Kellett and Repatriation Commission [2010] AATA 14 (12 January 2010)

Last Updated: 13 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 14

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/0858

VETERANS' APPEALS DIVISION		)
	Re		LARRY KELLETT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member Bernard McCabe

Date 12 January 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.....................[Sgd].........................
Senior Member

CATCHWORDS

VETERANS' AFFAIRS – Veterans' Entitlements – special rate pension – whether incapacity from war-caused injury alone prevented applicant continuing to undertake remunerative work – decision affirmed

Veterans' Entitlements Act 1986 (Cth) ss 24(1)(c), 24(2)

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

REASONS FOR DECISION

12 January 2010

Senior Member Bernard McCabe

1. Mr Larry Kellett, the applicant, served in the Australian Army. The Repatriation Commission, the respondent, accepts his post traumatic stress disorder (PTSD), depressive disorder and non-melantoic malignant neoplasm of the skin relate to that service. Mr Kellett currently receives a pension at the general rate pursuant to the
   Veterans’ Entitlements Act 1986 (“the Act”). He lodged an application to receive a pension at the special rate on the basis that his war-caused conditions prevent him from working. That application was unsuccessful.
2. The applicant has asked me to review the respondent’s decision to refuse him a special rate pension. A hearing was listed in Townsville in August 2009, but the applicant did not attend. The parties agreed to me resolving this matter on the papers, as the applicant currently resides in the Philippines and it is not clear when he will return to Australia. On the material I have before me, I am not satisfied the applicant fulfils the requirements for a special rate pension. The decision under review must be affirmed. I give my reasons below.

THE FACTS

3. Mr Kellett was born in 1951. He joined the Army in 1970 and was discharged in 1993. He was aged under 65 at the time he lodged his application for special rate pension.
4. Mr Kellett obtained licences to operate heavy vehicles and forklifts following discharge. In 1995, he commenced work as a truck driver for Protrans, where he delivered refrigerators and other items. He worked briefly as a supervisor. He ceased work at Protrans in 2005. He described his experience working at Protrans in his statement dated 6 May 2009. He wrote that he found it difficult to work at Protrans because of his PTSD and depression. He added that he had troubles concentrating and memory problems. He also wrote that he caused significant damage to one of Protrans’ vehicles because of a lack of concentration. He was asked to leave Protrans shortly after that incident. He said he was not given a reason for his dismissal, although he assumed it related to his deteriorating performance and so decided not to dispute it. An employment report form filled in by Protrans states that Mr Kellett retired voluntarily, based on the damage done to the vehicle.
5. After Protrans, Mr Kellett worked on a part-time basis as a driver for ABC Towing from February 2006, delivering cars and other machinery. He wrote in his statement that part-time work suited him because he did not think he could cope mentally working full-time. He stopped working at ABC in August 2006. An undated letter from the manager of ABC confirms Mr Kellett is no longer employed by ABC, but the letter does not provide any reason for this. Mr Kellett said in his statement that it was too dangerous for him to continue, explaining there were times when he could not recall what he was meant to be doing or could not complete simple tasks. He sought treatment from Dr Likely, a psychiatrist, who advised him to stop work. In his statement, Mr Kellett said he has neither worked nor looked for work since
   Dr Likely told him to stop. He says he would have continued to work but for his war-caused conditions.

