Aaw and Repatriation Commission - [2001] AATA 779

DECISION AND REASONS FOR DECISION [2001] AATA 779

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/51

VETERANS' APPEALS DIVISION       )
           Re      EDWARD AAW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date12 September 2001
PlaceSydney

Decision      The decision under review is affirmed.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – application for increase in disability pension – special rate – whether war caused conditions alone cause an inability to undertake last paid employment – standard of proof
Veterans' Entitlements Act 1986, 13(1)(b), (d), 14(1), (3), (4), 20(1), 23(1)(a)(i), (b), (3A), (3B), 24(1)(a)(i), (b), (2A), (2B), 120(4).
Repatriation Commission v Smith (1987) 74 ALR 537

REASONS FOR DECISION

12 September 2001 M J Sassella, Senior Member

History of the application

Edward Aaw ("the Applicant") served in the Australian Army from 21 April 1942 to 25 October 1944 (T2). This constitutes operational service as defined in the Veterans' Entitlements Act 1986 ("the Act"). The Applicant has the accepted conditions of:

Anxiety neurosis with functional dyspepsia.
Bilateral sensorineural hearing loss ("BSHL") with tinnitus.
Peptic ulcer disease
Solar skin damage.
Chronic airflow limitation.
Hypertension.
Alcohol dependence or alcohol abuse.
Ischaemic heart disease ("IHD").

The Applicant currently receives a Disability Pension with the Extreme Disability Adjustment ("EDA").
On 11 May 1999 the Applicant lodged an application with the Department of Veterans' Affairs ("the DVA") in respect of hypertension, alcohol abuse/dependence and IHD (T14). It was his contention that these were war-caused conditions.
On 4 June 1999 the Repatriation Commission ("the Respondent") accepted the Applicant's claim that hypertension, alcohol dependence and alcohol abuse were war caused conditions (T2). His disability pension was continued with the EDA.
On 10 June 1999 the Applicant lodged an application for review of the above decision with the Veterans' Review Board ("the VRB") (T17). It was his contention that he should be paid Disability Pension at the special rate.
On 5 July 1999 the DVA wrote to the Applicant informing him that it had elected not to conduct a review of his application pursuant to s 31 of the Act (T18).
The decision under review
On 1 November 1999 the VRB affirmed the Repatriation Commission decision of 4 June 1999 which continued pension at 100% of the general rate with the EDA (T20). It was the Applicant's contention that it was his war-caused disabilities that prevented him from being able to run his business properly and that they were the ultimate reason for the demise of his business. His business partner, who was not involved in the day to day running of the operation, realised that the business was not being run properly and forced the Applicant to sell the squash courts around which the Applicant's business revolved. The Applicant stated further that, although osteoarthritis of the knee, a non-accepted disability, had become a major problem by August 1997, by that time he had already put in train arrangements to sell the courts and cease work. It was the Applicant's ultimate contention that it was his war-caused disabilities alone that prevented him from working in the courts and that they further prevented him from working for eight hours or more a week. It was his accepted disabilities alone that had stopped him running his squash courts business.
The VRB however found that there was a combination of reasons for the demise of the business. By December 1994 the Applicant's business associate had filed proceedings in the Supreme Court in an attempt to force the Applicant to sell the business. He had also seen a downturn in his business since he introduced a non-smoking policy to the courts. The Applicant's wife had then encouraged him to accept the offer of a property developer wanting to purchase the site of the courts. Further to these factors, the Applicant had the deteriorating condition of osteoarthritis and it had become a significant problem by August 1997. The VRB relied on the reports of Dr Burns (T10) and Dr Baz (T19, folios 102-109), dated respectively 17 January 1998 and 16 October 1998, which both opined that the Applicant's inability to work was caused by a combination of medical and non-medical factors.
Legislation
The following provisions from the Act are relevant: sections 13(1)(b), (d), 14(1), (3), (4), 20(1), 23(1)(a)(i), (b), (3A), (3B), 24(1)(a)(i), (b), (2A), (2B), 120(4).
"13 Eligibility for pension
(1)       Where:
          …
          (b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
          …
          (d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…"
"14 Claim for pension
(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
          …
(3)       A claim for a pension:
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"20 Date of operation of grant of claim for pension
(1)       Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"23 Intermediate rate of pension
(1)       This section applies to a veteran if:
          …
          (a)       either:
(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's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
…
(3A)     This section applies to a veteran if:
          (a)       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
          (b)       the veteran had turned 65 before the claim or application was made; and
          (c)       paragraphs (1) (a) and (1) (b) (as affected by subsection (2)) apply to the veteran; and
          (d)       the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
          (e)       because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
          (f)        the veteran was undertaking his or her last paid work after the veteran had turned 65; and
          (g)       when the veteran stopped undertaking his or her last paid work, the veteran:
(i)        if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)       if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
  for a continuous period of at least 10 years that began before the veteran turned 65; and
          (h)       section 24 or 25 does not apply to the veteran.
          (3B)     For the purposes of paragraph (3A) (e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1) (b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
          (a)       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
          (b)       the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or
          (c)       the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.
…"
"24 Special rate of pension
(1)       This section applies to a veteran if:
          …
          (a)       either:
(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
          …
          (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
(2A)     This section applies to a veteran if:
          (a)       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
          (b)       the veteran had turned 65 before the claim or application was made; and
          (c)       paragraphs (1) (a) and (1) (b) apply to the veteran; and
          (d)       the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
          (e)       because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
          (f)        the veteran was undertaking his or her last paid work after the veteran had turned 65; and
          (g)       when the veteran stopped undertaking his or her last paid work, the veteran:
(i)        if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)       if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
  for a continuous period of at least 10 years that began before the veteran turned 65; and
          (h)       section 25 does not apply to the veteran.
          (2B)     For the purposes of paragraph (2A) (e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
          (a)       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
          (b)       the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
…"
"120 Standard of proof
          …
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…"

