Curtis and Repatriation Commission [2011] AATA 46 (1 February 2011)

Last Updated: 2 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 46

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4871

VETERANS' APPEALS DIVISION		)
	Re		Raymond Curtis

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

Senior Member A K Britton Dr J D Campbell, Member

Date 1 February 2011

Place Sydney

Decision

The decision under review is affirmed

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

CATCHWORDS

VETERANS’ ENTITLEMENTS – pensions – special rate pension – whether war-caused incapacity alone prevents the veteran from continuing to undertake remunerative work previously undertaken

Veterans’ Entitlements Act 1986 (Cth) – ss 19, 23, 24, 28

Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 41 ALD 205
Re Mitchell and Repatriation Commission [2007] AATA 2087
Re Valliant and Repatriation Commission [2010] AATA 941
Repatriation Commission v Fox [1997] FCA 737

REASONS FOR DECISION

1 February 2011

Senior Member A K Britton Dr J D Campbell, Member

1. Veteran, Mr Raymond Curtis has made a claim under the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a pension at the “special rate”. After enlisting in the Australian Army in 1962 he served in Vietnam, Singapore and Malaysia. From 1977 until retiring from the Army in February 2003, Mr Curtis served in various administrative positions. He joined the Army Reserve upon retirement and stopped work altogether in April 2008. In late 2007, he came under the care of psychiatrist Dr Graham Altman.
2. In September 2008, the Repatriation Commission, the respondent in these proceedings, refused Mr Curtis’s claim for a pension under the Act at the “special rate”. The Veterans’ Review Board affirmed that decision. Mr Curtis has now applied to the Administrative Appeals Tribunal for review of that decision.
3. Mr Curtis contends that he is incapacitated for work because of his accepted “war-caused” conditions — namely, post traumatic stress disorder (PTSD) and depression — and accordingly meets the statutory criteria for a pension at the special rate. The Commission opposes Mr Curtis’s claim, contending that he has overstated the extent to which PTSD and depression have made him unfit for work and, furthermore, that that claim is inconsistent with his exemplary service record.

SERVICE HISTORY

4. Mr Curtis is 65 years of age. He enlisted in the Australian Army in 1962, was made an officer in 1986 and continued to serve until February 2003. On retirement, he held the rank of Major.
5. At that time, the compulsory retirement age for persons holding the rank of Major was 55, however in special cases the retirement age could be extended for a period not exceeding two years: s 27(1) of the Defence Act 1903 (Cth). In 2000 Mr Curtis accepted an “age extension” despite, on his account, some misgivings that he was fit to continue. He claimed that he declined further offers of age extensions because he was “a bit overwhelmed by it all”. The Commission’s records indicate that Mr Curtis’ retirement age was initially extended to 57 — which he turned in October 2002 — and, apparently following the repeal of s 27 of the Defence Act, for a further six months. On his account, he refused an offer made by his Commanding Officer to “civilianise” his position so he could continue until he was 65 years of age.
6. On his retirement, the Army commended Mr Curtis for his “professional and tireless dedication”:

Your efforts have been instrumental in the success of ceremonial activities at the Royal Military College. Of particular note is your exceptional staff work and liaison with senior officers, Defence officials, visiting dignitaries and community groups. You have completed the difficult and often sensitive duties in a manner which has brought credit upon the formation and the Army. Your dedication has also been demonstrated in the enthusiastic and professional manner with which you have discharged your extra-regimental duties. Your tireless efforts as part of the Royal Military College Officers’ Mess Committee and Duntroon Heritage Committee have greatly contributed to their success and the maintenance of our Army traditions and history.

