Van Heteren and Repatriation Commission [2003] AATA 131 (11 February 2003)

Last Updated: 12 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 131

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/262

VETERANS APPEALS DIVISION	)
	Re	PETRUS W F VAN HETEREN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member J.A. Kiosoglous MBE

Date 11 February 2003

Place Adelaide

Decision

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is entitled to special rate as and from 27 November 2001

(signed)

J.A. KIOSOGLOUS MBE

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements - special rate - subsection 24(1)(c) and 24(2) of the veterans' Entitlements Act 1986 considered - alone test - date of effect on qualification for special rate - medical evidence - ischaemic heart disease

Veterans' Entitlements Act 1986 s.24

REASONS FOR DECISION

11 February 2003

Senior Member J.A. Kiosoglous MBE

1. This is an application by Petrus Wilhelmus Franciscus Van Heteren (the applicant) for review of a decision of a delegate of the respondent made on 7 December 2000 (T20) and affirmed by the Veterans' Review Board (VRB) on 22 April 2001 (T2) to continue the applicant's pension at 100% of the General Rate.

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1 - T27), together with twelve exhibits, ten lodged by the applicant (Exhibits A1 to A10) and two lodged by the respondent (Exhibits R1 to R2). In addition the Tribunal heard evidence only from the applicant. Mr T. White, of counsel, represented the applicant and the respondent was represented by Mr G. Doube, a departmental advocate.

ISSUES

3. The issue before the Tribunal as agreed between the parties is whether or not the applicant is entitled to pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 (the Act).

4. The respondent conceded that the applicant satisfies the first criterion for both Special Rate pension, that is subsection 24 (1) (a) in that he is in receipt of pension at a rate higher than 70% of the General Rate.

5. The respondent also conceded that the applicant satisfies the second criterion for the Special Rate pension, that is subsection 24 (1) (b) in that incapacity from his war caused conditions, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

6. In issue before the Tribunal is whether the applicant satisfies the third criterion for the Special Rate pension that is subsection 24 (1) (c).

HISTORY OF THE APPLICANTION

7. The applicant was born on 11 May 1946 and served in the Australian Army, including operational service in Vietnam, from 1967 to 1969. The applicant has shrapnel wound right thigh, post traumatic stress disorder, with alcohol abuse, gastro-oesophageal reflux disease, diabetes mellitus, and ischaemic heart disease - accepted as war caused disabilities.

8. On 1 November 2000 the applicant completed and signed a claim form (T4) which was an application for an increase in pension. This was lodged with the respondent on 2 November 2000. On 7 December 2000 (T20) the respondent refused the application and decided to continue pension at 100% of the General Rate. The decision was affirmed upon review by the VRB on 22 May 2001 (T2). An application was then lodged on 19 July 2001 with the Administrative Appeals Tribunal seeking a review of the decision of the VRB (T1).

APPLICANT'S EVIDENCE

9. The applicant told the Tribunal that he enlisted with the army and served from February 1967 to February 1969 of which service in Vietnam was from about December 1967 to December 1968. On discharge he obtained employment as a fibrous plasterer for approximately eight months. He then worked for General Motors Holden at Elizabeth for some six years as a welder. After that he resumed his own trade working for himself as a fibrous plasterer within the building industry. He undertook internal linings such as walls, ceilings and doing fancy corners.

10. The applicant undertook his self-employment until 1980 when he joined Bridgestone Tyres at Salisbury. After two years there he returned back to the building industry working for himself again as a fibrous plasterer. In 1987 he did a commercial cookery course at Regency TAFE School of Hospitality. On completion of the course he attempted to find a job in the hospitality industry but was unsuccessful. As a result he then obtained a position with John Shearer's as a welder and worked there for two years. He found this work very stressful and so left in about 1990.

11. The applicant stated that during his period with John Shearer's as a result of his being stressed he attended in about 1988 - 1989 the Vietnam Veterans' Counselling Service for counselling. On leaving John Shearer's he went to British Tube Mills, Australia (BTM) in about 1990 as a steering component welder. He stated that he remained there for just over two years but left due to difficulties with some of the people with whom he had to work with. He also stated that he got into arguments with them as well as with management.

