Retrot and Repatriation Commission [2010] AATA 87 (5 February 2010)

Last Updated: 5 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 87

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0949

VETERANS’ APPEALS DIVISION		)
	Re		ROBERT RETROT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

M J Carstairs, Senior Member

Date 5 February 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

................[sgd]..............................
Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – special rate of pension – remunerative work – whether prevented from continuing remunerative work – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth), ss 19, 24

Cavell v Repatriation Commission (1988) 9 AAR 534

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

Forbes v Repatriation Commission [2000] FCA 328; (2000) 171 ALR 131

Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47

Peacock v Repatriation Commission (2004) 40 AAR 143

REASONS FOR DECISION

5 February 2010

M J Carstairs, Senior Member

1. Mr Robert Retrot was called up for National Service with the Australian Army from 1966 to 1968, and had operational service in Vietnam between 1967 and 1968. Prior to his Army service, Mr Retrot had joined the Queensland Police Force, and, essentially, resumed that employment until taking his retirement in 2005 at the age 60; the compulsory age for retirement.
2. In 2007, Mr Retrot lodged an application for special rate of pension, a rate available to veterans whose war-caused injuries prevent them from working, if they can establish that they have lost earnings that they otherwise would have had, absent war-caused disabilities.
3. Mr Retrot maintains that his war-caused disabilities – post traumatic stress disorder and lumbar spondylosis being the main ones affecting employment – prevented him from further engaging in remunerative work. The respondent does not agree. The respondent maintains there were other reasons to explain why Mr Retrot was no longer undertaking remunerative work.

BACKGROUND

4. Mr Retrot joined the Queensland Police Force as a cadet in 1962. In 1965, he was sworn in as a constable and after three months, was transferred to the Innisfail Police Station. In 1966, Mr Retrot was called up for National Service. He served in Vietnam as a “gunner/radar operator”.
5. After his Vietnam service, Mr Retrot resumed work in the Police Force, apart from a brief period in 1970-71. After re-joining in 1971, Mr Retrot gradually moved from general policing to more senior corporate roles in the service. He undertook tertiary studies relevant to senior management. Mr Retrot was promoted to Inspector in 1990. He was then appointed Regional Operations Coordinator in Rockhampton at the rank of Chief Superintendent in 1999. Mr Retrot acted in the role of Assistant Commissioner intermittently between 2000 and 2004. He was awarded the Australian Police Medal in 2004 in recognition of his nearly 40 year’s distinguished service to the Queensland Police Service.
6. Mr Retrot retired from the Police Service in 2005 at the age of sixty, having taken an extended period of long service leave on half pay from July 2004 to December 2005. Mr Retrot has not been in paid employment since he left the Police Force. He had considered applying for positions, in particular senior positions with or related to public sector functions, but he did not lodge any actual applications. Yet in his current claim he relies upon that having been a real possibility for him, and he cited examples where retired colleagues, other senior ranking officers, who after taking their retirement, successfully made the transition into other public sector corporate roles. In oral evidence, Mr Retrot said that his personal objective was to achieve at the highest levels, so with respect to considering possible employment after the retired, he was not considering pursuing lower level management positions.

ISSUES

7. Section 24 of the Veterans’ Entitlements Act 1986 (“the Act”) contains the provisions for special rate of pension and consists of a number of tests, all of which must be satisfied to establish entitlement, and must be satisfied within the assessment period, a period commencing at the date of claim and ending at the date of the decision. The start of the assessment period (s 19 of the Act) is the time of claim which was August 2007. Mr Retrot was then 61 years old.
8. The respondent was not prepared to concede that Mr Retrot satisfied s 24(1)(b) of the Act. This sub-section requires that the veteran be unable to work more than eight hours per week by reason of war-caused incapacity alone. However both the delegate and the Veterans' Review Board had accepted that Mr Retrot passed that test, based upon the opinions of Dr I Holm, psychiatrist, in his reports dated 13 February 2008 and 25 May 2008. In his oral evidence, Dr Holm confirmed that Mr Retrot’s post traumatic stress disorder has sufficient impact on his ability to function so as to prevent him working eight hours per week. No evidence was led directly to suggest that Dr Holm’s conclusion was incorrect.
9. Dr Holm has treated the applicant regularly since mid-2007. His initial opinion (February 2008) was that post traumatic stress disorder might have contributed to Mr Retrot not continuing to work, but it would not have caused it. Dr Holm identified Mr Retrot’s back problem as the main employment-affecting issue. Mr Retrot said as much to Dr Holm. There would be no basis for Dr Holm drawing this conclusion otherwise (bearing in mind that Mr Retrot did not become Dr Holm’s patient until rather later). Mr Retrot, in his oral evidence, indeed described the difficulties he experienced with the extensive driving required of him as Regional Operations Coordinator in Rockhampton. In that role, he was responsible for four districts: Rockhampton, Mackay, Longreach, and Gladstone. Some work trips involved seven hours of driving and he found this very hard with his back
10. I note that Dr Holm has modified his opinions in later reporting, with the result that he now places more emphasis on post traumatic stress disorder as an operative factor in Mr Retrot’s ceasing to be in remunerative work. His opinion now is that Mr Retrot could not work more than eight hours per week, because of his post traumatic stress disorder alone. Dr B Martin, orthopaedic surgeon, gave evidence with respect to Mr Retrot’s back condition, that it would limit him to 20 hours work per week. He could not comment on what impact Mr Retrot’s psychiatric condition would have.
11. On the rather limited medical evidence before me, I can only conclude taking into account Dr Holm’s opinions, that, at the start of the assessment period at least, Mr Retrot was unable (for reasons of war-caused incapacity alone), to work eight hours a week.
12. This means that the case as to his entitlement to special rate of pension turned upon the application of s 24(1)(c) of the Act. The test in s 24(1)(c) has two limbs:
    • a veteran must be prevented from continuing in remunerative work, solely by reason of war-caused disability; and
    • the veteran must, as a result, suffer a loss of salary or wages that they would not suffer without war-caused disability.
13. I must examine whether Mr Retrot was prevented from continuing to undertake remunerative work and if, as a result, he is suffering loss. Section 24(1)(c) effectively addresses the question of whether a veteran’s loss of remunerative work is attributable solely to service-related incapacities or whether it is something else as well.
14. The elements of the tests that arise within s 24(1)(c) are those described by the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1. They entail answering the following questions:

