Young and Repatriation Commission

[2004] AATA 586

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 586

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  S2002/468

VETERANS' APPEALS  DIVISION		)
Re		GRAHAM JOHN YOUNG

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date14 May 2004

PlaceAdelaide

Decision The Tribunal sets aside the decision under review and in substitution therefor, the Tribunal determines that the applicant is eligible for a pension at the Special Rate pursuant to s24 of the Veterans Entitlements Act 1986 with effect from and including 11 September 2001.

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Veterans’ entitlements – Disability pension – Rate of pension payable – Special rate – Whether applicant ceased remunerative work due to war-caused disabilities alone – Applicant entitled to Special Rate.

Veterans’ Entitlements Act 1986 – s24(1),(2)

Re Graham and Repatriation Commission (2004) AATA 208

Flentjar v Repatriation Commission (1997) 48 ALD 1

Cavell v Repatriation Commission (1988) 9 AAR 534

Forbes v Repatriation Commission (2000) 101 FCR 50

Repatriation Commission v Hendy (2002) FCA FC 424

Repatriation Commission V Alexander (2003) FCA 399

Repatriation Commission v Van Heteren (2003) FCA 888

REASONS FOR DECISION

14 May 2004 Mr S P Estcourt QC., (Deputy President)           

1.      This is an application to review a decision of the Veterans’ Review Board (VRB) of 17 October 2002, affirming the decision of the Repatriation Commission of 24 January 2002 assessing the applicant’s pension at 100% of the General rate throughout the assessment period on the basis that the applicant did not meet all of the requirements for a pension at an earnings related rate.

2. The basis of the VRB’s decision was that it was not reasonably satisfied that the applicant’s non‑accepted disabilities arising from his left knee and his back did not play some part in the applicant’s decision to cease work, and thus he did not meet all of the requirements of ss24(1)(c) and 24(2)(a) of the Veterans’ Entitlements Act 1986 (“the Act”).

3. Section 24(1)(c) and s24(2)(a) of the Act relevantly 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; …”.

4. If s24(1) of the Act applies to the applicant, he will be entitled to a pension at the special rate provided for in s24(4).

5.      Before the Tribunal the respondent conceded that the applicant satisfies the first criterion for the special rate pension, that is in accordance with s24(1)(a)(i) it was accepted that the applicant was in receipt of a pension at a rate higher than 70% of the general rate. 

6.      Equally, the respondent conceded before the Tribunal that the applicant satisfied the second criterion for the special rate pension, namely that in accordance with s24(1)(b) the incapacity from the applicant’s war-caused conditions was of such a nature as of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.

7. The real issue in this case is whether the applicant satisfies the third criterion for the special rate pension, that is, whether, in accordance with s24(1)(c), set out above, the veteran was by reason of his incapacity from war-caused injury or disease alone prevented from continuing to undertake remunerative work.

8.      The respondent contended that the applicant did not satisfy that criterion in that he had disabilities other than his war-caused conditions that contributed to him ceasing work. 

9.      The applicant was born on 21 November 1945, and he served in the Australian Army from 1964 until 1976 and from 1977 until 1986.  He had operational service in Vietnam from 23 April 1969 until 16 April 1970, and eligible defence service during two periods from 7 December 1972 until 7 December 1976, and from 20 April 1977 until 18 April 1987.

10.     On 11 September 2001, the applicant lodged an application for increase in his disability pension payable for his war-caused and defence-caused conditions of post-traumatic stress disorder with alcohol abuse, chondromalacia patella right knee, right acromio clavicular subluxation and bilateral sensori-neural hearing loss with tinnitus.

11.     In this case, the earliest date from which benefits may run if the applicant is successful is 11 September 2001, that is the date of lodgement of the application for increase in pension.

12. Pursuant to s13(1) of the Act, the Commonwealth is liable to pay a pension by way of compensation for a veteran’s incapacity from war caused injury or disease and the determination of the rate of pension, which in this case falls to the Tribunal, is, pursuant to s19(4A) and (5C) of the Act, to be made “from time to time during the assessment period”. The “assessment period”, by virtue of s19(9), starts on the “application day” and ends on the day of the Tribunal’s decision. As already indicated the “application day” in this case was 11 September 2001.

