Eason and Repatriation Commission [2000] AATA 979 (10 November 2000)

Last Updated: 31 January 2001

DECISION AND REASONS FOR DECISION [2000] AATA 979

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1150

VETERANS' APPEALS DIVISION )

Re KEVIN LINDSAY EASON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President Dr J D Campbell, Member

Date 10 November 2000

Place Sydney

Decision The decision under review is set aside, the Applicant being entitled to pension at the special rate effective as from 6 August 1996.

[Sgd]: Rodney N Purvis

Deputy President

CATCHWORDS

VETERANS' AFFAIRS - disability pension - special rate - post traumatic stress disorder - bilateral sensori-neural hearing loss with tinnitus - chronic airflow limitation - ischaemic heart disease - whether prevented from continuing remunerative work by reason of incapacity alone - alcohol dependence - age - impact of introduction of new technology

Veterans' Entitlements Act 1986, section 24

REASONS FOR DECISION

The Hon Mr R N J Purvis, QC, Deputy President

Decision under review:

1. This an application by Kevin Lindsay Eason ("the Applicant") seeking review of a decision by a delegate of the Repatriation Commission ("the Respondent") in not granting to him a disability pension at the special rate. The Respondent, by its decision of 10 May 1997, granted a disability pension at 100% of the general rate effective from 6 August 1996.

2. The Applicant applied to the Veterans' Review Board for review of the primary decision only to have such decision affirmed.

3. In its reasons for decision the Respondent stated:

"...

The Intermediate Rate and the Special Rate...pensions are paid to compensate veterans and members whose ability to earn income from employment is limited because of accepted disabilities. There are several conditions that must be satisfied before these pensions can be granted. One of these conditions is that the veteran or member must be suffering a loss of salary, wages or earnings that has only occurred because of the accepted disabilities. This means that if the person:

* stopped work because of some other reason (such as non accepted disabilities, domestic circumstances, personal choice or compulsory retirement on age grounds, retrenchment or redundancy)

or

* is prevented from working for some other reason (such as non accepted disabilities, age, length of time out of the workforce or lack of work due to the economic conditions) then pension at the Intermediate Rate or the Special Rate is not payable. The person would have been suffering the loss of salary, wages or earnings even if the accepted disabilities were not present.

In this case the veteran left the workforce at age 60 years and received the service pension. Therefore pension cannot be paid at the intermediate rate or the special rate." (T2, p6)

4. The Review Officer, a delegate of the Respondent, stated:

"...

My reason for not conducting a review is that you retired from the Department of Defence on 15 May 1993, the reason given when you applied for Service Pension being "age retirement". Since then you have adopted a retirement lifestyle and not sought further employment. From the evidence before me there is no indication that at the date under review you are suffering a loss of earnings.

..." (T17, p67)

The Veterans' Review Board in it's reasons for rejecting the Applicant's claim for a pension at the special rate stated:

"...

In reviewing the Veteran's claim for a disability pension at the Special Rate, the Board had to satisfy itself that the Veteran met the requirements of section 24 of the act.

The Veteran had not yet turned 65 when the application was made and therefore meets the first requirement under section 24(1)(aab).

He has a degree of incapacity from war-caused injury of at least 70% and meets the second requirement.

Section 24(1)(c) is the final requirement the veteran is required to satisfy:

...

The Veteran clearly stated that the factors which caused him to cease work were physical and mental but mental problems were the major issue.

This is reinforced by his reference to the impending introduction of computers which he said were beyond him and that he would not be able to cope.

He also stated that he couldn't "hack it" because he drank too much. In response to board questions he replied that drinking was the main problem, which he connected with his mental difficulties.

The Veteran does not have psychosocial substance abuse as an accepted disability.

The Board, having reviewed the facts before it, was convinced that drinking was a factor which had contributed to the Veteran's retirement. Therefore he fails to satisfy the requirements of section 24(1)(c) of the Act.

..." (T18, p73)

5. The Applicant, by his written application of 17 August 1998 claims entitlement "to pension above the general rate".

The hearing:

6. At the hearing of the application before the Tribunal the Applicant was represented by Ms Jodie Buchanan, the Commission by Ms Pacey, a Departmental advocate.

7. The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T19. The following written material was tendered on behalf of the Applicant and Respondent and admitted as exhibits:

Exhibit No. Description Date

A Statement of the Applicant 13 October 2000

B Medical report of Dr Port 13 January 1999

C Medical report of Dr Port 8 June 2000

D Report of Mr J Ryan, Civilian Administration Officer, Myambat Logistic Company 23 May 2000

E Decision on Disability Pension Claim 29 October 1999

F Medical report of Dr Lewin 24 February 1999

1 Medical report of Dr M Baz 23 April 1999

Relevant legislation and issues before the Tribunal:

8. The Applicant has had the following disabilities accepted as service-related namely post traumatic stress disorder, bilateral sensori-neuril hearing loss with tinnitus, irritable bowel syndrome and chronic airflow limitation. As from 29 October 1999 ischaemic heart disease has also been accepted as a disability.

