VETERANS - Australian Army - Hazardous Service - under 65 years - reasons for ceasing work - whether Applicant eligible for Special Rate pension - whether Applicant eligible for Intermediate Rate pension - decision under review affirmed

Veterans' Entitlements Act 1986 (Cth)

Statement of Principles concerning Personality Disorder (Reasonable Hypothesis) (No. 17 of 2018)

Statement of Principles concerning Personality Disorder (Balance of Probabilities) (No. 18 of 2018)

The United Nations Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008)

1. During an era of relative peace for the Australian Army, in 1992, Mr Uebergang was deployed to lead the Australian Contingent to the United Nations Mine Clearing Training Team in Pakistan and Afghanistan. This was Hazardous Service. It was traumatic.
2. Mr Uebergang currently receives a disability pension at 100 per cent of the General Rate, following the reviewable decision of the Veterans' Review Board dated 15 June 2022. He now seeks a pension at the Special Rate under section 24 of the Veterans Entitlements Act 1986 ('the Act') or, alternatively, at the Intermediate Rate under section 23 of the Act.
3. For the following reasons, the Tribunal has decided to affirm the decision under review.

1. It is uncontentious that Mr Uebergang meets the threshold impairment rating for the purposes of both sections 24(1)(a) and 23(1)(a) of the Act. Due to his lifestyle rating, Mr Uebergang is not eligible for the Extreme Disablement Adjustment. It is also uncontentious that Mr Uebergang made an application under section 14 of the Act for the purposes of sections 24(1)(aa) and 23(1)(aa) of the Act. Furthermore, Mr Uebergang had not yet turned 65 when his application was made for the purposes of sections 24(1)(aab) and 23(1)(aab) of the Act.
2. To meet the eligibility criteria for a Special Rate, Mr Uebergang must cumulatively meet the criteria of sections 24(1)(b)-(c) of the Act. For reasons that become apparent, in this matter it is only necessary to consider section 24(1)(b) where Mr Uebergang must have an accepted incapacity that is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours of per week.
3. Alternatively, to meet the eligibility criteria for an Intermediate Rate, Mr Uebergang must cumulatively meet the criteria of sections 23(1)(b)-(c) of Act. Again, for reasons that become apparent, it is only necessary to consider section 23(1)(b) where Mr Uebergang must have accepted incapacity that is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently.

1. Mr Uebergang gave oral evidence at the hearing and he has previously provided several statements. Mr Uebergang has numerous accepted medical conditions that need not be particularised so as to protect his privacy. It is sufficient to note that Mr Uebergang's PTSD and an Alcohol Use Disorder are accepted as related to his service. As of 1 February 2020, Mr Uebergang has a medical impairment rating of 75 and a lifestyle rating of 4.
2. The material facts arising from the relevant documents, and the oral evidence provided at the hearing, are summarised below.
3. Mr Uebergang was commissioned into the Royal Australian Engineers in late 1977 after training at both the Royal Military College - Duntroon and Officer Cadet School - Portsea. Mr Uebergang's extensive posting history includes numerous positions of responsibility over the course of both his Regular Army service from 1976 to 1999 and then Active Reserve service to 2002. He reached the rank of Lieutenant-Colonel. Mr Uebergang was discharged from the Standby Reserve in July 2019.
4. As was too common in the 1970s, Mr Uebergang was bastardised during his initial training. He required hospitalisation on one occasion as a result. Mr Uebergang was also exposed to alcohol abuse. Indeed, excessive drinking was a feature throughout Mr Uebergang's career.
5. Mr Uebergang reported that he started drinking alcohol aged 18 years in May 1975. By the time he was commissioned in January 1979, Mr Uebergang was drinking daily and averaging 12-14 standard drinks.
6. Mr Uebergang met Mrs Dawn Uebergang in 1990 and she says that he was drinking moderately. By late 1992, Mr Uebergang was drinking 25-30 standard drinks on average per week plus one or two binge drinking sessions per week of approximately 20 standard drinks. This coincided with Mr Uebergang's deployment.
7. Between May and December 1992, whilst holding the rank of Major, Mr Uebergang was given significant responsibility as the Officer Commanding the 9th Australian Contingent to the United Nations Mine Clearing Training Team.
8. Mr Warwick Pollock provided a statement dated 23 June 2020. Mr Pollock had served under Mr Uebergang on two occasions. On the first occasion in 1986/1987, Mr Uebergang had been a Captain and Mr Pollock had been a Corporal. At that time, Mr Uebergang "typified what was the exemplary military officer. You knew exactly where you stood with the man". On the second occasion, in 1995/1996, Mr Pollock observed a changed man. Then Warrant Officer Class One Pollock observed of then Major Uebergang:

"While Lee still had the regiments and its soldiers' best interest at heart, he was clearly a different man to the one I witnessed at our first posting. At times he appeared preoccupied and distant. He struggled to focus and overreacted to insignificant events. His demeanour would frequently change from friend to foe..."

1. Mr Pollock's observation of Mr Uebergang is consistent with a personality change identified by psychiatrist Dr Janice Carter. In a claim form dated 25 June 2000, Dr Carter wrote that Mr Uebergang had an enduring personality change:

"Following trauma and development of PTSD there were changes in his personality that crept in slowly without him being aware of it e.g. insensitive to feelings of others especially subordinates."

1. In her report of 23 September 2000, Dr Carter reported that the "Date of onset of Enduring Personality Change is early 1993 as a comorbidity of PTSD".
2. The Tribunal notes that Mr Uebergang does not have an accepted personality disorder, and this was not an issue pressed in the hearing. A perusal of the Statement of Principles concerning Personality Disorder (Reasonable Hypothesis) (No. 17 of 2018) and Statement of Principles concerning Personality Disorder (Balance of Probabilities) (No. 18 of 2018) indicate that PTSD and alcohol use disorders are clinically significant disorders of mental health that are factors that may give rise to the clinical onset of a personality disorder. This would be a significant diagnosis. On the evidence before it, the Tribunal is not reasonably satisfied that Mr Uebergang has a personality disorder within the meaning of the Statements of Principles.
3. Following his discharge from the Regular Army, Mr Uebergang entered the civilian workforce in Information and Communications Technology project management. He lived in Sydney. He assisted in delivering telecommunications for the Sydney Olympics between 1997 and 2001, before doing project management for BigPond until April 2002. The work for the Olympics was a source of pride for Mr Uebergang.
4. From April 2002 to January 2003, Mr Uebergang was engaged in project management for the Athens Olympics. This employment was not a success. A letter dated 20 September 2022 and marked "Confidential Letter" and "Without Prejudice" speaks to issues in the workplace. It is clear from this letter that Mr Uebergang could work hard and be very pleasant, but that he could also be abrasive. The Tribunal notes Mr Uebergang's evidence that he was drinking particularly heavily during this period, although this reduced after his wife joined him.
5. After an international holiday that finished in July 2003, Mr Uebergang commenced work with BigPond. He managed projects and programs until late 2007 when he commenced work with Relance Rail. In his evidence, Mr Uebergang indicated ethical concerns about his employment there which he finished in January 2010 after clashing with colleagues and being made redundant. The Tribunal also notes Dr Christopher Flood's contemporaneous letter of 2 March 2007, which says that Mr Uebergang "admits not looking after himself in terms of diet and alcohol intake".
6. From March to November 2010, Mr Uebergang managed programs and directed projects for NBN Co. He met Ms Julia Steel at this time. Ms Steel described an incredibly stressful environment where Mr Uebergang was under enormous pressure and was aggressive. Mr Uebergang was made redundant.
7. Mr Uebergang sought alcohol counselling in early 2011 with the Veterans and Veterans Families Counselling Service. Mr Uebergang's alcohol consumption was causing issues in his marriage. By April 2011, Mr Uebergang had moderated his alcohol consumption to four alcohol free nights with a limit of six drinks.
8. In April 2011, Mr Uebergang commenced program management work for Telstra as a contractor. Under a contract dated 19 April 2011, Mr Uebergang was paid approximately $137.61 per hour plus superannuation for ordinary hours of eight hours a day for 40 hours per week. Mr Uebergang worked on a major upgrade for Qantas. This was stressful and intense work and Mr Uebergang believes that Qantas wanted him sacked. Ms Steel again worked with Mr Uebergang at this time, and she believed Mr Uebergang's role became untenable.
