WNFN and Repatriation Commission
[2010] AATA 813
•22 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 813
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2773
VETERANS’ APPEALS DIVISION ) Re WNFN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis
Member S J Ellis, AMDate22 October 2010
PlaceAdelaide
Decision The tribunal sets aside the decision under review and decides in substitution therefor that the applicant is entitled to a pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 11 February 2006.
D G Jarvis
(Signed)Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - Disability pension - rate of pension payable - special rate - Australian Federal Police officer - service in East Timor - applicant prevented from undertaking remunerative work by PTSD alone - decision under review set aside
Veterans’ Entitlements Act 1986 (Cth), s24
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Van Heteren (2003) 75 ALD 703
REASONS FOR DECISION
22 October 2010 Deputy President D G Jarvis
Member S J Ellis, AM
Introduction
1. The applicant was a career Australian Federal Police (AFP) officer. He deployed for three months to Timor with the United Nations from February to May 2000. On return to Australia he was suffering from depression and was diagnosed with Post Traumatic Stress Disorder (PTSD), and he subsequently lost his employment.
2. On 2 June 2008 the Veterans’ Review Board (VRB) decided that the PTSD suffered by the applicant was war caused as defined in s 9 of the Veterans’ Entitlements Act 1986 (Cth) (VE Act) and that a pension was payable from and including 11 February 2006. The VRB remitted the matter to the Repatriation Commission for assessment of the rate at which the pension should be paid.
3. A delegate of the Repatriation Commission subsequently decided that as a result of acceptance of the condition of PTSD, the pension was to be paid at 80 per cent of the general rate with effect from 11 February 2006. This decision was affirmed on review by the VRB in a reviewable decision dated 29 May 2009. The applicant then applied to this Tribunal for review of the VRB’s decision, seeking payment at the special rate.
4. The applicant’s entitlement to the pension at the special rate is to be determined under s 24 of the VE Act. It was common ground that he satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70 per cent of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in ss 24(1)(a)(i) and 24(1)(b) respectively of the VE Act.
Issue for Determination
5. The issue before the Tribunal is whether the applicant 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.
6. We have reached the conclusion, for the reasons set out below, that the applicant has satisfied the requirements of s 24(1)(c) of the VE Act and so is entitled to a pension at the special rate from 11 February 2006.
Background Facts
7. The following background facts are not in dispute, and are based on the evidence of the applicant and on the documentary material before us. We found the applicant to be a reliable witness, and accept his evidence.
8. The applicant is aged 54. When he was 19, he started work at Woomera with the Australian Services Canteens Organisation, and about two years later, on 20 October 1975, he joined the Australian Police, the predecessor of the AFP. He stopped working at the AFP in November 2002, and his employment with the AFP formally ceased late in 2006.
9. He served within Australia throughout his career apart from a deployment on war-like service, which was operational service in East Timor from 12 February to 13 May 2000. During that deployment he suffered a knee condition, which he attributed to sleeping in a bent position on stretchers, and some consequential back pain. He was subjected to severe psychological stressors when operating in isolated areas of East Timor, where he was operating unarmed. Whilst military support was in place for some of the time, this was later withdrawn. The applicant and his colleagues suffered considerable animosity from Falantil guerrillas, including his police station being shot at and weapons being placed against his face.
10. On return from duties the applicant was put on restricted duties due to his knee condition. He received physiotherapy treatment two days a week. He was advised that the trauma he was suffering would ease, but this did not occur. However, he resumed full duties on 24 September 2000. After that, he tended to compensate for his depressed mood by working longer hours and volunteering for additional work to keep himself fully occupied. In November 2002 the applicant recommenced work in Adelaide after a period of six months’ work in Canberra and a week’s leave. He was told on the first day of his return to work that he was to be transferred back to Canberra. He then left his office, felt unable to cope, and was suicidal. Later that day he was admitted to the Royal Adelaide Hospital, and has subsequently been admitted to hospital on a number of occasions, at intervals of an average of approximately one year apart.
