Baljas and Repatriation Commission

[2008] AATA 225

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 225

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600286

VETERANS'       AFFAIRS        DIVISION		)
Re		ANTHONY BALJAS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date20 March 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Egon Fice

Member

VETERANS’ AFFAIRS – disability pension – special rate of pension – injury suffered after service – the alone test – the nature of remunerative work – effect of compensation claim

Veterans’ Entitlements Act 1986 ss 15, 19, 21, 24.

Repatriation Commission v Hendy (2002) 76 ALD 47

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (1999) 58 ALD 394

Peacock v Repatriation Commission (2004) 40 AAR 143

REASONS FOR DECISION

20 March 2008 Mr Egon Fice, Member      

1. Mr Anthony Baljas is a veteran with a number of medical conditions for which the Department of Veterans’ Affairs (the Department) accepted liability. As a result he was receiving a disability pension at 90 per cent of the general rate. On 12 May 2004 Mr Baljas lodged an application with the Department for an increase in his disability pension. On 19 May 2005 a delegate of the Repatriation Commission (the Commission) increased his disability pension to 100 percent of the general rate. Mr Baljas was dissatisfied with that decision. On 7 June 2005 he lodged an application for review of the decision with the Veterans’ Review Board (VRB) claiming he was eligible for pension at the special rate in accordance with s 24 of the Veterans’ Entitlements Act 1986 (the Act).  The VRB rejected Mr Baljas’ claim for a pension at the special rate and he now seeks a review of that decision. 

2. The only issue before me is whether Mr Baljas satisfies the requirements of s 24 of the Act, thereby being eligible for a pension at the special rate.

RELEVANT BACKGROUND

3.        Mr Baljas was born on 1 November 1946 and therefore on the day that he applied for the special rate of pension he was 57 years old. 

4.        For pension purposes, the Commission has accepted liability for the following of Mr Baljas’ medical conditions:

·     Bilateral sensorineural hearing loss

·     Bilateral tinnitus

·     Hypertension

·     Non melanotic malignant neoplasms of the skin

·     Post Traumatic Stress Disorder

·     Impotence

·     Alcohol Dependence

5.        Mr Baljas was assessed to be eligible for 100 per cent of the general rate from 12 May 2004. 

6.        Mr Baljas was called up for National Service in 1967 and he had operational service in Vietnam between 15 March 1968 and 2 April 1969.

7.        Mr Baljas’ formal education concluded after he completed the third form at secondary level (equivalent to year nine).  He worked as a labourer before being called up for National Service. 

8.        Mr Baljas’ account of the work that he did after being discharged from the Australian Army (the Army) is unclear.  In a statement which he made on 13 February 2007 and in his oral evidence, he said he did not work for 12 months following discharge from the Army as he was drinking most of the time.  However, in a signed statement dated 29 October 2003, Mr Baljas said that after his discharge from the Army, he obtained work at Victorian Railways as a shunter.  In his oral evidence, he said that he joined the railways in 1966 and served there for about two years prior to his National Service.  That discrepancy was not resolved.  In the 29 October 2003 statement, Mr Baljas said that he ceased his work as a shunter because he was nearly killed in accidents due to his lack of concentration caused by memories from his Vietnam experience.  He then did not work for a further twelve months but simply drank alcohol to excess.  In a history recorded by Dr Robyn Horsley, an occupational physician, Mr Baljas is said to have told Dr Horsley that he worked as a shunter with Victorian Railways for approximately 12 to 18 months before going to Vietnam.  He is recorded as having said that, after his return from Vietnam, he worked with the railways for a further six months.  He is then recorded as having said that after he resigned from the railways, he was off work for a short period and then began his plumbing apprenticeship.  This, according to Dr Horsley, included a two and a half year period at the Royal Melbourne Institute of Technology (RMIT).

9.        According to a work history statement prepared by Mr Baljas for this hearing, he said that in 1970 he worked as a builder’s labourer and he was also doing some plumbing and welding work.  In his 29 October 2003 statement Mr Baljas said that it was in about 1971 that he obtained work as a plumber’s labourer.  Shortly after being employed as a plumber’s labourer, he commenced a plumbing and air‑conditioning course at RMIT.  He said the course lasted two years and that he qualified as a welder and duct fixer. 

10.      Mr Baljas was then unemployed for about 12 months; and either in 1995 or 1996, depending on which report is accurate, he commenced work with Haden Engineering as a welder and duct fixer.  He said his duties involved installing commercial air-conditioning units. 

