Wright and Repatriation Commission
[2004] AATA 1047
•7 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1047
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/119
VETERANS' APPEALS DIVISION ) Re KEVIN JAMES WRIGHT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date7 October 2004
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and substitutes a decision that the applicant is qualified for payment of Disability Pension, at the Special Rate, with effect from 18 April 1999.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – if Special Rate of pension is payable to the applicant pursuant to s 24 of the Act – post traumatic stress disorder – alone test – decision set aside
Veterans’ Entitlements Act 1986 s 24
REASONS FOR DECISION
7 October 2004 Senior Member WJF Purcell
1. This is an application for review of a decision of the Veterans’ Review Board (VRB) dated 20 February 2002, which set aside a decision of the respondent (the Commission) of 5 July 1999, which assessed Disability Pension at 70 percent of the general rate, and substituted a decision that Disability Pension be assessed at 70 percent of the general rate from 29 December 1998, and 100 percent of the general rate from 18 July 1999.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the parties. Mr Liptak represented the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, and Mrs Shirley Wright, his wife, as witnesses. Mr Crowe represented the Commission.
3. The applicant, who is now 60 years of age, was born in Lismore, New South Wales, and enlisted in the Australian Army (the Army) in 1960. He left after nearly 21 years of service, in 1981, at the age of 38, with the rank of Warrant Officer, Quartermaster Sergeant.
4. The applicant’s last employment was as a contractor, on a franchise basis, with First Fleet Express, a delivery service. He last worked in June 1998. He maintains that he is entitled to payment of Disability Pension at the Special Rate and that he satisfies s 24 of the Veterans’ Entitlements Act 1986 (the Act), which as far as is relevant for the purposes of this review, provides:
“(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 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.”
5. It is not in dispute that the applicant satisfies ss 24(1)(a) and (b) of the Act. The Commission maintains that the applicant does not satisfy s 24(1)(c) of the Act, the so called “alone test”, in that he did not cease work because of war-caused conditions alone; his non-accepted conditions were factors contributing to his cessation of work. He has not been prevented from continuing to undertake remunerative work because of incapacity from accepted disabilities alone. The Commission maintains also, that the applicant does not satisfy the ameliorating provisions of s 24(2) of the Act, in that he has not been genuinely seeking work since ceasing his last employment. His war-caused disabilities have not been the substantial cause of his inability to obtain remunerative work.
6. The applicant served overseas in Borneo, Malaya and along the Thai border from 1963 to 1965. The majority of this service was operational service. In 1969 he suffered an injury to his knee whilst serving at Canungra, where he was working as an instructor. He was transferred to Daw Park Repatriation Hospital in Adelaide, where a left medial meniscectomy was undertaken by Mr Brian Cornish, Orthopaedic Surgeon. After his recovery, he served at Keswick Barracks for a period of time. He completed a course to become a Warrant Officer in stores and accounting, and then served at Puckapunyal, Canungra, Keswick, One Armoured Regiment, and then back to Sydney. In 1972 the applicant was allotted for service as a radio sergeant with 3 RAR in South Vietnam for 11 months. After his return from Vietnam he had an operation for ulcers, again at Daw Park Repatriation Hospital.
7. The applicant gave evidence that he had significant problems with drinking from at least the time of his service in Vietnam. In his last placement, he was drinking from at least 4.00pm, each day after work, until 10.00pm. He divorced from his first wife in 1981, and has 3 children from that marriage – Elizabeth, Michael and Christine. He says that his divorce from his first wife was very difficult, and he was estranged from his now adult children for some period of time, although their relationships are becoming better now.