1. What was the relevant "remunerative work that the veteran was undertaking"...?
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?

15. The first of these questions refers to Mr Retrot’s “remunerative work.” The evidence makes plain that virtually the whole of Mr Retrot’s working life has been in the Queensland Police Force. When considering a description of the remunerative work Mr Retrot has undertaken in that employment, it can be divided into two distinct periods, the first being his general policing duties on the beat, a period that ended some time ago. The next was the period where he was undertaking increasingly higher level responsibilities in senior management and administration. This remunerative work could be broadly described as public sector corporate management. Mr Retrot is correct in his observation that remunerative work of the latter kind involved transferable skills that could be applied in other high level management roles, particularly in the public sector.
16. The second Flentjar question asks whether Mr Retrot is prevented by reason of war-caused disability from continuing to undertake that work. On the basis of the medical evidence before me, which I have sufficiently set out above, this question has to be answered “yes”. It is true, as Mr Williams for the respondent pointed out, that the medical evidence is not unequivocal, particularly on the issue of what impact Mr Retrot’s accepted disabilities have on his capacity to be in remunerative work. Dr Holm, when first asked, did not place much emphasis on Mr Retrot’s psychiatric condition as having much role in his ceasing work. Dr Holm clearly emphasised his back problems. On the other hand, Dr Martin took the view that Mr Retrot’s back was not too bad for his age.
17. That medical evidence raises some questions in my mind about the overall impact of his accepted disabilities at the time when Mr Retrot ceased work. There was no strong evidence that Mr Retrot was struggling in his job in any meaningful way, even taking account of the problems he raised about the extensive driving required of him in Rockhampton. He did not appear to require much in the way of treatment for his back, nor did he require any psychiatric support or treatment, and was not diagnosed with post traumatic stress disorder until some years later. I accept his evidence that he was experiencing difficulties, but the reality is that, despite any perceived difficulties, he was able to work full-time at a high level. He was clearly well regarded to be awarded the Australian Police Medal in 2004.
18. I am mindful that this second question must be addressed at the start of the assessment period rather than when the veteran ceased work. In Mr Retrot’s case these points in time are not so far apart. However, I give some weight to the settled opinion of Dr Holm that even without the back pain, Mr Retrot’s post traumatic stress disorder was enough to prevent him working. The condition has now stabilised since Mr Retrot sought treatment. Dr Holm is now more inclined to the view that this was the case from the time he ceased work (in 2005). Accordingly the second of the Flentjar questions, taking into account the medical evidence, must be answered favourably to Mr Retrot. Mr Retrot's war-caused disabilities prevent him continuing to undertake his remunerative work from the start of the assessment period in 2007.
19. The third Flentjar question addresses whether there were other factors that prevented Mr Retrot continuing to undertake remunerative work. What looms large here is the fact that Mr Retrot was in remunerative work for nearly forty years with one employer. His particular employment had a retirement age of sixty years. It was at that age exactly that he did retire. This also is the point of time, taking into account his particular remunerative work history that he “ceased to engage in remunerative work”.
20. However the language used in s 24(1)(c) is “prevented from” continuing to undertake remunerative work. As Dowsett J pointed out in Peacock v Repatriation Commission (2004) 40 AAR 143, it is important to take account of that language, in the context of remunerative work generally, not a particular job. It is true that having a compulsory retirement age of sixty years meant that Mr Retrot would have to take his retirement at that time. He was prevented from continuing work in the police force, but this does not inevitably lead to a conclusion that Mr Retrot was prevented from engaging in similar remunerative work where there might not have been that age bar. As his Honour made plain in that case, certain matters might induce a person to retire but yet will not “prevent” the person performing work later. Relevantly, in the assessment period.
21. In the absence of any identifiable factor preventing him continuing in remunerative work, and having accepted the evidence of Dr Holm with respect to his work capacities, I am reasonably satisfied that the evidence demonstrates that there were no other factors identified that prevented Mr Retrot continuing in remunerative work.
22. I turn now to the fourth Flentjar question. This deals with the second limb of the test in s 24(1)(c) of the Act, which, it should be understood, must be read together with s 24(2)(a)[1].
23. This provision also was considered by Dowsett J in Peacock’s case. His Honour there refers to the fourth question as requiring a consideration of whether incapacity is causing loss, that is the “loss” identified in subsection 24(1)(c). Where a person has previously stopped work it will be necessary to ascertain whether that would have occurred irrespective of incapacity. In that regard it is important to bear in mind, as the Full Federal Court said in Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 that the consideration of what a veteran would probably have done, absent the service disabilities, involves a hypothetical exercise.
24. On this aspect of the considerations it cannot be ignored that, prior to making this claim, whenever Mr Retrot was asked to nominate his reasons for ceasing work, he always responded, without qualification, “compulsory retirement”[2]. His employer confirmed that as being the case[3]. When asked additionally “what do you believe is preventing you from getting a job or being employed?” Mr Retrot answered quite candidly “lack of motivation and experience in any other type of work”[4].
25. I appreciate that Mr Retrot now would revise certain aspects of these earlier statements, qualifying them in important respects. He refers now to having a greater understanding of the effect that his medical conditions was having on his ability to function at work. In that regard, for instance, he said in his oral evidence that his taking long service leave when he did was a way of leaving his employment with honour and dignity, important to him in a profession that valued robust health and fitness. Mr Retrot also refers to having now a better appreciation of the effect that post traumatic stress disorder was having on him at work.
26. He of course is entitled to revise his views and retract or qualify answers he earlier made. The difficulty that I have is that I do not accept that Mr Retrot took his retirement as a result of difficulties that his war-caused disabilities posed for him at work. I am not therefore satisfied that he is suffering the loss that he would not be suffering but for the war-caused disabilities.
27. Section 24(2)(a) provides, with reference to the second limb of the test in sub-section 24(1)(c) which requires that the veteran be able to show that loss, that :