11.      On 22 March 2000 Mr Baljas suffered an injury to his shoulders while he was lifting heavy items in the course of his work.  He lodged a claim with HIH Workers Compensation on 11 April 2000, alleging he had torn ligaments in his left and right shoulders. 

12.      Mr Baljas was diagnosed as having suffered a rotator cuff tear in each shoulder.  The insurer accepted liability for the right and left shoulder injuries but not for his further claim for right and left arm injuries.  In a report dated 3 September 2002, Dr Paul Carter, Mr Baljas’ general practitioner, said that the pain Mr Baljas suffered from his shoulders and the reduced movement were likely to last into the foreseeable future.  Dr Carter also said that the prognosis regarding Mr Baljas’ injuries was not good and that he may have suffered a permanent impairment. 

13.      After surgery, Mr Baljas returned to light duties with Haden Engineering and again suffered problems with his right shoulder.  He stopped work in December 2000 due to bilateral arm pain.

14.      Mr Baljas settled his compensation claim, receiving a lump sum payment for pain and suffering only.  He instructed his solicitors not to proceed with the claim for economic loss on the basis that the Court might find the reason for his incapacity for work was his war-related Post Traumatic Stress Disorder (PTSD) and not the shoulder injuries. 

15.      On 14 October 2003 the VRB affirmed the decision of the Commission to grant Mr Baljas a disability pension at 90 per cent of the general rate.  Mr Baljas lodged an application for review with the Tribunal but he withdrew that application on 7 May 2004.

16.      On 12 May 2004 Mr Baljas lodged an application with the Department seeking an increase in his disability pension.  The Commission accepted Mr Baljas’ claim and increased his disability pension to 100 per cent of the general rate, effective from 12 May 2004. 

17.      On 7 June 2005 Mr Baljas lodged an application for a review by the VRB of the Commission’s decision of 19 May 2005.  On 1 March 2006 the VRB affirmed the Commission’s decision under review.  On 12 April 2006 Mr Baljas sought a review of the VRB decision of 1 March 2006. 

THE LEGISLATIVE SCHEME

18.      An application for an increase in pension may be made by a veteran who is receiving a pension under Part II of the Act (s 15(1)).  The ground for such an application must be that the incapacity of the veteran has increased since the rate of pension was assessed or last assessed.

19. Where a claim or application is submitted to the Commission, s 19(5C) of the Act provides that the Commission must assess:

(a)the rate or rates at which the pension would have been payable from time to time during the assessment period; and

(b)subject to subsection (6), the rate at which the pension is payable.

20. Section 19(6) of the Act provides that where a pension is payable at some time during the assessment period at the rate provided by s 23 or s 24, then, subject to s 24A (not applicable in this case), the rate at which the pension is payable must not be lower than the rate provided by whichever of the sections applied, or applied most recently, during the assessment period.

21. The assessment period is defined in s 19(9) of the Act and, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined. The application day is also defined in s 19(9) and it means the day on which the claim or application was received at an office of the Department in Australia or, if s 20(2) or s 21(2) applies to the person, the day on which the claim or application referred to in those sections was received. Section 21(2) relevantly provides that if a person makes an application in writing under s 15(1) or s 15(2), and the application is not in accordance with an approved form but the person subsequently makes an application in accordance with an approved form within three months after being notified that it is necessary to do so, if an increased pension is granted, the Commission may specify the date when the application takes effect to be the date when the application was made in writing. Therefore, the earliest date from which the special rate of pension can be paid to Mr Baljas is 12 May 2004. This is of course provided that Mr Baljas was eligible to be granted the increased pension on that date.

22. The most significant section of the Act for the purposes of this application is s 24. There is no issue about the requirements set out in s 24(1)(aa), s 24(1)(aab) and s 24(a)(i). That is, Mr Baljas has made an application under s 15 of the Act for an increase in the rate of pension he is receiving; he had not turned 65 when the application was made; and his degree of incapacity from a war-caused injury or war‑caused disease had been determined to be at least 70 per cent by a determination that is in force. The relevant section provides:

24  Special rate of pension

(1)       This section applies to a veteran if:

…

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

(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;…

(2)       For the purpose of paragraph (1)(c):

(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; …

REMUNERATIVE WORK

23.      Although there appears to be no dispute about the remunerative work that Mr Baljas was undertaking after his service in the Army, I am mindful of what the Full Court of the Federal Court said in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36]. The Court said that:

…The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past…

24.      After leaving the Army, Mr Baljas worked for some 24 years doing plumbing and welding work associated with the installation of commercial air-conditioners.  He was then employed by Haden Engineering installing air-conditioning units and ducting in commercial and industrial premises.  He has a plumbing certificate from RMIT.  Therefore, it is fair to say that the relevant remunerative work which Mr Baljas was undertaking is that of an air-conditioning plumber/installer.  That task involved significant manual work, including the lifting of heavy items and work in confined spaces and awkward positions. 