12. As well as the arguments the applicant stated that in about 1992 he had a problem with his right shoulder causing him to be off work for some time. He was unable to recall the amount of time he had off from work for this. On his return to work he worked on a part-time basis gradually increasing back to full-time. He stated he started at two hours a day then increasing by two hours each time until over some weeks up to eight hours per day. Due to the shoulder complaint he was on light duties but full-time.

13. He stated that BTM offered him a position at its steel plant at Kilburn as a guillotine operator. However, because of his shoulder and on the advice of his doctor at the time he did not take up this position. He subsequently was made redundant when BTM ceased to operate and he then sought work elsewhere and in particular in the hospitality industry. He also undertook a number of courses (Exhibit A7). He stated that he sent out in the vicinity of about 1,000 applications for work but received only thirteen replies all of which were negative. He also obtained assistance from Job Club and the Commonwealth Rehabilitation Service (CRS). Despite numerous efforts to find work he has been unable to find work since BTM.

14. The applicant stated that he has undertaken some voluntary work at his local soccer club, Para Hills West Soccer Club. He assisted for a number of years on a part time basis. He stated that this was about 1994-1995. His duties entailed banking money, stocking the bar and to make purchases of alcohol, lollies, chocolate bars and potato crisps. He worked voluntarily from between six to eight hours per week. He explained that the hours worked was due to the Club not opening every night but only for an hour or so on Tuesday and Thursday nights when there's training and then on a Sunday when matches are played. He also stated that it only opened on Thursday nights when out of soccer season.

15. The applicant stated that he ceased to work there as he got stressed out and that people annoyed him. He also got into arguments with people and in particular with officers of the Soccer Club. He stated he stood down for the good of the club and he was subsequently replaced.

16. The applicant first saw Dr Marty Ewer, psychiatrist in about March 1999. He saw Dr Ewer because of the difficulties he was having emotionally. He stated that Dr Ewer put him on medication, namely Aropax, but then changed to Efexor. Since then he has seen Dr Ewer on a number of occasions. Also on the advice of Dr Ewer he attended the Vietnam Veterans' Counselling Service for counselling. He also stated that in addition to his emotional difficulties he also has a heart condition for which he has also been hospitalised. He agreed that he has ischaemic heart disease which restricts the type of work he can perform. He now finds that when he over exerts himself he gets terrific pains in the chest area which causes him to use his Nitrolingual spray for the purpose of opening up his blood vessels to allow more blood and oxygen to pass through his heart.

17. The applicant stated that he can comfortably walk for about 100 metres and then needs to rest before he can walk another 100 metres. He stated that some of the medication being taken for his heart includes Remapril, Bromdegril, Cartia and Nitrolingual spray. He takes fourteen tablets a day inclusive of medication, Losec tablets, for reflux for his peptic ulcer. He also is seeing a dietitian to help him to get his weight down and thus help him with his diabetes and heart disease. He controls this with diet and tablets, Diaformin. He also stated that he has to be careful with what he eats.

18. The applicant stated that his general practitioner is Dr Colin McLeay whom he sees regularly. He stated that because he is careful with what he does he now does not have any difficulties with his right shoulder. He also stated that he helps around the house by cutting the lawn, painting, wash the car and helps his wife with house cleaning.

19. In relation to the injury to his right shoulder the applicant during cross-examination stated that this was a repetitive strain injury. He stated that he was unable to lift his arm above shoulder height and it was painful. When offered by BTM to be transferred to the Kilburn plant the applicant declined on the advice of his doctor because of the shoulder injury.

20. The applicant agreed that on the advice of an officer of the then Commonwealth Employment Service at Salisbury (now Centrelink) he applied for a Disability Pension because of his shoulder injury. He agreed that on being granted that benefit he was considered to be unfit for full-time work for at least two years (Exhibit R2). He further agreed that two years later he applied for and received a Service Pension on the grounds of permanent incapacity for work. He also agreed that in the interim he had done some volunteer work with the Para Hills West Soccer Club of a bar type nature.

21. The applicant agreed that he had already been on a Service Pension for some three years when his heart condition was first diagnosed in January 2002. At that time he had been out of the labour market for three years. He also agreed that this was an accepted disability.