8. The applicant left the Army on 16 December 1981, and received around $45,000 in separation pay. He says he had a gambling problem at that time, and that he wasted all the money on the poker machines. He obtained employment relatively quickly, as a security officer with the Australian Wool Corporation. A job which he says was quite dangerous, because they were unarmed, and the wool stores were robbed regularly, after the arrival of shipments of alcohol and cigarettes. In 1982 he got a job at Grace Brothers retail store as a security guard, where he met his present wife, Shirley. He says that he continued to drink heavily each day. In 1986 he and Mrs Wright moved to Adelaide, where it took him a while to find a job. He obtained employment working for a short period at Grace Removals as a casual, and then obtained a full-time job as a security officer, on rotating shifts, at John Martins retail store, at Kilkenny. He then went to work again with Grace Removals, doing furniture removals. He suffered an exacerbation of the earlier problem with his knee whilst working for Grace Removals, and had time off on WorkCover payments. His services were terminated in 1991.
9. The applicant says that he subsequently obtained work placements through WorkCover, as a security officer at Plant Life Products, and at the Brickworks Markets, but says that each job became difficult after 6 months, because the employers did not wish to retain employees after the WorkCover contribution towards their pay ended. The applicant says that he always had problems in his employment relating to and dealing with people. It was not so difficult at the Brickworks Markets, as he did not have to deal with other people, and there were no time pressures. He merely had to check the area, accompanied by the two guard dogs.
10. Mrs Wright said in evidence that by 1993 she contemplated giving up her full-time job, because the applicant was not coping with his work. He was drinking to excess every evening after work, and sometimes she had to ring the local hotel to urge him to come home. She said that alcohol affected him badly. He was okay for the first 5 full strength beers, but became aggressive and argumentative if he drank any more. When he drank at the RSL club on a Friday night, his friends would ring Mrs Wright, after he had about 5 drinks, and ask her to come and take him home, before there was an argument.
11. In 1993 the applicant and his wife decided to set up a contract delivery service. They obtained a contract with RED Deliveries service on a franchise basis. They took out a loan for $20,000 and purchased a van. The applicant says that he realised at the time that they started the venture that he was not really coping working by himself, and he could not have done the job by himself. At this time he knew nothing about PTSD. He thought he was a difficult person. Shortly before they were to commence the contract work with RED Deliveries, Mrs Wright went to Sweden to visit her son. During the first week of her absence, the applicant phoned her daily, screaming, and saying that he could not cope. He spent $600 on phone calls in a 2-week period. Mrs Wright returned to Adelaide after only 3 weeks away. She said that they were working around 11½ hours per day with RED Deliveries, and earning about $108 a day. In 1995 they received a better contract offer from another firm, Cadima, and worked for that firm until 1997. From 1997 to 1998 they returned to contracting for First Fleet Express, which had replaced RED Deliveries.
12. In 1997 the applicant commenced Workers’ Compensation proceedings against Grace Removals (subsequently renamed Brambles), in relation to a claim for exacerbation of his knee condition. These proceedings were not resolved until March 2001. Subsequently, on 1 May 2001, Mr R Atkinson, Orthopaedic Surgeon, undertook mobile bearing knee replacement surgery. The applicant gave evidence that the knee surgery was successful. He said that although it still “aches a bit”, it would not prevent him working, particularly if he could obtain sedentary work, driving, as recommended by Dr Atkinson [Exhibit A5]. Mrs Wright gave evidence that the applicant can get around quite well now. They walk their two dogs daily, and although the applicant’s knee gets tender from time to time, they walk long distances.
13. The applicant gave evidence that during the time they worked for RED Deliveries, Cadima and First Fleet Express, he had a number of problems in dealing with people. Mrs Wright had to keep him in line, or else he would become exceptionally angry with people. She would take parcels into the various locations, unless they weighed more than 15 kg. She did not like him dealing with the customers because of his anger. She told him that during this time she had to tiptoe around him, and work out very carefully the routes that he was meant to travel so that he was well prepared. He had to be very organised or he would become agitated and angry if there were any unforeseen problems. Mrs Wright’s evidence was in a similar vein.
