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[2002] AATA 1153
appellant. The Tribunal set aside the decision under review and substituted a decision that Mr Magill was eligible to be paid disability pension at the special rate under section 24 of the Veterans'...
1 cited instrument linked from this judgment.
The Tribunal had to decide whether Mr Magill's accepted war-caused conditions alone stopped him continuing the work he had been doing. It treated his work as a combined security and supervisory role, rather than as security duties alone. It found that the stress of the supervisory and management responsibilities was central to his departure, and that his non-war-caused conditions did not affect his capacity for that work. Because the Commission had conceded the other relevant criteria, the Tribunal granted special-rate eligibility from 28 March 1998.
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In Re Magill v Repatriation Commission [2002] AATA 1153, the Administrative Appeals Tribunal reconsidered whether Roy Peter Magill met the requirements for a special-rate disability pension under section 24 of the . The question had returned to the Tribunal after the Federal Court set aside the earlier Tribunal decision to the extent that it dealt with the special-rate claim and remitted that issue for redetermination by a differently constituted Tribunal (paras 4–6).
The original claim concerned whether Mr Magill's post-traumatic stress disorder and psychoactive substance abuse or dependence were war-caused. At an earlier hearing, the Commission conceded that both conditions should be accepted as war-caused from 28 March 1998, with pension payable at 100 per cent of the general rate. Mr Magill also sought the special rate. The first Tribunal decision granted the general-rate pension but did not resolve the special-rate claim in his favour (paras 1–4).
For the redetermination, the Commission conceded that Mr Magill met the section 24(1)(a) and (b) requirements, and that he was suffering a loss of salary or wages that he would not have suffered if free of the relevant incapacity. The remaining question was whether incapacity from his war-caused conditions alone prevented him from continuing the remunerative work he had undertaken (paras 15–17).
Mr Magill had worked as a security officer at the Law Courts from 1981. Over time his role included responsibilities beyond security work: rostering, staff administration, dealing with staff issues and complaints, and acting as a point of contact with Brisbane management and external bodies (paras 20–22). He described growing stress about the responsibilities and decisions involved. He had asked to move to a less responsible role, but the request was refused. He later accepted voluntary early retirement, while saying he would have preferred to continue in a less responsible position (paras 23–27).
The Tribunal set aside the decision under review and substituted a decision that Mr Magill was eligible for the special-rate pension from 28 March 1998 (para 43).
The decision turned on identifying the relevant work and then assessing the cause of Mr Magill's inability to continue it. The Tribunal did not treat the relevant work as a particular post or a narrow set of security tasks. Relying on Banovich v Repatriation Commission (1986) 69 ALR 395, it understood “remunerative work” as work of the type or field previously undertaken, rather than only a particular job (para 35).
Applying that approach, the Tribunal rejected the Commission's submission that Mr Magill's field was simply security officer work, with management and supervisory tasks incidental to it. It accepted that his Law Courts role included a “significant supervisory and day to day management role”, in addition to security duties. It therefore characterised the relevant work as that of “a security officer with management and supervisory duties” (para 36). That finding matters because it defined the work against which the statutory test had to be applied.
The Tribunal then considered the medical evidence. Dr Likely attributed Mr Magill's inability to work to post-traumatic stress disorder alone. Dr Richards rejected a diagnosis of post-traumatic stress disorder but considered Mr Magill permanently unfit for appropriate labour-market re-employment because of alcohol dependence. The Tribunal noted that both conditions had been accepted as war-caused (paras 32–37). Its task was not to resolve the diagnostic disagreement in the abstract, but to assess the accepted conditions against the statutory requirement.
The Commission pointed to other possible reasons for Mr Magill's departure: the voluntary redundancy payment and his age. The Tribunal accepted Mr Magill's evidence that the redundancy payment had little attraction in the context of his much larger superannuation payment and that he would have preferred less responsible work. It found his main concern was avoiding the stress associated with the supervisory and management duties (para 38). It also accepted that his wish was to avoid stressful work, rather than work altogether, and rejected age as the motivating factor for leaving (para 39).