DR COLIN D. MCLEAY, GENERAL PRACTITIONER

22. Dr McLeay in his report dated 29 September 2001 (Exhibit A5) stated, inter alia:

"Mr van Heteren admits to drinking alcohol in excess. As stated above he

was unable to continue working at the soccer club because of availability of alcohol and aggressive feelings. He drinks both Scotch whisky and port."

23. In his evidence the applicant stated that whilst working at the Soccer Club behind the bar there was always the availability of alcohol.

DR W.C. HAMDEN, GENERAL PRACTITIONER

24. Dr Hamden, who was the applicant's general practitioner in 1999, set out in an Invalidity Details form (T16/107) that the applicant was too aggressive for any job. He further stated that in his opinion he would not recommend that anyone give the applicant a job as he is too angry, aggressive and abusive.

DR P. DE IESO, MEDICAL REGISTRAR

25. In his report dated 8 July 2002 (Exhibit A4) Dr De Ieso stated that the applicant's ischaemic heart disease will restrict the type of work he can perform in the future. As an example Dr De Ieso stated that the applicant should not be up and down stairs regularly at work and should not be exerting himself which would exacerbate his cardiac ischaemia.

DR COLIN G. MILLS, CONSULTANT OCCUPATIONAL PHYSICIAN

26. In his report dated 24 July 2002 (Exhibit A6) Dr Mills commented that the applicant's back and shoulder do not limit his exertion but rather it is the angina. He further stated that similarly for painting and other household chores the applicant is limited to 20 to 30 minutes at a slow pace but again due to angina.

27. Dr Mills in setting out his opinion stated that the applicant is incapacitated for all work because of the accepted conditions of cardiac disease and post traumatic stress disorder. He further states in his opinion that the applicant's capacity for work is less than eight hours per week. He concluded that he in fact did not believe that the applicant is employable at all.

DR MARTY EWER, PSYCHIATRIST

28. Dr Ewer in his report dated 18 December 2000 (Exhibit A10) stated that in his opinion the applicant is incapacitated for undertaking remunerative work for more than eight hours per week due only to his post traumatic stress disorder and alcohol dependence. He stated that when considered together these two problems alone would render the applicant unfit for paid employment. He further stated that the post traumatic stress disorder was a significant and substantial factor in causing the applicant to cease remunerative work.

APPLICANT'S SUBMISSIONS

29. Mr White submitted on behalf of the applicant that the Tribunal needs to look at the two-part test to subsection 24 (1) (c) of the Act. He stated the requirement to look at the accepted disabilities alone preventing the applicant from continuing to undertake remunerative work which means focussing on the effect that the accepted disabilities have on his capacity for work.

30. Mr White also submitted that it is necessary to look at what is remunerative work and went on to say that that includes a variety of work such as welding, plaster labouring and hospitality and bar work. He submitted that there is considerable evidence that should satisfy the Tribunal that the applicant's disabilities alone prevent him from undertaking work. He also submitted that the applicant could not be recommended for a job as "he is too angry, aggressive and abusive."

31. Mr White also referred to the difficulties that the applicant had in his work environment and for which he received counselling. He further referred to the difficulties the applicant had working at the soccer club and which were related to his accepted post traumatic stress disorder. He submitted that the applicant's ceasing work there was not because of any problem to the shoulder nor the non-accepted conditions. It was also submitted that the applicant has been genuinely seeking work and belonged to a number of job network groups.

32. Mr White submitted that the applicant's incapacity from the accepted disabilities was the substantial cause in his inability to obtain work. He further submitted that if subsection 24 (2) (b) is satisfied then the accepted disabilities don't need to be the sole cause but rather a substantial cause of the inability to obtain work. He also submitted that the question needed to be asked is if the applicant is not in remunerative employment is this due to the accepted disabilities. He submitted that this is a question that needs to be assessed during the assessment period.

33. Mr White submitted that on the evidence before the Tribunal it is quite clear that the shoulder is not causing ongoing problems, nor is the applicant receiving any treatment for it, nor is he taking any medication for it and that he has not had any surgery for it. He submitted that there are no conditions apart from the accepted disabilities that have prevented the applicant from engaging in work.

