Williams and Repatriation Commission
[2004] AATA 46
•22 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 46
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/672
VETERANS' APPEALS DIVISION ) Re RAYMOND DENNIS WILLIAMS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President , Don Muller Date22 January 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution determines that the Applicant is eligible to be paid disability pension at the Special Rate pursuant to section 24 of the Veterans’ Entitlements Act 1986, with effect from 1 April 2003. ................SIGNED.............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS AFFAIRS – the applicant ceased remunerative employment due in part to non war-caused injuries- non war-caused injuries subsequently resolved – thereafter other non war-caused factors involved in failure to undertake remunerative work for some years - eventually war-caused disability alone preventing applicant from working – entitled to special rate
Veterans’ Entitlements Act 1986 subsections 24 (1) (c)
REASONS FOR DECISION
Deputy President , Don Muller 1. This is an application made by Raymond Williams, the Applicant, to review a decision of a delegate of the Repatriation Commission, the Respondent, dated 7 March 2001 to refuse an application for increase in a disability pension from 100% of the General Rate to the Special Rate pursuant to section 24 of the Veteran’s Entitlements Act 1986, (“the Act”).
2. On 30 April 2002 the Veterans’ Review Board affirmed the Respondent’s decision and on 8 August 2002 the Applicant lodged an application for review to this Tribunal.
3. At the hearing the Applicant was represented by Mr Honchin, of Counsel and the Respondent was represented by Mr Kelly.
4. The Tribunal heard oral evidence from the Applicant and had before it the following documents :
(a)The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, exhibit 1;
(b)Statement of the Applicant dated 20 February 2003, exhibit 2;
(c)Report of Dr Freed dated 2 July 1997, exhibit 3;
(d)Claim for Service Pension dated 20 February 1997, exhibit 4;
(e)Report of Dr Peter Boys dated 5 March 2003 , exhibit 5; and
(f)Report of Dr Brazel dated 5 June 2001, exhibit 6.
5. Eligibility for payment of pension at the Special Rate is provided for in section 24 of the Act:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(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
(d)section 25 does not apply to the veteran.
(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 or 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
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
6. The Applicant made an application for an increase in pension to the Special Rate on 12 February 2001. He had been receiving disability pension for his war-caused post traumatic stress disorder (PTSD) at 100% of the General Rate since 21 May 1998.
7. The Applicant was born on 7 August 1950. He was 50 years of age at the date of his application for increase in pension.
8. The Applicant was first diagnosed as suffering from PTSD in 1997. Dr. Freed, psychiatrist reported as follows on 2 July 1997 (among other things):
“Mr Raymond Williams injured his back last year while working as a cleaner. Previously he was a truck driver and a labourer. He is on a Disability Pension for his osteoarthritis of his back.
As you note, he gets violent and smashes walls and windows. He gets extremely angry if someone cuts him off in the traffic. He gets out and punches them in the mouth.
His wife says for 18 years (of the 18 year marriage) he has had nightmares, he thrashes around in the bed, on a few occasions he gets out of bed and makes gun like noises.
He has previously been married – June 1970. In 1971 he went to Vietnam for 6 months and one week. He never saw death. He saw destruction. He never saw dead bodies. He was on guard duty in hospital. He did guard duty in hospital on V.C. He was in transport. Near Nui Dat the truck ahead of him was blown up. He was scared that he would be killed a few times. On one occasion a shell went off near him. At Nui Dat he had to pull out fire support bases. ‘The shells went over us all night long. We didn’t know where they would land.’
He never drank at all before Vietnam. He drank till drunk in Vietnam regularly. After Vietnam, alcohol drinking continued to be a problem. He had no temper problems before Vietnam. His temper and impulse problems started when he returned. He attempted suicide a few months after returning. He cut wrists (both). The police were called and took him to hospital. (He had already left the army.)
He never saw a psychiatrist.
He had no psychiatric treatment in the Army.