The Tribunal separately considered non-war-caused conditions, including bronchitis and osteoarthritis. It found there was no medical evidence showing that these conditions affected his capacity to perform the identified work. It also noted that it was unclear whether that work required him to apprehend offenders, and found that his non-war-caused conditions did not affect his ability to continue the work (para 40). Finally, it rejected the suggestion that his difficulties answering some questions showed evasiveness, noting his hearing loss and difficulty recalling precise details (para 41).
On that evidence, the Tribunal found that the war-caused conditions alone were the reason Mr Magill enquired about and took voluntary redundancy. It concluded that he had been prevented by those conditions from continuing the remunerative work he was undertaking. Together with the Commission's concessions, that finding satisfied the outstanding requirement under section 24(1)(c) (para 42).
The decision applies the statutory framework set out in section 24 of the Veterans' Entitlements Act 1986. The provision reproduced at paragraph 14 includes several requirements, among them that war-caused incapacity alone render the veteran totally and permanently incapacitated in the specified sense, and that the veteran be prevented by that incapacity alone from continuing remunerative work previously undertaken. It also addresses loss of earnings and certain circumstances in which a person is treated as prevented from continuing work.
The Tribunal did not purport to change that statutory framework. Much of the section 24 inquiry had been removed from dispute by the Commission's concessions, leaving the Tribunal to decide the work-identification and causation questions described at paragraphs 15–17.
The main interpretive authority identified in the reasons is Banovich. As quoted by the Tribunal, it says “remunerative work” refers to the type of work previously undertaken, not a particular job. It also indicates that loss of a particular job for a reason unrelated to war disability does not necessarily end a later special-rate claim: the question remains whether war-related incapacity alone prevents continuing in that field of remunerative activity (para 35). The Tribunal applied that approach to the combination of security and supervisory duties in Mr Magill's role.
The judgment therefore illustrates how the existing statutory test and the Banovich approach were applied to a particular mixed-duty job. It does not set out a new general test or suggest that the statutory language was amended. Its contribution in this matter is the fact-specific characterisation of the work and assessment of the evidence.
At paragraph 35, the Tribunal quotes Banovich: “the phrase ‘remunerative work which the respondent was undertaking’ should be read as a reference to the type of work which the member previously undertook and not to any particular job.” In plain English, the question is not necessarily whether the person could keep the exact same position. It is whether the relevant incapacity prevented the person continuing in the kind of remunerative work they had been doing.
At paragraph 36, the Tribunal says Mr Magill's work was “that of a security officer with management and supervisory duties.” In plain English, the Tribunal included the supervisory and administrative responsibilities in the work description. It did not reduce the role to frontline security tasks alone.
At paragraph 38, the Tribunal says Mr Magill's “main concern was to avoid the stress associated with his supervisory and management duties.” This records the Tribunal's assessment of why he sought to leave. It distinguishes that explanation from the Commission's proposed explanations of financial incentive or age.
At paragraph 40, the Tribunal finds that the non-war-caused conditions did not affect his ability to continue the relevant work. In plain English, although other health conditions existed, the Tribunal was not satisfied on the evidence that they prevented him performing the combined security and supervisory role.
At paragraph 42, the Tribunal finds that the war-caused conditions alone were the reason for his enquiry about and acceptance of voluntary redundancy, and that he was consequently prevented from continuing the work. That was the central application of section 24(1)(c) to the facts.
The decision is most relevant to a section 24 claim where the veteran's previous work combined a principal occupational function with additional responsibilities. Examples within the judgment include security duties alongside rostering, staff supervision, staff administration, and contact with management and external agencies (paras 21–22, 36). The decision shows why the description of the work may be contested: a narrow description may omit duties that the Tribunal finds were a significant part of the actual role.
It may also be relevant where the claimant left a job through redundancy or another formal employment process, but says that the underlying reason was incapacity from accepted war-caused conditions. Here, the Tribunal considered the redundancy payment, superannuation, Mr Magill's stated preference for less responsible work, and his evidence about stress before finding that the payment did not materially explain his departure (paras 25–26, 38).