CAUSE OF WORK INCAPACITY

25. In order to qualify for the veterans’ disability pension at the special rate, Mr Baljas must satisfy ss 24(1)(b) and 24(1)(c) of the Act. That is, Mr Baljas’ incapacity from a war-caused injury or war-caused disease must, of itself alone, render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week; the war-caused injury or war-caused disease must prevent him from continuing to undertake the remunerative work that he was previously undertaking; and, as a result, he must be suffering a loss of salary or wages, or of earnings of his own account that he would not be suffering if he were free of his incapacity. 

26. If there are any other reasons which limit or prevent Mr Baljas from continuing to engage in remunerative work, then he cannot satisfy the requirements of s 24(1)(b) or (c).

27.      The Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 said at 4-5, not only must the veteran be prevented by reason of a war-caused injury or war-caused disease from continuing to undertake remunerative work, but the war-caused injury or war-caused disease must be the only factor preventing him from continuing to undertake that work. As Nicholson J explained in Forbes v Repatriation Commission (1999) 58 ALD 394 when referring to the test in Flentjar:

[39]     …The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition…

[40]    As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension…

28. It should therefore be apparent that if any factors other than Mr Baljas’ accepted medical conditions prevent him from continuing to undertake the remunerative work that he was undertaking, he will not be eligible for a pension at the special rate. I have also borne in mind that the assessment of Mr Baljas’ capacity to undertake remunerative work must relate to the assessment period in accordance with s 19(6) of the Act. That is, the period starting on the application day and ending when the application is determined (12 May 2004 – to the present date) (see Peacock v Repatriation Commission (2004) 40 AAR 143).

29. I must also be mindful of the operation of s 24(2) of the Act which, for the purposes of s 24(1)(c), provides that the veteran will not be taken to be suffering from a loss of salary or wages or of earnings by reason of his war-caused injury or war-caused disease if he has ceased to engage in remunerative work for reasons other than his or her incapacity from the war-caused injury or war-caused disease; or if he is incapacitated, or prevented, from engaging in remunerative work for some other reason. 

30.      Mr Baljas’ evidence was that the injury which he suffered to his shoulders in 2000 is not the reason why he has not been able to undertake the work of an air‑conditioning plumber.  After that injury, Mr Baljas went back to work on light duties and he said that he worked for three months.  He said that he stopped working after three months because he was suffering from depression and anxiety.  Mr Baljas also said that in the years before his accident, he had considerable difficulty working because he was drinking excessive alcohol.  Under cross‑examination, Mr Baljas said that he had not had pain in his shoulders for years.  He said that he was able to work in his garden and to chop wood. 

31.      After his compensation claim, Mr Baljas was examined by a number of medical practitioners who reported on his shoulder injuries.  In a report dated 5 March 2002, Mr Peter R. Scott, senior consultant surgeon at Royal Melbourne Hospital, reported that Mr Baljas complained of pain and stiffness in both shoulders as a consequence of which he was unable to reach up or reach out or pull or push against any resistance, or do any overhead work or chop firewood.  Dr Scott’s opinion was that Mr Baljas did not have a capacity to return to his pre‑accident duties although he did have a capacity to perform light work which did not require a free range of movement in his shoulders.  He was also of the opinion that for practical purposes, Mr Baljas was unfit to return to any job in the plumbing business or any manual labouring job.  He considered Mr Baljas was otherwise totally unfit for work. 

32.      Dr Stephen Stern, a psychiatrist, examined Mr Baljas on 22 February 2002.  He diagnosed Mr Baljas as suffering from an adjustment disorder and depressed mood.  He said that this was due to work injuries related to his shoulders which occurred in March 2000.  He was of the opinion that from a psychiatric aspect alone, Mr Baljas was fit for work, including his pre-injury work.  He said that Mr Baljas’ psychiatric state had stabilised at that time. 