13. The Tribunal has jurisdiction under s175 of the Act, and in accordance with s120(4) the Tribunal is to determine all matters to its reasonable satisfaction.

14.     After the applicant left the Australian Army in April 1987 at a time when he was having problems with the sequelae of surgery to remove both the right (accepted) knee cap and the left (non‑accepted) knee cap, he entered the security industry, becoming the manager of operations for MSS.  He worked there for two or three years and then went to manage Festival State Security, later going on to join Smoke Mart, doing cash pickups and some guard work and ultimately managing the security operations for that company.

15.     As security manager of Smoke Mart, the applicant’s duties entailed him working 60-80 hours a week, doing cash collections, going around shops and ensuring that the security systems were operating properly and attending break‑ins and after hours call‑outs.  He described his duties as a 7 day situation, 24 hours a day, and sometimes he would work 90 hours a week.  He described himself as a workaholic and said that he had no problems in this employment. 

16.     He described an average day as commencing at 9.30 in the morning starting out in the northern area, because he lived there. He would go to one of the stores out there, pick up their money and take it to the bank and then go to the next one, continuing on for some 30-40 cash pick-ups from shops and returning change and finishing at about 4.00pm at Woodville Park.  He said he was often there in the bank when it closed, and then he would go back to the office and stay there until the last owner would leave, virtually acting as a personal bodyguard. 

17.     The applicant said that although the workload increased over the 7 years he worked for Smoke Mart, initially driving for 100-120kms a day, and ultimately driving 230-250kms a day, he coped well with the work, notwithstanding the problems with both his knees and his back condition. 

18.     The applicant admitted in cross-examination to falling over (later described in re-examination as stumbling), on numerous occasions during the course of a day if he wasn’t “switched on” or if he was tired but nonetheless he coped.  He said:

“I had no problems, I enjoyed it.  As I said, I was a workaholic and that was one of the reasons I wouldn’t give up work ages ago, because I enjoyed working.”

19.     When asked whether his knee problems caused him any discomfort at all, he said:

“Yes, but again, I played sport with discomfort, I’ve started playing golf now and I’ve got discomfort.”

20.     The applicant resigned from his employment with Smoke Mart by letter of resignation dated 13 July 2001, in which he wrote:

“It is with regret that I tender my resignation from my position with Jasmine Security on 21 July 2001 as discussed due to personal and medical reasons.”

21.     While still employed with Smoke Mart, the applicant had been diagnosed with post-traumatic stress disorder which diagnosis for some time he would not accept.  Ultimately however, Mr Young ascribes his post‑traumatic stress disorder as the sole reason for leaving his employment with Smoke Mart and the sole reason why he could not return to work in his previous position as security manager.  The following question and answer is taken from the transcript of the hearing before the Tribunal:

“Mr Young, if you weren’t suffering from post-traumatic stress disorder, would you return to work in your pervious position as security manager at Smoke Mart? – Yes, I would.  As I said before, I was a workaholic.  That was one of the reasons I, in the beginning, denied all knowledge of having post-traumatic stress syndrome.  I would love to work.  I have worked since age 15 and it is part of my nature to work.”

22.     The applicant gave evidence that initially his agitation and short temper resulting from his post traumatic stress disorder caused problems domestically.  He said that his daughter left home because he virtually threw her boyfriend out one night over something trivial, and his eldest son moved out of home because it appeared that every time somebody would talk to the applicant he would become aggressive.  The applicant said things affected his wife so much that she suffered and was under a psychiatrist. 

