Wischusen and Repatriation Commission
[2004] AATA 899
•27 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 899
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/107
VETERANS' APPEALS DIVISION ) Re IAN WISCHUSEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member KL Beddoe Date27 August 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd]........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – rate of pension – special rate – several factors led to applicant ceasing remunerative employment including the applicant’s PTSD, the sale of the business and his wife’s health – all made material contributions – war caused condition not the sole reason for ceasing remunerative work – no genuine attempts to seek remunerative employment – decision affirmed
Veterans’ Entitlements Act 1986 s 24
REASONS FOR DECISION
27 August 2004 Senior Member K L Beddoe 1. The applicant seeks review of a decision of the Veterans’ Review Board which decided that:
(a)The condition of psoriasis is a war caused condition with effect from 19 August 2001; and
(b)Disability pension be assessed at 80% of the general rate with effect from 19 August 2001.
2. The issue before this Tribunal is whether the applicant is entitled to the special rate pension in accordance with section 24 of the Veterans’ Entitlements Act 1986 (“the Act”).
3. Paragraph 24(1)(c) of the Act reads as follows:
“(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;”
4. There is acceptance by the respondent that the other terms of section 24(1) [other than paragraph(c)] have been satisfied.
5. On the facts of this case paragraph 24(2) of the Act is also relevant. It reads as follows:
“(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
(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. Sub-section 120(4) of the Act requires the Tribunal to decide this matter to its reasonable satisfaction.
7. At the hearing, Ms Brennan appeared for the applicant and Mr Smith represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered on behalf of the applicant and marked as exhibits.
8. Oral evidence was given by the applicant, his wife and Dr Gelb.
9. The applicant’s accepted disabilities are:
(a)Bilateral Sensorineural Hearing Loss with Tinnitus;
(b)Post Traumatic Stress Disorder;
(c)Alcohol Dependence or Alcohol Abuse; and
(d)Psoriasis.
10. The condition Carpal Tunnel Syndrome has been determined to be not service related.
11. The applicant was born on 1 August 1938 (63 years of age at date of application) and served in the Australian Army from 7 May 1957 to 1 August 1958 under the National Service Act and in the CMF from 16 August 1958 to 25 March 1963. He enlisted in the Australian Regular Army on 22 January 1963, was commissioned, saw operational service and resigned on 3 November 1983.
12. After resigning his Commission, the applicant worked in an administrative role at the Queensland Agriculture College and then as an inspector for a roofing business at Toowoomba.
13. The applicant ceased employment at Toowoomba in 1997 because of his wife’s ill health and they moved to the Sunshine Coast. Not being able to find work they purchased a management rights business and associated residential unit in a block of holiday units at Maroochydore so as to acquire a “nest egg” for retirement.
14. I am satisfied, from the applicant’s point of view, that was a mistake because he found dealing with people difficult. He tended to get irritable and annoyed with people to the extent that he could not cope with aspects of the business and left much of the running of the business, other than office work and outside cleaning etc, to his wife. In particular he avoided contact with customers and unit owners if he could but notwithstanding his avoidance tactics they were “getting under my skin”.
15. The applicant said, in effect, that his attitude to others was not conducive to running a successful management rights business.
16. Some of the applicant’s problems with the business seem to have had their genesis in the attitude of unit owners rather than the attitude of the applicant. It was the applicant’s response to these unit owners that also became a problem for him. In all of this the applicant’s wife seems to have continued to conduct most aspects of the management business successfully with assistance from the applicant and other family members and notwithstanding a want of consistent input from the applicant.
17. The particular problem with unit owners seems to have commenced in 1998 and come to a head in May 1999 (Exhibits A and F).
18. Whether the problem with unit owners was the trigger is uncertain but both the unit and the management rights were put up for sale in September 1998 (Exhibit F). The unit and the rights were sold effective from 30 June 2000.
19. In the result the business had been successful. This is shown by the income taxation returns of the business which show the following:
Net Income Applicant’s share of
Net Income
Year ended 30 June 1998 $7,450 $1,725
Year ended 30 June 1999 $15,562 $3,681Year ended 30 June 2000 $22,032 $6,016
(The 1998 year figures are for 11 months)
20. The applicant and his wife are partners in the business. I accept that the distribution of net income reflects the wife’s greater participation in the day to day running of the business but may also reflect an element of tax planning given that the applicant derived income from pensions.