He suffers from Post Traumatic Stress Disorder since his Vietnam Service. His traumata are as he describes in his own statement. I, with direct questions, find criteria A1 and 2 acceptable clinically and will treat him as a person with Post Traumatic Stress like Disorder while other disorders which could cause his behaviour are being eliminated. Eg organic brain damage from alcohol and fighting with head injury.”
9. On 29 October 2001, Dr. Freed reported:
“Mr. Raymond Williams suffers from combat caused Post Traumatic Stress Disorder. He is not able to work due to Post Traumatic Stress Disorder. Mr. Williams is unable to work reliably for eight hours per week.”
10. The Tribunal is satisfied that the Applicant satisfies the provisions of subsections 24(1)(aa), (aab), (a)(i) and (b) of the Act.
11. The only matter left for determination is whether the Applicant satisfies the provisions of subsection 24(1)(c) of the Act. That is, whether the Applicant is, by reason of incapacity from war-caused PTSD alone, prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of wages or of earnings that he would not be suffering if he were free of the PTSD.
12. The following background matters are not in dispute and the Tribunal finds that:
(a)The Applicant served in the Royal Australian Army as a truck driver from 8 July 1970 to 1972. During this period he rendered eligible service in Vietnam from June 1971 to December 1971.
(b)After his discharge in 1972, the Applicant obtained civilian employment as a truck driver. He continued his employment as a truck driver until he lost his driving licence in 1986, due to a succession of drink driving convictions.
(c)From 1986 to 1989 he did general handyman work.
(d)From 1989 to 1991 the Applicant worked for eighteen months for ACI Packing in Rocklea doing mostly labouring work which included lifting 20 kg bags.
(e)After working in the plastics factory he then began cleaning type jobs. He would clean stores such as Woolworths and other commercial premises. He worked mostly in the evenings by himself for a few hours, five nights a week.
(f)In 1996 the Applicant injured his back at work after he fell down some stairs while he was mopping. He ceased work after his fall and received Workcover payments for one month. He then received social security sickness benefits.
(g)The Applicant applied on 20 February 1997 for a service pension after advice from Centrelink and the Vietnam Veterans’ Association. The Applicant originally claimed for :
“Back pain across lower part of back around middle across top and shoulders, 1/4/1996.
Cannot carry heavy items as polisher back pack vacuum mop bucket or do any bending for long time.”
(h)The Applicant was granted service pension, permanently incapacitated, due to back, knee and ankle problems, from 3 July 1997.
13. The Applicant gave evidence before the Tribunal and made the following points, among others, about his work history.
(a)He recovered from his back injury after a period of twelve months. He participated in a heart safe course, a PTSD course and a lifestyle course. These courses assisted him in changing his lifestyle and he would walk up to five kilometres per day and would go to the gym twice a week. His left knee no longer bothers him.
(b)After his back injury resolved in 1997 he did not return to work as a cleaner because he was afraid of working at night.
(c)Between 1997 and 2000 he did not look for any employment. He believed that if he found work and became engaged in remunerative employment the income would cause his service pension to be cancelled.
(d)He was admitted to hospital in 2000 after attempting to take his own life.
(e)During 2000 to 2001 the Applicant sold concrete display items at the Fernvale Markets. He received a small commission on the items he sold each week. He never earned in excess of $140.00 per week. The Applicant found working around large numbers of people difficult and on some occasions he would leave the stall for his wife to take care of while he would walk off to be by himself.
(f)In August or September 2001 the Applicant and his second wife separated and he relocated to Townsville. It was when he relocated to Townsville in September 2001 that he first looked for work since ceasing in 1996. Between 2001 and November 2002, while the Applicant was in Townsville, he regularly attended Centrelink to search for possible jobs. He told the Tribunal that he was willing to be employed. He also stated that he could not find any work that was suitable for him and that he never obtained an interview.