The decision also addresses cases with both war-caused and non-war-caused conditions. The Tribunal considered whether the latter affected the particular work identified, rather than treating their mere existence as determinative. It focused on the evidence of their practical impact and noted the absence of medical evidence about their effect on the functions of the role (para 40).
These are features of the fact pattern considered, not a statement that another case with similar features must reach the same result. The outcome here depended on the evidence and the Commission's concessions.
The supplied judgment does not describe any later court or tribunal treatment of the 2002 decision. It therefore does not establish whether later decisions followed, distinguished, or otherwise treated Re Magill v Repatriation Commission [2002] AATA 1153.
The reasons do identify earlier authorities and procedural history. The Tribunal referred to its 2001 decision in the same matter and to the Federal Court decision that remitted the special-rate issue (paras 4–6). It relied on the Full Federal Court's reasoning in Banovich to identify the relevant work for section 24(1)(c) (para 35). Those references explain the legal and procedural setting, but they are not evidence of how later courts treated the 2002 decision.
The decision resolves the dispute on the evidence before the Tribunal, but it does not set out a comprehensive test for every case involving mixed duties. It characterises Mr Magill's job as security work with management and supervisory duties, but does not specify a general threshold for deciding when supplementary responsibilities form part of the relevant type of work (para 36).
The Tribunal's assessment of non-war-caused conditions was also specific to the evidence. It relied on the absence of medical evidence about their impact on the work and noted uncertainty about whether apprehending offenders was a required function (para 40). The decision does not establish how that issue would be resolved where there is detailed evidence that non-war-caused conditions affect some of the relevant duties.
The reasons state that Mr Magill had not attempted to seek work and that section 24(2)(b) therefore did not arise (para 18). They do not analyse how that provision would apply where a claimant had genuinely sought work but was unable to obtain it.
Finally, the case proceeded with substantial concessions by the Commission. The Tribunal expressly treated the other criteria as conceded and concentrated on the remaining question under section 24(1)(c) (paras 15–17). The decision should therefore be read with care when considering a dispute in which eligibility, permanent incapacity, or loss of earnings is contested.
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DECISION AND REASONS FOR DECISION [2002] AATA 1153
Decision The decision under review is set aside and the Tribunal substitutes therefor the decision that the Applicant is eligible to be paid disability pension at the special rate pursuant to section 24 of the Veterans' Entitlements Act 1986 with effect from 28 March 1998.
VETERANS' AFFAIRS - disability pension - application for special rate - war-caused disabilities and non war-caused disabilities - whether the Applicant's war-caused disabilities alone prevent him from continuing to undertake remunerative work he was undertaking - determination of the Applicant's remunerative work
Re Magill v Repatriation Commission [2001] AATA 614
Magill v Repatriation Commission [2002] FCA 744
Banovich v Repatriation Commission (1986) 69 ALR 395
1. This is an application by Mr Roy Peter Magill ("the Applicant") to review the decision of the Repatriation Commission ("the Respondent") notified on 23 June 1998 to refuse a claim that Post-traumatic stress disorder and psychoactive substance abuse or dependence are war-caused.
2. On 30 June 1999 the Veterans' Review Board affirmed the Respondent's decision and on 14 July 1999 the Applicant lodged an application for review by this Tribunal.
3. At the hearing before the Tribunal on 2 July 2001, the Respondent conceded that Post-traumatic stress disorder and psychoactive substance abuse or dependence should be accepted as war-caused conditions from 28 March 1998 and disability pension should be paid at 100 per cent of the general rate from that date.
4. The Applicant sought payment at a special rate pursuant to section 24 of the Veterans' Entitlement Act 1986 ("the Act"). On 2 July 2001 the Tribunal (Re Magill v Repatriation Commission [2001] AATA 614) set aside the decision under review and substituted the following decision:
"(a) post traumatic stress disorder and psychoactive substance abuse or dependence are accepted as war-caused conditions within section 9 of the Act;
(b) the said conditions be accepted with effect from 28 March 1998;
(c) disability pension is payable at 100 per cent of the general rate with effect from 28 March 1998; and
(d) the matter is remitted to the respondent to give effect to the terms of the decision."