21. It is apparent, on the basis of the income taxation returns alone, that the business was successful from the point of view of the applicant and his wife, in that they increased the net income each financial year.
22. The applicant’s income taxation return for the year ended 30 June 2000 shows his share of the capital gain on sale of the management rights as $19,343. Consideration on sale of the unit and the management rights business included transfer of a property at Pomona where the applicant and his wife now reside. I accept that sale of the business was drawn out but I do not know whether that was other than normal for such a business. I infer that the business was sold at a price acceptable to the partners.
23. I also accept that the applicant suffered a loss of income on sale of the management rights business. I also accept, on the basis of Dr Gelb’s report that the applicant is unable to work more than eight hours per week. But I am uncertain as to when this became the fact. Dr Gelb saw the applicant in or about September 2003.
24. The applicant said that he did most of the physical work outside and also the office paperwork. The outside physical work included the following:
(a)sweep stairwells, community areas;
(b)empty, put out and clean rubbish bins;
(c)clean swimming pool and pool area before 7.30am;
(d)carry out random security patrols of the property at night;
(e)lawn and garden maintenance; and
(f)minor maintenance repairs and supervision of contractors for other maintenance work.
25. In a document headed “Employment Report”, the applicant said that he worked 12 to 14 hours per day in the management rights business (T9/65).
26. The management rights were purchased by the applicant and his wife in 1997 for $57,166 and sold at 30 June 2000 for $95,852 resulting in a capital gain of $38,686.
27. I am satisfied the applicant has not sought remunerative work since selling the management rights business.
The Medical Evidence
28. The applicant attended on his general practitioner, Dr Chester, on 19 March 1999, who reported to the applicant’s solicitor by letter dated 13 February 2002 as follows:
“…his presenting complaint was that of Sleep disturbance related to the stress of the business at the time. I advise (sic) the management of the sleep problem with life style changes and the addition of the medication to help aliviate (sic) the sleep pattern. I encourage (sic) the sale of the business and believe the sleep pattern would improve with the sale of the business and the reduction in the stress in life.”
29. Another general practitioner, Dr Kirkman, made a standard form report dated 14 January 2002 which, interalia, answered the question “Do the medical conditions of themselves alone prevent or restrict Ian Wischusen from working?” as follows:
“Personality issues
His age – ready for retirementNot motivated to work”
and later on the form:
“Aged 63. Retired due to relationship stress with the public. Is related to PTSD.”
30. Document T12 is a copy of a report by Dr Gelb, Consultant Psychiatrist, dated 11 April 2002 and addressed to the Department of Veterans’ Affairs. The report gives a detailed history relevant to the applicant’s claim to have post traumatic stress disorder accepted as a war caused disability. It includes the following:
“Following Vietnam, his frequent intrusive recollections caused him to drink to excess and his marriage suffered severely and went close to ending. He did not seek any help for these symptoms as he did not want to jeopardise his future career as a professional Army officer. Over the last three years, his symptoms of flashback, nightmares, sleeplessness and irritability have returned and seem to be getting progressively worse. This has been particularly so since he retired in June 2000. He is also having problems socialising or doing previously enjoyed recreational activities. He finds it very difficult to meet people socially and has become very anxious if he tries to take out his boat.
In terms of his work, Mr Wischusen retired in 1997 and tried to find other work. As this was virtually impossible, he decided to go into business in partnership with his wife, and they purchased the management rights to Surfcomber on the Beach, a small block of holiday units at Maroochydore. They took over in September 1997 and over the next 12 months, Mr Wischusen found that he was not coping with the work very well. He became very irritable in dealing with the customers and was easily annoyed. He was also finding it difficult to cope with the unit owners and was moody and irritable. He was experiencing significant insomnia and consulted his general practitioner. He was also experiencing nightmares and flashbacks regarding his war service but he did not tell the doctor about these, as he says that he could ‘ill afford to lose the business through illness’. He also thought that these symptoms were due to the strain of the business and that once he sold it, the problems that he was experiencing would stop. He put the business on the market but could not find a buyer. At the same time they were having many problems with the Body Corporate and it was not until June 2000 that they were able to sell the business conditional on their accepting a property at Pomona as part of the settlement. Because they were desperate to finish with the business, they accepted this settlement. Since then, Mr Wischusen has found that his symptoms have worsened…”
31. Dr Gelb concluded, relevantly, that the applicant was likely to remain totally and permanently incapacitated for remunerative employment. Dr Gelb made a further report dated 10 September 2003 addressed to the applicant’s solicitors. The report deals with the applicant’s claim for special rate pension. It again overlooks the admitted fact that the applicant moved to Maroochydore because of his wife’s ill-health – hence the reason for his ceasing employment in Toowoomba.