(g)In cross-examination he stated that any job he did apply for he informed prospective employers that he had previously received compensation for his back injury. Once potential employers were aware of this they were no longer interested in him. He had telephoned approximately three potential employers during the 12 month period.
(h)The Applicant also gave evidence that he never told any prospective employers that he had PTSD.
(i)In October or November 2002 the Applicant relocated to Nanango and lived on a property of ten acres. He did not look for work in Nanango because he understood that it was difficult to find employment in the area.
(j)The Applicant returned to Townsville in April of 2003. His PTSD had become worse and he has not looked for work since that time. He states that he is too ill to return to workforce.. He told the Tribunal that he just wants to have a peaceful existence where no one can upset him.
14. The Tribunal also received into evidence various medical reports concerning the status of the Applicant’s orthopaedic problems.
15. Dr Roger Watson provided a report to the Respondent dated 31 October 2000, in his report he concluded:
“ I am confident that his low back pain problem is of minimal degree and in its own right would not prevent him attaining open employment in the community other than in very physically orientated work roles.”
16. Dr P Brazel , orthopaedic surgeon, stated in his report dated 5 June 2001 as follows :
“Mr Williams first presented in 1996, at which time he has related to intermittent low back pain which first commenced after a fall. Mr Williams tells me that in 1996 he stopped cleaning due to psychological, as well as back symptomatology. Mr Williams now tells me that his back symptomatology, whilst initially troublesome, has to an extent resolved. He said that the resolution had occurred with time and chiropractic treatment. He now tells me that he can walk five kilometres per day and can sit for two hours without symptomatology.
Mr Williams tells me that his sleep pattern is not disturbed. He said that he takes some Tramal and analgesic for neck symptomatology and Losec for depression. He tells me that he does not smoke, although consumes alcohol in heavy quantities. He has no documented drug allergy.
Mr Williams underwent a cooperative examination on 6 June 2001. His stated weight was 130kg and stated height was 178cm. There were no signs of inorganic pain behaviour detected. Mr Williams ambulated normally. There was no localising tenderness. On forward flexion he could reach his outstretched hands to his ankle. Extension was full, of normal rhythm and unlimited. He could squat without difficulty. He had normal straight leg raising and no abnormal neurology.
In summary, Mr Williams is a 50 year old gentleman who was morbidly obese. On today’s history and examination, I could find no symptomatology that would be consistent with his back limiting any activities that he wishes to pursue. I therefore believe that if Mr Williams cannot work, I do not believe that there is a spinal cause for this.”
17. Dr. Peter Boys provided the following diagnosis of the Applicant’s back condition in his report dated 5 March 2003:
“HISTORY OF CURRENT COMPLAINT
Mr Williams is 52 years of age and has received disability benefits since approximately 1996. He last worked in 1995 as a commercial cleaner. I note that Mr Williams has a stress-related condition accepted by Veterans’ Affairs as being service related.
Mr Williams does relate symptoms associated with the lumbar spine. He can recall no symptoms of note prior to 1995. He relates an incident in the course of his work as a cleaner at that time in which, whilst mopping a floor, he slipped and fell down a set of stairs. He describes striking a wire gate. He did have a WorkCover claim concerning this incident which ran for approximately one month. I note that Mr Williams ceased work at that point and has received disability benefits since. He relates no specific treatment for the back at that time other than initial physiotherapy treatment.
Mr Williams does relate intermittent symptoms associated with the lumbar spine in the period 1996 to 1999. He acknowledges General Practitioner attendances upon Dr Norman and Dr Bevan during this time. He can recall utilising analgesia, including Panadeine Forte in this period.
Mr Williams states that he attended a Heart Safe course in 1999. He entered into an exercise program at that time and described performing regular exercises including gym work and walking. Mr Williams states that with this regime of exercises his lower back complaint settled gradually over a six-month period. He describes attending the gym regularly and walking five kilometres twice per week during this time.