Hearing and appearances

The Tribunal convened a hearing in Sydney on 27 February 2001. Ms Buss from the NSW Legal Aid Commission represented the Applicant. Mr Godwin from the DVA represented the Respondent.
The Tribunal had before it the following documents which were taken into evidence:

Exhibit TD1 – Section 37 Statement and associated documents provided by the DVA, 16 February 2000.

Exhibit A1 – Statement by the Applicant, 25 January 2001.

Exhibit A2 – Statement by Ms J Aaw, 25 January 2001.

Exhibit A3 – Statement by Mr G K Edwards, 20 February 2001.

Exhibit A4 – Clinical notes from Dr J Harrison, orthopaedic surgeon.

Exhibit A5 – Applicant's statement of facts and contentions, 1 November 2000.

Exhibit R1 – Respondent's statement of facts and contentions, 23 February 2001.

Background

The Applicant was born on 21 January 1923. He left school at the age of 15 after completing secondary high school. He worked on the family farm until he joined the Army. The Applicant was discharged in 1944 and returned to the family poultry farm which he took over in 1945 and worked on until 1975. After the land was resumed by the New South Wales Government he took over the running of the squash courts in Blacktown which had been built in 1960 by himself and several business partners.
The Applicant is married with a 44 year old daughter and two grandchildren.
Documentary medical and other evidence
On 5 December 1997 Dr Douglas Gray, consultant rheumatologist, noted the Applicant's pain in the back, hips and knees (T13, folio 64). Stiffness worsened during the day and the pain gradually increased alongside this stiffness. The Applicant had limited mobility having to stop walking after 50-75 metres because of knee pain. Dr Gray diagnosed generalised osteoarthritis.
On 17 January 1998 Dr Mark Burns, occupational physician, provided a report on the Applicant (T10). Dr Burns took a comprehensive history of the Applicant's military, personal and medical history, including the conditions that had been accepted as war-caused and the restrictions they placed on his lifestyle. The Applicant stated at his examination that for the last few years he had been working infrequently at the counter of the squash courts business and had mainly been doing the bookwork. He had been working a maximum of 16 hour a week. In the early years of the business the courts had been open seven days a week but more recently, due to a decrease in demand, they were only open Monday to Thursday. Towards the end of the operation of the business very little maintenance work was done because it was not financially viable to hire someone to do it. Dr Burns found a Guide to the Assessment Rates of Veterans' Pensions (5th Edition) ("GARP") ( rating of 55 points, without a rating for the Applicant's hearing loss. Dr Burns believed that the Applicant would have a minimum rating of 60 points although he did state that "…approximately 50% of his problems are associated with his osteoarthritis." Dr Burns concluded his report:
"I believe that Mr Aaw from his accepted disabilities alone should be assessed at 100% of the general rate. I note that he has recently put up his squash courts for sale and feels that he is unable to continue in the business. In my opinion, though, his inability to continue at work is not solely due to his accepted disabilities. I [sic] would be due to a mixture of three things. These would be his accepted disabilities, his non accepted disability of osteoarthritis and also a significant decrease in demand for squash in the region where he works."

