Beresford-Maning and Repatriation Commission
[2002] AATA 147
•7 March 2002
DECISION AND REASONS FOR DECISION [2002] AATA 147
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/956
VETERANS' APPEALS DIVISION )
Re LLOYD BERESFORD-MANING
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Date7 March 2002
PlaceCoffs Harbour and Sydney
Decision The decision under review is affirmed.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ms S M Bullock
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Special Rate
LEGISLATION
Veterans' Entitlements Act 1986 ss 24, 28
AUTHORITIES
Forbes v Repatriation Commission (2000) 101 FCR 50
Hall v Repatriation Commission (1994) 33 ALD 454
Re Rudge and Repatriation Commission [1999] AATA 982
Counsel v Repatriation Commission [2001] FCA 1032
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Smith (1997) 15 FCR 327
Fox v Repatriation Commission (1997) 45 ALD 317
REASONS FOR DECISION
7 March 2002 Ms S M Bullock, Senior Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Lloyd Anthony Beresford-Maning ("the Applicant") of a decision of the Veterans' Review Board ("the Board") of 9 March 2000 (T26), which affirmed that part of a decision of the Repatriation Commission ("the Commission") of 24 January 1998 which accepted the condition of alcohol dependence in remission and bilateral sensorineural hearing loss and rejected the claim for irritable bowel syndrome and diverticular disease of the colon (T2).
On 16 August 2001, Mr Winship, Mr Beresford-Maning's solicitor, from Rockliffs, Solicitors and Attorneys, "abandoned" the application for review to the Tribunal in respect of the condition of post traumatic stress disorder and irritable bowel syndrome. Mr Winship stated that the Applicant accepted the Board's decision not to accept the diagnosis of post traumatic stress disorder, but which noted that the claimed condition of "nervous condition" was adequately met, on the basis of the available material, by the diagnosis of alcohol dependence in remission (T26, p131).
A hearing was held before the Tribunal in Coffs Harbour on 16 August 2001 and resumed in Sydney on 17 August 2001 and 11 October 2001. Mr Beresford-Maning provided oral evidence to the Tribunal. The Respondent, the Commission, was represented by Ms S Breuer, Departmental Advocate, Department of Veterans' Affairs. Taken into evidence were documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-Documents", T1-T38) and the following exhibits:
Exhibit No Description Date
T1-T38 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-Documents") Various
A1 Statement of Mr Beresford-Maning with attachment of employment search details 16 January 2001
A2 Report of Dr M Baz, Occupational Physician 9 October 2000
R1 Report of Dr J W Shand, Psychiatrist 8 November 2000
R2 Report of Dr J W Shand, Psychiatrist 7 February 2001
R3 Report of Dr J W Shand, Psychiatrist 11 May 2001
R4 Report of Associate Professor R Bryant, Senior Clinical Psychologist, University of New South Wales 30 November 2000
R5 Report of Mr T Hawkins, Vocational Psychologist 24 November 2000
R6 Report of Associate Professor R F Jones, Senior Specialist, Department of Rehabilitative Medicine, The Prince Henry/Prince of Wales Hospitals 8 November 2000
R7 Two Supplementary Reports of Associate Professor R Jones 28 & 30 November 2000
R8 Clinical Notes of Dr N Willcocks, General Practitioner Various
R9 Service Pension Claim, Invalidity Details 30 May 2000
R10 Individual Tax Returns for 1999-2000; 1998-1999; 1997-1998; 1996-1997 11 October 2001
issues
Having withdrawn the application for review to the Tribunal in relation to the entitlements issue concerning whether post traumatic stress disorder and irritable bowel syndrome were war-caused, the remaining issue in this matter is whether or not Mr Beresford-Maning is qualified to receive a pension at the Special Rate.
legislationThe determination of this matter requires consideration of the Veterans' EntitlementsAct 1986 ("the Act").
Of specific relevance is section 24 of the Act, which deals with an earnings related pension at the Special Rate. Section 24 provides:
"24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(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 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 then 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(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 then his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…"
background
The following information is provided by a way of background and the material contained within is not disputed.
Mr Beresford-Maning was born on 28 August 1945.