7. After retiring from the regular Army, Mr Curtis served as an officer of the “Inactive Reserve” until April 2008. Until late 2005 — when a permanent appointment was made — Mr Curtis performed the same duties he had performed in the regular Army, namely the coordination and oversight of ceremonial activities. On his account, he “got by” with the support of colleagues who shouldered much of the work he found he could no longer undertake.
8. On ceasing that role, Mr Curtis went on to provide administrative support to the then Head of Corps Infantry, Brigadier Christopher Appleton. Mr Curtis’s main duties involved processing applications for Infantry Combat Badges. This required an assessment of the applicant’s service record and a determination of whether they met the service requirements for the Badge. In addition, Mr Curtis undertook a number of projects including policy development. The duties undertaken by Mr Curtis after 2005 were neither complex nor taxing.
9. Members of the Reserve were not guaranteed employment throughout the period Mr Curtis served in the Reserve. According to Mr Curtis, a member might be offered a specified number of days over a fixed period to work on a specific project on the recommendation of their commanding officer. If that “offer” was accepted, the Reservist was required to provide a written undertaking pursuant to s 54(2) of the Defence Act to render service for the agreed period.
10. While not disputed that the amount of time Mr Curtis worked declined over the five years he served in the Reserve, it is unclear by what amount. Mr Curtis recalls initially working the equivalent of about 150 days over 12 months, decreasing to about 70 days from early 2006.
11. The only contemporaneous records before us in these proceedings that shed some light on the hours worked by Mr Curtis are the written undertakings he provided under s 54(2) of the Defence Act. Those produced cover the periods,28 November 2003 to 30 June 2004 and 1 July 2005 to 3 October 2005, and indicate that he undertook to work 100 and 70 days during the respective periods. This indicate that at least initially, Mr Curtis worked more than he now recalls.
12. A report prepared by Writeway Research Services at the request of the Commission confirms that Mr Curtis‘s hours of work declined throughout the period he served in the Reserve. The report records that according to Brigadier Bornholt, Mr Curtis’s commanding officer from 2006 until he retired in 2008, Mr Curtis worked approximately 150 days in 2006, but this “reduced considerably over the remaining two years to the extent that his reliability was questionable by 2008”.
13. Throughout the period he served in the Reserve, Mr Curtis was able to elect the days on which he worked and whether he worked a full (six hour) or half day. He claims that by 2006 he had started to work half days.

EVIDENCE OF DECLINING CAPACITY

14. In an undated statement prepared for these proceedings, Mr Curtis claimed that he first became aware of changes in his behaviour — massive mood swings, declining ability to concentrate and comprehend documents — while working as a ceremonial officer in the early 1990’s. He said that around that time he had started to become anxious — and at times, physically sick — before major ceremonial events. In oral evidence, he recounted that while briefing (then) Prime Minister Keating about his role in the funeral service of the Unknown Australian Soldier held on 11 November 1993, his mind went “completely blank” and he had to leave the room. When questioned as to why he did not mention that incident to the Veterans’ Review Board, Mr Curtis claimed that he found it difficult to admit that he had a problem and didn’t want to “look like a loser”.
15. According to Mr Curtis, he managed to disguise his “declining psychological state” throughout the late 1990’s with “considerable effort”. He stated that his role as a ceremonial officer was “not particularly demanding” and allowed him to “bluff his way through”. He said he decided to move to the Reserve because he did not want to be seen as a “failure”. He claimed that while in the Reserve, he struggled to perform his duties in a timely and satisfactory manner. As an example, he cited a review of the regulations relating to Infantry Combat badges undertaken in 2006 which he described as “pretty straightforward”. He said that the review took two to three months to complete but should have taken a couple of days. He claimed that towards the end of his service with the Reserve, he had to repeatedly re-read documents to glean their meaning. He said he “got by” on his reputation and with the help of colleagues. He claims that the reason he left the Reserve was because he could not perform his duties in a timely manner and had completely lost confidence in his performance.
16. The Writeway report records Brigadier Bornholt as stating that he could not recall the exact reasons for Mr Curtis’s decision to leave the Reserve, but suspected that:

[His] real reason for leaving the ARES in 2008 was one of principle – he knew his performance had diminished, probably through concentration issues; and rather than face the counselling this would lead to, he elected to leave. He was and is a highly principled and proud man – departing on his terms to cover up any perceived deficiencies is what I would have expected of him. He continues to support RMC through appearances with his colleagues from the Battle of Coral to present battlefield experiences to cadets.

17. According to Mr Curtis, he first became aware that he was suffering from a psychiatric condition when he saw psychiatrist Dr Graham Altman in late 2007. He claims that at that time he was having “troubled thoughts” about his operational service almost daily. He was prescribed Lovan, which according to Mr Curtis reduced his “troubled thoughts”.

MEDICAL EVIDENCE

18. For the purpose of these proceedings Mr Curtis was assessed by Dr Anthony Dinnen who concluded that because of his psychiatric condition, Mr Curtis is now unable to work at all. Dr Altman shares that opinion. The Commission’s expert, psychiatrist Dr John Roberts, disagrees.
19. In a report dated 15 June 2010, Dr Dinnen wrote under the heading “work capacity”:

I asked him why he decided to cease work. He said he couldn’t concentrate. He was processing applications for the Infantry Combat Badge. He was working for the head of the Infantry Corps. He was only working six hours but found it very difficult.
When he ceased work he took a position with the Army Reserve, on a 3 day a week basis. That involved working 6 hours a day, for about 18 hours a week. He was the organiser for the parades at the RMC. However he doesn’t believe he was performing well.
I asked if he thought his performance prior to leaving the Regular Army was affected by his condition. He replied that he believed that was the case. He considered he had been working at half capacity for at least 5 years before he ceased work in 2003. People around him assisted him to cope. He found he was relying more and more on them to do the work.
He told me he was able to cover up his deficiencies. One of the reasons was that he got on extremely well with his boss. Indeed most of the people for whom he worked were junior to him in years and experience.

