Whitwell and Repatriation Commission

[2005] AATA 1102

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1102

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/359

VETERANS' APPEALS DIVISION		)
Re		IAN ROBERT WHITWELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr JG Short (Member)

Date7 November 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

JG SHORT
  (Member)

CATCHWORDS

VETERANS’ AFFAIRS – veterans' entitlements – Disability Pension – rate of pension payable – special rate – applicant has ceased to engage in remunerative work – Tribunal not satisfied that applicant has suffered a loss of wages or earnings on his own account due to war-caused incapacity alone – decision affirmed

Veterans’ Entitlements Act 1986 ss 24(1)(c), 120(4)

Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Cavell v Repatriation Commission (1988) 9 AAR 534

Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

7 November 2005 Mr JG Short (Member)  

1.      Mr Ian Whitwell lodged an application for increase in Disability Pension rate on 27 October 2003.  By decision dated 24 December 2003 the Repatriation Commission (the Commission) refused to increase Mr Whitwell’s rate of pension beyond 100 percent of the general rate.  On 31 August 2004 the Veterans’ Review Board (VRB) affirmed the decision.  On 26 October 2004 Mr Whitwell lodged an appeal to this Tribunal. 

2. The Commission has conceded and I find that Mr Whitwell satisfies the requirements of ss 24(1)(a) and 24(1)(b) of the Veterans’ Entitlements Act 1986 (the VE Act) that is that Mr Whitwell’s accepted disabilities of deafness (R); post -traumatic stress disorder (PTSD); hypertension and acne are appropriately assessed at at least 70 percent of the general rate and that they are of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods of more than 8 hours per week.

issues for determination

3. In the light of the finding referred to in paragraph 2 hereof the remaining issue for me to consider is whether Mr Whitwell 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 is common ground that Mr Whitwell has not sought to engage in remunerative work during the assessment period which commenced on the date of his claim on 27 October 2003.

mr whitwell’s evidence

5.      Mr Whitwell explained that following his discharge from the Australian Army he began farming in concert with his now deceased brother.  He explained that the farming enterprise involved livestock and cropping.  Mr Whitwell said that he sold the farm on 5 February 2001 and then, in about April 2001, attended on Centrelink offices initially to seek employment, but then in order to apply for a Disability Support Pension.  Mr Whitwell said that it was not until December 2001 when he attended the “Mens Shed” that he first heard of PTSD.  He said that this condition was eventually diagnosed by Psychiatrist, Dr Peter Furze, in a report dated 26 March 2002.

6.      Mr Whitwell said that he is now aware that many of the feelings he experienced leading up to his decision to sell the farming property were symptoms of PTSD.  Mr Whitwell described having trouble communicating with others including placing orders for necessary equipment.  He also said that on some days he could not find the motivation to attend to his farming tasks.  He said that he was frequently emotional and that his sleeping pattern was adversely affected. 

7.      In documentation signed by Mr Whitwell in order to pursue his entitlement to Centrelink benefits, Mr Whitwell had failed to refer specifically to PTSD but had referred to physical conditions including back pain and a beesting allergy.  Mr Whitwell said that he had not mentioned PTSD at the time of his dealings with Centrelink or with the Commonwealth Medical Officer, Dr William Ducrou, as it was not until December 2001 that he first became aware that he may have PTSD.  He also said that in dealing with Centrelink he had been advised by his wife and others that it was necessary to provide full details of his physical disabilities. 

8.      Mr Whitwell said that his farming duties had included spreading sprays and superphosphate and ploughing, all by tractor, fencing, crutching and feeding out sheep.  Mr Whitwell agreed with a suggestion put in cross-examination that his back caused difficulties in bending and lifting.  He explained that he would crutch sheep on the tail gate of a ute and that he would need his wife’s assistance in order to get the sheep into this position.