9. The Applicant maintains a claim for special rate of pension under section 24 of the Veterans' Entitlements Act 1986 ("the Act"). There is no issue between the parties and the Tribunal so finds that the Applicant satisfies the provisions of subsections 24(1)(aa), (aab), (a) and (b) of the Act. It is as to section 24(1)(c) that the issue arises that is as to whether the Applicant was prevented from continuing to undertake remunerative work that he was undertaking by reason of incapacity from the accepted war-caused disabilities and diseases alone. Section 24(1)(c) provides that section 24 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; 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."

10. The Respondent maintains that the age of the Applicant as well as alcohol abuse said to be a non-accepted disability were relevant considerations in his being so prevented from undertaking remunerative work. The Respondent does not accept that the alcohol abuse was secondary to the accepted disability of post traumatic stress disorder in that it was a separate disability. The Applicant contends that the alcohol dependence was secondary to the accepted disability of post traumatic stress disorder.

11. The Respondent further maintains that the Applicant does not satisfy subsection 24(2)(b) in that he retired from the workforce and has not genuinely sought work since he ceased his employment.

Factual situation:

12. The Applicant was born on 17 May 1933. He left school at the age of 14 years and between that time and 1965 was employed in various unskilled occupations in Australia and overseas including service as a rifleman in the New Zealand army, both in New Zealand and in Malaya. He joined the Australian army in 1965 and saw operational service in Vietnam from 11 March 1966 to 3 March 1967 and 13 November 1968 to 26 November 1969. During his first period of operational service the Applicant was a part of frontline activity where he experienced engagement with Vietnamese forces, death and destruction. Returning to Vietnam in November 1968 the Applicant served as a cook and rifleman. In his service pension claim form, the Applicant summarised the "accidents, injuries or illness... suffered during service" as:

"(1) Reoccurring [sic] nightmares of my service in Vietnam wake up shaking and sweaty this is because of the horrible tasks I had to secome [sic] to being in infantry having to shoot people (the enemy) having to deal with the loss of "close" mates who were killed or horribley [sic] wounded. I find it difficult to handle these situation [sic], always having flashbacks of my war service, feeling of guilt of why them not me syndrome".

(T5, p17)

13. Upon his return from Vietnam the Applicant was stationed at Singleton and then at Myambat ammunition depot for six years as a corporal cook until his discharge in 1976.

14. Following upon such discharge the Applicant worked as a cleaner and labourer, as a dredge operator, a cook and farm worker. In 1982 he obtained a position as a civilian labourer at the Myambat ammunition depot where he worked until his retirement. As well as working at the depot he obtained vineyard and homestead work "for extra money" and "to try and stop drinking in the shed".

15. It is to the latter addiction that this matter is primarily directed. For it is said by the Applicant that during his time in Vietnam and more particularly during his second tour of duty, he had access to unlimited amounts of alcohol. He said, "I drank to get drunk everyday we were in the base camp. My nerves were pretty shot, I had nightmares, I was nervous, jumpy and uptight". He said that on return to Australia from Vietnam he drank about half dozen large bottles of his home brew daily and whatever else was available. He said "home brew was cheaper and I could make it stronger by adding more sugar to the brew. I bought and consumed flagons of port, brown muscat and rum."

16. The Applicant married in 1971 after his Vietnam service. Although he tried to hide his drinking from his wife, the marriage became unstable, this according to the Applicant, due to his drinking. The Applicant and his wife separated on two occasions, this initiated on account of his drinking. As above mentioned the Applicant obtained civilian employment at Myambat support command and in the last five years of his employment he was accustomed to consuming alcohol before arrival at work and after work. On a number of occasions he was questioned by his employer about his drinking. Indeed there is evidence before the Tribunal from the Applicant's employer that he was warned about his drinking habits and the effect that this was having on his employment as well as the possibility of his being dismissed on this account. It is noted that the Applicant complained on such occasions of the stress that he was experiencing and its association with "his drinking problem".

17. When the Applicant was not at work he would "drink on my own in my shed at home seven days a week".

18. According to the Applicant, by 1993 he "was at breaking point and couldn't hack it any more. I wanted to give work away and go on the dole." On his service pension claim form when asked why did he stop work, he replied "age retirement". The Applicant when questioned about this answer stated to the Veterans' Review Board that age was not the reason for his stopping work and that he would have "left in any case". Drinking, he said, was the main problem which caused his retirement. Later in the service pension claim form and in answer to a question as to why he was not at that time, that is 31 October 1996, employed, he said "the physical and mental pressure of my job". In answer to questions put to him by the Veterans' Review Board he stated that his reasons for retirement were "couldn't hack it. Too much drinking. It was more mental than physical. I was just a wreck", and later "an additional factor was the impending introduction of computers". They were beyond him. He could not cope with the prospect.

