Templeman and Repatriation Commission [2000] AATA 43 (28 January 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 43

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/33

Veterans Appeals DIVISION )

Re RONALD HECTOR TEMPLEMAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President TE Barnett Brigadier RDF Lloyd, Member Dr D Weerasooriya, Member

Date 28 January 2000

Place Perth

Decision The decision of the Veterans' Review Board under review is affirmed.

........(Sgd) TE Barnett.......................

Deputy President

CATCHWORDS

VETERANS' AFFAIRS - Disability Pension - pension at 100 per cent of the general rate - Whether entitled to Special or Intermediate Rate pension pursuant to section 24 of the Veterans' Entitlement Act - Problem that no claim ever made for alcohol dependency, even though alcohol dependency played significant role in applicant's other medical problems - No entitlement to Special or Intermediate Rate.

Administrative Appeals Tribunal Act 1975 - s.37

Veterans' Affairs Entitlement Act 1986 - s. 24(1) and (2)

REASONS FOR DECISION

28 January 2000 Deputy President TE Barnett, Brigadier R Lloyd, Dr HAD Weerasooriya

1. The applicant sought review of a determination of the Veteran's Review Board ("VRB") dated 21 January 1998, which continued the applicant's disability pension at 100% of the general rate. The accepted disabilities are lumbar spondylosis, Post Traumatic Stress Disorder; Osteoarthritis left ankle and peptic ulcer disease. The rejected disabilities are Cervical Spondylosis, Osteoarthritis knees and Gout right knee. The VRB rejected the applicant's entitlement to special rate pension pursuant to s.24 of the Veterans' Entitlement Act ("the Act") and it was this matter the applicant requested the Tribunal to review.

2. Ms T Spence represented the applicant and Mr C Ponnuthurai represented the respondent.

3. In addition to the material filed by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, the following exhibits were accepted into evidence:

Exhibit A1 Statement of Frank West dated 16 July 1998

Exhibit A2 Statement of Michael Martion dated 18 July 1998

Exhibit A3 Statement of Antony D'Costa dated 28 July 1998

Exhibit A4 Report of Dr M Daly dated 3 July 1998

Exhibit A5 Statement of the applicant dated 12 August 1998

Exhibit A6(a) Report of Dr L Risbey dated 30 July 1998

Exhibit A6(b) Report of Dr L Risbey dated 24 June 1998

Exhibit A6(c) Report of Dr L Risbey dated 6 July 1999

Exhibit A6(d) Report of Dr L Risbey dated 10 March 1998

Exhibit R1 Letter from Operations Manager to Mr Cooper with attachments dated 27 March 1998

Exhibit R2 Letter from Mr Cooper to Mr Ponnuthurai dated 8 April 1998

Exhibit R3 2 Job Specification forms

Exhibit R4 Services Joblink report by Mr Ball dated 22 December 1998

Exhibit R5(a) Letter from Dr M Nidorf dated 9 December 1998

Exhibit R5(b) Letter from Dr Nidorf dated 10 December 1998

background

4. The applicant joined the Australian Army in 1962 when he was aged 22. From 1965 until 1967, he served in Malaya and then Borneo . He did two tours of duty in Vietnam in 1969/70 and in 1971/72. These periods constituted operational service pursuant to the Act. The applicant described traumatic incidents in Vietnam where he was involved in close quarter fighting with the enemy and claimed to have witnessed "atrocities" committed by fellow Australian troops upon dead or dying Vietnamese soldiers.

5. At the end of his Army engagement in 1973, the applicant decided not to re-engage for a further period of service and was voluntarily discharged in January 1973. He gave evidence that he left the Army because he could not handle the pressure, especially trying to deal with the horrors that he had witnessed whilst in Vietnam. He also complained that during this time, he missed out on seeing his children born and grow up. As a consequence of this and other marital problems, the applicant and his wife eventually separated and then divorced.

6. Prior to entering the Army, the applicant stated that he was extremely fit, and was involved in competitive basketball, Australian Rules football and swimming, gaining medals in all sports in which he participated. He was also able to run the mile faster than his peers. At that stage, the applicant weighed approximately 10 ½ stone (or 66kg). Upon discharge from the Army , he weighed over 16 stone (102kg). He stated that this was because of the type of food that was being served and the marked decrease in exercise. His weight gradually increased to 17 ½ stone (111kg) over the ensuing months.

7. Two months after discharge from the Army, the applicant took a job, as a surveyor's assistant, but left soon afterwards as he felt extremely isolated and frightened in bush locations. He eventually went back to his old job as, first a shunter, and then as a conductor and guard at Westrail.