On 23 January 1998 Dr Gray noted "effusion in the right knee with joint-line tenderness and a relatively preserved range of movement in the knee." He recommended that the Applicant limit his alcohol consumption to 2-3 drinks maximum (T13, folio 63).
On 20 March 1998 Dr Gray examined the Applicant and noted stiffness in the knees and back and that he was limited in his activities because of the pain that develops with gardening or prolonged sitting (T13, folio 61).
On 30 March 1998 Dr Martha Baz, occupational physician, completed a report on the Applicant (T11). She also took a rather detailed history of the Applicant's clinical history, noting both his accepted and non-accepted conditions. Like Dr Burns she also took noted the Applicant's employment history which was largely consistent with that taken by Dr Burns. However in relation to the operation of the squash courts business Dr Baz made note of some salient details:

For the last few years of operation the Applicant had become increasingly irritable with customers.
The Applicant was not promoting [squash] competition enough to maintain the business.
He made the courts non-smoking and the Applicant felt that this contributed to a reduction in business.
He was unable to clean the courts and stairs.
The Applicant made errors in the running of the business.
The hours of operation were reduced because of a drop in business.
After initially working full-time in the business the Applicant eventually only worked 15 hours per week.
The courts were closed and sold partly because of the reduction in business and partly due to the Applicant's inability to run it properly.

Specifically, in relation to the Applicant's fitness for work, Dr Baz was of the opinion that his psychiatric condition would cause him "much difficulty in any employment or management situation." The Applicant felt tension, panic and apprehension in dealing with other people and "it is likely that they contributed to the reduced profitability of the squash court centre." Further Dr Baz stated that the Applicant's physical conditions would limit his ability to undertake cleaning and maintenance duties, however the degenerative joint changes, which are not accepted disabilities, although precluding heavy work, would not prevent him from undertaking the cleaning and maintenance work in the squash court complex.
Dr Baz also conducted a comprehensive survey of the available medical documentation and come to the following conclusion:
"In my opinion Mr Aaw was unfit for work of eight hours or more duration weekly.
"In my opinion his psychiatric condition has rendered him unfit for the work he has been undertaking as a squash court manager.
"The possibility of ischaemic heart disease contributing to breathlessness and restricting activity has been raised. If this diagnosis is confirmed, this condition could contribute to Mr Aaw's reduced work fitness and ability to operate a squash court complex, although it would not be the most significant factor.
"I do not consider the available information indicates the musculoskeletal disabilities would preclude him from undertaking his necessary duties in that capacity.
"A number of other non-medical factors have been identified by Mr Aaw as contributing to the reduced profitability of his business and its eventual sale. I consider that these factors are related to the effects of the psychiatric condition."

On 25 August 1998 Dr Malcolm Dent, psychiatrist, reported that the Applicant was "permanently incapacitated at levels of disability I had determined for prolonged Alcohol Abuse, Depression and Anxiety" (T19, folios 94-98). Dr Dent took a history from the Applicant of the demise of his business and the difficulties of his physical conditions. Dr Dent also noted an incident of around August 1997 when the Applicant was attacked outside the courts. Ever since that incident the Applicant has been very apprehensive whilst at the courts. The Applicant also stated that the business was increasing in 1992 and he bought out one of his partners of a 1/6 share in the business. It was when the non-smoking area was introduced that business dropped off by nearly 50%. Dr Dent stated the following:
"It is very evident that [the Applicant's] lack of mobility caused by his Chronic Airways Limitation and Rejected Orthopedic [sic] Disabilities, but together with problems with the partnership, the hoodlums, hooligans and drug addicts at his premises, loss of clientele and his wife's unwillingness to continue in their business have all significantly impacted upon the underlying substrate of the accepted disabilities, Anxiety, Functional Dyspepsia, Peptic Ulcer and the other non accepted disabilities.
…
"I agree with him that in the situation as it is increasingly presented, then his Accepted Disabilities have led to his incapacity to continue to work and in the detail and circumstances I have given above.
"I am of the view that his mental symptoms in themselves have been the predominant causal issue in the situation as it now presents with regard to incapacity to work…I believe that it is the overwhelming predominance of mental symptoms and Dyspepsia that have led to him how being unable to continue to work at all."

On 4 September 1998 Dr Gray reported that the Applicant had suffered right knee pain and swelling after kneeling whilst gardening (T13, folio 59). The knee had remained tense and swollen with a "preserved range of movement." On 18 September Dr Gray reviewed the Applicant and recommended a total knee replacement (T13, folio 60).
On 16 October 1998 Dr Baz provided another report on the Applicant (T19, folios 102-109). She again noted the clinical and employment history of the Applicant and found a degree of incapacity of 100%. She stated that "Mr Aaw's accepted disabilities cause him to be unfit for his usual work of 8 or more hours duration weekly and have done so since prior to the sale of his squash court business." Dr Baz further noted that "a number of non-medical factors were identified by Mr Aaw and confirmed at this review as contributing to his decision to leave work."
On 4 November 1998 Dr John Harrison, orthopaedic surgeon, reported on the Applicant (T13). He found escalating problems of osteoarthritic change in the right knee and recommended a total knee arthroplasty.
On 8 March 1999 the Applicant wrote a statement detailing the history of the squash courts business and the effect of his disabilities on his ability to run them (T19, folios 100-101). It was the war-caused disabilities that prevented him from managing the business properly. His hearing was becoming worse and in December 1994 his business partner filed proceedings in the Supreme Court stating that the business was not being run properly. The Applicant introduced a non-smoking policy because the smoking of customers was exacerbating his war-caused breathing problems. His drinking problem worsened and he would return late to the courts where he was supposed to take over from his wife. This placed a great deal of stress on his family life. Because of deteriorating health and the inability to manage the business properly it was eventually sold in March 1998.
On 26 July 1999 the Applicant provided another statement in support of his application to the VRB (T19, folio 85). He stated that because of his accepted disabilities he was unable to run his business properly and that this was the reason for the demise of the business. He stated that the non-accepted disability of osteoarthritis was not a major problem for him until August 1997 and by this time he had already arranged to sell the business.
On 25 January 2001 the Applicant wrote a statement (Exhibit A1) which explained that:

He took over the squash courts management in 1975.
He set up a family company in the late 1970s for superannuation purposes.
The company was liquidated in 1990 because the accountancy fees were very high.

On 25 January 2001 Joyce Aaw, wife of the Applicant, wrote a statement in support of her husband's application (Exhibit A2). It contained the following relevant information:

The Applicant's anxiety caused problems in the running of the business. He would panic and make mistakes. He was unable to handle school children.
The Applicant's deafness was a considerable problem for him in dealing with customers. He would "fly off the handle" if his wife tried to help him.
After their daughter stopped working at the courts, the Applicant left more and more work for Mrs Aaw to do. Most of the time the Applicant would become angry and go to the local club and drink.
Since about 1990 the Applicant was often "as white as death" and his heart would race. The Applicant would go the club and drink after his wife suggested that he go home.
The business went downhill because of the Applicant's ill health and inability to manage well.
The Applicant used to be very good at business and if it weren't for him becoming upset and anxious he would have been able to follow up other business opportunities.

On 20 February 2001 Gordon John Edwards, an old friend of the Applicant's provided a statement documenting their friendship and relationship (Exhibit A3). He described the Applicant as a "problem drinker" and stated that the Applicant would regularly leave his wife at the courts and go drinking at the club. The Applicant would often be drinking when he should have been working, neglecting his duties. He would often be late opening the business and this had an effect on attendance at the courts. The Applicant increasingly relived his wartime experiences and this affected his ability to concentrate on the business and run it properly. Mr Edwards stated that it was the Applicant's problems that caused the business to be run down, forcing him to eventually sell the assets.
Findings on material questions of fact with reference to the evidence and other materials in support of the findings
The Tribunal notes or makes findings as to the following uncontentious matters:

The Applicant was born on 27 January 1923. He was aged 76 years when he claimed in respect of various disabilities on 11 May 1999 (T14).

The date of effect of any decision in the Applicant's favour would be 11 February 1999 (s 20(1) of the Act)).

The standard of proof in respect of matters of assessment requires that the Tribunal be reasonably satisfied as to the required matters (s 120(4) of the Act). In Repatriation Commission v Smith (1987) 74 ALR 537, 547 the Federal Court held that this standard equates to satisfaction on the balance of probabilities.

Questions relevant to resolving issues surrounding special rate are:

Question 1 – Has the Applicant lodged a claim (s 24(2A)(a) of the Act)?

Question 2 – Had the Applicant turned 65 when the claim was made (s 24(2A)(b) of the Act)?
Question 3 – Is the Applicant's degree of incapacity at least 70% under s 21A of the Act (s 24(2A)(c) of the Act)?

Question 4 – What are the vocational, trade and professional skills, qualifications and experience of the Applicant (ss 24(2A)(c) and 28(a) of the Act)?

Question 5 – What are the kinds of remunerative work which a person with the skills, qualifications and experience referred to in question 4 might reasonably undertake (ss 24(2A)(c) and 28(b) of the Act)?

Question 6 – What is the degree to which the physical or mental impairment of the Applicant as result of the war-caused injury or war-caused disease, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in answer to question 5 (ss 24(2A)(c) and 28(c) of the Act)?

Question 7 – What was the last paid work that the Applicant was undertaking before he made the claim within the meaning of s 24(2A)(d) of the Act?

Question 8 – Is the Applicant, by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work (s 24(2A)(d) of the Act)?

Question 9 – If the answer to question 8 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the applicant from continuing to undertake that work (s 24(2A)(d) of the Act)?

Question 10 – If the answers to questions 8 and 9 are yes, is the Applicant 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 (s 24(2A)(e) of the Act)?

Question 11 – Was the Applicant undertaking his last paid work after he turned age 65 (s 24(2A)(f) of the Act)?
Question 12 – When the Applicant stopped undertaking his last paid work had he been working in that profession for a continuous period of at least 10 years that began before he turned 65 (s 24(2A)(g)(ii) of the Act)?

Question 13 – Has a temporary payment under s 25 of the Act been made (s 24(2A)(h) of the Act)?