THE MEDICAL EVIDENCE

6. The parties provided me with the reports of several doctors. Dr Binder, a respiratory physician, prepared a report about the applicant’s sleep disorder problems in May 2004. He diagnosed the applicant as suffering sleep apnoea. His report noted Mr Kellett fell asleep behind the wheel of his truck while driving. The report also noted Mr Kellett did not have any significant concerns about driving but admitted to automatisms whist driving and experiencing myoclonic jerks. He ordered Mr Kellett to use a CPAP machine and to stop driving until a sleep assessment was performed.
7. Dr Athey wrote a report dated July 2004. He accepted the applicant suffered from a depressive disorder and symptoms consistent with a diagnosis of PTSD. He also noted the applicant suffering from sleep apnoea. He suggested that Mr Kellett receive further treatment. He opined: “Currently, Mr Kellett is able to undertake remunerative employment full-time”.
8. Dr Morris prepared a report dated February 2006. Dr Morris diagnosed the applicant as suffering from PTSD and depressive disorder. He considered that the applicant’s PTSD and depressive disorder limited his capacity to work. He referred to the applicant’s former heavy drinking habits and sleep apnoea in his report. However, he did not comment how these affected Mr Kellett’s work capacity. But he did ultimately attribute Mr Kellett’s inability to work to his PTSD and depressive disorder. While he thought Mr Kellett could no longer work as a truck driver, he thought he might be able to work as a truck driver’s offsider on a part-time basis. He said Mr Kellett’s PTSD and depressive disorder would remain chronic for the foreseeable future. He thought they might improve with treatment but would not resolve entirely.
9. Dr McKenzie examined Mr Kellett for the purpose of a work capacity report.
   Dr McKenzie formed the view that the applicant’s depressive disorder prevented or restricted his capacity to work. He thought that the applicant might be a suitable candidate for rehabilitation if the applicant were motivated. Dr McKenzie also found the applicant suffered from permanent alcoholism – albeit qualified by the words “at present” – and considered his alcoholism would have a severe or disabling effect on many functions, such that it prevented or restricted the applicant’s capacity to work.
10. Dr Likely prepared two reports about the applicant. His first report is dated December 2004. Mr Kellett reported to Dr Likely that he works “out of necessity” and how Mr Kellett felt that his position was increasingly untenable because of his irritability and dysphoria. There is no further direct comment in the report of how
    Mr Kellett’s conditions affect his ability to work. However, Dr Likely’s second report dated August 2006 does say that Mr Kellett’s war-caused conditions render him totally and permanently incapacitated from any work. Dr Pietzsch, the applicant’s treating general practitioner, effectively repeated Dr Likely’s findings for Mr Kellett in a letter dated August 2006.

THE LAW

11. Section 24 of the Act sets out the requirements for assessing applications for special rate pensions. The respondent concedes the applicant fulfils the requirements in s 24(1) with the exception of s 24(1)(c). I will also have regard to the operation of 24(2).
12. Section 24(1)(c) imposes what is known as the “alone test”. The alone test requires that the veteran’s war caused incapacity is the only obstacle preventing him from continuing to undertake paid work. Flentjar v Repatriation Commission
    [1997] FCA 1200; (1997) 48 ALD 1 sets out a useful way to approach that test. In that case, Branson J said the test required the decision-maker to ask four questions.

WHAT WAS THE RELEVANT “REMUNERATIVE WORK THAT THE APPLICANT WAS UNDERTAKING”?

13. The applicant and respondent agree that the most relevant employment is that of a truck driver and a forklift operator. I accept this is the most relevant employment.

IS THE VETERAN BY REASON WAR-CAUSED INJURY OR WAR-CAUSED DISEASE, OR BOTH, PREVENTED FROM CONTINUING TO UNDERTAKE THAT WORK?

14. Again, both parties agree, and I accept, that the applicant is prevented by reason of his war-caused conditions from continuing to undertake that work.

IF THE ANSWER TO QUESTION 2 IS YES, IS THE WAR-CAUSED INJURY OR WAR-CAUSED DIESEASE, OR BOTH, THE ONLY FACTOR OR FACTORS PREVENTING THE VETERAN FROM CONTINUING TO UNDERTAKE THAT WORK?