8. He continued working in the railways until he took voluntary redundancy in July 1996. He served on suburban trains and on the Indian Pacific but experienced severe mood shifts, alcoholism, anxiety and depression. He suffered three failed marriages and clearly his own personality and behaviour were major factors in the breakdown of those marriages. Progressively he also suffered increasing pain in his lumbar spine, left ankle and neck and from osteoarthritis in both knees. By 1995 he was suffering severely from breathlessness and severe headaches associated with problems in the cervical spine.

9. The applicant gave evidence that during this entire period from after his service in Borneo until retirement in July 1996 he was drinking alcohol very excessively. First beer, then progressing to beer and Bacardi rum and then whisky, spending about $40 a day on alcohol. He usually worked night shifts and would go home in the daytime and then drink until he was able to get some sleep.

10. From 1992 onwards Westrail commenced a staff restructuring process which abolished or altered and renamed existing positions, obliging the encumbants to apply for the new positions. The applicant went through this process four times, winning reappointment the fifth time in 1993 as a Customer Services Officer on appeal. He was posted to Glendalough station. He found this restructuring process very stressful. Throughout the nineties he was finding it increasingly difficult to carry out his duties because of both his mental and physical condition. He found that he was increasingly aggressive towards customers and he was also very emotionally upset by having to deal with Asians as the shape of their eyes seemed to trigger off recollections and flash backs to incidents in Vietnam. He also found that his breathlessness and knee problems prevented him from running between carriages when the train was at the station. This made it difficult to carry out his duties in two and four carriage trains. Because of his great bulk and the condition of his ankle and knees he was unable to kneel. This meant he had to lie down on his stomach to manipulate the lower bolt on the door at Glendalough station and he found this humiliating. The applicant was also emotionally disturbed by having to deal with gangs of unruly youths and used to lock himself inside the station masters office if there were "incidents" and telephone the police. When he was travelling as a conductor in peak hours he says that he used to lock himself in the rear drivers compartment to avoid having to confront all the people. He made four "suicide attempts", at least one of which (with car exhaust) seems to have been a serious and genuine attempt

11. In 1996 the position which he held as a Customer Services Officer was abolished and he had the option of applying for a new customer services/security position. On advice from a more senior colleague that he stood no chance of appointment he did not apply. (The requirements for the position required passing stringent physical fitness tests). There was an opportunity to apply for retraining for another position or seeking relocation to another department. Instead of doing so however he elected to accept a voluntary redundancy package. His evidence was that he really had no option, as it was becoming too difficult to carry out his duties and he felt no one would employ him because of his obesity. While still employed by Westrail he applied to the respondent for an increase in his pension (which was already at 100% of the general rate) in an attempt to be granted pension at the Special or Intermediate rate. After retiring from Westrail on the redundancy package the applicant took a holiday and has not sought further employment since that date. In answer to questions by the Tribunal he said that if the Westrail positions had not been reclassified he would have continued to work, because he hated the idea of not having a job. The Tribunal notes however that both Dr Daly (his General Practitioner) and Dr Risbey (his Psychiatrist) were urging him to stop work because they thought that he could not handle the stress, which it was causing him.

12. In 1995 the applicant met Elsie, whom me married in 1997. She gave evidence that he was a gentleman who initially was drinking very excessively and suffered severe mood swings every few months, during which he became isolated, moody and depressed. She described his various attempts at suicide, his nightmares and his physical pain, including severe headaches. She gave evidence of all the medication the applicant was taking. She also produced bottles of medication to the Tribunal. This medication included, amongst others, Valium, panadeine forte, temazepam, wafarin and quinine. Mrs Templeman gave evidence of the applicant having extreme difficulty in both oral and written communication at home and on social occasions or when having to fill in forms.

13. In 1998 the applicant was admitted to hospital with severe heart problems. He was diagnosed as having cardiomyopathy (almost certainly caused by his long-standing abuse of alcohol). Since that date he has ceased drinking alcohol but claims that his mental and physical symptoms have continued. He believes that these were never caused by his alcohol consumption but rather, that he drank to control the symptoms, which already existed from other causes. In evidence he frequently stated that his main problems had always been in his mind.

14. The applicant's post traumatic stress condition ("PTSD") was accepted as war caused in 1994. He argues that PTSD caused him to drink to excess, in order to deaden the emotional pain, which he keeps re-experiencing. The excessive drinking, he says, has caused his obesity, which has made it impossible for him to continue his employment at Westrail or to seek further employment.

15. Dr Lance Risbey, a psychiatrist who specialises in the treatment of PTSD gave evidence that the applicant had exhibited symptoms including nightmares, dissociative flashbacks, avoidance behaviour (such as alcoholism, social isolation), hyper-vigilance, insomnia and despair. The applicant was using work to give himself some sort of stability in his life, especially after experiencing three marriage breakdowns. Dr Risbey believed that the applicant's condition had worsened over the time that he has been treating him, exacerbated by his work problems, the knock back for benefits from the respondent and his medical conditions. Dr Risbey stated that the issue of obesity was secondary to the applicant's PTSD and that there was evidence of a distinctive depressive condition, separate to the PTSD. He said the applicant was suffering a great deal from grief associated with his PTSD condition.