5. The Applicant appealed the Tribunal's decision to the Federal Court (Magill v Repatriation Commission [2002] FCA 744) and Drummond J ordered that the case, so far as it relates to the Applicant's claim to a pension at the special rate, be remitted to be heard and decided again, either with or without further evidence, by the Tribunal, differently constituted, in accordance with law.
6. The following passage from Drummond J's decision sets out the error of law found by him to have been made by the Tribunal:
"25. The Tribunal expressly preferred Dr Likely's opinion to the effect that Mr Magill had war-caused ptsd and that his recurrent anxiety and depression symptoms and his alcohol dependence and abuse were caused by his ptsd. The Commission has now conceded that the ptsd and alcohol abuse were war-caused conditions. Dr Richards did not consider Mr Magill to be suffering from ptsd, but he was nevertheless of the opinion that his alcohol abuse/dependence and his anxiety and depression symptoms were such as to make his employment on the general labour market unlikely and, importantly, such as to prevent him holding down a job if he should find one, with the result that, because of his chronic alcohol dependence, he was permanently unfit for appropriate labour market re-employment. Dr Likely expressed exactly the same opinion as to Mr Magill's permanent incapacity for employment, though he went further than Dr Richards and diagnosed ptsd which he considered was the cause of the anxiety and depression symptoms and alcohol dependence/abuse which Dr Richards identified. Far from there being no evidence that the undiagnosed condition of ptsd alone prevented the applicant continuing to undertake remunerative work, that was Dr Likely's express opinion, and it was supported in large part by Dr Richards. Neither psychiatrist saw any need to distinguish between Mr Magill's capacity, asserted by him to exist, to work as a simple security officer and his capacity to undertake the added responsibilities he was given at the Supreme Court: they both thought his medical problems, which included his ptsd, conceded by the Commission as war-caused, by themselves were such as to render him generally and permanently unemployable.
26. The Tribunal appears to have been distracted from considering this powerful body of uncontradicted evidence, directly relevant to an issue on which expert opinion is clearly of assistance to a decision-maker, by what Mr Magill said, overly optimistically in the opinions of both psychiatrists, about his ability to work and by his demonstrated ability to struggle on with his job into late 1997. (It was only then that he acknowledged that he could not cope further, sought relief and was offered early retirement.)
27. Because the Tribunal wrongly considered there was no evidence that Mr Magill's undiagnosed condition of ptsd (and associated war-caused disabilities) was the sole cause of his not being able to engage in remunerative employment either as a security officer or as a supervising security officer and in consequence ignored that evidence, the Tribunal's decision must be set aside. The applicant does not dispute that the matter must be remitted to the Tribunal, differently constituted, for redetermination. This should be done with or without other evidence."
7. At the hearing before the Tribunal on 16 October 2002, the Applicant was represented by Mr Darren Honchin of Counsel and the Respondent was represented by Ms Ann McMahon of Counsel. The Applicant gave oral evidence to the Tribunal. The Tribunal had before it the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975, three statements by the Applicant dated 12 November 1999 (Exhibit A2), 15 June 2000 (Exhibit A3), and 21 August 2002 (Exhibit A1), reports of Dr Michael Likely dated 4 February 1998 (Exhibit A4) and 12 April 2000 (Exhibit A5) and the report of Dr Wilfred Richards dated 28 January 2000 (Exhibit R1). The Tribunal also had before it an excerpt from the transcript of proceedings before it on 17 October 2000. The facts in paragraphs 8 to 13 are agreed between the parties.
8. The Applicant was born on 14 March 1935 and was 62 years of age at the date of claim. He enlisted in the Royal Australian Air Force on 12 May 1958 and was discharged on 19 September 1978.
9. The Applicant served at Ubon, Thailand, from March 1966 to September 1996. That service was operational service and the Applicant also had eligible defence service from 7 December 1972 to 19 September 1978.
10. The Applicant's accepted service related disabilities now are:
(g) Chronic solar Skin Damage with Malignant Change
11. The Applicant's non-service related disabilities are:
12. Prior to joining the Air Force, the Applicant was in full-time civil employment as a stock clerk and also serving his obligations under the National Service Act 1951 (No 2) (Repealed) in the Army.