14. The applicant said in evidence that Mrs Wright suffered severely from osteoarthritis, and in June 1998 her treating physician told her that she had to cease work. Mrs Wright gave evidence, which I accept, that her physician, Dr Shepherd, told her on 19 June 1998, that she had to stop work “now”, or she would be crippled. She said that the applicant drove the van, and she did the deliveries, and carried quite heavy weights which caused her hands to be painful and swollen. The applicant and Mrs Wright terminated their contract with First Fleet Express, the day of Mrs Wright’s consultation with Dr Shepherd. Neither the applicant, nor Mrs Wright, has worked since June 1998.
15. The applicant said in evidence that he is now too anxious to go anywhere on his own. He is always accompanied by Mrs Wright. Mrs Wright said in evidence that the applicant could not cope with working unless she was with him. He had become so dependent on her to “smooth the way”, and curb his annoyance and frustration. She said that once he ceased work in June 1998 the applicant became very depressed and withdrawn. He would sit and drink alcohol and watch Foxtel. She was unable to motivate him to go for walks, to mow the lawn, or to go on outings. She says that she became so frustrated by his behaviour that she made several appointments with the Vietnam Veterans’ Counselling Service, and eventually in January 1999 the applicant agreed to attend. He was assessed subsequently by a psychologist, and with acknowledgement that he suffered from a psychiatric condition, continuing counselling and drug treatment, the applicant’s psychiatric condition has improved. His medication has calmed him. He has a few light beers during the week, but does not drink to excess.
16. Mrs Wright said in evidence that she thought that if she did not have osteoarthritis and was able to work, then the applicant could work with her, and they could return to the delivery work which is still available to them; but the applicant cannot cope on his own. She said also that once the diagnosis of PTSD had been made in early 1999, she realised that this psychiatric condition was the reason the applicant could no longer cope with work. Until then, she said, she had resigned herself to the fact that she had married a “very difficult person”.
17. Dr Ewer, Psychiatrist, reported on 28 May 1999 that in his opinion the applicant could perform some work, for 8-30 hours per week, taking into account his psychiatric problems. Dr Ewer said in evidence that when he saw the applicant again on 10 September 1999, he obtained more information from him in relation to his aggressive behaviour and his dependence upon Mrs Wright. Dr Ewer considered that the applicant was unable to work, because to a great extent, he was reliant upon Mrs Wright to moderate his aggressive behaviour, such as verbal aggression towards fellow workers. The applicant told Dr Ewer of an incident when a lady stopped in front of him for no apparent reason, when he was pushing a supermarket trolley. The applicant pushed the trolley into the lady, and there would have been a nasty confrontation if Mrs Wright had not guided the applicant away from the scene. Dr Ewer considered that the applicant gave up his last employment because of a range of psychiatric symptoms which interfered with his ability to work. His irritability and poor interpersonal skills were a major barrier to him working, and these problems were present still in September 1999. Dr Ewer was of the opinion that the applicant could not work 8 hours per week because of his psychiatric illness. He commented that as the applicant had not as yet received the assistance of a psychiatrist and psychotropic medication, he would take a conservative approach and rate the applicant’s current mental state as “temporary”.
18. Dr Ewer gave evidence that on the last occasion he reported, on 12 February 2003, he considered that the applicant’s psychiatric symptoms had been persistent and unremitting despite appropriate treatment, counselling and psychotropic drugs, and that the condition could be considered to be permanent. The applicant’s symptoms are moderated by the medication, and Dr Ewer understood that the applicant’s anger had lessened, again with the medication; but he continues to have significant anxiety and worry and is reluctant to go out of the house. Dr Ewer considers the applicant unfit for paid employment. I accept Dr Ewer’s evidence.
