Stewart and Repatriation Commission [2009] AATA 419 (5 June 2009)

Last Updated: 12 June 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 419

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/0745

VETERANS’ APPEALS DIVISION		)
	Re		RAYMOND KENNETH STEWART

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 5 June 2009

Place Rockhampton

Decision

The Tribunal varies the decision of the Board of 11 December 2007 such that the Board’s substituted decision reads “that pension be assessed at 60% of the General rate to operate from and including 6 March 2006 and at the Special Rate to operate from and including 4 June 2007.”

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Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – application for pension at the special rate – veteran suffers from post traumatic stress disorder and other non-accepted physical ailments – evidence that other ailments do not prevent the veteran from working – age and time out of the workforce not relevant, for this veteran, as regards ability to return to work – accepted condition alone prevents veteran from continuing to undertake remunerative work – decision varied so “that pension be assessed at 60% of the General rate to operate from and including 6 March 2006 and at the Special Rate to operate from and including 4 June 2007.”

Veterans’ Entitlement Act 1986 (Cth) s 24(1)(c).

Hales and Repatriation Commission (1986) 11 ALN 281

Repatriation Commission v Flentjar [1997] FCA 1200; (1997) 48 ALD 1

REASONS FOR DECISION

5 June 2009

Deputy President P E Hack SC

1. The applicant, Mr Raymond Stewart, was born in November 1943. Mr Stewart served in the Australian Regular Army between 1964 and 1974 including operational service in Malaya and Borneo. In these proceedings Mr Stewart contends that he is entitled to be paid disability pension at the “special rate” i.e. the rate referred to in s 24 of the Veterans’ Entitlement Act 1986 (Cth). He seeks a review of a decision of the Veterans’ Review Board, made on 11 December 2007, by which it was determined that Mr Stewart’s disability pension ought be assessed at 60% of the General rate to operate from and including 6 March 2006 and at 90% to operate from and including 4 June 2007. The Board, which was required to consider Mr Stewart’s entitlement to special rate pension, concluded that he was not entitled to be paid pension at that rate.
2. What follows was not in dispute. Prior to joining the Army Mr Stewart completed an apprenticeship as a motor mechanic and pursued this trade for a while until he commenced Army service. After active service he remained as a mechanic in the Army until June 1974. On leaving the Army Mr Stewart pursued a variety of occupations. He was employed as a truck driver and general labourer for a civil engineering company for some six years, he sold vacuum cleaners door-to-door for about six months, he worked as a cleaner and gardener at a police station for about two years and then returned to work as a motor mechanic for approximately one year.
3. Towards the end of 1983 Mr Stewart commenced work as truck driver/loader for QRX, a freight handling company. He remained in that employment until 1993. Mr Stewart says that he used a physical injury as a reason to leave that employment but that, in reality, it was his inability to get on with his fellow workers and customers that drove him from that employment. He has not worked since and, subject to two minor matters, there is no suggestion that he has sought to obtain employment since then.
4. In March 2004 Mr Stewart was granted a service pension on the grounds of age. Later that year Mr Stewart first saw Dr John Flanagan, a consultant psychiatrist, who diagnosed him as having chronic post traumatic stress disorder (PTSD). Dr Flanagan has treated Mr Stewart since then and I have the benefit of a number of reports from Dr Flanagan since the initial consultation.
5. In June 2006, when he was aged 62 years, Mr Stewart made a claim for disability pension on the basis of the conditions of post traumatic stress disorder and hearing loss. Those conditions were accepted and Mr Stewart was held entitled to a disability pension at 60% of the general rate.
6. Mr Stewart sought a review of this decision and on 11 December 2007 the Veterans’ Review Board set aside the Commission’s decision and substituted a decision that Mr Stewart was entitled to pension at 60% of the general rate from 6 March 2006 and at 90% of the general rate from and including 4 June 2007, that being the date of a report from Dr Flanagan that was provided to the Board. The Board concluded that Mr Stewart was not prevented from continuing to undertake remunerative work due to the effects of his accepted disabilities alone and was thus not entitled to pension at the special rate.
7. Mr Stewart now seeks a review of that decision in this Tribunal.
8. I should mention two other matters of history for the sake of completeness. In early 2006 Mr Stewart had an opportunity to take up work as a long distance truck driver. He had felt that he was up to that but his wife had disagreed with him and he had accepted her view and had not pursued the matter. In addition, in the second half of that year Mr Stewart volunteered to work helping out a friend who kept bees. He had tried this work for a short period but had found the work stressful. It had caused him to have a recurrence of a rash that troubled him and “the shakes” had come back. He did not persist in this endeavour. These two experiences were the only occasions since 1993 that Mr Stewart had considered or obtained employment.
9. Section 24(1) of the Act prescribes the matters to be satisfied for entitlement to pension at the special rate. Mr Thrupp, who appeared for the Commission, accepted that the matters prescribed were satisfied with the exception of paragraph (c). It provides:

“(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
(d) ... “

10. The Full Court of the Federal Court in Repatriation Commission v Flentjar[1] propounded a series of questions that need be addressed when considering s 24(1)(c) of the Act. Branson J, with whom Beaumont and Merkel JJ agreed, said this:

“In my view the issues before the tribunal in this case were as follows:
1.  What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2.  Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.  If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.  If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”

11. It is convenient to consider the evidence in the present case by reference to the questions posited by her Honour bearing in mind that the questions are to be addressed by reference to the assessment period, that is, the period from 4 June 2007 when Mr Stewart first satisfied the requirement of s 24(1)(a) of the Act, until the date of decision.
12. There is no real dispute that the remunerative work in issue was that of motor mechanic or truck driver or loader. It was work of that nature that Mr Stewart had undertaken during the vast majority of his working life after discharge from the Army.
13. Whilst the Commission’s Statement of Facts and Contentions[2] suggested that the second question ought be answered unfavourably Mr Thrupp accepted, in the course of oral argument, that it should be answered “yes” having regard to the Commission’s acceptance that s 24(1)(b) was satisfied in Mr Stewart’s case.
14. There being no suggestion that his hearing loss has any bearing on the matter, the critical issue in the present case in whether it is Mr Stewart’s post traumatic stress disorder alone that prevented him from continuing to undertake remunerative work. The issue is to be decided to the standard of “reasonable satisfaction”[3].
15. Mr Clarke, counsel for Mr Stewart, submitted that the medical evidence supported the conclusion that it was post traumatic stress disorder alone that did so; Mr Thrupp submitted that other medical conditions and factors, in particular, the period of time that Mr Stewart had been out of the workforce and his age, played a role in the matter.
16. A number of medical conditions of Mr Stewart’s have been addressed in the material. Mr Stewart has had knee problems commencing in the late 1990’s and culminating in a successful left total knee replacement in 2002, performed by Dr Gale Curtis an orthopaedic surgeon. Dr Curtis reported that, following the replacement, Mr Stewart’s general condition had “improved to the point where he is now moderately active”.
17. In addition, Mr Stewart has age-related disc degenerative disease throughout the spine, normal for his age. There is controversy, dealt with below, about the extent of the incapacity brought about by this condition.
18. For some five years Mr Stewart has suffered from a rash which appears variously on his trunk and his limbs. Dr Jason Wu, a dermatologist, is unable to offer a definitive diagnosis. The rash is intermittent and appears to flare approximately monthly. Both Mr Stewart and Dr Flanagan relate the outbreak of the rash to increasing stress. The condition is undoubtedly aggravating but the evidence does not suggest that it would affect Mr Stewart’s capacity to work.
19. In mid-2007 Mr Stewart suffered from angina and arterial disease however this appears to have been treated satisfactorily by a stent. Dr Geoffrey Holt, a cardiologist, reported that Mr Stewart was “active and unrestricted” and able “to perform normal duties”.
20. Mr Thrupp submitted that the accumulation of the various other conditions, together with Mr Stewart’s age and the length of time that he had been out of the workplace meant that it was not possible to be satisfied that it was the post traumatic stress disorder alone that prevented Mr Stewart from engaging in remunerative employment. Careful reflection satisfies me that that is not correct.
21. The evidence regarding the rash does not suggest that it would have any affect on Mr Stewart’s capacity to engage in employment. It is true, as he himself suggests, that the outbreak of the rash coincided with his attempt at bee-keeping, however Dr Flanagan’s reports of 26 October 2006[4] and 4 June 2007[5] make it plain that it was the other symptoms of post traumatic stress disorder that prevented Mr Stewart from pursuing the bee-keeping venture.
22. There is no evidence that the earlier cardiac problems have any adverse affect on Mr Stewart’s capacity to work; indeed the evidence is to the contrary.
23. Whilst Mr Stewart has arthritic knees, and a reduced range of movement in those joints as a consequence, the material does not show that the knees have any bearing on capacity to engage in employment. What is critical in the present case is Mr Stewart’s back condition.
24. Dr Peter Thompson is Mr Stewart’s general practitioner and has treated him for the last ten years or so. In a report provided to the Commission in February 2006[6] Dr Thompson ascribed a “functional rating” of four, that is, “severe or disabling effect on many functions”, to Mr Stewart’s spinal problems. When asked to comment on Mr Stewart’s capacity for work he reported that Mr Stewart “mentally could not cope with social contact involved in work”. He spoke in his evidence before me of Mr Stewart having a degree of pain associated with his back. This pain, he thought, “meant that [Mr Stewart] certainly could not work”.
25. On the other hand I have the evidence of Dr Curtis that from an orthopaedic viewpoint Mr Stewart could return to the workforce doing light skilled or semi skilled work. He said:

“On this basis, the only impediment of course is his post traumatic stress disorder preventing him from returning to full duties.”

26. Because of the apparent difference of views between Dr Thompson and Dr Curtis I asked Dr Curtis to comment on what Dr Thompson had said. I was much taken by his answer that Mr Stewart’s level of pain was best gauged from the level of analgesic medicine required and that reference to Mr Stewart’s medication demonstrated a “mild to moderate” level of pain.
27. In my view I should prefer the greater expertise of Dr Curtis despite the greater exposure that Dr Thompson has had to Mr Stewart’s symptoms. There is further support for that conclusion in the absence of reference to debilitating back pain in the other medical histories obtained by Dr Wu and Dr Holt. In the result I am satisfied that Mr Stewart’s orthopaedic conditions are not such as would have prevented him from undertaking his former employment as a truck driver or loader or motor mechanic.
28. It remains to consider the effect of Mr Stewart’s lengthy absence from the workforce and his age on his capacity to re-engage in employment. In an appropriate case it may be necessary to consider the effect of a lengthy period out of the workforce where it is the accepted condition that has caused that absence. Such is the case here but I need not decide that interesting question. In Hales and Repatriation Commission[7] the Tribunal referred to the difficulties that the applicant in that case might have in coping with new work techniques and practices that may have evolved over the long period that Mr Hales had been out of the work force. But here, in the absence of any suggestion of changing techniques or practices, I am prepared to infer that nothing much has changed in truck driving or loading or in the repairing of motor vehicles. Mr Stewart is outwardly a fit and able bodied man. Thus, and accepting that there has been a gap of about 14 years, I do not consider that that gap would hinder Mr Stewart’s capacity to re-engage in employment of the type to which he was accustomed.
29. Mr Stewart was 63 years old at the start of the assessment period however he presents as a fit and agile person. None of the medical reports suggest that he has any condition attributable to his age that would prevent or impair any effort to obtain employment.
30. Thus, and despite the other medical conditions, his age and the length of time out of employment, I am satisfied that it is Mr Stewart’s condition of post traumatic stress alone that has prevented him from continuing to undertake remunerative work. I would then vary the decision of the Board of 11 December 2007 such that the substituted decision read “that pension be assessed at 60% of the General rate to operate from and including 6 March 2006 and at the Special Rate to operate from and including 4 June 2007.”

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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

Melissa Hamblin, Associate

Dates of Hearing 4 – 5 June 2009

Date of Decision 5 June 2009

Counsel for the Applicant Mr J Clarke

Solicitors for the Applicant Maddens Solicitors

For the Respondent Mr T Thrupp

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[1] [1997] FCA 1200; (1997) 48 ALD 1.

[2] Exhibit 15.

[3] See s 120(4) of the Act

[4] Exhibit 6.

[5] Exhibit 7.

[6] Exhibit 10.

[7] (1986) 11 ALN 281.