19. In his evidence before the Tribunal the Applicant said that he ceased work initially on account of the stress he was experiencing and his alcohol addiction. He could have worked until he was 65 years of age he said, but he was "too stressed out to remain working or to seek work". But for his disabilities and especially the stress and alcohol addiction he would, he said, "still be working". He noted that it would now be possible for him to remain in employment beyond the age of sixty-five years. Although he ceased using alcohol in December 1996, he has not sought work. He is still, so he says, unable to engage in employment and experiences measurable stress.

20. After he ceased work in 1993 the Applicant began to "lock" himself "in my shed and drink every day from morning to night".

21. Following upon a visit to the office of the Vietnam Veterans' Association in Newcastle, the Applicant attended a Dr Port, psychiatrist. The first of such attendances was in late 1996 and he has continued seeing Dr Port to this time, now on a three-monthly basis. He was initially advised that he was in need of medication but that it was necessary for him to cease his drinking before he could commence to take the prescribed drug Arapax. He did so and has abstained from drinking alcohol since 25 December 1996. He has maintained his use of Arapax.

Medical assessments:

22. In November 1996, Dr Alan Port, a consultant psychiatrist and physiotherapist, inter alia stated:

"...

I certainly believe he has a post-traumatic stress disorder on the basis of recurrent nightmares, flashbacks, social withdrawal, alcoholism, excessive smoking, irritability, fear of going into shopping centres, episodes of depression, increased startle reaction and difficulty in tolerating things such as helicopters which remind him of his war service in Vietnam.

Fortunately he is never suicidal.

I believe his symptoms are related to the war in Vietnam and his two tours of duty while engaged in this conflict. I feel his condition is at the very least moderately severe and covered up by an enormous amount of alcohol.

..." (T9, p33)

23. A medical impairment assessment of the psychiatric condition of the Applicant was made by Dr Taranto. In this assessment it is noted that the Applicant's condition affected his occupational activity in that there was "excessive stress caused in previous employment. Hard to cope in difficulties". (T10, p44)

24. A report of Dr Port made nine months after consultation began contains the opinion that the Applicant:

"...suffers from post-traumatic stress symptoms and alcoholism. Fortunately he has improved on the treatment and managed to ameliorate his alcohol consumption. He still gets daily flashbacks but has been able to go into shopping centres and his marriage which was very poor has now become reasonably good.

He still is significantly affected by his post-traumatic stress symptoms.

He previously told me that he ceased work because he "wanted to", that they were introducing computers and he just didn't want to take the trouble to learn them.

I now realise he was minimising his problems at the time when I asked in detail and in fact substantial problems would be much more consistent with the severity of his condition when I first saw him in November 1996.

He now admits that he was only sleeping two hours a night and was drinking most of the rest of the time when he wasn't at work.

Throughout the day he was just looking forward to the next time he could get a drink.

Towards the end of his period of employment his shakes became so bad he could hardly read his own handwriting.

His memory was very poor and he would forget basic things like the routine on checking certain storehouses and would sometimes get almost to the end of his rounds before he realised he hadn't done his routine checking.

He was irritable and would argue with the workmates from whom he was quite withdrawn.

There were frequent awful flashbacks which made it very difficult to function at work and these were related to his traumatic experiences in Vietnam. As mentioned he was socially withdrawn and there was great stress in his marriage.

I would say that this was consistent with the history that he'd given me and indicates that he was substantially impaired at work due to the post-traumatic stress disorder and secondary alcoholism leading to his ceasing his work as a security officer at a military establishment.

He, of course, isn't working during my time of treatment nor do I believe he would be able to return to a paid position." (T16, pp65-66)

Dr Port maintains this opinion. In his report dated 8 June 2000 he states that the Applicant is:

"...significantly affected from his PTSD and is currently unsuitable, in my opinion, to resume gainful employment, even at the present and this is as a result of PTSD which is related to his war service in Vietnam.

..." (Exhibit C)

25. Dr Robert Lewin, an adult general and forensic psychiatrist, in a review of the Applicant's case and having spent time with the Applicant narrated the relevant facts and medical history together with psychiatric treatment afforded to the Applicant. In his summary diagnosis and opinion, Dr Lewin inter alia stated:

"...

Mr Eason describes the long term history of anxiety symptoms and a gradually evolving drinking problem. By the time matters came to a head during the early 1990s, he was drinking prodigious quantities of alcohol. Mr Eason was clearly dependent upon alcohol. I noted the hazardous quantity of his intake, the history of typical withdrawal symptoms and his marked craving for alcohol. He ceased drinking towards the end of 1996 and there was no report of a relapse.