9. Mr Uebergang's mental health was suffering at this time, and he was continuing to drink heavily. In an employment questionnaire dated 14 July 2020 and therefore written some years later, Mr Uebergang referred to his "constant source of frustration leading to stress, anxiety, anger and inevitably conflict in the workplace". Mr Uebergang regarded his most of his colleagues as lacking in leadership skills, integrity, punctuality, trustworthiness and as being lazy and not taking account for their responsibilities.
10. The original end date of Mr Uebergang's contract was 17 October 2011, which was extended. Mr Uebergang's evidence is that Telstra then offered him a permanent position in November 2011, with a pay rate at fifty percent of his contract rate. Mr Daniel Boyce provided a statement saying that Mr Uebergang was not regarded as customer focussed and that he lacked a sense of urgency. Additionally, Telstra was reducing the number of contractors it had.
11. Mr Uebergang refused the offer of a permanent position with Telstra. His contract was then terminated. Mr Uebergang was aged 54 years.
12. Mr Uebergang has given several accounts as to his reasons for refusing Telstra's offer of permanent employment. In substance, Mr Uebergang says that he did not leave of his own volition but rather Telstra's offer of permanent employment was not genuine and that it was a method of dispensing with him.
13. In her report of 7 February 2023, Dr Carter gave an opinion in response to findings made by the Veterans' Review Board. Dr Carter opined that Mr Uebergang "unable to work more than 8 hours a week by December 2011" and that "by December 2011, due to his PTSD and Alcohol Use Disorder he ceased work". The Tribunal also notes Dr Carter's report of 23 September 2020 where she initially described Mr Uebergang as having retired, but subsequently clarified this to be "made involuntarily redundant" by Telstra. The Tribunal notes the letter of consultant psychiatrist Dr Mark Whittington of 16 July 2016. In that letter, Dr Whittington described Mr Uebergang as "retiring in 2011".
14. The Tribunal is not reasonably satisfied that Telstra's offer was not genuine. Having considered the evidence of Ms Steel and the statement of Mr Daniel Boyce, the Tribunal does not accept the submission that this offer was an act of dismissal, demotion or repudiation. The characterisation of Mr Uebergang's cessation of employment with Telstra as an involuntary redundancy is not accepted.
15. In 2012, Mr and Mrs Uebergang moved from Sydney to Nelson Bay where they already owned a home. In a patient Information Sheet for Nelson Bay Medical Group dated 30 May 2012, Mr Uebergang self-reported that he continued drinking: "Alcohol: 3 day / week".
16. Mrs Uebergang had graduated with a Bachelor of Health Science (Complementary Medicine) degree in 2010. She sought to set up a business in complimentary medicine from home in Nelson Bay, but it was not a success.
17. There was a potential source of work for Mr Uebergang at RAAF Base Williamtown, or in Newcastle. However, there is no objective evidence before the Tribunal that any such work was commensurate in terms of pay and responsibility with the roles that Mr Uebergang had previously held in Sydney.
18. Mr Christopher Wrangle and Mr David Hudson are project managers. Both gave statements and provided evidence going to Mr Uebergang's employability as a project manager after 2011.
19. Mr Wrangle has an extensive background in many defence and government projects. The substance of Mr Wrangle's evidence is that, in his later working years, being his 50s and 60s, Mr Uebergang was employable as program manager.
20. In evidence of a similar nature to that of Mr Wrangle, Mr Hudson opined that Mr Uebergang was employable as a project manager into his mid-50s and beyond. A brief hiatus out of the workforce was largely immaterial as the principles of successful project execution do not change significantly. Indeed, Mr Uebergang's maturity may have been regarded by some employers as being valuable. This is consistent with Mr Uebergang's view that he may have been employable as a 'guru' were it not for his PTSD and Alcohol Use Disorder.