16. It is the applicant's submission, supported by Dr Risbey, that he left his employment solely due to his PTSD and that voluntary redundancy was only a method for ceasing work, not the reason for ceasing it. He contends that it is his "mind" alone, that has prevented him for working, not only in the Westrail position, but in any job and thus he satisfies the test set out in s.24 of the Act.

17. In June 1996, the applicant sought a second psychiatric opinion from Dr De Tissera who found that the PTSD symptoms were increasing and that these together with increasing alcohol consumption and obesity were the causes of his inability to work.

18. The respondent acknowledged that all three criteria laid down in s.24(1) have been met by the applicant at sometime during the assessment period. However, the issue that impedes the applicant from securing the special rate pension is s.24(1)C of the Act.

legislation

19. Section 24(1) of the Act states:

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) not relevant

(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 the 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

20. s.24(2) which acts as a beneficial section states that:

For the purposes 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.

21. The Tribunal is satisfied that the applicant satisfies the requirements of subsection (1)(a) and (b) of s.24 of the Act as:

(aa) he has made a claim under s.14 for an increase in the rate of pension, and that

(a) his degree of incapacity has been determined to be at least 70% (ie, 100%) and that the applicant's incapacity from war caused disease or injuries of PTSD, osteoarthritis left ankle and lumbar spondylosis is now sufficient to render him incapable of undertaking remunerative work for periods aggregating more that 8 hours per week.

22. However the Tribunal finds that the applicant fails to satisfy the requirements of s.24 (1)(c) as it is not those war caused incapacities, injuries or diseases alone which prevented the applicant from continuing to undertake remunerative work which he had been undertaking at Westrail.

23. The evidence is that the applicant was suffering severely from other conditions which have not been accepted as war caused at the time he ceased working for Westrail. Major causes of him feeling it was necessary to stop work included his alcohol dependence and his obesity. He was also suffering severely from osteoarthritis of both knees, which severely limited his ability to walk and kneel and which prevented him from running. (The war caused gout in his right knee was being controlled by medication). He was also suffering from a serious condition of the cervical spine which affected his neck and caused severe headaches for which he underwent surgery to his temple. None of these conditions have been accepted as war caused and the Tribunal finds that they all contributed to his decision to discontinue in remunerative work and take voluntary redundancy.

24. The Tribunal has considered the provisions of s.24(2) which is a beneficial section which can help veterans who cease work for reasons other than the war- caused injury or disease. However subsection (b) of s.24(2) prevents the applicant from taking the benefit of this subsection unless he satisfies the Tribunal that he has been genuinely seeking to engage in remunerative work and that the accepted war- caused incapacities are the substantial cause of his inability to obtain remunerative work. On his own evidence the applicant ignored options which were on offer to enable him to keep working, accepted a voluntary redundancy package and did not seek to find any work after that date. He was actually still working when he applied for an increase in his pension (hoping for the Special Rate) and, importantly, he told the Tribunal that if his position had not been reclassified he would have continued in remunerative employment.

25. One of the difficulties facing the applicant in this case is that he has never made a claim for alcohol dependency as a war caused condition and that matter has not therefore been subject to consideration and determination by the respondent. It is not therefore open to the Tribunal to accept it as a war caused condition, though it may well have played a substantial role in the applicant's insomnia, mood problems and obesity, which were significant factors in his decision to cease working for Westrail and to not seek further employment. Also it seems that his breathlessness was seriously affecting his ability to continue working in 1996. This may well have been early symptoms of the serious cardiomyopathy, which was diagnosed in 1998. If the cardiomyopathy was alcohol-related (which seems likely) the breathlessness too could be related to the alcohol dependence.

26. If the applicant seeks acceptance of alcohol dependence up until 1998 as a war-caused condition with obesity, cardiomyopathy and breathlessness as causally related conditions, it may enable the respondent to look again at the question of pension at the Special Rate. These matters are, unfortunately, not before this Tribunal at this stage and there is insufficient medical evidence about the possible interrelationship between the applicant's war service, alcohol dependence, obesity and cardiomyopathy.

27. On the evidence before it, the Tribunal finds, for the reasons stated above, that the applicant is not entitled to pension at either the Intermediate or Special Rate.

decision

28. The decision of the Veterans' Review Board under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President TE Barnett, Brigadier RDF Lloyd, Dr D Weerasooriya

Signed: ...............(Sgd) C O'Hara..........................

Associate

Date/s of Hearing 1 November 1999

Date of Decision 28 January 2000

Counsel for the Applicant Ms T Spence

Solicitor for Applicant Kott Gunning

Counsel for the Respondent Mr C Ponnuthurai

Solicitor for the Respondent Department of Veterans' Affairs