Willett and Repatriation Commission

[2000] AATA 255

DECISION AND REASONS FOR DECISION [2000] AATA 255

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1998/1364

VETERANS' APPEALS  DIVISION       )          
           Re      BRIAN RICHARD WILLETT        
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal      Mr. D.W. Muller, Senior Member Dr. J.B. Morley, RFD, Member       

Date 31 March 2000

PlaceBrisbane

................(Signed)......................
  D.W. MULLER
  SENIOR MEMBER

CATCHWORDS
 VETERANS' AFFAIRS – Special Rate – whether war-caused disabilities are sole reason for
not working

WRITTEN REASONS FOR DECISION

31 March 2000       Mr. D.W. Muller, Senior Member             
          Dr. J.B. Morley, Member                

1. This is an application to review a decision to cancel a special rate pension which pension was originally granted on 14 March 1997 and then cancelled on 4 September 1998.

2. The applicant, Brian Richard Willett served in Vietnam.  He developed a smoking and drinking habit in Vietnam.  That drinking habit stayed with him right through his Army life.  He also developed post-traumatic stress disorder whilst in Vietnam.  That also has stayed with him.  It has grown progressively worse in the intervening years.

3. The applicant was able to function as an  Army person but his private life was somewhat in disarray.  He has had three failed marriages, which may be some indication that he has been suffering from post-traumatic stress disorder to a certain level for many years.  Upon leaving the Army in 1987 he has had spasmodic employment.  He eventually got himself a job, almost by accident, packaging herbs for some so-called businessmen.  He virtually farmed out his job to two women, who were his neighbours.  He paid them to pack herbs whilst he spent a lot of time in the hotel drinking.  The job was virtually a sheltered workshop position for a person with his disabilities.  The businessmen eventually bungled themselves out of business and Mr. Willett was left without a job in 1993.

4. He thereupon, in our view, did attempt to gain employment.  He applied for a job as a driver with Griffith University.   He applied for a cleaning job at Police Headquarters.  He tried for a third job at Greenbank RSL.  It is our view that if he had been given any of those jobs he would have taken them.  That is, he was genuinely seeking to work, although it is fair to say that he was not in very good physical nor mental shape.  In any event, he would have taken those jobs.  He did not get any of them.

5. His post-traumatic stress disorder and his alcohol abuse deteriorated to the point where, in 1996, he was urged by friends to seek psychiatric assistance and he has had that assistance ever since.

6. His alcohol abuse has led to some problems with his legs.  He has a neuropathy which has caused him problems.  It gives him cramps in his legs.  He is really now not in very good shape at all.  The psychiatric evidence is all one way.  He is now unemployable.  Not only can he not work eight hours a week;  he cannot work at all.

7. He has emphysema which creates a moderate air flow limitation.  Mr. Willett would not be able to do heavy manual work, but it would not be a problem that would cause him to not be able to do light work or sedentary work.  Dr. Grant said, it is not unusual for members in the workforce to be taking such medication as Mr. Willett and to still be able to work.

8. It is our view that his emphysema does not prevent him from working.  It is not a factor in his current unemployed situation.  The dominant factor, the only thing that really prevents him from working is his post-traumatic stress disorder and his alcohol abuse.  He could work with hisHis a current degree of emphysema.

9. He does suffer from a war-caused disorder of post-traumatic stress disorder and alcohol abuse.  They are the sole reasons for his not working.  Even though he stopped work in 1993 for reasons other than his war-caused injuries, he did thereafter genuinely seek to work.  We believe that if he did not have his war-caused disabilities, he would indeed be currently working.

10. He is not seeking work at the moment because it would be quite impractical for him to do so.  In fact, his treating psychiatrist has suggested to him that he not seek work due to the medication that he is on.

11. It is our view that he is entitled to the special rate.  It should not have been cancelled.  The date of effect is 4 June 1998.

12. The decision under review is set aside.

    I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member and Dr. J.B. Morley, Member.

    Signed:         .....................................................................................
               R. Hayes, Associate

    Date/s of Hearing  8 March 2000
    Date of Decision  31 March 2000
    Counsel for the Applicant         Mr. S. Sapsford  
    Solicitor for the Applicant          Mr. K.C. Gladstone     
    Respondent   Mr. R. Morsion, departmental advocate