Mr Beresford-Maning served in the Royal Australian Navy ("the Navy") from 8 April 1963 to 8 March 1967. He rendered operational service, serving in HMAS DUCHESS from 20 September 1965 to 3 October 1965 in Vietnam; from 6 November to 29 November 1965; from 16 December 1965 to 20 December 1965; from 4 January 1966 to 5 February 1966 in the operational area of North Borneo and the Malay Peninsula/Singapore (T3).
Mr Bereford-Maning is in a receipt of a Disability Pension at 100 per cent of the General Rate with effect from 27 April 1999 for the following conditions:
Alcohol dependence in remission
Bilateral sensorineural hearing loss
Chronic bronchitis and emphysema
Ischaemic heart disease
Atherosclerotic peripheral vascular diseaseMr Beresford-Maning's non-accepted conditions are:
No malignancy
Irritable bowel syndrome
Diverticular disease of the colon
Post traumatic stress disorder
evidence of mr beresford-maning
Mr Beresford-Maning told the Tribunal that he joined the Navy aged 17 years. Prior to that he had commenced an apprenticeship for approximately three years as a motor coach spray painter. Mr Beresford-Maning did not complete this apprenticeship. In the Navy, Mr Beresford-Maning became a recruit cook, undertaking training in that field in addition to seamanship. Mr Beresford-Maning obtained a trade qualification as cook with the Navy. Mr Beresford-Maning stated that he was a cook on board naval ships as well as on shore. After completing three years and eleven months in the Navy, Mr Beresford-Maning was discharged in Sydney on 8 March 1967.
Post Navy, Mr Beresford-Maning's first employment was as a car detailer- cleaning, polishing and preparing cars for sale. Mr Beresford-Maning worked also as a despatch worker for Australian Consolidated Press, a job he held for ten years. He had two jobs, working during the day as a car detailer and as a despatch clerk at night. Mr Beresford-Maning told the Tribunal that he slept for a "drunken one or two hours" in the morning. He stated that he had a mortgage, three children and a "vision" to "give my sons a start". As a despatch clerk, also known as a publishing officer or clerk, Mr Beresford-Maning was required to bundle up newspapers and stack magazines for despatch on trucks to newsagencies. Mr Beresford-Maning described his work as light and monotonous at times, but, on occasion, as strenuous work. His work was manual, bundling magazines or newspapers then sliding them onto a conveyor belt and into a wrapper. There were small parcels made up in lots of five, ten or 25. Mr Beresford-Maning could move around when undertaking this work. Mr Beresford-Maning was promoted while in this job to senior publishing clerk, which allowed him to operate a wire tying machine, push trolleys around the floor and earn between an extra two to four dollars per week. Mr Beresford-Maning agreed with a report by Dr J W Shand, Psychiatrist, that he got on well with fellow workers but had arguments with Sir Frank Packer on work/union matters.
Mr Beresford-Maning told the Tribunal that workers at Consolidated Press pushed him into the position of "Deputy Room Representative", which was like a Union spokesman. He became "aggro every now and then". Mr Beresford-Maning also had a few disputes with drivers in terms of issues to do with the loading of trucks. Mr Beresford-Maning told the Tribunal that between the work at Australian Consolidated Press and his detailing work, he would go to an early opening hotel about 6.30am, before going home. He was asked to "pull his socks up" during his work at the newspaper.
Mr Beresford-Maning's next position was at Fairfield Council as a street sweeper at night. He undertook this position to be closer to home. Mr Beresford-Maning worked for Fairfield Council for approximately eight or nine years. He initially would drive the garbage truck, but after he lost his driver's licence because of a conviction for driving under the influence of alcohol, he then had to work at the rear of the truck. Mr Beresford-Maning would start his shift at midnight, finishing at 5am or 6am and he would then go to an hotel and have a few beers before returning home.
While working at Fairfield Council, Mr Beresford-Maning's marriage, which had commenced in 1968, was in great difficulty. He told the Tribunal that the marriage eventually broke up because Mr Beresford-Manning was drinking too much. His wife had wanted him to get help for his excessive alcohol consumption problem, but he thought that this was a conspiracy to commit him to an institution. Mr Beresford-Maning told the Tribunal that this was a very confusing time of his life. He stated that no day would go by without his having consumed alcohol. Mr Beresford-Maning described an incident after his mother's death. He had come home very inebriated and argued with his wife, who told him that she did not care that his mother had died. Mr Beresford-Maning told the Tribunal that he was so angry and drunk, that he then set alight to the family home. A neighbour who had tried to calm him down and sober him up, subsequently rescued him. Mr Beresford-Maning then left Fairfield Council. He did not wish to remain in Sydney any longer, wanting to be away from his wife so he did not get into trouble. In these circumstances, Mr Beresford-Maning travelled to Macksville in Northern New South Wales where he stayed with a friend for approximately six months.