34. Mr White submitted that the applicant's psychiatric condition which includes post traumatic stress disorder and alcohol abuse is very significant. He submitted that the applicant received counselling from the Vietnam Veterans' Counselling Service back in 1988 for about eighteen months. It was further submitted that he had further counselling when he first saw Dr Ewer in around 1999. It was also submitted that the applicant currently takes medication daily as part of the treatment for the accepted disabilities. He submitted that the applicant does satisfy the requirements of subsection 24 (1) (c) and hence entitled to the Special Rate.

RESPONDENT'S SUBMISSIONS

35. Mr Doube submitted that the appropriate factor to be looked at is why the applicant actually ceased work when he did, be it during the assessment period or before the assessment period. He submitted that in this current matter the appropriate time to look at in terms of subsection 24 (1) (c) of the Act is in September 1992 when the applicant ceased work. He also submitted that to satisfy the provisions of that said subsection the applicant must have ceased work solely because of his war conditions.

36. Mr Doube submitted that the applicant served in Vietnam and got out of the Army in early 1969. He submitted that from 1969 until 1992 except for a very short time working with a tyre company the applicant worked in plastering and welding positions. He also submitted that the applicant retrained and undertook courses in the hospitality industry at the Regency Park College of TAFE studying full-time for six months. After that he attempted to find work but was unable to do so in the hospitality industry. It was submitted that the applicant then returned to employment positions such as welding and plastering. It was further submitted that there was absolutely not one shred of evidence to show that the applicant's accepted disabilities were the cause of the applicant's inability to obtain work in 1987.

37. Mr Doube submitted that at that time the applicant was on the "dole" and continued to be so until 1997 when he was advised to apply for the disability support pension (T22/131) because of a shoulder injury. The disability support pension was granted for two years. It was submitted that at the end of that two year period the applicant applied for a Service Pension on the grounds of permanent impairment and was granted that pension. It was further submitted that the applicant is now effectively out of the workforce and that there is no indication in any of the documentation that the accepted disabilities have been the cause of his either ceasing work or of his inability to obtain work once he was seeking it after losing his job.

38. Mr Doube submitted that the applicant gave evidence that his heart condition only became apparent in January 2002 when he suffered a heart attack. It was submitted that on the evidence the heart condition played no part in either the cessation of work nor in the applicant's inability to obtain work. He further submitted that when applying for the Service Pension the applicant made no reference to the accepted disabilities but stated that he ceased work because BTM "folded up". He also submitted that the applicant on Oath stated that none of his disabilities affected his employment or his ability to seek employment at any time.

39. Mr Doube submitted that there is no evidence before the Tribunal to show anything other than the reason why the applicant ceased work was the company "folding" and the shoulder injury was the reason why he was not able to continue in that industry. Mr Doube further submitted that the applicant in answer to question 24 of his application for increase (T11/71) namely whether the disabilities now being claimed affected employment or ability to seek employment at any time the applicant marked the "no" box. He concluded by submitting that the applicant fails to satisfy the requirements for subsection 24 (1) (c) of the Act and as such cannot be considered for the Special Rate pension.

DISCUSSION AND FINDINGS

40. The Tribunal as previously stated notes that the respondent concedes that subsections 24 (1) (a) and 24 (1) (b) of the Act are satisfied and accordingly, the Tribunal so finds that to be the case. The Tribunal also notes that the date of effect is not in dispute, and is agreed at 2 November 2000 if the Tribunal accepts the date upon which the original application was lodged for an increase in pension. However, in the event of the Tribunal being satisfied that subsection 24 (1) (c) has been complied with because of the inclusion of ischaemic heart disease then the date of effect will be 27 November 2001.

41. Before the Tribunal then, is the question of whether or not the applicant satisfies subsection 24 (1) (c) of the Act which provides:

"24(1)

(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 be suffering if the veteran were free of that incapacity; and

..."

42. Subsection 24(1)(c) of the Act is to be read in conjunction with subsection 24 (2) of the Act which states:

"(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."