The Tribunal will now consider these questions in sequence.
Question 1 – Has the Applicant lodged a claim (s 24(2A)(a) of the Act).
Yes. The claim is in T14.
Question 2 – Had the Applicant turned 65 when the claim was made (s 24(2A)(b) of the Act)?
Yes. The Applicant was aged 76 when he made the claim (T14).
Question 3 – Is the Applicant's degree of incapacity at least 70% under s 21A of the Act (s 24(2A)(c) of the Act)?
Yes. The Applicant's impairment rating is 100% under s 21A of the Act (T2, T20).
Question 4 – What are the vocational, trade and professional skills, qualifications and experience of the Applicant (ss 24(2A)(c) and 28(a) of the Act)?
Question 5 – What are the kinds of remunerative work which a person with the skills, qualifications and experience referred to in question 4 might reasonably undertake (ss 24(2A)(c) and 28(b) of the Act)?
Question 6 – What is the degree to which the physical or mental impairment of the Applicant as result of the war-caused injury or war-caused disease, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in answer to question 5 (ss 24(2A)(c) and 28(c) of the Act)?
The Tribunal considers that questions 4, 5 and 6 can be readily dealt with. The Respondent in Exhibit R1, its statement of facts and contentions, conceded that the Applicant satisfies the requirements of s 24(2A)(c) of the Act. This was confirmed at the start of the hearing.
In the Applicant's statement of facts and contentions (Exhibit A5) it is contended that Mr Aaw satisfies s 24(2A)(c) as follows:
"Dr M. Baz, in her reports of 30 March 1998 & 16 October 1998 (s.37 documents, pp 52/53 & 108), stated that the Applicant was unfit for work of 8 hours per week. The Applicant contends that that conclusion was made with respect to his then accepted disabilities, and predominantly his accepted psychiatric condition, and is consistent with an EDA assessment over the same period.
"If it is thought that conditions not then accepted impinged on satisfaction of the '8 hour test' [in s 24(2A)(c) and, incorporated by reference, s 24(1)(b), of the Act], then the Applicant contends that the subsequent acceptance of his alcoholism and heart disease (the latter of which was specifically referred to by Dr Baz) makes it clear that the test is satisfied with effect from the application day."

In essence s 24(1)(b) and s 24(2A)(c) require the Tribunal to be reasonably satisfied that, considering only the Applicant's accepted disabilities, they alone would prevent him from being able to remunerative work for periods aggregating more than eight hours a week. The sense of Dr Baz's evidence is that the Applicant's accepted disabilities do render the Applicant incapable of undertaking any remunerative work for eight hours a week or more.
The Tribunal agrees with the Respondent that Dr Baz's evidence should be accepted. As a consequence it is unnecessary to delve into questions 4 and 5, above. The Tribunal therefore finds that the Applicant's incapacity from war-caused conditions is of such a nature as, of itself alone, to render the Applicant incapable of undertaking remunerative work for periods aggregating more than eight hours a week.

Question 7 – What was the last paid work that the Applicant was undertaking before he made the claim within the meaning of s 24(2A)(d) of the Act?

The last paid work that the Applicant was doing before he made the claim under the Act was work as manager of squash courts (Exhibit A5). The Applicant's statement of facts and contentions says in paragraph 6, "The applicant ceased his last paid work as a squash court manager in December 1997/8, having undertaken that work for more than 10 years [since 1975 according to the Applicant's oral evidence to the Tribunal].
Question 8 – Is the Applicant, by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work (s 24(2A)(d) of the Act)?
The answer to this question is the same as for question 6. The answer is yes.
Question 9 – If the answer to question 8 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the applicant from continuing to undertake that work (s 24(2A)(d) of the Act)?
In answering this question the Tribunal notes that Mr Aaw may be disabled from continuing to perform the relevant remunerative work for reasons additional to the impact arising from his war-caused disabilities. These could include other non-war-caused disabilities or the relevance of his advanced age.
The Applicant's war-caused disabilities involve anxiety neurosis, dyspepsia, hearing loss, tinnitus, peptic ulcers, solar skin damage, chronic airflow limitation, hypertension, alcohol dependence or abuse, and heart disease. Other factors that might affect his ability to continue remunerative work are, as already stated, his advanced age, his non-war-caused disabilities of osteoarthritis in the knee and osteoporosis in the back, the downturn of the squash courts business and the desire of Mrs Coles, Mr Aaw's business partner, that the Applicant cease in that business and sell the squash court premises so that she could liquidate her funds. The Tribunal needs to ascertain whether it can be said that these factors, other than his accepted disabilities, are part of the reason Mr Aaw is prevented from continuing his work as manager of the squash courts business.
The Applicant gave evidence at the Tribunal hearing. Amongst other things he said:

He became aware of the osteoarthritis in his knee in September 1997 when he got up after kneeling to do some weeding. The osteoarthritis made working difficult but Mr Aaw could still get around. Climbing stairs posed a worry. The Tribunal notes that the Applicant stated in a document included as part of T19 that his non-accepted disability of osteoarthritis was not a major problem for him until August 1997 and by this time he had already arranged to sell the business. He had total knee reconstruction at Dr Harrison's urging after he sold the squash courts on 15 June 1999 (Exhibit A4, folio 3). The Tribunal pauses to note the following. Dr Harrison's notes show that the Applicant first saw him about his knee in November 1998. Exhibit A4, folio 28, indicates x-ray findings of osteoarthritis of the knees in July 1998. Exhibit A4, folio 39, shows that Dr Gray, rheumatologist, was aware of knee problems in March 1998. Exhibit A4 contains notes suggesting that the knee operation was successful.

The Applicant said that the sale of the squash courts was caused by his business partner, Mrs Coles. She wanted her money out of the business for a trip overseas. She had first mentioned this in the early 1990s. The decision to sell was made in 1996 but it took 18 months to find a buyer.

The Applicant explained some of his problems doing the job. These stemmed from anxiety, drinking and stomach problems. His daily routine involved opening the courts at 8.30 am, cleaning the courts, letting schools in as early as 8.30 am, filling the vending machines, writing up the books and paying accounts. He would then go down to the club. He had a drinking habit which he had developed in wartime. In the 1990s he would go to the club after lunch. He would return to the squash courts late in the afternoon. Sometimes this precipitated rows. At that time he would clean the courts after schools had generally been using them during the day.
The Applicant spoke of the impact of his disabilities. Any exertion would produce severe effects. He would have to rest after work. His hearing problem would mean that he could misunderstand what he was hearing over the telephone. This could produce a loss of custom.

Mr Aaw spoke of the business trends that he had noticed while running the squash courts. At their peak the squash courts used to open until 10.30 or eleven o'clock at night. Business was very good. The courts would be in use. Social clubs would be running. The Applicant said that the successful period was from the mid-1970s until business fell off in the 1990s. The then federal Treasurer's comment on Australia being a "Banana Republic", in the Applicant's view, did not help. The Applicant identified what he described as a big problem in 1995 when he introduced a non-smoking policy. He said that he lost almost 50% of his business. He later said that he introduced the no smoking policy partly because of his chronic airways limitation problem, an accepted disability, but also because of requests by some of the social clubs.

The Applicant said that he drank beer in order to relax. It was connected in part with his anxiety neurosis.

The Applicant's wife also gave evidence for the Tribunal. She said that the Applicant could not work on the counter and till. He could become flustered by customers' demands. He could not handle schools who were using the squash courts. He would get upset if four or five customers were at the counter wanting attention at the one-time.
As regards the Applicant's hours working at the squash courts, she said that he was there quite a bit but he would go to the club if he became upset at all. The Applicant otherwise opened up, saw to the cleaning, and did the books. However he would go missing at the club most days from about eleven o'clock in the morning until four o'clock in the afternoon.
In the witness's statement (Exhibit A2) in paragraph 5 she commented that most of the time the Applicant could justify offer handle about how things were done, he would leave and go to the club and drink. She put this down to the Applicant's deafness. The Applicant's daughter had been working in the squash courts and had left at one stage and the Applicant could not handle the counter. He did not want to admit that he had not heard what his wife had said or what someone else had said. He would get upset about that.
Mrs Aaw talked about the impact of the Applicant's heart condition on his work. It was then that he had to cut down on some of the work that he did around the squash courts to the extent that he could not do his share of the work any longer. He might have a "turn" and have to go home. However, often he would go to the club to drown his sorrows instead of going home.
In her statement (Exhibit A2) Mrs Aaw had commented that Mrs Coles' son, Freddy, had, since the early 1990s, expressed a wish that the Applicant cease working as manager in favour of the installation of a professional manager. The Applicant had ceased to do promotions work within schools and other similar entrepreneurial activities with the result that business had begun to fall off.