Mr Beresford-Maning told the Tribunal that having arrived at Macksville, he then purchased a four wheel drive vehicle in Queensland. The vehicle was painted yellow. Mr Beresford-Maning painted the vehicle its original colour and then drove it, unregistered, back to Macksville. During this drive, Mr Beresford-Manning was apprehended by the Police, who on checking found the vehicle was not only unregistered but also stolen. As a consequence of this, Mr Beresford-Maning was jailed for a period of 18 months. While in prison, Mr Beresford-Maning's wife sold the family home and sent him money from the proceeds. With these funds Mr Beresford-Maning purchased a 25 acre bush block. He cleared the land and built a shed and a house. Mr Beresford-Maning also planted one hundred lime trees, hoping to give his youngest son an interest and himself something to do, as well as establishing a business venture.
Living in Macksville with him during these early stages were two of Mr Beresford-Maning's sons. The older son had remained living in Sydney with his mother. During that period, Mr Beresford-Maning received a Supporting Parent Benefit from Centrelink. He would also undertake odd jobs in the area, including helping dig drains and repairing cars. Between 1979 until 1990, Mr Beresford-Maning did sporadic work, fixing cars, undertaking rust repairs within the exhaust system and undertaking work with older cars. Mr Beresford-Maning told the Tribunal that he had no experience with modern computerised cars but was able to work on cars pre 1970. He told the Tribunal that during this period he did not have a consistent work history.
Mr Beresford-Maning continued to consume a large amount of alcohol and told the Tribunal that by 1990, he would consume 12 stubbies of beer and a bottle of Tequila regularly. After one such drinking session, Mr Beresford-Maning began to shake and was physically ill. He thought he would have recovered by the morning, but this was not the case. Mr Beresford-Maning consulted his General Practitioner, Dr Willcocks, who admitted him to hospital for detoxification. Mr Beresford-Maning decided then not to drink again and has only done so on one occasion. Mr Beresford-Maning described himself as follows:
"I was a good drunk for 27 years, but a lot of people would tell you that I wasn't a good drunk for 27 years, I was a drunk. "
Also in 1990, another of Mr Beresford-Maning's friends offered to help him obtain a position as a cook on an oil rig. Mr Beresford-Maning then worked with "Diamond Offshore" until 1996. He was not the head cook, but his friend held this position. Mr Beresford-Maning shared quarters with this friend. There was absolutely no alcohol allowed on the oil rig and this rule was strictly enforced. Mr Beresford-Maning stated that he could manage his duties in the kitchen as he could sit and stand when he needed. This flexibility occurred largely because the head cook allowed Mr Beresford-Maning certain leeway because of his health conditions.
Mr Beresford-Maning decided to cease work on the oil rig for a number of reasons, he told the Tribunal. Each year, workers on the rig had to under go a "HUET" which was to test the ability of workers to escape from a helicopter under water. This was essential because the trip to the oil rig was over the ocean by way of helicopter. The test involved the simulation of the helicopter being under water. The person being tested was put in a module which was sunk down below the surface of the water, and then on instruction, the occupant had to extricate him or herself from the module and reach the surface of the water. On the last occasion Mr Beresford-Maning undertook the test, he was struggling to reach the surface. Mr Beresford-Maning told the Tribunal he could not hold his breath long enough. He had a history of smoking two packs of cigarettes per day. Mr Beresford-Maning decided that he would cease work on the oil rig as he would not have been able to pass the next test. This was the most significant reason for not continuing on the oil rig. Mr Beresford-Maning stated that he was also concerned that he was "aggro" and did not wish to jeopardise the friendship he had with his friend, the head cook. The remuneration for oil rig work was very good and if not for the above mentioned reasons, Mr Beresford-Maning would have liked to have continued this work.