43. There is no doubt that some of the oral evidence before the Tribunal was in conflict with the documentary evidence, particularly in relation as to whether or not his accepted disabilities affected the applicant's employment or his ability to find employment. Notwithstanding this at no time was the applicant's character challenged. The Tribunal is satisfied that the applicant was a credible witness, and for all his failings such as being aggressive and abusive, did not attempt at any time to mislead or be untruthful.

44. The Tribunal is satisfied that all of the accepted disabilities except for the ischaemic heart disease have had a marked affect on the applicant. The applicant was at the time of this hearing in receipt of the Service Pension at 100% of the General Rate. The accepted disability of the ischaemic heart disease did not arise until after the VRB hearing and prior to the hearing before this Tribunal. Without that additional accepted disability the Tribunal is satisfied that the applicant's chances of succeeding before this Tribunal would be remote. The applicant being in receipt of the Service Pension at 100% of the General Rate was so assessed on the basis of the then accepted disabilities.

45. The Tribunal is satisfied and finds that the applicant ceased employment with BTM when it ceased to operate. Due to the collapse of BTM, notwithstanding the shoulder condition of the applicant, he was given a redundancy package. He has not worked since that time in paid employment but only in a volunteer capacity with the soccer club. Even this part-time volunteer work was short-lived and he ceased this due to a falling out with officers there as a result of his aggressive and abusive manner. Whilst little credit was given to the applicant in his subsequent endeavours to find employment and also through undertaking a number of courses to enable him to develop skills to assist him in finding employment, the Tribunal is satisfied that the applicant is not what can be described as a "malingerer" but is to be commended for trying to be a useful member of the community. Very few applicants before this Tribunal make the same efforts as this applicant.

46. The vexed issue before this Tribunal is whether or not it applies the alone test as at the time the applicant ceased work with BTM in about 1992 brought about by its collapse. In the alternative the date of the applicant's lodging his application on 2 November 2000 as the date of effect. To add to the situation the subsequent ischaemic heart disease was accepted with effect from 27 November 2001. The Tribunal on the law has no difficulty in rejecting the date of effect being in 1992 or thereabouts.

47. The Tribunal, if satisfied that the applicant satisfies the alone test must then decide whether the date of effect is 2 November 2000 or 27 November 2001. This in fact was agreed upon by the parties at the outset of this hearing and the Tribunal is satisfied that such is the case. The Tribunal needs to satisfy itself as to whether or not the applicant fulfils the two parts of the above test. Firstly to decide if the applicant's accepted conditions including the ischaemic heart disease alone prevent him from working and from undertaking remunerative work. Secondly, whether or not there are any other factors that play a role in preventing him from working or that contributed to him ceasing work.

48. The Tribunal is satisfied and finds on the whole of the evidence before it including the medical evidence that the applicant ceased work solely due to his accepted disabilities but in particular due to his post traumatic stress disorder with alcohol abuse. If the Tribunal were left only with this factor then the applicant could not succeed as all of these have been considered by the VRB when affirming the decision of the respondent. However, this Tribunal also takes into account the affect that the ischaemic heart disease has on the applicant's ability to work or to continue to be incapacitated for work solely due to his accepted disabilities which now includes the said heart condition.

49. The Tribunal is satisfied that the date of effect is assessed at 2 November 2000 then the applicant fails to satisfy the requirements of section 24 of the Act. However, the Tribunal is satisfied that the medical evidence before it clearly supports the fact that by reason of the ischaemic heart disease alone, the applicant is prevented from continuing to engage in any remunerative work. Accordingly, the Tribunal finds that the applicant satisfies subsection 24 (1) (c) of the Act.

50. In light of this finding, and with the respondent conceding subsections 24 (1) (a) and 24 (1) (b) of the Act, the Tribunal finds that the applicant is qualified to receive pension at the Special Rate as and from 27 November 2001.

DECISION

51. For the above reasons, and pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is entitled to special rate as and from 27 November 2001.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kisoglous MBE

Signed: (signed)

John Howell, Associate

Date of Hearing 14 October 2002

Date of Decision 11 February 2003

Counsel for the Applicant Mr T. White

Solicitor for the Applicant Tindall Gask Bentley

Counsel for the Respondent Mr G. Doube

Solicitor for the Respondent Department of Veterans' Affairs