13. He re-entered the workforce after discharge from the Air Force as a civil security guard employed by the Department of Defence at RAAF Garbutt. That was followed by employment with the Department of Social Security as a clerical assistant/field officer.
14. The Applicant seeks payment of disability pension at the "special rate". Eligibility for payment at that rate is provided for in section 24 of the Act. Section 24 provides relevantly:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(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; and
(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."
15. The Respondent conceded that the Applicant has met the requirements in section 24(1)(a) and (b) of the Act as well as the requirement in section 24(1)(c) that he is suffering loss of salary or wages that he would not be suffering if he was free of his incapacity.
16. Given the concessions made by the Respondent, it remains for the Tribunal to consider whether the Applicant satisfies the remaining requirements in section 24(1)(c), that is, whether, by reason of his incapacity from his war-caused conditions alone, the Applicant is prevented from continuing to undertake remunerative work that he was undertaking.
17. This, in turn, requires the Tribunal to identify the remunerative work undertaken by him and to examine the effect of the Applicant's accepted conditions on his ability to do that work. That examination must take place with reference to the Applicant's non-accepted conditions and to any other factor that may affect his ability to undertake that work.
18. The Applicant has conceded that he has not attempted to seek work and so the possibility of the application of the provisions of section 24(2)(b) does not arise.
19. The Applicant's evidence was contained in three statements and in his oral evidence to the Tribunal. His evidence, in summary as far as it is relevant to the issues being considered by the Tribunal, is as follows
20. The Applicant commenced employment as Building Services Co-ordinator, Law Courts on 8 February 1981. In 1984 the Queensland State Government Protective Security Service subsumed the security officers, including the Applicant, working at the Law Courts. The Applicant's title became Senior Protective Security Officer, Officer in Charge of Security and Building Services Co-ordinator.
21. The Applicant described his duties and the difficulties he experienced in this employment as follows:
"1. My functions as Building Services Co-ordinator included:
a) the rostering on a fortnightly basis of other protective security officers;
b) security and other duties at the Premier's Office in Townsville;
d) the forecasting of leave requirements for the Townsville staff; and
e) the approval of leave in Townsville for confirmation by the Brisbane office.
2. I also carried out other administrative duties including equipment orders, stationery orders and uniform orders for all staff in Townsville. When it was necessary to employ other staff, my functions included being part of the interview panel. I was also responsible for dealing with disciplinary matters and complaints for Townsville staff. In addition, Townsville staff pay disputes and problems with salaries were dealt with by me, and this was a regular and ongoing problem because of the shift work and penalty rates and the different ranks structure. There were regular pay queries and mistakes which I was asked to (and it was my function to) organize and deal with through the Brisbane office.
3. Reporting procedures usually involved a one-on-one arrangement, with staff from one shift reporting to me any matters which I would then brief to other staff that were coming on to the next shift. I was also the main point of contact with other agencies such as Police and Fire, and also the legal fraternity in Townsville and Court volunteers. My functions also included responsibilities for the main emergency control panel that contained duress alarms for the courts, fire alarms and air-conditioning alarms, but not simply just for the law courts, also the State Government Building, and that is a building that is located some distance from the law courts on the Corner of Walker and Stanley Streets.
4. I was also responsible for lift emergency at the TAFE City campus and TAFE Pimlico campus. Again these are two buildings which are located quite some distance from the law courts. I was also responsible for the cattery section at the TAFE campus and any lift problems at those locations.
5. I conducted mainly day shifts, but I would also occasionally do a night shift when there was an unexpected illness of one of the other staff. During the day there would usually be myself and another officer on duty.
6. I experienced a number of conflicts with the Brisbane management, usually through lack of equipment and budgets. Whilst I had no budget myself that I had responsibility for, I was responsible for verifying maintenance to the law courts and State Government buildings which would require for me to make orders for various jobs to be completed and to check off that those jobs had in fact been done.