Under cross-examination, Mr Beresford-Maning told the Tribunal that he had considered obtaining employment at a "diner" in Scotts Head in about 1997 or 1998. Ms Breuer put to Mr Beresford-Maning that given that he was undertaking work cooking on the oil rig, being able to sit and stand during the course of his duties, he would have been able to undertake similar work in the diner, as he had told Consultant Psychiatrist, Dr Parsonage. Mr Beresford-Maning disagreed, noting that when he was on the oil rig, he got away with many things because of his friend's presence and protection. In the situation where there was no one to look out for him, Mr Beresford-Maning stated that he would not, in a busy diner kitchen, be able to alternate standing for any length of time or to sit down. Furthermore, restaurants often served or cooked with alcohol and he did not believe it would be possible for him to work in such a situation where there would be the temptation of the presence of alcohol. In a take-away restaurant, where there may not be alcohol, there was the further problem for Mr Beresford-Maning of having to stand for long periods of time and work extremely quickly. Mr Beresford-Maning stated that his health would not allow him to do that. He speculated that if there were a position in a restaurant kitchen, where he could sit, stand and move around as he pleased and alcohol was absent, then he could possibly undertake such work.
After his oil rig employment, while still living in Macksville, Mr Beresford-Maning purchased an old tow truck which he restored. The truck was purchased with the proceeds of his superannuation funds. Mr Beresford-Maning stated that business did not go well as he was not able to handle the public, his customers and others involved in the industry. He would become involved in arguments about quotations for his work. Mr Beresford-Maning stated that he would go to the scene of an accident and then became "aggro" in negotiating the cost of his services. Mr Beresford-Maning stated that it was not very good to have arguments in such circumstances so he would just leave the scene.
The tow truck was registered for three years with his licence ceasing in February 2002. At Mr Beresford-Maning's last eye test for his licence, the Roads and Traffic Authority "RTA" advised him that he had failed. In order to retain his licence, he would need to obtain a letter from an optician, which he did, stating his eyesight did not impact on his capacity to drive. Mr Beresford-Maning was told by the RTA that the licence would not be subsequently renewed. Mr Beresford-Maning also stated that the tow truck business was unsuccessful. He agreed that he had told Mr Hawkins, Vocational Psychologist, that he was also not prepared to pay money to the police to secure various towing jobs. This was another reason for ceasing work in the tow truck industry.
Mr Beresford-Maning had planted lime trees when he had originally bought his land with the intention of establishing a fruit growing business. He stated that there were a lot of factors involved in farming which "I didn't go into properly". In this regard, Mr Beresford-Maning noted that factors such as the soil condition, position of the trees and production methods were not properly considered by him when commencing this venture. In the first year of production, Mr Beresford-Maning estimated that he sold between $200.00-$300.00 worth of limes. The last time he sold his limes, he achieved a price of $3.00 per case, which would then be onsold at market for $13.00 per case. Mr Beresford-Maning stated that he never made a profit from the sale of the limes and every year it was a loss making business. Whatever produce he picked, was sent to an agent in Sydney for sale.
Mr Beresford-Maning stated that in the end he could only survive financially by going onto a Newstart Allowance from Centrelink. During this time, he actively sought work over two years. In this regard, Mr Beresford-Maning would pick up casual work, mainly labouring and told the Tribunal he was not very skilled at work other then work in a galley or cook-house kitchen. He noted that if he were given a wheelchair, he could do the despatch work at the "Daily Telegraph" but that would not be acceptable in that setting.
In looking for work, Mr Beresford-Maning referred the Tribunal to Exhibit A1 that detailed his job seeking efforts. Mr Beresford-Maning did not agree there was little work prior to 26 May 2000, the day he ceased looking for work. If he could have worked picking bananas or in strenuous work, Mr Beresford-Maning stated he would have done that. Mr Beresford-Maning agreed however that in the Macksville area, there was not the type of light work suited to his capabilities such as cooking.
Ms Breuer noted that in Mr Beresford-Maning's claim for an increase in pension, dated 30 May 2000, he had stated he had given up work on 26 May 2000 because of his accepted disabilities alone, that is, leg cramps, chest pain, shortness of breath and dizziness (T36). In his earlier claim form for the acceptance of the conditions of "nervous condition", "stomach problems", "bowel problems" and "hearing problems" filled in by an advocate on 22 July 1997 (T4), Mr Beresford-Maning stated that he had given up work on the oil rig because of a nervous condition. Mr Beresford-Maning agreed that this was a true statement (Transcript, 16 August 2001, p44), but added he also ceased work because he knew he would not be able to pass the HUET test. Mr Beresford-Maning stated that he did not know why the claim of July 1997 stated that he ceased work because of a nervous condition. Later in his evidence, while discussing this statement, Mr Beresford-Maning added that it was probably correct to say that he "gave up work because I couldn't cope".