33.      Dr Carter provided a report dated 3 September 2002.  He was Mr Baljas’ family doctor and had known him for some six years.  Dr Carter said that the prognosis for his shoulder injuries was not good and he believed that Mr Baljas would never return to his pre-injury employment.  He also said that because of Mr Baljas’ age, relatively poor education, narrow work experience and persisting disability, Mr Baljas may well be unemployable altogether.  He also noted that because of his continuing pain and disability, Mr Baljas had developed an anxiety/depression which was exacerbated by the terminal illness and death of his wife. 

34.      Mr Baljas was examined by Dr Dush Shan, a psychiatrist, on 3 March 2003.  Dr Shan commented that Mr Baljas did not present as significantly depressed although he did not appear to be motivated to attempt any kind of work.  He attributed this to the fact that he had school-aged children at home and that it took him an hour to get to work.  He concluded that Mr Baljas displayed evidence of mild chronic depression.  He found no evidence that Mr Baljas had developed a psychological illness or injury as a consequence of or secondary to the physical injury or otherwise.  He also said that there was no incapacity for work due to psychological injury at that time.  Although Mr Baljas had surgery to his right shoulder, he did not have any further treatment to his left shoulder.

35.      Mr Baljas was more recently examined by Dr Amanda Sillcock, an occupational physician, on 24 August 2006.  In the history recorded by Dr Sillcock, Mr Baljas told her that after his shoulder injury he had an operation to repair a torn tendon in his rotator cuff and that he felt much better after the surgery.  Mr Baljas told Dr Sillcock that he was off work for about three months then resumed normal duties.  That of course does not accord with other records which indicate that Mr Baljas returned to work on light duties.  Mr Baljas told Dr Sillcock that he did stop working because of pain in his shoulders and the difficulty he had in lifting heavy material.  He also said that his shoulders had improved since he stopped working but that he still had pain in the arms and shoulders if he did anything too strenuous like chopping wood or using the chainsaw for too long.  Dr Sillcock also noted that although Mr Baljas had physiotherapy before and after the operation to his right shoulder, he had not had any physiotherapy recently and he was not having any other treatment for that injury.  Her diagnosis was that Mr Baljas had a resolved right shoulder injury and that his main complaints were alcohol dependence and resultant depression. 

36.      Dr Sillcock listed the conditions accepted as having been war-caused but PTSD is not amongst those.  In her oral evidence Dr Sillcock said that she noted that Mr Baljas told her that he stopped work due to pain in his shoulders, because he had a lot of heavy lifting to do, but that his shoulders had improved since he had been away from work and that his main concern was psychological issues, the PTSD and anxiety/depression.  This is despite the fact that in her report, Dr Sillcock did not mention PTSD at all.  When this was pointed out to her she said that she did not think it was listed as an accepted condition when she saw him.  However, the T‑documents which were forwarded to Dr Sillcock prior to her consultation with Mr Baljas, indicate that PTSD was accepted on 3 March 2002.  In fact, Dr Sillcock’s report focuses on Mr Baljas’ alcohol consumption.  According to Dr Sillcock, Mr Baljas consumed half a bottle of scotch and four or five stubbies of beer per day.  He had been drinking at this level on and off for the previous five or six years and had always been a heavy drinker.  In her opinion, that was a high level of alcohol consumption.  She was asked whether Mr Baljas had mentioned drinking wine and she said he did not mention that.  It was Dr Sillcock’s view that Mr Baljas was totally unemployable because of his PTSD and alcohol abuse. 

37.      Under cross-examination, Dr Sillcock was asked whether she had seen any reports from Dr Carter or whether she had spoken with Dr Carter.  She said she had not.  When referred to a report prepared by Dr Horsley, she agreed that although she was of the view that Mr Baljas could work, he would need restrictions with regard to pushing, pulling, over-reaching, overhead work and heavy lifting.  Dr Sillcock also said that she had been told by Mr Baljas that he had a gradual onset of right shoulder pain and that there was not any particular incident which caused it.  That clearly contradicts all of the evidentiary material dealing with his workers compensation claim. 