32. Some aspects of the history recorded by Dr Gelb are inconsistent with the evidence before this Tribunal. In particular, I do not accept the suggestion that the applicant was incapable of working efficiently for more than eight hours per week up to the time the business was sold. In the result I am satisfied that I should not attach any weight to Dr Gelb’s second report because I am satisfied it seeks to swear the issue. It also fails to take into account his previously reported finding that the PTSD condition had worsened after the applicant ceased to carry on the business at Maroochydore.
33. In coming to those conclusions, I have taken into account Dr Gelb’s oral evidence. That evidence satisfied me that Dr Gelb had sought to make a report consistent with the documents which are now Exhibits A and B in these proceedings, being statements of the applicant and his wife which had been provided to Dr Gelb. Those statements are dated 3 June 2003 and 5 July 2003 respectively, that is, more than 12 months after Dr Gelb saw the applicant on 25 February 2002.
34. During the course of oral evidence, Dr Gelb said he had understood that the applicant ceased employment in Toowoomba because of an arm/shoulder condition.
Consideration
35. I accept that the applicant found managing the units’ management business difficult because he was required to interact with the unit owners and customers.
36. I also accept that the applicant’s behaviour placed an additional burden on his wife who, in herself, had her own health problems. That situation resulted in family members having to assist in the business from time to time.
37. I accept that the applicant’s response to the demands of the business was avoidance but I do not accept, on the basis of the applicant’s own evidence, that his avoidance tactics resulted in his being unable to perform his duties as a partner in the business in his own way. His evidence is that he was working 12 to 14 hours per day albeit that he was not performing adequately in his wife’s view.
38. Clearly both the applicant and his wife decided by September 1998 that they wished to sell the business but they did not decide to walk away from it because they continued to run it, with increasing profitability, until a sale was achieved.
39. While it was sought to suggest that the sale was unsatisfactory because part of the consideration of sale of the unit and the business was the property at Pomona, the fact is that a substantial profit was made on the sale of the business. That profit would, I infer, reflect the improving profitability of the business.
40. The relevant work being undertaken by the applicant was as a working partner in the units’ management business (including body corporate site maintenance duties) conducted by himself and his wife in partnership.
41. It was recognised by the partners that the applicant’s wife made a greater contribution to the business and she was remunerated accordingly. It was also recognised that the applicant’s wife had her own health problems and needed family assistance from time to time.
42. The applicant continued to perform duties as a partner in the business until the business was sold. That is the relevant remunerative work for the purposes of paragraph 24(1)(c) of the Act.
43. As a question of fact the applicant was not prevented in carrying out his duties as a partner in the business because he continued to undertake that work until the business was sold. In so far as Dr Gelb suggests the contrary, I am satisfied, as already explained, that I should not give any weight to Dr Gelb’s opinion.
44. I am satisfied that at least three factors are relevant in preventing the applicant continuing to undertake the remunerative work. They are:
(a)sale of the business;
(b)the applicant’s PTSD; and
(c)the state of health of the applicant’s wife.
45. I am satisfied, on the balance of probabilities that each of those factors made a material contribution to the applicant ceasing to engage in remunerative work.
46. As to the reasons for sale of the business, I am satisfied that it was not the applicant’s PTSD alone which caused the sale. The business was sold when a “nest egg” had been achieved. That is evidenced by the time it took to sell the business and the acceptance of the property at Pomona as part of the consideration for the unit and the business.
47. I cannot be satisfied, on the balance of probabilities, that the applicant was suffering a loss of earnings on his own account that he would not be suffering if he were free of the war caused incapacity.
48. For these reasons the decision under review will be affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe
Signed: Sarah Oliver
AssociateDate of Hearing 25 February 2004
Date of Decision 27 August 2004Counsel for the Applicant Ms M Brennan
Solicitor for the Applicant Noel Woodall and Associates
For the Respondent Mr M Smith, Departmental Advocate
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