Discussing these statements in relation to his various claims, Ms Breuer asked:"Would it be a fair statement to say that you left work in 1996 for a number a reasons, one of them because of your breathing difficulties, but also because you had difficulty getting on with people and you were getting nervous and you were worried you may hit somebody, would that be a fair summary?" (Transcript, 16 August 2001, p44)
Mr Beresford-Manning stated in reply:
"In a roundabout sort of way yes. Like I stated earlier, the head cook was my mate and I didn't want to ruin a good friendship over a punch on the chin, as well, that is if you want to say getting aggro, it is probably true. "
In relation to the report of Mr T Hawkins, Vocational Psychologist, suggesting that Mr Beresford-Maning could work in a number of positions, Mr Beresford-Maning stated he could not work as a meter reader because he could not use computers, nor could he deal with people. In relation to a position as a kitchen hand, Mr Beresford-Maning stated that he could not work quickly and would be unable to stand on his feet for any length of time. He also could not handle the public. In relation to working in a small car-parts business, Mr Beresford-Maning stated he did not have the finances to commence such a business and reiterated his inability to deal with the public. He also did not have the energy. In working for someone else, Mr Beresford-Maning noted that he would be too slow. Being a despatch clerk would require him also to stand and work quickly which he also believed he could not do.
Mr Beresford-Maning told the Tribunal that he had consulted Dr N Willcocks, General Practitioner, in May 2000 because he was having difficulty with breathing. His legs were swelling up and he was smoking two packets of cigarettes per day. Dr Willcocks told him that his health was not good. His legs, lungs and ears were problematic. "It's a worn out drunk's body", Mr Beresford-Maning told the Tribunal. Dr Willcocks advised Mr Beresford-Maning that he should not work any more. Mr Beresford-Maning did not agree with the Respondent's suggestion that he had gone to see Dr Willcocks in order to have himself certified permanently unable to work so he could obtain a benefit from the Department of Veterans' Affairs ("the Department"). Mr Beresford-Maning told the Tribunal that he was very shocked that Dr Willcocks told him he should cease work. "I thought it was the end of my working life. It was a big shock. I felt like getting drunk. I was falling apart". Mr Beresford-Maning told the Tribunal that he presumed Dr Willcocks was telling him that he was "burnt out". Mr Beresford-Maning also stated that Dr Willkcocks told him he needed an operation in relation to his heart disease.
Since 26 May 2000, Mr Beresford-Maning told the Tribunal that he has tried to obtain work. He approached a friend who had a bus company. He was told that there would be no insurance company who would accept Mr Beresford-Manning as a driver given his alcohol and "police" history. He further did not believe he could work twenty hours per week nor indeed ten hours believing he could only manage one hour of work per day.
Mr Beresford-Maning told the Tribunal that in relation to his hearing condition, he cannot hear if there are other people talking around him or there is background noise. He also finds it difficult to hear when speaking on the telephone. In relation to his bronchitis and emphysema conditions, Mr Beresford-Maning stated that he runs out of breath. His atherosclerotic peripheral vascular disease affects him in his legs in that he experiences cramps, his legs swell up and there is pain in his calves.
Mr Beresford-Maning told the Tribunal that in relation to his irritable bowel syndrome, every time he eats, he needs to go to the toilet. Consequently, he must always ensure that there are toilet facilities nearby. Mr Beresford-Maning also stated that his eyesight is becoming weaker.
Ms Breuer put to Mr Beresford-Maning that his current situation is that he prefers to stay on his property as a lifestyle choice. He does not have to undertake much work in keeping up the lime trees, because they take care of themselves. He would occasionally pull out weeds and feed his chooks, rabbits and dogs. Mr Beresford-Maning keeps out of trouble and does not get into any argumentative situations. Mr Beresford-Maning stated that while he may be able to walk 400 metres, he has to rest after 100 metres. He explained that he is able to undertake work from time to time on old cars and furniture, but he does this in his own time at his own pace. He was very good with operating machines like hydraulics, but in relation to the Respondent's suggestion that he could undertake his own mechanical business, he stated that he did not have the overheads to do this, could not work with computerised cars, let alone have the patience or physical health to allow it.