19. In the course of their evidence, the attention of both the applicant and Mrs Wright was directed to the applicant’s claim for Disability Pension lodged on 18 January 1999 in relation to the disability of “painful left knee”, which he stated was injured during his military service. He stated in answer to question 22 – as to the date he ceased work – “19/6/98” – and the reason for ceasing work “knee too sore to continue work” [Exhibit R1]. This statement conflicts, obviously, with the sworn testimony they both gave at the Hearing – that it was Mrs Wright’s physician’s instruction to cease work because of her osteoarthritis, and the applicant’s inability to continue to work without her presence and assistance, that caused them to cease work on 19 June 1998.
20. The applicant said in evidence that they had sought the assistance of Mr Coxon of the Vietnam Veterans’ Association when completing the form. Because the applicant was involved in ongoing litigation with his former employer regarding the exacerbation of his knee condition, and the employer was denying liability on the basis that the injury occurred during military service, the applicant was advised by Mr Coxon to answer in the way he did. Mrs Wright gave evidence that she was present when the applicant and Mr Coxon completed the form, and although she regrets now that she did not protest at the time that the answer was not accurate, she accepted Mr Coxon’s advice; on the basis that the Workers’ Compensation claim would not be damaged. She said that the applicant needed surgery to rectify the knee problem. They could not afford the surgery, and they thought that if they put the information in the form the operation could be performed.
21. The applicant and Mrs Wright expressed their remorse at having provided incorrect information on the form, in an attempt to ensure that the knee operation could be undertaken. This aspect of the matter reflects adversely, of course, on the applicant’s and Mrs Wright’s credibility. I had the opportunity however, to assess them as they gave their oral evidence; and in all the circumstances of the matter I accept their explanation as to why the answer was given, and the sincerity of their expressions of sorrow. In all other respects I found their evidence to be credible. The applicant is a poor historian, but Mrs Wright was an impressive witness whose evidence I accept as to the effects upon the applicant of his psychiatric symptoms.
22. On the evidence the applicant was able to continue to work until June 1988, because of the assistance and guidance of Mrs Wright. He ceased work when Mrs Wright was unable to work, and I am reasonably satisfied on evidence that the applicant’s psychiatric condition was such that he was no longer able to continue to work. I am reasonably satisfied therefore, in the circumstances, that the applicant ceased to engage in the remunerative work that he was undertaking, because of his war-caused incapacity alone.
23. As the applicant has not attained the age of 65 years the ameliorating provision in s 24(2)(b) of the Act is applicable. It is the Commission’s submission that there is no evidence that the applicant has been genuinely seeking to engage in remunerative work. The applicant gave evidence that his psychiatric condition is such that he could not bring himself to seek work on his own. When his solicitor suggested, some time before the Hearing, that he should attempt to gain some employment, he was so agitated and upset, that he suffered a panic attack. He was referred by his treating general practitioner, Dr Hand, to Dr Ewer, who doubled the dosage of his prescription drugs, and he settled down eventually. Mrs Wright said in evidence that when the applicant thought that he would be obliged to seek employment he “fell apart” and “went into a panic attack”.
24. I am reasonably satisfied on the evidence that the applicant’s psychiatric conditions prevent him from attempting to seek work of any description, and the effect of the applicant’s psychiatric conditions is such that his genuine attempt to seek to engage in remunerative work has been thwarted and frustrated by his incapacity. I am reasonably satisfied therefore, that he has been genuinely seeking to engage in remunerative work, and but for the incapacity would be continuing to seek to engage in remunerative work, and that his incapacity is the substantial cause of his inability to obtain remunerative work. The applicant satisfies s 24(2)(b) of the Act. I am reasonably satisfied on the evidence, that the applicant satisfies s 24 of the Act, and is qualified for payment of Disability Pension at the Special Rate.
25. For these reasons the Tribunal sets aside the decision under review, and substitutes a decision that the applicant is qualified for payment of Disability Pension, at the Special Rate, with effect from 18 April 1999.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate of Hearing 5 April 2004
Date of Decision 7 October 2004
Counsel for the Applicant Mr P Liptak
Solicitor for the Applicant Lempriere Abbott McLeod
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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