11. He did not return to work with the AFP following the event in November 2002, and received compensation from Comcare. He was diagnosed with PTSD and major depression. He still continued to receive some physiotherapy treatment on his knee. In late 2006 his Comcare entitlement ceased. Comcare had arranged a short-term placement at Websters (erroneously referred to as Kingswood Investigations in some documents) in 2004, where he assisted in an application by that firm for a security licence. His work was described as satisfactory, although there was no face-to-face contact with clients, and there was no opportunity for on-going work. A subsequent placement through Comcare at Centrelink was unsuccessful due to his psychological condition. He was working in a very busy office, in an open-plan environment and experienced anxiety and distress. This placement ceased because he was unable to cope, and he was then hospitalised again.
12. Eventually his employment with the AFP formally ceased late in 2006, and the applicant claimed benefits pursuant to the VE Act. We have referred above to the history of his claim.
Legislation
13. If s 24(1) of the VE Act applies the applicant is entitled under s 24(4) to a pension at the special rate therein provided. Sections 24(1)(c) and 24(2)(a) of the VE Act provide 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; and
…
(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; …”
Consideration
14. In considering the application of s 24(1)(c) of the VE Act, we 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?”
15. 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 124(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)).
16. The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; Repatriation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996.
What was the remunerative work that the applicant was undertaking?
17. As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223. It was common ground that since 1975, the applicant had been employed with the AFP or its predecessor, the Australian Police. This work constituted virtually the whole of the applicant’s working life, except for his two short placements through Comcare and his work at an early age for the Australian Services Canteens Organisation, which we do not regard as relevant for present purposes.
Is the applicant prevented from undertaking that work?
18. The second question in Flentjar is whether the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work which we have found is relevant. As mentioned above, the Commission has conceded that s 24(1)(b) is satisfied.
19. The remunerative work referred to in s 24(1)(b) has a broad meaning, and is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: s 28 of the VE Act; Chambers v Repatriation Commission (1995) 55 FCR 9 at 19, per Moore and Sackville JJ. The Commission’s concession that s 24(1)(b) has been satisfied therefore entails an acknowledgment of the very significant extent to which the applicant’s war-caused conditions have interfered with his capacity to undertake work, including the type of work which he had been previously undertaking. We are satisfied from the evidence before us that by reason of his war-caused conditions, the applicant has, at least since the date of his application for pension, been prevented from continuing to undertake the type of remunerative work which he had previously undertaken.
Is the war-caused condition the only factor preventing the applicant from continuing to undertake that work?
20. The third question in Flentjar refers to the “alone” test in s24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.
21. In Cavell, Burchett J said further, at [539], that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”. In Forbes, RD Nicholson J said at [39]: “The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
22. Mr Crowe, the advocate for the Commission submitted that the applicant did not meet the “alone” test, and referred to the difficulties that the applicant has had with his knee, and also to his back pain. He relied (inter alia) upon evidence as to the condition of the knee described in a functional capacity evaluation report of 27 September 2000, a later medical certificate and a later report by a workplace consultant.
23. The applicant admitted that his knee had troubled him since his deployment to East Timor, and that his knee problem continued for a long time. He also said that because of the pain from his knee, he would walk favouring one side and that led to his suffering back pain. However, he said that whilst he had a “constant ache” in his knee, it did not stop him completing his policing duties, which were very largely computer based. In addition, he said that his back was of less concern than his knee, and did not to stop him working. He also said that his knee was at its worst when it was untreated in East Timor, but it gradually got better. He said that he went to a new physiotherapist in 2008 who provided Bowen treatment on a weekly basis for at least eight months and she “did wonders with [his] knee and back”, and he described his knee as now “very good”.
24. The Commission also presented an argument that because the applicant carried a baton, handcuffs and a weapon which he might have been required to use, a knee condition that impaired his movement could have contributed to his inability to work with the AFP. The applicant said that he had never been required to use his baton, handcuffs or weapon operationally in all of his 27 years’ work with the AFP. He said that, in any event, the practice of the AFP was that he would be accompanied by another officer on those relatively few times when he was engaged in outside operational work; and because of his years of service, the other officer was invariably younger than him, and if there was an emergency that other officer would also be able to use any necessary restraining force. Approaching this matter therefore with an eye to reality and from a common-sense point of view, we do not think that any residual ache or pain in the applicant’s knee or back would contribute to his being prevented from undertaking his work with the AFP.
25. Further, the applicant was on restricted duties for a period following his return from East Timor in 2000, and it would appear that the AFP accommodated his ongoing knee condition during that period, and after that, he reverted to ordinary duties, notwithstanding his then knee and back pain.