......:
(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....

28. I take into account Mr Retrot’s explanations now for his earlier responses. However, a compulsory retirement age cannot be ignored, particularly in the context of his long career with one employer. His date for retirement was clearly what he had in mind when he was timing his long service leave. (I would also observe here that Mr Retrot’s evidence to the Veterans' Review Board[5] reveals a number of cogent personal reasons motivating him to take that long service leave). His compulsory retirement age was evidently in the front of his mind at the time that he so readily nominated that factor when answering questions on departmental forms. I note also that it figures prominently in the history as given both to Dr Holm and to Dr Martin.
29. In other words, his compulsory retirement in the particular employment that provided his remunerative work for essentially all of his working life looms large in this case.
30. As the Federal Court pointed out in Cavell v Repatriation Commission (1988) 9 AAR 534, a commonsense approach must taken when looking at the issues in s24 of the Act. I accept Mr Williams’s submission that, having taken compulsory retirement, Mr Retrot was then very selective about what remunerative work he could be prepared to undertake. This accounts for his limited attempts to find other work. He confined his searches to senior positions, commensurate with what he had seen other colleagues attain. I thought Mr Retrot’s evidence was telling, when he spoke of the high standards he set for himself. He acknowledged in cross-examination that he had in his previous role become used to setting and achieving corporate goals; he made it clear that any lesser job would not have satisfied his personal ambitions.
31. Mr Retrot said that he was not intending to retire at the age of sixty. Work was important to him, and he had the example of his father who had worked well beyond retirement age. Be that as it may, there was nothing to suggest that Mr Retrot made any attempts to obtain any other work. From the evidence, he appears to have settled happily into retirement. In that regard, it should be recalled that he nominated his “lack of motivation and experience in any other types of work” as a reason for not working. I have no reason to doubt that this reflected his thinking at the time, expressed as it is within the assessment period and supported by the absence of any attempts to obtain other work.
32. I was satisfied that a reason for Mr Retrot ceasing to engage in remunerative work (s 24(2)(a)(i)) was the compulsory retirement age imposed in the Police Service. Accordingly I would answer the fourth of the Flentjar questions “No”. Accordingly, Mr Retrot does not qualify for payment at the special rate.

DECISION

33. The Tribunal affirms the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.

Signed:..........................[sgd]............................................

Emily Clarke, Associate

Date of Hearing 8 December 2009

Date of Decision 5 February 2010

Counsel for the Applicant Mr A Harding

Solicitor for the Applicant Mr J Cockburn

Advocate for the Respondent Mr B Williams

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[1] Forbes v Repatriation Commission (2000) 171 ALR 131.
[2] T-documents pp 9, 29, 36.
[3] T-documents pp 39, 47.
[4] T-documents p 30.
[5] Exhibit R2.