20. Dr Dinnen said that his opinion that Mr Curtis’ psychiatric condition was severe enough to prevent him from continuing to work was based on the history given by Mr Curtis of finding it increasingly difficult to concentrate towards the end of his career and on the opinions of his treating psychiatrist and GP. He did not resille from that opinion when told that, when he made the referral to Dr Altman, the GP had met with Mr Curtis on only one occasion (see report prepared by the GP, Exhibit R7.)
21. While Dr Dinnen accepted that Mr Curtis had difficulties concentrating, Dr Roberts was of the opinion that the detailed history he gave during his assessment, coupled with his ability to respond to questions asked, was not indicative of a person who “struggled to read a page” as claimed. Dr Roberts thought that the explanation for Mr Curtis‘s apparent lack of impairment was that he either did not suffer from PTSD, or, had been successfully treated.
22. Dr Roberts was of the opinion that Mr Curtis did not present with symptoms of PTSD. In his opinion, Mr Curtis’s psychiatric symptoms were at best mild and did not prevent him from undertaking gainful employment in an identical or similar position to that he had held in the Reserve.

ELIGIBILITY CRITERIA FOR A PENSION AT THE SPECIAL RATE

23. Section 24 of the Act sets out several criteria that must be satisfied before a pension is payable at the “special rate”. It is agreed that all but those specified in ss 24(1)(b) and 24(1)(c) are satisfied:

(1) This Section applies to a veteran if:
...
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(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

24. As noted, the Commission has accepted that Mr Curtis’s conditions of PTSD and depression are “war-caused diseases”. The phrase “incapacity of a veteran from a ... war-caused disease” is taken by the Act to mean a reference to the effects of that disease and not a reference to the disease itself: s 5D(2) of the Act.
25. Whether Mr Curtis satisfies ss 24(1)(b) and 24(1)(c) must be assessed by reference to the “assessment period” — that is, the period commencing on the day on which his claim was received, 22 August 2007, and ending on the day his claim is ultimately determined: ss 19(5C) and 19(9) of the Act. If, at any time during that period, he satisfies all criteria, he will have an entitlement to the special rate pension from that time, notwithstanding that he fails to satisfy all criteria at some subsequent point in time: Leane v Repatriation Commission [2004] FCAFC 83 at [31].

IS SECTION 24(1)(C) SATISFIED?

26. Section 24(1)(c) will be satisfied if, on the balance of probabilities:
    • (i) By reason of his war-caused incapacity alone, Mr Curtis is prevented from continuing to undertake remunerative work that he was undertaking; and
    • (ii) He is suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity.
      
27. In Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1 at 4-5, Branson J (with whom Beaumont and Merkel JJ agreed) described the issues raised by s 24(1)(c) as being:

(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?

1. “REMUNERATIVE WORK” MR CURTIS WAS UNDERTAKING

28. Mr Curtis contends that the remunerative work he was undertaking for the purposes of s 24(1)(c) was the work he performed in the Reserve. The Commission on the other hands argues that it was his full-time work in the regular Army.
29. The Act defines “remunerative work" somewhat unhelpfully to include “any remunerative activity”: s 5Q of the Act. It is settled that the phrase “remunerative work that the veteran was undertaking” within s 24(1)(c) is a reference to the type of work which the veteran previously undertook, not to any particular job, and furthermore is not restricted to the veteran’s last employment: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402, 403; Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 at 54. In Sheehy v Repatriation Commission (1996) 41 ALD 205 at 209 the Full Court rejected the contention that the work must be performed over a minimum period to qualify as “remunerative work” for the purpose of s 24(1)(c), and stated (at 211) that the better approach was to ask whether the work had been “successfully” or “effectively” undertaken.
30. An issue not addressed by either party is whether the phrase “the remunerative work that the veteran was undertaking” is a reference to the type of work alone, or also to key features of that employment, such as the quantity and frequency of work performed. In contrast to s 24(1)(b), s 24(1)(c) does not refer to hours of work. Consistent with the approach taken by the tribunal in Re Mitchell and Repatriation Commission [2007] AATA 2087 and Re Valliant and Repatriation Commission [2010] AATA 941, we are of the opinion that the term “remunerative work” in the context of s 24(1)(c) should be interpreted to mean both the type and the incidences of work undertaken.
31. While Mr Curtis continued to hold the rank of Major while in the Reserve,, the work he undertook was qualitatively and quantitatively different from that undertaken in the regular Army. It consisted of routine administrative tasks and was part-time and flexible.
32. While the authorities make plain that the relevant “remunerative work” must be “substantial” (see, for example, Repatriation Commission v Fox [1997] FCA 737 per Tamberlin J), it should not in our view be given the restrictive meaning the Commission urges us to adopt, namely the veteran’s “main career”. As the Full Court emphasised in Sheehy, the fact that the subject work was performed for a relatively short period does not disqualify it from constituting “remunerative work” for the purpose of s 24(1)(c). In our opinion, while less demanding than his work in the regular Army, the work undertaken by Mr Curtis in the Reserve was nonetheless “substantial”.
33. We find that the remunerative work that Mr Curtis was undertaking for the purpose of s 24(1)(c) was part-time administrative work in the Reserve.