26. The applicant was cross-examined about a statement in the VRB decision that his “left knee was in a brace and he used a stick. This material bears on a consideration of the provisions of s 24 (1) (c)...”. The applicant vigorously denied this. We asked the Commission to seek advice from the VRB concerning this statement, and to review the transcript of the VRB proceedings. After doing this, and speaking to the VRB members sitting at the time, the Commission accepted that the applicant was not wearing a knee brace or using a stick at the time of the VRB hearing, and that this statement was an error.
27. Dr Ford, the applicant’s treating psychiatrist, confirmed in letters dated 15 and 22 December 2009 that the applicant:
(a)is not capable of working more than eight hours per week and if anything, his psychiatric condition has worsened; and
(b)was certified unfit for work with the AFP since around November 2002.
It was clear from his evidence that he regards the applicant’s condition of PTSD as very disabling indeed.
28. The applicant also relied upon the evidence of Dr Peter Penglis, a consultant rheumatologist. In a report dated 5 May 2010, Dr Penglis reported that on reviewing the applicant that day, he obtained a history that there had been a significant improvement in his symptoms following physiotherapy and a graded exercise program, and that the applicant had minimal to no pain. He said that there was no instability associated with the knee and clinically there was no effusion and a normal range of movement. He further reported that his lower back had remained stable, and that it was mostly asymptomatic, as had been the case when he saw him previously in January 2008. He considered that “heavy physical activity would be inappropriate but all other forms of employment would seen reasonable and feasible.” (exhibit A5, page 2). In an earlier report dated 26 March 2010 (exhibit A4), Dr Penglis described the applicant’s knee and back condition as at January 2008, and said that those conditions entailed some restrictions on work-related activities. However, we do not think that those restrictions would have contributed to the applicant being prevented from undertaking his work with the AFP. Dr Penglis confirmed his findings and opinion in evidence.
29. The applicant gave details of the nature of his employment with the AFP, including in particular the kinds of activities that he engaged in on those occasions when he was not working in an office using a computer. It was apparent that none of his duties entailed any heavy physical activity or other activity that would be impeded by any residual problem with his knee or back.
30. We are satisfied that the applicant is prevented from undertaking remunerative work as a result of his psychological condition alone, and that that has been the position since 11 February 2006, having regard to the requirements of his work with the AFP.
Is the applicant suffering a loss of wages or earnings?
31. The fourth question in Flentjar is whether, if the veteran has been prevented by his war-caused conditions alone from undertaking remunerative work, he has suffered a loss of wages or earnings that he otherwise would not have suffered. This question must be considered by reference to s 24(2)(a)(i), which provides in effect that in order to suffer a loss of wages or earnings, a veteran must not have ceased to engage in remunerative work for some reason other than the veteran’s incapacity from war-caused conditions.
32. In Repatriation Commission v Smith (supra) Beaumont J, with whom Northrop and Spender JJ agreed, said at 337: “As has been said, the question posed by s 24(1)(c) is one of hypothetical facts. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities”.
33. In Repatriation Commission v Van Heteren (2003) 75 ALD 703 Finn J considered the relevance of the deeming provisions of s 24(2)(a)(i). His Honour said, at [25]:
“This question is not answered simply by finding that, in the assessment period, the veteran is unable to engage in any remunerative work. It in fact presupposes that he or she may well not be: cf 24(1)(b). And because of the deemed ‘no loss’ provisions of s 24(2)(a)(i) which apply where the veteran has ceased to engage in remunerative work for reasons other than his or her war-caused conditions, it requires an examination of the reasons why the veteran ceased work.”
34. The applicant indicated that he had wished to continue serving in the AFP for over 40 years, and was hoping to have become the AFP’s longest serving officer. We are satisfied that the applicant has suffered a loss of earnings through losing his employment with the AFP based on his war-caused condition of PTSD alone.
Decision
35. The Tribunal sets aside the decision under review and decides in substitution therefor that the applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 11 February 2006.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President
D G Jarvis and Member S J Ellis, AMSigned: ……............ (Signed) ...........................
Associate
Date/s of Hearing 30 July 2010 and 24 August 2010
Date of Decision 22 October 2010
Counsel for the Applicant Mr J Miller
Solicitor for the Applicant Lempriere Abbott McLeod
Advocate for the Respondent Mr Adrian Crowe
0
9
0