23.     The applicant also found that he was becoming aggressive with staff members at Smoke Mart.  He said:

“I just couldn’t do it any more, I was getting aggressive with the staff members when I would go into the shop to get the money, if it wasn’t ready I was abusing them, I had smashed some displays and it finally come to a crunch where a chap came out of one of our service stations.  I drove in there and he was driving out the ‘out’ because the ‘in’ was blocked and he gave me the thumbs up sign and I gave him the thumbs up sign in my language that’s okay thanks very much.  He got out of his car and started ranting and raving and came towards me, I grabbed him by the throat I was carrying a gun and I was that close to shooting him.  The police rang me that day because I damaged his car, he made a comment that I’d damaged his car and they said I didn’t need a charge for assault.  Anyway, I said ‘you can forget about it’ I went down to the office and I said Mr Sheehan, I said Charlie, I said I’ve got to quit, I can’t hack it I’ve got to quit before I kill somebody or he kills me and that was the end of it.  I couldn’t do any more.”

24.     The applicant said that the management at Smoke Mart were quite happy to have him back at any time, but that he couldn’t because he couldn’t have it weighing on his conscience that he might blow up at any stage, “because, I do, I blow up at the drop of a hat” he said.

25.     As Deputy President Jarvis said in Graham and Repatriation Commission (1 March 2004) AATA 208, after analysing the decisions of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1, Cavell v Repatriation Commission (1988) 9 AAR 534 and Forbes v Repatriation Commission (2000) 101 FCR 50:

“The word ‘alone’ as it appears in s24(1)(c) requires a practical decision as to whether the veterans 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.”

26.     In his closing submissions to the Tribunal, counsel for the respondent Mr Crowe said:

“I don’t question the post-traumatic stress disorder alone would not have been sufficient to stop the applicant working but that is not the question.  The question is what ‘actually’ happened.  That is the test.”

27. I think Mr Crowe’s submission echoes what Burchett J said was the true role of the Tribunal in applying the “alone test” in s24(1)(c) of the Act in Cavell v Repatriation Commission (supra) at p.539. There his Honour said the Tribunal’s task 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.”

28.     This subject was most recently considered by a Full Federal Court in Repatriation Commission v Hendy [2002] FCA FC 424 at [37]. There the Court said in a passage also cited in Repatriation Commission v Van Heteren [2003] FCA 888 at [18]:

“The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … [H]aving considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”

29.     Subsequently the matter was considered by Spender J in Repatriation Commission v Alexander [2003] FCA 399 (2 May 2003) at [22]. There his Honour said:

“The test under s.24(1)(c) is not, ‘would Mr Alexander’s war-caused conditions alone prevent him from undertaking the relevant remunerative work?’, as the Tribunal indicated in pars 47 and 48 was the test it applied. As par 48 in particular indicates, the Tribunal concluded that if Mr Alexander did not suffer from war-caused difficulties, ‘he still would have been working’. This is not the test for which s.24(1)(c) calls. It is whether war-caused conditions, alone, prevent the respondent from continuing to undertake remunerative work that he had been undertaking. It seems to me the Tribunal has not addressed the question of causation that s.24(1)(c) calls for, but has, in effect, applied the requirements of s.24(1)(b). The conclusion that ‘a combination of war service and non-war service related conditions preventing Mr Alexander from working is a non-issue’ is simply wrong. If the non-service related conditions were a factor in preventing Mr Alexander from continuing to undertake remunerative work, albeit those conditions were ‘of secondary importance’, the ‘alone’ requirement of s.24(1)(c) would not be satisfied.”

30.     I am satisfied in this case that it was not a combination of war service and non‑war service related conditions which prevents the applicant from working.  I am reasonably satisfied that the non‑service related conditions are not a factor in preventing the applicant from continuing to undertake remunerative work.  In my view, for reasons which I will explain, the sole reason for the applicant ceasing his employment with Smoke Mart and not taking it up again is his accepted condition of post-traumatic stress disorder.

31.     There are a number of records before the Tribunal documenting the applicant’s various accepted and non‑accepted conditions but as either his post-traumatic stress disorder or his other accepted conditions, or his non‑accepted conditions are all potentially capable of preventing the applicant from working, resolution of the real issue, namely what in fact caused the applicant to resign his employment and prevents him from working, depends in my view not so much on medical opinion, but on whether the applicant is to be believed in his evidence that the sole reason preventing him from work is his post-traumatic stress disorder.