7. As part of my functions, I was also responsible for after hours call-outs where the Queensland Police Service or Fire Brigade required access to buildings as I maintained a complete set of keys for the buildings. As part of my security function, it is also necessary to attend at the State Government Building or Premier's Office at mornings and nights to open the building, start the air-conditioning, check for illegal entry and carry out general security duties. I found that the ongoing decision-making that was necessary in my position was becoming a burden, there was a shortage of staff, and it was difficult to get assistance. I found that the responsibility of supervision was becoming overwhelming, I was unable to seek out psychiatric assistance because of my concerns about medical discharge should it become known that I was seeking psychological counselling. I remained optimistic that I was able to do the job, but clearly that was not the case."
22. The Applicant said that he had five officers reporting to him and he reported only to management in Brisbane. He said that he spent approximately 90 per cent of his time at the main emergency control panel desk, from which he also undertook his administrative and management tasks.
23. The Applicant described an increasing anxiety about his level of responsibility and the range of decisions he was required to make. He said that toward the end of his time in the job he didn't want "the pressure of command". He said he became concerned about his ability to discharge his duties and thought he was placing lives in jeopardy. He said he was consuming alcohol and taking analgesics at work. He said he found this frightening and was becoming moody and intolerant and once nearly struck a person at the Court House.
24. The Applicant said that he spoke to a manager from Brisbane on two occasions, asking for his second in command to be given his position or for him (the Applicant) to be moved to a junior role. He said he gave as a reason that he wanted to get away from the stress, that he had "had enough". However, the manager he spoke to told him he was happy with his work and refused his request.
25. The Applicant said the issue of voluntary early retirement arose in Brisbane and staff there had been asked to make expressions of interest. On one occasion when a manager from Brisbane visited Townsville, the Applicant raised with him the possibility of voluntary early retirement for him. That offer was made to and accepted by the Applicant in November 1997. The Applicant said he had mixed feelings about voluntary early retirement and would have liked to have continued working in a more junior position. He said he considered he could cope with that and wanted to continue working so as to maximise his superannuation.
26. The Applicant conceded that, because of shift work and penalty rates, the officers reporting to him earned more than he did, notwithstanding his extra responsibility. He also said his voluntary early retirement package was approximately $20,000 to $25,000 but said this amount had no impact on his decision to leave because his superannuation pay out was about $250,000 and would have been considerably more had he continued his employment to the age of 65.
27. In cross-examination, the Applicant conceded that his administrative and management duties were of an essentially routine nature, involving no management of resources and with major decisions being made by management in Brisbane. However, the Applicant maintained that these duties, cumulatively, were onerous and a significant part of his job. He maintained that he considered the "buck stops here" and he felt the burden of that responsibility.
28. In relation to the Applicant's non-accepted conditions, he said that his osteoarthritis of the ankles, bronchitis, diabetes are controlled by diet or medication and his refractive error is corrected by spectacles.
29. He said that his left knee osteoarthritis would prevent him from chasing an offender.
30. The Applicant agreed that he had looked for work after his retirement and would have attempted work if he had found any. He said that his search for work arose out of loneliness and the feeling of "vegetating" and that he needed something to do. He agreed it would be hard to find a static security job in Townsville, and said that is because such jobs are rare and he maintained that it would not be hard because of his age, given that he has more experience than younger applicants. The Applicant said that he has had no job interviews since 1997.
31. Document T4/9 -12 is a report by Dr Michael Likely, Consultant Psychiatrist, dated 19 January 1998 and addressed to the Applicant's general practitioner. Dr Likely diagnosed a chronic Post-traumatic stress disorder, recurrent major depressive disorder and alcohol abuse. His report of 4 February 1998 (Exhibit A4) is in similar terms, except that Dr Likely described the Applicant's major depressive disorder as arising as a complication of and not in isolation from his Post-traumatic stress disorder.
32. Exhibit R1 is the report of Dr Wilfred Richards dated 28 January 2000. Dr Richards diagnosed alcohol abuse/dependence and rejected a diagnosis of Post- traumatic stress disorder. He said that the Applicant's alcohol dependence "returned due to the stress of security work in the Townsville Supreme Court". He also noted that the Applicant "gradually resumed drinking under the stress of courtroom security duties and by 1990 needed three or four rum and cokes to get him through the working day". Dr Richards said:
"Mr Magill suffers alcohol abuse/dependence_._ Alcohol abuse was first manifest during his Ubon posting. Personality factors and service stresses were involved. His alcohol dependence first became apparent during his sergeant's mess post-Ubon days in the Brisbane area ('66 to '71) and became gross during his Adelaide undercover posting ('71 to '76). Dependence was not manifested for four years but returned due to the stress of security work in the Townsville Supreme Court.
