied that Mr Whitehead has worked in this field in the co-operative workplace at and for various sporting teams, including the Australian Judo Team whilst overseas.  In particular his work with the Judo Team has demonstrated an ability to work at a high level.  We are satisfied that Mr Whitehead has had some capacity to work as a sports/trainer/masseur for the whole of the assessment period.

38.     Counsel for Mr Whitehead has argued that this activity should be classed as a “therapeutic hobby” rather than “remunerative work”.  We do not agree.  An activity may be “therapeutic” and still be “work”.  The activity is “remunerative” on the basis that Mr Whitehead has received payment for his services and has declared the income in his tax return.

Sharpening of knives and other implements

39.     On the basis of Mr Whitehead’s evidence we are satisfied that he has the skills and experience to be an employee, or to conduct his own business, sharpening a variety of tools and implements.  Mr Whitehead has conducted his own business in this area and has maintained his business registration and Yellow Pages advertisement.

The capability of Mr Whitehead to undertake remunerative work otherwise than on a part-time basis or intermittently

40.     We now turn to consider whether Mr Whitehead’s post traumatic stress disorder alone has prevented him from undertaking the remunerative work we have identified “otherwise than on a part-time basis or intermittently”.   In determining this question we need to apply the provisions of subsection 23(2) which we have set out in paragraph 27 of these reasons.

Clerical and administrative work

41.     We are satisfied that Mr Whitehead is capable of undertaking this work for fifty per cent or more of the time ordinarily engaged in this time of work, i.e. work in excess of two and one half days per week.  He was able to undertake full-time employment for twenty-one years in this role without difficulty, even though he was suffering the symptoms of post-traumatic stress disorder during this time.  We are satisfied that this was the case based on the evidence of Dr Lewin and Dr White.  His employment ended because of a restructure in the workplace, not because of his illness.  Although Mr Whitehead gave evidence of some incidents which he relates to his condition, we are not satisfied that they were of such seriousness as to limit his ability to engage in full-time or near full-time clerical and administrative work.  We have taken into account that Mr Whitehead undertook security work, including obtaining a concealed weapon licence, after he left the Public Service.  Had Mr Whitehead had any serious concerns as to the effect of his condition on his work performance he would not have done this. 

42.     Few of the medical practitioners who assessed Mr Whitehead specifically considered the question of whether Mr Whitehead could work in a clerical/administrative capacity for more than half normal time.  However when Dr Scott suggested in 2001 that Mr Whitehead should seek less stressful employment than a security officer he did not suggest that he was unsuitable for full-time employment.  Dr McGrath, Dr Chase and Dr Lewin all considered that he was capable of more than twenty hours work as a masseur.  There is no evidence to suggest that clerical/administrative work would be any more stressful for Mr Whitehead than would be masseur work.

43.     Dr White was of the opinion that Mr Whitehead is unfit for any employment of more than eight hours per week by reason of his psychiatric condition.  We prefer the evidence of Dr Scott, Dr McGrath, Dr Chase and Dr Lewin to that of Dr White in this regard.  We also take into account that Dr Harrex considers Mr Whitehead is fit for work as a masseur for up to twenty hours per week.  Dr White’s opinion is not consistent with Mr Whitehead’s work history, particularly his work in the Public service and as a masseur and sports trainer.  He has not provided reasons for his view or his reasons for apparently disregarding the work history.

Sports trainer/masseur

44.     We are satisfied on the balance of probabilities that Mr Whitehead is capable of working as a sports trainer/masseur for more than fifty per cent of the time normally worked by persons engaged in work of that kind.  If it was necessary we are satisfied also that he is capable of undertaking that work in excess of twenty hours per week.  We have reached this conclusion based on the evidence of Dr Chase and Dr Lewin and on the evidence of Mr Whitehead as to the work he has been able to undertake, particularly with the Australian Judo Team.  His evidence was that he was able to travel with the team as a full-time masseur without experiencing problems.

45.     We prefer the opinions of Dr Chase and Dr Lewin to that of Dr White for the reasons already stated.  We prefer their opinions to that of Dr Harrex as, in our view, he does not give an explanation as to why he believes any difficulty with personal relationships which Mr Whitehead may suffer would permit him to work as a masseur up to twenty hours per week but not more.  Further we are not satisfied that Mr Whitehead does have difficulties with personal relationships to the extent attributed to him by Dr Harrex.  Mr Whitehead did not experience significant difficulties with personal relationships in his work in the Public Service or when working as a trainer/masseur.  He has also successfully managed difficulties in his home life.  Dr Harrex referred to a situation in which Mr Whitehead was unable to obtain a job as a masseur because of difficulties in personal relationships.  The evidence before us is such that we are satisfied that no such job was available.  Mr Whitehead did have an opportunity to work on a self-employed basis which he chose not to take.

Sharpening of knives and other implements

46.     Mr Whitehead experienced some difficulty in remembering names and places in relation to this business.  Even assuming that these difficulties were caused by the post traumatic stress disorder from which he suffers, we are satisfied that at least part of the reason the business failed was that it suffered competition from other businesses.  This was the evidence of Mr Whitehead which we accept.  For this reason we are satisfied that it was not Mr Whitehead’s war-caused condition which of itself alone rendered him incapable of undertaking this work.

CONCLUSION

47.     For the reasons set out we are not satisfied on the balance of probabilities that Mr Whitehead’s incapacity from his war caused injury is, of itself alone, of such a nature to render him incapable of undertaking the remunerative work we have identified otherwise than on a part-time basis or intermittently.  As Mr Whitehead has failed to establish that he meets the requirements of subsection 23(1) (b) of the Veterans’ Entitlements Act 1996 his application for an intermediate rate of pension fails.

DECISION

48.     The decision of the Repatriation Commission made 8 February 2003 is affirmed.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.

Signed:          .....................................................................................

Geoff Foley, Associate

Date/s of Hearing  20, 21 September 2007

Date of Decision  20 December 2007

Advocate for the Applicant       John Orr

Counsel for the Respondent     Gerald Purcell

Solicitor for the Respondent    Department of Veteran’s Affairs