32.     The clearest examples of the applicant’s firm position in relation to this issue were during his cross-examination by Mr Crowe.  The following passages are taken from the transcript:

“I appreciate that but I just want to get this perfectly clear that you are saying that your walking problems were not even the part of the reason you stopped work? – No, I didn’t deem it as being the problem because I could still work.  …

I put it to you then, Mr Young, that the problem wasn’t serious enough for you to seek treatment for over six months, then it wasn’t serious enough to be the sole reason or even the principal reason for you ceasing work? – Well, I’ll tell you it was, because you get to a stage where you just snap, okay.  Now I’m not a bludger and I didn’t want to bludge on the system and that was half the problem.  There’s too many people bludging out there on systems.  It wasn’t until the brother-in-law insisted that I should push this and go and my wife suffered, that I finally decided we had to go.  We had no money.  I tried to live on my superannuation when I left work.”

33.     On behalf of the respondent, Mr Crowe contended that Mr Young should not be believed in these claims and through his cross-examination of the applicant he pointed to a number of matters that might affect the applicant’s credibility. 

34.     The first matter, which was raised during the evidence of Mr Dennis Atkinson, the human resources manager of Smoke Mart, was that the letter of resignation  (Exhibit 4 before the Tribunal ) was dated 13 July 2001, whereas the applicant in his evidence had said that after the incident at the service station, he had gone down to the office and told Mr Sheehan that he had to quit and that he agreed that was in about June 2001.

35.     I am not concerned as to the applicant’s credit in relation to this issue.  To begin with his agreement that incident had been in about June 2001 was in response to a leading question from his counsel but moreover, the letter itself refers to a previous conversation. 

36.     Another matter which was raised in respect of the applicant’s credit was his delay in seeking psychiatric advice after his resignation, a period of some 6 months.  As to that, I accept the applicant’s explanation that during that period he “just sat at home”.  He said that he just wanted to be left alone and work around his property, and he didn’t want to be disturbed by anyone and that he went in “a hermit type situation”.

37.     It was also noted by Mr Crowe that in his service pension claim dated 26 April 2002, the applicant had completed the answer to a question “how this disability prevents you from working”, ( referring to conditions which included “no knee caps”) with the answer “I’m finding getting around, i.e. driving and walking or standing for long periods is hard.”

38.     In my view, it is not reasonable to infer from that answer that the applicant’s decision to cease work was other than he states.  He was cross‑examined about this and the following exchange appears from the transcript:

“Mr Crowe:  Thank you.  Would you have a look at page 109, Mr Young?  Now, on the left hand side, headed: This Column is to be completed by the veteran? --- Yes.

Did you fill this out? --- No, that is not my writing.  It looks like – this is what Mr Cox had filled out for me, yes.

We will just take you back to page 108 for a moment? --- Yes.

You did sign it at the bottom there? ---Yes.

Now, underneath the bit I just read out, it says:  List only the disabilities or symptoms that are permanently preventing you from working.  Now, under the heading just below that: HOW THIS DISABILITY PREVENTS YOU FROM WORKING, can you read that writing, Mr Young? --- Yes.

Can you read it to the Tribunal please? ---

I’m, finding getting around ie, driving and walking or standing for long periods is hard.

Now is that a correct statement? --- Yes, I would say that is a correct statement, it is hard but you know it is bearable.

I will put it to you Mr Young, that the development of that problem, you say, you are finding that getting around is difficult.  I will put it to you that was a part of the reason that you ceased work? --- I would say, no because I would say I would still be working today if I had not have blown up, okay.

Yes, and I appreciate that what you are saying is your PTSD and the occasion on which you blew up was very significant.  I am asking you how the – if your walking problem was part of the reason? --- No, I was told that this was to go in there because I had accepted disabilities, ie, shoulder and knee, okay, and that was in there.