38.      Mr Baljas was examined by Dr Edward Cole, a psychiatrist, on 7 September 2006.  According to Dr Cole the examination lasted some 65 minutes.  In his report Dr Cole recorded an extensive history given to him by Mr Baljas.  In his opinion, Mr Baljas was suffering from chronic PTSD accompanied by depression.  He was of the view that the PTSD and alcohol dependence would, of themselves, prevent Mr Baljas working for more than eight hours per week.  At the hearing, Dr Cole was asked about the effect that the death of Mr Baljas’ wife would have had on his psychiatric condition.  Dr Cole said that while Mr Baljas had mentioned that his wife had died in April 2002 from motor neuron disease, he did not emphasise that at all.  Nevertheless, Dr Cole agreed that it would have been a very stressful period for Mr Baljas.  Dr Cole also said Mr Baljas did not mention the loss of other family members and the effect that that might have had on his psychiatric impairment.  Dr Cole agreed that he relied essentially on Mr Baljas’ history and that it focused on his service in Vietnam.  Dr Cole agreed that he did not make enquiries of Mr Baljas about the nature of his employment or when he stopped working after he injured both shoulders.  It was then put to Dr Cole that although he was of the opinion that Mr Baljas could not work for more than eight hours per week, he expressed that opinion without knowing what his former work was.  Dr Cole agreed that he should have questioned Mr Baljas a little more closely about that.

39.      Dr Lester Walton, a consultant psychiatrist, was also asked to provide a report after being given copies of additional material and subsequent to having examined Mr Baljas on 16 March 2004.  Dr Walton was of the view that Mr Baljas’ PTSD and alcohol dependence did result in incapacity to undertake remunerative work but he was unable to provide an estimate of Mr Baljas’ work capacity expressed in terms of hours per week that he might be capable of working.  He said he had some doubt as to whether Mr Baljas could work more than eight hours per week. 

40.      Mr Baljas was examined by Dr Horsley, on 17 March 2004.  Dr Horsley provided an extensive report dated 17 March 2004.  In the history taken by Dr Horsley, she stated that Mr Baljas now avoids all alcohol although over the past few years, his nightly intake of alcohol included four glasses of wine, six stubbies and two to three large scotches.  Dr Horsley said that Mr Baljas continued to have discomfort in both shoulders.  She reported that although there had been some improvement over time, overreaching, pushing, pulling, above shoulder activity and heavy lifting continued to exacerbate his bilateral shoulder condition.  She reported that he experienced intermittent pain with activity. 

41.      Dr Horsley concluded that Mr Baljas had significant disability in both shoulders.  She said that the physical demands of working as an air-conditioning plumber were beyond Mr Baljas’ physical capability.  Her view was that he was totally and permanently incapacitated for his previous role as a plumber.  She was also of the view that given his age, his educational background, work experience and ongoing disability, he was for all intents and purposes totally and permanently disabled.  She did not believe he had a realistic capacity, in an open and competitive market place, to work eight hours or 20 hours per week because of his shoulder condition.  She was of the view that Mr Baljas did not have any realistic capacity for work. 

42.      Dr Horsley was asked to re-assess Mr Baljas’ capacity for work after being provided with a number of reports and documents.  She re-examined Mr Baljas on 24 May 2007.  She noted that since her last review, Mr Baljas had again begun drinking heavily.  She was of the opinion that his alcohol intake did have an impact upon his capacity for work but deferred to her psychiatrist colleagues for an opinion in respect of that condition as well as PTSD.  Dr Horsley then formed a view that on the basis of Mr Baljas’ bilateral shoulder condition, his physical restrictions, his manual working history, his educational background as well as his age, Mr Baljas had come to the end of his working life on the basis of his non-accepted physical disabilities alone.

43.      Although Dr Horsley was of the view that Mr Baljas had good resolution of his bilateral shoulder condition in terms of range and motion, that was as a result of his current environment where he avoided overreaching, pushing, pulling and above shoulder activities.  Further, she said that because Mr Baljas had always worked as a plumber; that he was now 60 years of age and had been out of the workforce for seven years; there was not a range of remunerative work that he could reasonably be expected to perform.  Therefore, taking into account his vocational skills, experience, age and educational background, she was of the view that even if Mr Baljas was free of his accepted disabilities, he would nevertheless be deemed totally and permanently incapacitated for his previous role as a plumber.  She was also of the view that Mr Baljas was not a realistic candidate for retraining, redeployment or career redirection. 