9.      In relation to his back condition, Mr Whitwell said that he had first injured his back in a swimming competition when he was about 14 years of age.  He advised the Army of this pre-existing condition during his entry medical.  He said however that he was not troubled by his back condition during his Army service.  He said that from about 1975 his back had been a constant source of trouble.  He experienced low grade back pain with exacerbations requiring professional assistance perhaps twice a year.  Mr Whitwell said that he had initially seen a chiropractor, Dr Breen, and later a Miss West, and later still a Mr Cap.

10.     Mr Whitwell said that he had experienced an allergic reaction to a beesting in 1995.  He said that his reaction included choking and a suspected heart attack.  He was flown to Adelaide for treatment and eventually was prescribed a diabetic diet by an allergist who also advised Mr Whitwell to always carry anti-histamines and adrenalin in case he has another allergic reaction.  Mr Whitwell said that after he had sold his farm, he experienced another sting which he suspects was also a beesting.  He said that it was satisfactorily relieved through anti-histamines.

11.     Mr Whitwell also described a wrist problem.  He said that this was probably carpal tunnel.  He said that it required him to soak his wrists in hot water for between half and three quarters of an hour in the mornings before he could start work.  Mr Whitwell also described a knee problem which made crouching and climbing steps difficult. 

12.     In cross-examination Mr Whitwell was referred to a Centrelink “Work Ability” form signed by Mr Whitwell on 18 April 2001.  This report [T14/134] indicates at page 135 that Mr Whitwell’s illnesses/disabilities included an immune system deficiency, work related back deterioration and war related hearing loss.  The report indicates that Mr Whitwell’s “work related back deterioration” first started to make it difficult for him to work in about 1995.  I note that this date approximates the time Mr Whitwell first started to work on the farm.  At page 136 the same report indicates that Mr Whitwell was only able to stand for a maximum of about 30 minutes and was only able to drive a car for about one hour.  Mr Whitwell explained that after driving for an hour he is required to stop and stretch his back.  He then can continue for a time.  The same report indicates that he often found it difficult to lift sheep onto his ute and sometimes found it difficult to bend.  Mr Whitwell also recorded that sometimes he found it difficult to concentrate and remember things and always found it difficult to sleep.  These three last mentioned symptoms are in my view consistent with symptoms of PTSD.

13.     Mr Whitwell was also referred to a Service Pension Claim form signed by him on 5 August 2002.  This report asks that one list only the disabilities or symptoms which are permanently preventing one from working.  The report records PTSD and also “work related back deterioration”. 

14.     Following his claim for Disability Support Pension Mr Whitwell was referred for opinion to Commonwealth Medical Officer, Dr W Ducrou.  In his report dated 28 May 2001 [T14/128] Dr Ducrou had recorded under the heading “Previous Medical History”:

“A 52 year old self employed farmer stopped work three months ago, due to progressive back pain.  Has worked on hid [sic] farm for 27 years.  Always has been a farmer.  Schooled to Year 10.  Is a Vietnam veteran.” 

Under a heading “Capacity to Work” Dr Ducrou has recorded:

“He is not able to work at any full time job, and is not suitable for rehabilitation into a full time job, due to his chronic pain, postural intolerance, loss of mobility and stability.  He could possibly do flexible light bench top process work or light farm work up to 15 hours a week.” 

Mr Whitwell generally agreed the comments made by Dr Ducrou under a heading “Current Medical Situation”.  Under this heading Dr Ducrou reported:

“Can’t bend, twist repetitively or lift heavy weights. 

He has regular neck, low back pain and sciatica. 

Can’t drive a tractor, dig or lift a sheep.  Can’t work overhead. 

Can’t do repetitive arm work.  Drops objects. 

Does drive. 

Mows lawn at his own pace.  Can’t climb or squat. 

Does light domestic work with care.  Wears a hearing aid.” 

Although generally agreeing the accuracy of these comments, Mr Whitwell said that he could drive a tractor for perhaps up to 15 hours but would be unable to stand for a period immediately after and would feel the effects of this activity over the next few days. 