I am not asking you why you were told to write it, I am asking you if it was a correct statement and you said, “yes”? --- Yes.

Then I am asking you if a part, or I am putting it to you that your walking problems, your physical problems, were part of the reason you ceased work? --- No.

Not even a part? --- No and I told that to the last Review Board.

I appreciate that but I just want to get this perfectly clear that you are saying that your walking problems were not even a part of the reason you stopped work? --- No, I didn’t deem it as being the problem because I could still work.

But you answered the question here? --- Yes.

List only the disabilities or symptoms - - -? --- that it was hard.

Sorry? --- That it was hard.  I didn’t say it stopped me from working, I said it was hard, okay. But I could still work, there was never a problem with that.

I will put it to you then that it was a difficulty in working and something that made things hard, to use you own word, but that you were managing to work with that problem? --- I certainly was.

But it was a problem? --- It was a very small problem.”

39.     Mr Crowe also noted that Dr Tran, the applicant’s general practitioner, in completing a medical report on the applicant’s ability to work dated 3 October 2001, listed right knee and shoulder pain as well as left knee pain as disabilities which “affect the veteran’s ability to work”. 

Mr Crowe said:

“Now you saw Dr Tran in October 2001? – Yes.

And gave him the impression that it was your knees and your shoulder that were the reason you ceased work? – No.  I was sent as told to go and see Dr Tran by Veterans Affairs, Mr Coxon, to clarify my disabilities.  Dr Tran knew nothing about my post-traumatic stress syndrome, even though somewhere I read somewhere that he had said that he told me – suggest I go and see a psychiatrist.”

40.     Dr Tran gave evidence before the Tribunal stating that the applicant had been a patient between June 2001 and December 2001, presenting mainly with high blood pressure and hyper‑glycemia.  He said that the first he knew of the applicant’s other medical conditions involving difficulties in walking up stairs and so on, was when he saw the applicant to complete the form dated 3 October 2001.

41.     In view of Dr Tran’s lack of detailed involvement with the applicant’s medical conditions apart from high blood pressure and hyper‑glycemia, I do not find that his completion of the relevant questions on the form dated 3 October 2001 displaces the applicant’s firm view, unshaken by cross‑examination, that the sole reason for his inability to work was the effects of his post-traumatic stress disorder. 

42.     In any event, the question in the form as to how disabilities “affect” the veteran’s ability to work do not address the question as to what was the real cause of the applicant’s cessation of employment.  As the applicant said in the passage from his cross-examination which I have set out earlier, those disabilities made it “hard” for him to work, but did not stop him from working.

43.     I am reinforced in my view that the applicant was a witness of the truth by the evidence given by Mr Atkinson who confirmed that the applicant was able to do his job in spite of his physical limitations, and that he would have been perfectly happy to have continued to employ the applicant. 

44.     I am reasonably satisfied that the reality of the situation is that the applicant’s non‑accepted medical conditions and indeed his accepted medical conditions, with the exception of the post-traumatic stress disorder, made working hard for him.  However, he continued notwithstanding and would have continued notwithstanding, had it not been for his anger and aggression with staff members, culminating in his violent outburst in June or July 2001, and his fear thereafter that he could blow up at any stage, possibly with dire consequences for himself and others. 

45.     It follows from all I have said that the applicant meets all of the criteria necessary to qualify for payment of pension at the Special Rate, and that the appropriate assessment for his disability pension is not 100% of the General rate as found by the Repatriation Commission and confirmed by the Veterans Review Board.

46.     The decision of the Tribunal is that the decision under review is set aside and in substitution therefor, the Tribunal determines that the applicant is eligible for a pension at the Special Rate pursuant to s24 of the Veterans Entitlements Act 1986 with effect from and including 11 September 2001.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  4 and 5 March 2004
Date of Decision  14 May 2004
Counsel for the Applicant         Mr A J Burnett
Solicitor for the Applicant          Lempriere Abbott McLeod
Counsel for the Respondent     Mr A Crowe
Solicitor for the Respondent     Department of Veterans' Affairs