CURRENT COMPLAINT
Mr Williams states that his lower back is asymptomatic. He states that he is unrestricted with sitting, standing and walking. He is able to bend and lift. He lifts all normal items at home. He utilises a chainsaw regularly on his property to cut up wood. He states that he has recently assisted his daughter with a house move and managed all lifting including lifting furniture without low back strain.
EXAMINATION
Examination shows a morbidly obese man. Stated height is 5 feet 11, stated weight is 132 kg. Considerable abdominal obesity is evident. Mr Williams moves with considerable agility. His thoracolumbar spine is straight and non-tender. His gait is normal. He is able to heel and toe walk comfortably. He is able to flex his thoracolumbar spine to touch his feet. Rhythm of spine extension from that position is normal. There would appear to be slight restriction of full spinal extension which is stated to be painless. Lateral flexion and rotatory movements are preserved. Straight leg raising is 80 degrees bilaterally with a degree of hamstring tightness. Neurological examination of the lower limbs shows intact muscle power, superficial sensation and symmetrical deep tendon reflexes.
RADIOLOGY
Radiographs of the lumbar spine (4/9/1996) show anterior osteophytes at the T5/L5, L1/2, L3/4 and L4/5 levels. Intervertebral disc heights are preserved.
OPINION
It is my opinion that Mr Williams has a degenerative lumbar condition which, on his description, is asymptomatic at this time.
This gentleman’s examination at this time is unremarkable with well-preserved painless spinal movement. His stated functional capacities are excellent.
I do not believe this gentleman’s spinal condition would preclude light to moderately heavy employment. He remains obese and does, however, have an undoubted propensity to low back strain in the light of the degenerative changes evident. I do not believe, however, that the spinal condition would materially contribute to work incapacity at this time.”
18. It is not in dispute that the Applicant’s last remunerative work was as a heavy vehicle driver handyman and cleaner.
19. The evidence of the Applicant to the Tribunal, and his application for veterans’ pension dated 20 February 1997 indicates that the Applicant’s loss of employment in 1996 arose out of his injured back, plus the effects of his then undiagnosed PTSD. His back injury was not a war-caused disability. Consequently, his failure to continue to undertake remunerative work after 1996 was not by reason of incapacity from PTSD alone.
20. The Tribunal accepts the evidence of the Applicant and the medical evidence that the Applicant’s back condition had resolved by the date of Dr Watson’s report on 31 October 2000.
21. The Tribunal finds that at the date of the Applicant’s application, 12 February 2001, the Applicant‘s back injury was no longer one of the factors preventing him from undertaking remunerative work.
22. However, apart from his war-caused PTSD, there were other factors which contributed to the Applicant’s failure to undertake remunerative work after 1996. One important factor was that he simply did not want to work because he thought that his service pension would be cancelled. He did not look for work until September 2001. Another important factor was that when he started to look for work he could not get a job. His previous back problem turned off prospective employers. His PTSD was not a factor in his failure to get work.
23. Between November 2002 and April 2003, the Applicant lived at Nanango. He was not interested in working during that period.
24. The Tribunal accepts the Applicant’s evidence that by the time he returned to Townsville in April 2003 his PTSD had worsened to the point where he could no longer consider looking for work.
25. The Tribunal considers that the Applicant’s age in April 2003, 52 years, and his time out of the workforce, seven years, would not have been factors which would have prevented him from obtaining the type of work he had been doing, handyman and cleaning, in a city the size of Townsville.
26. The Tribunal finds that since 1 April 2003, the Applicant has been, by reason of incapacity from his PTSD alone, prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of earnings that he would not be suffering if he were free of PTSD.
27. The Tribunal sets aside the decision under review and in substitution decides that Raymond Dennis Williams is eligible to be paid disability pension at the Special Rate, pursuant to section 24 of the Act, with effect from 1 April 2003.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 23 July 2003
Date of Decision 22 January 2004
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor
Respondent Mr. J. Kelly, departmental advocate
0
0
0