Mr Eason has a mild chronic post traumatic stress disorder and his alcohol addiction is in remission.

...

On the balance, it appeared that Mr Eason had developed a Post Traumatic Stress Disorder in the aftermath of his military service in Vietnam over two tours of duty. It appeared likely that the drinking problem had either begun or had been accelerated by his emotional response to those events. He appeared to use alcohol to mask intense feelings of emotional distress. I think it reasonable to accept a causal connection between his drinking problem and the Anxiety Disorder and to attribute these to his period of military service.

..." (Exhibit F)

26. Dr Martha Baz, occupational physician, reported on her assessment of the Applicant in April 1999. Dr Baz noted that the Applicant had "stopped all his work, that is the security job and the casual work at the same time in May 1993 after the first heart attack". He further noted that "his doctor advised him to stop at least one of the jobs, and he decided to stop both". Having made a work fitness assessment, Dr Baz stated that in her opinion the Applicant's work fitness "is now compromised by his cardiorespiratory disease and the post-traumatic stress disorder." She was further of the opinion that:

"the post-traumatic stress disorder, while it would affect the type of work he can best undertake, is not so severe that it would preclude him from working in a variety of occupations, particularly where there is little client contact and which can be undertaken on his own. The improvement in the post-traumatic stress disorder which has occurred, and has been attributed to the psychiatric treatment, is probably also at least partially due to his leaving work as he has been able to isolate himself more than when he was working, and this may have assisted him in controlling his alcohol abuse".

Dr Baz was of the opinion that the Applicant was not capable of working eight or more hours per week, this the consequence of his accepted disabilities and his ischaemic heart disease.

Submissions and decision:

27. On behalf of the Applicant it is contended that his alcohol dependence was secondary to his accepted disability, post traumatic stress disorder. The alcoholism was present and part of the Applicant's psychiatric condition, post traumatic stress disorder, when this condition was originally accepted as war-caused with effect from 6 August 1996. Reliance was placed upon what was stated in the Guide to the Assessment of Rates of Veterans' Pension 5^th edition where in chapter four at page 90 it is stated:

"if substance abuse is not an accepted condition in it's own right but the veteran has an accepted psychiatric condition and substance abuse is a clinical feature of that condition, then substance abuse is to be assessed as part of the accepted psychiatric condition...only if the substance abuse was present and part of the veteran's psychiatric condition when it was originally accepted."

28. The Tribunal is satisfied in the evidence before it that the Applicant has an accepted psychiatric condition and that the alcohol addiction was a clinical feature of that condition. The addiction was part of the post traumatic stress disorder and present and part of that condition when it was originally accepted. The Tribunal is satisfied and so finds that the addiction was not a separate and non-accepted disability but part of the accepted psychiatric condition.

29. The Applicant maintains total and permanent incapacity due to his accepted disabilities alone including the post traumatic stress disorder, bilateral sensori-neural hearing loss with tinnitus, irritable bowel syndrome, chronic air flow limitation and ischaemic heart disease, the same rendering him incapable of undertaking remunerative work for the requisite periods with effect from 6 August 1996. The Applicant, it is submitted, is prevented from continuing to undertake remunerative work that he was undertaking and is suffering a loss of earnings that he would not be suffering if he were free of his relevant war-caused disabilities.

30. The Tribunal is satisfied that the Applicant's age was not a factor that prevented him working. Even be it he made a claim for age service pension in April 1993 he had then not been clinically assessed, he first seeing Dr Port in November 1996 when a relevant diagnosis was made.

31. The Tribunal is satisfied that the Applicant ceased his remunerative work in May 1993, he being prevented from continuing with the same by reason of incapacity from his war-caused injury or war-caused disease which alone, by reason of such discontinuance, caused him to suffer a loss of wages that he would not have suffered if he were free of such incapacity. The Tribunal is satisfied that if the Applicant had been free of the relevant disabilities that he would have continued in his employment. The alcohol addiction is not accepted as a separate disability but as secondary to the post traumatic stress disorder.

32. The Tribunal finds that the Applicant gave up his employment on account of his accepted disabilities alone irrespective of age, any concern he might have experienced as to the introduction of technology impacting on his capacity was attributable to his psychiatric condition.

33. For the reasons above set forth the Tribunal is reasonably satisfied that the statutory provisions to be complied with precedent to entitlement to pension at the special rate have been fulfilled. Accordingly the decision under review is set aside, the Applicant being entitled to pension at the special rate effective as from 6 August 1996.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for the decision herein of

Signed: .....................................................................................

Associate

Date/s of Hearing 16 October 2000

Date of Decision 10 November 2000

Solicitor for the Applicant Ms Jodie Buchanan

Advocate for the Respondent Ms Pacey