15.     In cross-examination Mr Whitwell summarised his position by saying that he had managed to work notwithstanding his non-accepted disabilities.  He seemed to agree however that his non-accepted disabilities did present a significant problem.  Nevertheless he said that it was his PTSD which motivated his decision to sell the farm.  He frankly told the Tribunal that he did not think his physical conditions would allow him to work as an employee.  He said however that he may have been able to continue to work as a self-employed farmer were it not for his PTSD.

the law

16. 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;

…”

17. As mentioned, the Tribunal has noted the concessions made by the Commission and has found that Mr Whitwell satisfies the requirements of ss 24(1)(a) and 24(1)(b) of the VE Act. I find that in the circumstances of this case s 24(2)(b) of the VE Act has no application.

consideration

18.     I first wish to record that Mr Whitwell impressed as a credible witness who did his best to provide accurate evidence for the Tribunal.    

19. 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?"

20. 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)).

21.     In relation to the first question in Flentjar (supra), I find that the type of work previously undertaken by Mr Whitwell was general farm work.

22.     I find that Mr Whitwell, by reason of his war-caused injury or war-caused disease or both (in this case particularly PTSD) is prevented from continuing to undertake that work.

23.     The third question in Flentjar refers to the “alone” test in s 24(1)(c) of the VE Act. On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534 the word “alone” in the absence of ambiguity should not have other words substituted for it. The word also requires a practical decision as to whether Mr Whitwell is prevented from undertaking remunerative work by his accepted disabilities and not from something else as well.

24.     The potential relevance of other factors which might prevent Mr Whitwell from continuing to undertake the relevant remunerative work was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 as follows (at para [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."

25.     In this case the medical evidence includes a report of local Medical Officer, Dr RS Jolly, dated 10 February 2005 [Exhibit A3].  This brief report referred to Mr Whitwell’s experience of PTSD together with his knee and back problems.  Dr Jolly concludes his report by saying:

“… My impression was that it was not so much his back trouble that put him off the farm but much more his depression, early morning waking and crying at night. 

I believe that Mr Whitwell is unable to work and that the main reason for this is his PTSD.”

26.     Psychiatrist, Dr Peter Furze, in his report dated 26 March 2002 [T11/83] also referred to Mr Whitwell as suffering PTSD.  The report also indicates however that Mr Whitwell “… has suffered from a back disorder, beesting allergy and hearing loss which are quite severe”.  In paragraph 3 of page 8 of this report Dr Furze said that he considered Mr Whitwell “with his current physical psychiatric problems, is unable to work”.  He said:

“… I understand that his combination of conditions resulted in him leaving his farm and selling to move to Port Augusta.  If this man did not have the beesting allergy, the back pain and the hearing loss, I consider he would not be able to work at any occupation given his presentation on the two occasions I saw him. …”

27.     I infer from this last mentioned sentence that Dr Furze holds the view that even without his physical disabilities, Mr Whitwell would not be able to continue working in the light of his psychiatric condition.

28.     As mentioned, Mr Whitwell agreed with virtually all of the comments made by Commonwealth Medical Officer, Dr W Ducrou [T14/128], in relation to his then current medical situation.  This presented a picture of significant physical disability from non-accepted conditions.  This report was prepared within 5 months of Mr Whitwell’s decision to sell his farming property.  Having regard to the nature of the work previously undertaken by Mr Whitwell and to the evidence before me, I find that although Mr Whitwell has a significant experience of PTSD which would on its own, prevent him from continuing to operate a farming property, Mr Whitwell’s physical disabilities, particularly the restrictions caused by injuries to his back, knee and wrist were also a significant reason Mr Whitwell was unable to continue farming.  I do not regard his beesting allergy as significant in this regard.

29. In the light of the abovementioned findings, Mr Whitwell does not satisfy the alone test prescribed in s 24(1)(c) of the VE Act and in these circumstances the decision under review is affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr JG Short (Member)

Signed:         ...........J Coulthard..........................................
  Associate

Date of Hearing  27 September 2005
Date of Decision  7 November 2005
Counsel for the Applicant         Mr E Jolly
Solicitor for the Applicant          Tindall Gask Bentley
Counsel for the Respondent     Mr A Crowe
Solicitor for the Respondent     DVA