Co-morbid anxious and depressive symptoms are a function of his inability to cope with life without alcohol and led to his original referral to Dr Likely.
Amelioration of veteran's symptoms have occurred since Dr Likely encouraged him to moderate his alcohol intake and prescribed for his depressive symptoms. His present optimal emotional state is dependent on the supervision of his psychiatrist, the support of his wife and the continuance of a stress free and rather vegetable retirement. His age, relative inertia and early decrepitude make his employment on the general labour market unlikely, but should he be unfortunate (sic) enough to find employment he would be unable to cope and increase in his alcohol dependence and relapse of co-morbid anxiety and depression would occur. Because of his chronic alcohol dependence his (sic) is permanently unfit for appropriate labour market re-employment."
33. Dr Likely provided comments on Dr Richards' report in his report of 12 April 2000 (Exhibit A5). Dr Likely said:
"On page five of his report, Dr Richards states that in his opinion, Mr Magill suffers from alcohol abuse and dependence and that alcohol abuse was first manifested during his Ubon posting. I agree with these comments. I disagree however with Dr Richards' contention that "comorbid anxious and depressive symptoms are a function of his inability to cope with life without alcohol and led to his original referral to Dr Likely". Indeed, I would see the situation as being the reverse to this. My contention would be that Mr Magill's development of post traumatic stress disorder has been associated with comorbid diagnoses of major depressive disorder and alcohol abuse. This is commonly the case amongst veterans.
With respect to Dr Richards' comments on treatment and prognosis, that Mr Magill's symptoms have improved somewhat since he has been attending my practice. I agree with this and I also agree with Dr Richards in that Mr Magill's "present optimal emotional state is dependent on the supervision of his Psychiatrist, the support of his wife and the continuance of a stress free...retirement." I also agree with Dr Richards' contention that Mr Magill is permanently unfit for appropriate labour market employment, but I believe that the cause of this is Mr Magill's post traumatic stress disorder alone".
34. Given the concessions made by each of the parties, the only issue for the Tribunal to consider is whether the Applicant's incapacity from his war-caused conditions alone prevent him from continuing to undertake remunerative work that he was undertaking.
35. The issue of what constitutes "remunerative work" was considered by the Full Federal Court in Banovich v Repatriation Commission (1986) 69 ALR 395. The Court said at 402-403:
"The term "remunerative work" is used in the Schedule in a context which indicates an intention to refer to work generally: see, for example, para [1](b)(ii), para [2](b), para [3]. Consistently with that use, the phrase "remunerative work which the respondent was undertaking" should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity -- and by that incapacity alone -- from continuing in that field of remunerative activity."
36. The Respondent's submission was that the Applicant's field of work was that of a security officer and that this constituted the Applicant's major duties, with other management and supervisory duties being merely incidental to his main role. However, the Tribunal accepts the Applicant's evidence that his work at the Law Courts, at least from 1984, involved a significant supervisory and day to day management role including the management of rosters and limited resources, dealing with a range of staff issues and supervising the performance of staff. While much of this work was of a routine nature, it was in addition to the Applicant's security officer duties and made him the primary point of contact with management in Brisbane and with external bodies such as the police and fire authorities. The Tribunal concludes, therefore, that the Applicant's remunerative work, for the purposes of section 24(1)(c) of the Act, was that of a security officer with management and supervisory duties.
37. In relation to the issue of whether the Applicant is prevented from continuing to undertake the work of a security officer with management and supervisory duties by his war-caused conditions alone, the Tribunal is mindful of the evidence of Drs Likely and Richards who both consider that, either because of the Applicant's Post- traumatic stress disorder or because of his alcohol dependence (both accepted conditions), he cannot work. Dr Likely was of the opinion that it is the Applicant's Post-traumatic stress disorder alone that prevents him from working.