44.      Although Dr Sillcock and Dr Horsley appear to have different opinions about Mr Baljas’ physical capacity for work, on closer examination, there is not a great difference between the two practitioners.  Dr Sillcock noted that Mr Baljas said that although his shoulders had improved since he stopped working, he nevertheless suffered from pain in his arms or shoulders if he did anything too strenuous like chopping wood or using a chainsaw for too long.  Dr Horsley noted that although Mr Baljas appeared symptom free as far as his bilateral shoulder condition was concerned, that was only because he limited his physical activity to avoid overreaching, pushing and working above shoulder height.  However, although Dr Sillcock was given a history of continuing pain in arms and shoulders, she concluded that Mr Baljas had a resolved right shoulder injury.  That conclusion seems to be inconsistent with the history given by Mr Baljas to Dr Sillcock.  Further, Dr Sillcock made no mention of any restrictions that would need to be imposed on Mr Baljas’ physical activity if he were to return to work.  On the other hand, Dr Horsley, more accurately in my opinion, listed restrictions which would need to be imposed on Mr Baljas in a physical working environment if he were to resume employment.  Quite clearly, those restrictions would play a part in Mr Baljas’ ability to return to remunerative employment.  I also accept Dr Horsley’s opinion about other factors which would prevent Mr Baljas from regaining remunerative employment.  His age, relatively low level of education and the period of time he has been out of the workforce would plainly impact on his employment possibilities.

45.      As for Mr Baljas’ accepted psychiatric problems, again there appears to be a difference of opinion as to whether those conditions would prevent Mr Baljas from undertaking remunerative work for periods aggregating more than eight hours per week and that they would prevent him from continuing to undertake the remunerative work that he had been undertaking.  Dr Cole was clearly of the opinion that that was the case.  However, as Dr Cole admitted in cross-examination, he made no enquiries at all about the work Mr Baljas was performing after he left the Army.  Despite that, his opinion was that Mr Baljas was not capable of continuing to undertake the remunerative work that he had been previously undertaking because of his psychiatric problems.  Quite clearly, Dr Cole was not in a position to make that assessment.  On the other hand, Dr Walton was of the view that Mr Baljas’ psychiatric problems would allow him to work more than 20 hours per week in suitable alternative employment.  In my view, given that Dr Walton took into account the nature of the work that Mr Baljas was doing as an air-conditioning plumber, his report should be preferred.  There is also the problem that, after being discharged from the Army, Mr Baljas worked as an air-conditioning plumber for some 34 years.  This is despite the fact that he suffered from PTSD and had alcohol related problems.  While of course it may be that these conditions significantly deteriorated following his shoulder injury, there was no evidence of any such deterioration.  In fact, Mr Baljas seems to have been successful, at least in part, in abstaining from alcohol for periods of time, although subsequently relapsing.  Therefore, that evidence would tend to suggest that despite his psychiatric problems, they did not prevent Mr Baljas from carrying out remunerative work. 

CONCLUSION

46. The requirements posed by s 24 of the Act for those veterans seeking the special rate of pension are very difficult to satisfy; particularly where the veteran has worked after completing his or her military service and then subsequently suffered an injury or disease which is unrelated to that service. The reason is that for the so called alone test to be satisfied, it must be the war-caused injury or war-caused disease alone which prevents the veteran from undertaking remunerative work for periods aggregating more than eight hours per week and from continuing to undertake remunerative work that the veteran was undertaking.  Therefore, if any factors other than the veteran’s war-caused injuries or diseases play a part, no matter how small, in preventing the veteran from continuing to undertake the remunerative work that he was previously undertaking, then the veteran cannot satisfy the alone test.

47.      Because Mr Baljas suffered an injury to his shoulders which was not related to his service with the Army, and that injury plays a part in preventing Mr Baljas from continuing to undertake the remunerative work that he was previously undertaking, it is nevertheless sufficient to preclude him from satisfying the alone test.  In addition to that, he has now been out of the workforce for some seven years and, with his limited education, he is unlikely to be able to retrain so that he could undertake alternative employment.  Coupled with his age, these factors also play a part in his inability to continue to undertake remunerative work.  Clearly, in my opinion, Mr Baljas does not meet the alone test set out in s 24 of the Act.

48.      The decision of the VRB of 1 March 2006 denying Mr Baljas the special rate of disability pension was correct and must be affirmed. 

I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr Egon Fice, Member

(sgd):  Olympia Sarrinikolaou

Clerk

Dates of Hearing:  17 October 2007 and 25 January 2008

Date of Decision:  20 March 2008

Counsel for the Applicant:           Mr D. DeMarchi

Solicitor for the Applicant:            DeMarchi and Associates

Counsel for the Respondent:        Mr G. Purcell

Solicitor for the Respondent:        Department of Veterans’ Affairs