Financially, Mr Beresford-Maning receives approximately $650.00 per fortnight from his Disability Pension. On the oil rig, he was earning between $5,200.00 and $6,000.00 every three weeks. After Mr Beresford-Maning gave up work, he had to sell two investment properties, because he could not afford the repayments on his land. Mr Beresford-Maning stated that he would have been last paid for his limes before 26 May 2000.
In relation to the Personal Income Tax Return for the financial year ending June 1999, Mr Beresford-Maning received $200.00 for primary production and had a business loss. Between 1 July 1999 and 30 June 2000, he had given instructions to his accountant that the taxable income was zero from primary produce. The taxable income of $827.00 as recorded, represented income from the tow truck.
medical evidence
dr m baz, occupational physicianDr Baz reported on 9 October 2000 (Exhibit A2), that Mr Beresford-Maning experienced significant disabilities as a consequence of the accepted cardiovascular conditions, chronic bronchitis and emphysema and hearing loss. Dr Baz noted that Consultant Psychiatrist, Dr A Hordern, and Consultant Physician, Dr MG Miller, had diagnosed post traumatic stress disorder, but noted that the Board's decision was that the claim "nervous condition" is encompassed by the diagnosis of alcohol dependence in remission and not post traumatic stress disorder. For the purposes of her work capacity assessment, Dr Baz assumed that the psychiatric disability detailed by both Dr Hordern and Dr Miller is encompassed by the accepted condition of alcohol dependence in remission. In Dr Baz's opinion, Mr Beresford-Maning's work fitness and employability have been significantly limited over many years because of his alcohol dependence. The condition was noted by Dr Baz to have been in remission since 1990 and, of itself, no longer impacted on his work fitness. Dr Baz noted that Mr Beresford-Maning has significant anxiety symptoms and difficulty with interpersonal relationships. In relation to Mr Beresford-Maning's physical health problems, she noted that Mr Beresford-Maning is limited to activity of 3-4 METs by breathlessness and probable angina. His walking tolerance has reduced to 200 metres due to peripheral vascular disease and he has moderately reduced respiratory function.
From a work perspective, Dr Baz's opinion is that Mr Beresford-Maning is limited to predominantly sedentary and light work as a consequence of his accepted cardiorespiratory conditions. He is unfit for his usual work as a labourer or for work on an oil rig or in other isolated places, Dr Baz concluded. Mr Beresford-Maning's irritability, intolerance and difficulty with interpersonal relationships would preclude him, Dr Baz opined, from light type of work such as store work or retail work because of the necessary contact he would have with co-workers and customers. Dr Baz doubted that if Mr Beresford-Maning found work as a labourer or unskilled worker in a local Shire, electricity council or in the abattoirs, that he would be able to physically perform his duties in a productive manner because of his cardiorespiratory disease. If working in conjunction with other employees, he would be unduly irritable and disruptive in the workplace.
In Dr Baz's opinion, the information provided by Mr Beresford-Maning was that fruit growing was not a viable business. Furthermore, Dr Baz did not consider that Mr Beresford-Maning would be physically fit, because of his cardiorespiratory disease, to undertake this type of work. By 1997/1998, when Mr Beresford-Maning was diagnosed with ischaemic heart disease, this condition rendered him unfit for work on the oil rig. It was most likely present in 1996 and contributing to his reduced exercise tolerance.
Dr Baz concluded that Mr Beresford-Maning is unfit for work of eight or more hours per week. She concluded that the substantial cause of his inability to obtain remunerative work is his accepted war-caused disabilities, in which she included the psychiatric condition diagnosed by Dr Hordern and Dr Miller as post traumatic stress disorder. Dr Baz stated that Mr Beresford-Maning was unable to continue at work in 1996 substantially because of his accepted disabilities and was unable to find further work because of a combination of factors such as his age, lack of suitable lighter work and his accepted conditions. In the absence of his accepted disabilities, he would have been expected to continue in the workforce. Dr Baz also noted that Mr Beresford-Maning was able to manage to continue his last employment in the oil rig only because he had the support of an understanding supervisor.
associate professor r bryant, senior clinical psychologist, university of new south walesAssociate Professor Bryant provided a report dated 30 November 2000 (Exhibit R4). Mr Beresford-Maning was assessed by Associate Professor Bryant on 16 October 2000. Associate Professor Bryant assessed Mr Beresford-Maning's "clinical presentation" using the Minnesota Multiphasic Personality Inventory (2nd Edition MMPI-2). This test is the most robustly designed personality test in clinical psychology, Associate Professor Bryant noted.