Mrs Aaw said in her evidence that the Applicant had his knee condition for a couple of years before his operation, that is from about mid-1997.
A friend of the Applicant, Mr Gordon Edwards, had submitted a statement (Exhibit A3) and he gave evidence orally at the Tribunal hearing. His evidence was to the effect that the Applicant was a heavy drinker who would drink with the witness at the Blacktown Workers' Club. In the witness's view, the Applicant spent more than two or three hours a day at the club on a workday afternoon. He believes that the Applicant's anxiety and alcohol consumption adversely affected his business. In Mr Edwards' view the Applicant had more trouble handling people day to day at the squash courts. He would open the courts late. He would neglect other things. There was a lot of hidden work required in running the squash court. It was necessary to attend to the cleanliness of the courts, to ordering supplies, recording bookings, and seeing to financial matters. The Applicant had difficulty attending to all of these. The Applicant also had problems dealing with Mrs Coles. The witness had spoke to Mrs Coles in the street in about 1994 and she had said then that she was unhappy with the returns that were coming in from the squash courts. In her view the Applicant was neglecting essentials. He was engaging in no innovation in the squash courts. The witness had discussed possible innovations with the Applicant, for example introducing gymnasium equipment and a sauna, but nothing had come of these discussions. In the witness's view the Applicant's wife did about four times as much work at the courts as did the Applicant.
Turning to the medical evidence as regards the importance of the accepted disabilities in contributing to the Applicant's inability to continue remunerative employment, the Tribunal notes that Dr Gray states in T13 that the Applicant had limited ability as at 5 December 1997 because he would have to stop walking after between 50 and 75 metres because of knee pain. The pain is, of course, not an accepted disability. This suggests that the osteoarthritis of the knee was a very significant disability indeed. However, it needs to be remembered that a successful operation on the Applicant's knee occurred in 1999.
Dr Burns in T10 concluded that the Applicant's inability to continue at work was not solely due to its accepted disabilities. It was due to a mixture of three things. These were his accepted disabilities, his non-accepted disability of osteoarthritis and a significant decrease in demand for squash in the region where his squash courts existed.
Dr Baz (Exhibit T11) concluded that the degenerative joint changes, which were not accepted disabilities, although precluding heavy work, would not prevent the Applicant from undertaking the cleaning and maintenance work required in the squash court complex. Later she wrote that she did not consider that the available information indicated that the musculoskeletal disabilities would preclude the Applicant from undertaking his necessary duties in his capacity of manager of the squash court. She then said that a number of other non-medical factors had been identified by the Applicant as contributing to the reduced profitability of his business and its eventual sale. However she considered that these factors were related to the effects of the Applicant's psychiatric condition.
In a later report, Dr Baz (T19) recorded that the Applicant had identified a number of non-medical factors as contributing to his decision to leave work. She said that he confirmed that the sale of the business was partly related to legal action as well as his difficulty carrying on due to war-caused disabilities. He reported that if not for the legal action he would have leased out the courts and put in a manager because of increasing difficulties due to his disabilities. He had hoped to keep the property for his daughter and grandchildren, although he would not have been able to continue operating it himself.
Dr Dent (T19) said that it was the overwhelming predominance of mental symptoms and dyspepsia that had led the Applicant to being unable to continue to work at all. He also said that it was evident that the Applicant's lack of mobility caused by his chronic airwaves limitation and rejected orthopaedic disabilities together with problems with the partnership, the hoodlums, hooligans and drug addicts at his premises, loss of clientele, and his wife's unwillingness to continue in the business had all significantly impacted upon the underlying substrate of the accepted disabilities of anxiety, functional dyspepsia, peptic ulcer and the other non-accepted disabilities.
It appears to the Tribunal that there is a considerable body of medical evidence to the effect that the Applicant's non-accepted conditions played a significant role in his decision to give up work in 1998. There is another factor at play in the Applicant's case and that is his age. He was asked to by his representative at the Tribunal that if he had no accepted disabilities at this time what would he be going. He said he would like to have kept the courts going and he would have leased them out and put someone in to manage them. When Mr Godwin, for the Respondent, asked the Applicant questions about the running of the squash courts, he said that he and his wife took turns to run the courts but his wife said she was tired of it in about 1995 or 1996. She had wanted to sell. The Applicant had intended to retire.
The arguments in this case are relatively complicated. It seems to be common ground that a number of factors in addition to the Applicant's accepted disabilities influenced the Applicant to cease work. However, for the Applicant it is suggested that these additional, largely commercial, reasons for giving up work stemmed from his accepted disabilities. The Tribunal found it helpful to consider the content of the final submissions put by each of the representatives.
Ms Buss argued as follows. The Applicant was a businessman, entrepreneur and promoter. He was in partnership and became manager of the partnership enterprise from 1975. In the conduct of any business an entrepreneur will be confronted by external forces inimical to the business. These may be for example in the form of a credit squeeze such as in 1961 and 1990. These all have to be an assumed part of business life. The Applicant's problem, however, was his capacity to cope with these external forces when they arose and the impact of his accepted disabilities on the applicant's capacity to cope. Had the Applicant been well he would have done things differently. The practical analysis suggests that the accepted disabilities alone prevented the Applicant from doing things differently. For example, the ill-fated no smoking policy was introduced partly because of his accepted disability of chronic airways limitation.