15. The respondent contends there are non war-caused physical conditions that affect Mr Kellett’s ability to work. It referred me to Dr Binder’s report from May 2004, in which Dr Binder notes the applicant would fall asleep at the wheel of his truck while driving and was therefore prevented from driving. It also pointed me to
    Dr Athey’s report of July 2004, where the applicant reported suffering from recurrent back pain, fatigue, severe stress headaches and sleep apnoea. The respondent also mentioned the applicant’s “excessive” drinking habits that were described in a lifestyle questionnaire in July 2006. The respondent noted as well Dr McKenzie’s finding that the applicant’s alcohol consumption had a severe or disabling impact on many functions.
16. The respondent also argued the applicant’s residence in the Philippines on a tourist visa is a factor that prevents him from getting work. He cannot obtain any sort of work if he has taken himself out of the job market by moving to another country on a visa which presumably incorporates restrictions on the right to work.
17. The applicant disagrees with the respondent’s contentions. The applicant says he has no non war-caused physical conditions that have employment consequences. In an email to his solicitor dated 12 June 2008, Mr Kellett wrote that he could not recall being excluded from driving by Dr Binder. Nor could he recall any restrictions being placed on his drivers licence. In an email dated 17 July 2008, Mr Kellett responded to questions put to him by the respondent about Dr McKenzie’s findings about alcohol consumption. He wrote that he did not “understand the preoccupation with [his] alcohol consumption” as he has “never really had a problem”. He said he might consume a bottle of rum a week around the time Dr McKenzie interviewed him, which he equated to less than three drinks a day. This is what he meant by “excessive” drinking. He also wrote that he would not purchase a bottle of rum every week. He advised that he drinks less now, as the medication Dr Likely prescribed made alcohol distasteful.
18. Weighing up the evidence in this case is complicated by the fact that I did not have the opportunity to question Mr Kellett in person, or see him cross-examined. Nonetheless, I am obliged to reach the best view I can on the material before me.
19. I agree Mr Kellett’s war-caused conditions are not the only obstacle preventing him from working. Dr McKenzie wrote in his work capacity report that Mr Kellett’s alcoholism was permanent and that it prevented or restricted his capacity to work. While Dr McKenzie qualified his finding about the applicant’s alcoholism with the words “at present” and the applicant’s complaint about Dr McKenzie’s “preoccupation” with his alcohol consumption, I was not given any real reason to dispute Dr McKenzie’s expert opinion. It is broadly consistent with Dr Morris’ report and Mr Kellett’s responses in the July 2006 questionnaire about his alcohol consumption. I am satisfied that Mr Kellett’s alcoholism also impacts on his capacity to work.
20. I also accept Mr Kellett’s residence in the Philippines restricts his ability to undertake remunerative work. He has taken himself out of the working environment by residing there on a tourist visa.

IF THE ANSWER TO 2 AND 3 ARE, IN EACH CASE, YES, IS THE VETERAN SUFFERING A LOSS OF SALARY, WAGES, OR EARNINGS ON HIS OWN ACCOUNT THAT HE WOULD NOT BE SUFFERING IF HE WERE FREE OF THE INCAPACITY?

21. Since the answer to question three was “no”, I cannot be satisfied Mr Kellett is suffering a loss that he would not be suffering if he were free of the incapacity.

THE AMELIORATION PROVISIONS

22. Mr Kellett’s failure to show that his war-caused conditions were the only factors preventing him from continuing to undertake remunerative work is not necessarily fatal to his claim. If he can establish he comes within the ameliorating provision in s 24(2) of the Act, he may still fulfil the requirements of s 24(1). Where a veteran under the age of 65 has been genuinely seeking to engage in remunerative work, he or she will fulfil the requirements in s 24(1)(c) if the war-caused conditions are the substantial cause of his inability to obtain remunerative work.
23. The applicant did not squarely address the operation of s 24(2) in his evidence. Even so, I note Mr Kellett wrote in his statement that he has not looked for remunerative work since Dr Likely ordered him to stop. He has since removed himself from the country on a tourist visa. He has not sought work since that time. I do not have clear evidence that the applicant has genuinely sought to engage in remunerative work in accordance with the section. It is also unclear whether his accepted conditions are the substantial cause of his failure to continue seeking work. This man suffers from a number of conditions, only some of which are connected to his service. He has also left the country. Given the state of the evidence, I cannot be satisfied the applicant has met the requirements of the ameliorating provision.

CONCLUSION

24. The decision under review must be affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:..............................[Sgd]................................................

Michael Buckingham, Associate

Date of Hearing 30 September 2009

Date of Decision 12 January 2010

Counsel for the applicant Mr D Honchin

Solicitor for the applicant Purcell Taylor Lawyers

Advocate for the respondent Mr J Stoner

Solicitor for the respondent Department of Veterans' Affairs