21. Mr Uebergang briefly worked in recruiting with Stagetec Mediagroup Australia in early 2013. He travelled for this role and was reimbursed his expenses. He billed for 15 hours and 40 minutes in the period 21-31 January and for 27 hours in the period 1-13 February. His evidence is that he looked for other work, but without success.
22. By late 2013, Mr Uebergang had essentially given up on finding employment. He had begun to access his superannuation. He volunteered for NSW Marine Rescue in the radio room. Although a clinical note of Dr Serfontein records that Mr Uebergang was "working 40 hours per week", he denied that this was the case under cross-examination. Mr Uebergang also continued to drink.
23. Mrs Uebergang's evidence makes it clear that Mr Uebergang did not take his propensity to consume alcohol seriously for many years. Mr Uebergang was suffering from night terrors, which made Mrs Uebergang feel unsafe. Mr Uebergang sought some counselling between 2007 and 2016 but was still drinking. File notes from the Veterans and Veterans Families Counselling Service in 2015 describe Mr Uebergang as a "functional alcoholic". At that time, he was "manically keeping himself busy within the community".
24. Mr and Mrs Uebergang sold their property in Sydney in 2017. They continued to live in Nelson Bay until 2018, when they sold their Nelson Bay home and purchased in Sanctuary Cove where they continue to reside.
25. A patient health summary from Elite Med Sanctuary Cove recorded that on 23 May 2019 Mr Uebergang was still drinking four or more times a week drinking. He was drinking seven to nine standard drinks on a typical day. In a letter to Dr Carter dated 10 February 2020, Dr Barry Jones of Sanc Med identified that Mr Uebergang had long term alcohol problems and "longterm problems with aggression while sleeping".
26. Dr Benjamin Duke is a consultant psychiatrist. He provided a report dated 7 August 2023 and gave evidence. His role in these proceedings was as an expert.
27. The substance Dr Duke's evidence is that, in his opinion, Mr Uebergang's psychiatric symptoms caused him difficulties in the workplace but would not have functionally impaired him to the level that required Mr Uebergang to completely cease paid work. Dr Duke opined that Mr Uebergang's symptoms would have contributed to the interpersonal difficulties that he faced and were a factor in him leaving his employment with Telstra. However, they did not render him unable to obtain work.
28. Dr Duke's opinion is that voluntary work, such as Mr Uebergang undertook, could be helpful to recovery. He was cross-examined in detail about trauma responses and medications but maintained that PTSD symptoms did not prevent Mr Uebergang from working from 2013. Dr Duke's opinion is that Mr Uebergang would still be able to work if an appropriate role could be found for him, although this may be difficult given his decade out of the workforce.
29. Dr Greg Apel is a consultant psychiatrist and provided a primary report dated 27 November 2023, a supplementary report dated 17 July 2024, and a further letter dated 5 March 2025. He also gave evidence. Dr Apel provided a detailed clinical history of Mr Uebergang and has examined him on several occasions. Dr Apel's evidence, therefore, is from the perspective of a treating psychiatrist.
30. The substance of Dr Apel's evidence is that, by 2011, Mr Uebergang was not coping in paid employment due to his PTSD and alcohol consumption. Dr Apel saw Mr Uebergang's Alcohol Use Disorder as rising secondary to, and aggravating, his PTSD. A nuance in Dr Apel's opinion is that Mr Uebergang's psychiatric symptoms were primary drivers of him both leaving work and not returning to the workforce. By this logic, Mr Uebergang's time out of the workforce then contributed to his ongoing unemployability. The effect of this is that, in Dr Apel's opinion, Mr Uebergang was unable to work due to his PTSD.
31. Less compelling, however, is Dr Apel's opinion that Mr Uebergang was constructively dismissed from Telstra. Such an opinion falls outside the field of psychiatry and, in any event, is not consistent with the evidence of Mr Boyce and Ms Steel.