The Applicant's osteoporosis of the back and osteoarthritis of the knee were not physically serious conditions. In both cases any acute problems arose following the Applicant's decision to sell in 1996, which was attributable in any event to the consequence of his accepted disabilities. It was suggested that the Applicant's knee problem was a temporary incapacity which had been resolved by the operation in 1998.
It was put to the Tribunal that historically the Applicant had hired students to do physical work in the squash courts in the 1980s. He had been the habit of obtaining physical assistance when he needed it.
The Applicant's accepted disabilities meant that the Applicant was not doing what he should in running the squash courts because of his psychiatric and drinking problems. The Applicant's hearing difficulties meant that he could not hear clearly if there was background noise.
Ms Buss referred to some of the factors bringing about the sale of the squash courts that were not connected obviously with the accepted disabilities. She noted that the Applicant's wife had been forced to do more because the Applicant was absent during the day at the club drinking. This was a reason why she was pressuring the Applicant to sell. So that stimulus to sell, which was not an accepted disability in itself, was caused by an accepted disability, either or both of the Applicant's anxiety state and/or alcohol abuse. The Applicant's partner wanted to sell out because the enterprise had become unprofitable because of the Applicant's disabilities. The smoking ban had been imposed in part because of the Applicant's accepted disabilities.
Mr Godwin, for the Respondent, referred to what should be taken to be the Applicant's "last paid work". The Applicant was not properly to be seen as entrepreneurial. He had been a farmer for many years and then he had become the manager of the squash court. His last paid work was as a manager of squash courts.
Mr Godwin noted that the test to be applied in answering the question under consideration by the Tribunal has to be applied during the period commencing 11 May 1999, the date of claim, up to the date of the Tribunal's decision, the application period as it is termed in s 19 of the Act. Mr Godwin commented that it was not to the point that the Applicant may have leased out the courts because he was the actual manager, he was not an entrepreneur.
The Tribunal has concluded that the answer to question nine is no. The war-caused conditions are not the only factors preventing the Applicant from continuing to undertake his last paid work. The Tribunal was impressed by the weight of the medical evidence leading to that conclusion. The Tribunal agrees with Mr Godwin that, on balance, the Applicant is to be taken to be a manager of squash courts. Although the emphasis in s 24 cases is on the generic type of work undertaken by the veteran, rather than any particular job, Mr Aaw had been engaged exclusively in squash court management for 23 years by the time he ceased that work. The business entity of which he was a part was very small and involved, it seems on the evidence, in only one activity, squash court management. The actual work done by the Applicant in the courts over many years was the very type of work one would expect of a manager. There was nothing greatly entrepreneurial about it.
The Tribunal finds that it was the combination of factors listed by Dr Dent in paragraph 56 above that resulted in the Applicant selling out and ceasing to be manager of the courts. The Tribunal is inclined to see the business issues as paramount. The osteoarthritis of the knee does seem to have emerged relatively late and to have been successfully treated by surgery. The Tribunal is not convinced, on balance, that but for the accepted disabilities, the Applicant would still be in the squash court business. There was Mrs Aaw's evidence that she thought the Applicant had intended to retire. There was also the evidence as to the downturn in the fortunes of unsophisticated squash court complexes. Although the Applicant may have thought it would have been attractive to lease out the courts and have others do the work, on the evidence it seems that there would be few takers.
Question 10 – If the answers to questions 8 and 9 are yes, is the Applicant 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 (s 24(2A)(e) of the Act)?
The answer is yes. The Tribunal finds that the Applicant would be in receipt of remuneration if he were working in the absence of his accepted disabilities. There is no evidence that he is proof against the loss of that income because he has an insurance policy, or for any other similar reason.
Question 11 – Was the Applicant undertaking his last paid work after he turned age 65 (s 24(2A)(f) of the Act)?
Yes. The Applicant ceased his last paid work at the age of 75.
Question 12 – When the Applicant stopped undertaking his last paid work had he been working in that profession for a continuous period of at least 10 years that began before he turned 65 (s 24(2A)(g)(ii) of the Act)?
Yes. The Applicant had been doing that work for some 23 years (Applicant's oral evidence to the Tribunal).
Question 13 – Has a temporary payment under s 25 of the Act been made (s 24(2A)(h))?
No. There is no evidence that a payment under s 25 has been made.
Conclusion
The Tribunal's finding in relation to question 9, ie that it was factors in addition to the Applicant's war-caused disabilities, that prevent him from continuing his last paid work, means that the Applicant does not qualify for payment of his Disability Pension at the special rate. The Tribunal has not examined whether the Applicant might qualify for payment at the intermediate rate. This is because s 23(3A)(d) of the Act requires the application of the same test as the test in question 9 above. The application of that test would result in a decision that the Applicant does not meet the requirements for payment at the intermediate rate for the same reason as he fails in relation to special rate.
Decision
The decision under review is affirmed.

I certify that the 154 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  27 February 2001
Date of Decision  12 September 2001
Advocate for the Applicant  Ms Buss
Advocate for the Respondent                   Mr Godwin