2. PREVENTED FROM CONTINUING TO UNDERTAKE REMENERATIVE WORK?

34. Mr Curtis contends that he is prevented from continuing to undertake part-time administrative work in the Reserve because of his conditions of PTSD and depression. The Commission argues that this claim is inconsistent with Mr Curtis’s service and medical history, and points out that the only evidence to corroborate his claim of declining functional capacity is the opinion of his own experts.
35. As the Commission submits, there is nothing in the material before us to corroborate Mr Curtis’s claim that he struggled to perform his duties in the regular Army and essentially “lived off his reputation” while relying on the assistance of colleagues. Moreover, that claim is inconsistent with his exemplary service record and the steps taken by his Commanding Officers to persuade him to remain in the Army or continue in his role but in a civilian capacity. This, however is not fatal to Mr Curtis‘s claim, because it is not necessary that he establish that in 2003 he was prevented from continuing to undertake the work he had performed in the regular Army. Rather, given our finding that the relevant remunerative work was part-time administrative work in the Reserve, the issue we must decide for the purpose of the second step in Flentjar is whether he was prevented from continuing to undertake that work at any time during the assessment period.
36. Mr Curtis argued that the decision to award him a commendation in 2003 was made on the basis of his long history of exemplary service and probably “overlooked” his more recent performance shortcomings. While possible, there is nonetheless no record to support his claim that his performance had deteriorated by the time of his retirement from the Army. Indeed, the actions of his commanding officers in granting further age extensions and offering to “civilianise” the position are inconsistent with Mr Curtis’ poor opinion of his performance at that time.
37. While the comments attributed to Brigadier Bornholt in the Writeway report are corroborative of Mr Curtis’s claim of declining functional capacity in the latter part of his service with the Reserve, they are difficult to reconcile with the evidence given by Mr Curtis that Brigadier Bornholt tried to dissuade him from leaving the Reserve and, when it became apparent that his mind was made up, invited him to reconsider and come back in six months time. While there is an apparent discrepancy between the Brigadier’s recorded comments and his offer of further employment, the latter is more consistent with the record of Mr Curtis’s history in the Reserve before us in these proceedings. It contains no suggestion of poor performance, and reveals that since 2003 Mr Curtis’s commanding officers repeatedly offered him further employment.
38. We accept that Mr Curtis genuinely believes that by 2008 his work performance had declined significantly and that he had no option but to leave the Reserve. On the evidence before us, however, we could not be satisfied that objectively assessed, his functional capacity had declined to such an extent that he was “prevented from” undertaking part-time administrative work “successfully” or “effectively” during the assessment period by reason of his conditions of PTSD or depression.
39. In reaching that conclusion, among other things we have taken into account the opinion of the treating psychiatrist that Mr Curtis’s condition was severe enough to warrant medication and ongoing treatment and that he was unable to work on account of it. While that opinion is supportive of Mr Curtis’s claim of declining performance, we are not persuaded having regard to all of the evidence that he was “prevented from” undertaking part-time administrative work during the assessment period.
40. It follows that s 24(1)(c) of the Act is not satisfied. Given this finding, we have no option but to affirm the decision under review.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr J D Campbell, Member.

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

Associate to Senior Member Britton

Dates of Hearing: 2, 3 December 2010

Date of Decision: 1 February 2011

Counsel for the Applicant: Mr C Colborne

Solicitor for the Applicant: Legal Aid Commission of NSW, Veterans' Advocacy Service

Counsel for the Respondent: Mr G Purcell

Solicitor for the Respondent: Department of Veterans’ Affairs