DOES MR UEBERGANG QUALIFY FOR THE SPECIAL RATE?

1. For Mr Uebergang to be entitled to the Special Rate he must have an accepted incapacity that is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours of per week.
2. After moving from Sydney to Nelson Bay, Mr Uebergang was able to obtain further part-time work in 2013 before dedicating himself to volunteering.
3. The Tribunal does not accept Dr Carter's evidence that Mr Uebergang was incapable of work from 2011. Taken at its highest point, Dr Apel's evidence does not establish that Mr Uebergang's symptomology, of itself alone, rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours of per week before ceasing work with Stagetec Mediagroup Australia in early 2013. On the contrary, this employment demonstrates that Mr Uebergang was capable of working at least eight hours a week.
4. The psychiatric evidence and counselling records after Mr Uebergang finished with Stagetec Mediagroup Australia do not indicate any significant worsening of his psychiatric conditions. If anything, the change to Nelson Bay allowed him to gradually come to terms with his PTSD and alcohol use on the urging of Mrs Uebergang. The Tribunal is reasonably satisfied that Mr Uebergang remained capable of working at least eight hours a week after leaving Stagetec Mediagroup Australia, although he ceased looking for remunerated work and kept himself busy in the community. The Tribunal is reasonably satisfied that Mr Uebergang was retired by the time he and Mrs Uebergang moved to Sanctuary Cove.
5. Accordingly, the Tribunal is not reasonably satisfied that Mr Uebergang's accepted incapacity of PTSD and Alcohol Use Disorder is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours of per week. Therefore, Mr Uebergang does not satisfy the requirements of section 24(1)(b) of the Act. He cannot qualify for the Special Rate.

1. Mr Uebergang does not qualify for the Special Rate of pension.

DOES MR UEBERGANG QUALIFY FOR THE INTERMEDIATE RATE?

1. For Mr Uebergang to qualify for the Intermediate Rate he must have accepted incapacity that is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently.
2. The Tribunal has considered the evidence of Mr Wrangle and Mr Hudson in considering assessing Mr Uebergang's employability, placing weight on the framework of psychiatric evidence of Dr Apel as a treating psychiatrist. The Tribunal is satisfied that Mr Uebergang was employable after leaving Telstra in 2011, if not full-time then at least part-time or intermittently. Mr Uebergang's psychiatric symptoms undoubtedly interfered with his full-time work at Telstra, but they did not impact his part-time work at Stagetec Mediagroup Australia. Despite Mr Uebergang's psychiatric symptoms, which the Tribunal does not diminish, he continued to be functional in the workforce and the community after he left Telstra.
3. A core issue that arises from the facts as summarised above is that Mr Uebergang removed himself from an established job market in Sydney to Nelson Bay in 2012. The Tribunal acknowledges the submissions regarding the effect Article 19 of the Convention on the Rights of Persons with Disabilities, however that does not interfere with the operation of the 'alone test' here.
4. Once Mr Uebergang realised that he would not receive the same work opportunities in Nelson Bay as he had in Sydney, it was open for him to move back to Sydney or elsewhere. Mr Uebergang also had until July 2019 to take steps to reactivate his military career from the Standby Reserves, but he did not.
5. There is strength to the view that Mr Uebergang was not able to undertake intense full-time remunerative work after leaving Telstra. However, he chose to move to Nelson Bay and physically dislocate himself from the employment market in Sydney where he had previously received suitable work. This choice to move to Nelson Bay factored in new work opportunities for Mrs Uebergang. The Tribunal is therefore not satisfied that the move was principally made for reasons relating to managing Mr Uebergang's PTSD or Alcohol Use Disorder.
6. The Tribunal is reasonably satisfied that Mr Uebergang's choice to move from Sydney to Nelson Bay contributed to his inability to find suitable part-time or intermittent remunerative work. By the time that Mr Uebergang moved to Sanctuary Cove in 2018, he had long ceased seeking for work and the Tribunal is satisfied that both Mr and Mrs Uebergang were retired.
7. Accordingly, the Tribunal is not reasonably satisfied that Mr Uebergang's accepted incapacity is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. Therefore, Mr Uebergang does not satisfy the requirements of section 23(1)(b) of the Act. He cannot qualify for the Intermediate Rate.

1. Mr Uebergang does not qualify for the Intermediate Rate of pension.

1. The Tribunal is not satisfied that Mr Uebergang qualifies for either the Special Rate or the Intermediate Rate of pension. The decision under review must therefore be affirmed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for the decision herein of Senior Member George.

Solicitor for the Applicant: Mr T O'Connor, Cockburn Legal

Counsel for the Respondent: Mr M Hawker, Sparke Helmore

Solicitor for the Respondent: Ms H Jonkers, Sparke Helmore