38. The Respondent submitted that a range of other factors had an effect on the Applicant's ability to continue working, including the voluntary redundancy instigated by the Applicant himself and for which he had a significant financial incentive. The Tribunal notes the Applicant's evidence that he was, notwithstanding his additional duties, being paid less than his staff, given their access to penalty rates and shift allowances and that he received a pay out of approximately $20,000 to $25,000 when he was made redundant. However, the Tribunal accepts the Applicant's evidence that, in the context of a much larger superannuation payment, the Applicant's redundancy payment held little attraction and he would have been happy to continue working in a less responsible position. The Tribunal is satisfied that the Applicant's main concern was to avoid the stress associated with his supervisory and management duties.
39. The Respondent also submitted that the Applicant's age was a motivating factor in his decision to leave work. However, it was the Applicant's evidence that his desire was to avoid stressful work rather than to avoid work altogether and that he made some attempts to obtain alternative work both before and after he left the Law Courts. He also gave evidence of having felt lonely and "vegetating" and that he "needed something to do". On this basis the Tribunal rejects the Respondent's submission. As to the effect of the Applicant's age on his ability to obtain employment, this must be balanced against his extensive experience as a security officer and the value of that experience in the labour market. It is noteworthy that the Applicant's Post-traumatic stress disorder was not diagnosed by Dr Likely until after he had left his employment. It was the Applicant's evidence that, after discussions with Dr Likely, he realised he could not do any work at all.
40. As to the Applicant's non war-caused disabilities, the Respondent submitted that it is impossible to isolate the effect of individual conditions and ventured that the Applicant's bronchitis and osteoarthritis of the ankles might also affect his ability to chase offenders. However, there is no medical evidence of the impact of the Applicant's non war-caused conditions on his capacity to perform the functions of a security officer with management and supervisory duties. The Applicant's evidence was that his left shoulder no longer troubles him and that his bronchitis is controlled by medication. He wears spectacles to correct his vision. He said that it is the arthritis in his knee rather than the torn meniscus or the arthritis in his ankles that prevents him from chasing an offender. In any event, it is not clear whether the remunerative work he was undertaking would require the apprehension of offenders. The Tribunal is satisfied that the Applicant's non war-caused conditions do not affect his ability to continue to undertake remunerative work.
41. The Respondent also submitted that the Applicant was evasive in his answers on important issues. Counsel for the Respondent cited the answers given by the Applicant when asked about the amount of his redundancy pay out as an example. It is true that the Applicant appeared reluctant to answer questions when he was unsure of the correctness of his answers. This was particularly so when questions required an indication of a date or a time. He appeared to have difficulty remembering precise details and became anxious when he was pressed to do so. The Applicant also appeared to have difficulty hearing the questions asked of him and the questions would often have to be repeated. In this respect the Tribunal notes the Applicant's accepted disability of bi-lateral sensori-neural hearing loss. The Tribunal does not consider that this indicates an attempt at evasion on the part of the Applicant and draws no inference as to his credibility.
42. For the reasons outlined above, the Tribunal is satisfied that the Applicant's war-caused conditions of Post-traumatic stress disorder and alcohol dependence alone were the reason for his decision to enquire about and to take voluntary redundancy. It follows that the Applicant was, by reason of his incapacity from his war-caused conditions alone, prevented from continuing to undertake remunerative work he was undertaking. The Respondent's concession that the Applicant is suffering a loss of salary or wages that he would not be suffering if he were free of that incapacity means that the Applicant has satisfied the requirements of section 24(1)(c) of the Act and is eligible to be paid disability pension at the special rate.
43. The decision under review is set aside and the Tribunal substitutes therefor the decision that the Applicant is eligible to be paid disability pension at the special rate pursuant to section 24 of the Act with effect from 28 March 1998.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Member
Signed: .....................................................................................
Re Magill
Repatriation Commission
(1986) 69 ALR 395
The Tribunal set aside the decision under review and substituted a decision that Mr Magill was eligible to be paid disability pension at the special rate under section 24 of the Veterans' Entitlements Act 1986 with effect from 28 March 1998.