In relation to post traumatic stress disorder, Associate Professor Bryant noted that Mr Beresford-Maning does not suffer this condition, as he does not meet the requirements of DSM-IV. Associate Professor Bryant opined that Mr Beresford-Maning has abused alcohol for many years. It was noted that Mr Beresford-Maning had sustained abstinence from alcohol consumption over a number of years, which points to conclusion that he is in remission in terms of alcohol abuse. Associate Professor Bryant opined that the absence of post traumatic stress disorder symptoms in the case of Mr Beresford-Maning, suggested that his alcohol use was not secondary to post traumatic stress disorder. From the MMP1-2, Associate Professor Bryant indicated that Mr Beresford-Maning may be exaggerating his symptoms profile.
In relation to employment, Associate Professor Bryant opined that Mr Beresford-Maning is able to undertake employment in terms of his psychological functioning. In relation to Mr Beresford-Maning's future, Associate Professor Bryant expected him to function in his current state with no requirement for treatment for post traumatic stress disorder or alcohol abuse. Associate Professor Bryant concluded that Mr Beresford-Maning does not suffer from any psychiatric condition and therefore does not require treatment. There are also no psychological effects of naval service that preclude him from working on a full-time basis. Associate Professor Bryant concluded that Mr Beresford-Maning ceased working reportedly because of physical concerns over lung and heart function and not because of any psychological factors. Associate Professor Bryant stated that he was not qualified to comment on the role of the other medical factors impacting on Mr Beresford-Maning's capacity to work.
dr j shand, psychiatristDr Shand provided three reports dated 8 November 2000, 7 February 2001 and 11 May 2001 (Exhibits R1, R2, R3). In his first report, Dr Shand opined that Mr Beresford-Maning's circumstances did not meet the criteria for post traumatic stress disorder but did meet the criteria for alcohol dependence in remission for ten years.
Dr Shand noted Mr Beresford-Maning's history given to Dr Parsonage, Consultant Psychiatrist, as compared to the history given to Dr Shand. Dr Shand concluded that Mr Beresford-Maning is an "unreliable historian". There were also inconsistencies between the history taken by Dr Hordern, Consultant Psychiatrist and that provided to Dr Shand. Dr Hordern had diagnosed severe chronic post traumatic stress disorder and alcoholic dependence in remission.
In relation to fitness for employment, Dr Shand opined that from a psychiatric point of view, Mr Beresford-Maning was fit for work as a cook or for the work he had applied from 4 May 1997 as set out in the attachment in Exhibit A1.
For his second report of 7 February 2001, Dr Shand had had the benefit of reports from Associate Professor RF Jones, Senior Specialist in Rehabilitation Medicine, Dr M Baz, Occupational Physician, and Mr TK Hawkins, Vocational Psychologist. Dr Shand varied his diagnosis of alcohol dependence in remission by adding to it the diagnosis of chronic personality disorder. Dr Shand explained that Mr Beresford-Maning has a long-standing form of personality disorder, which has nothing to do with his operational service. Dr Shand agreed with Dr Baz that the personality disorder with its symptoms of irritability, intolerance and difficulty with relationships would preclude him from lighter type of work.
In his third report dated 11 May 2001, Dr Shand opined that Mr Beresford-Maning's personality disorder and related behaviour disorder would not be tolerated in an employment situation. The diagnosis of personality disorder of an antisocial and paranoid type are not secondary to alcohol dependence in remission, Dr Shand concluded. Dr Shand commented that Mr Beresford-Maning prefers his current life style to being employed.
associate professor rf jones, senior specialist, department of rehabilitation medicine, the prince henry/prince of wales hospitalsAssociate Professor Jones provided three reports dated 8 November 2000, 28 November 2000 and 30 November 2000 (Exhibits R6, R7). Associate Professor Jones' later report, noting reports from Mr Hawkins and Dr Shand, indicated that these further documents did not alter his original opinion as provided in his initial report.
In his report of 8 November 2000, Associate Professor Jones noted Mr Beresford-Maning's complex "psycho-social history." He could determine no physical impairment which would preclude him from work in areas for which he would have been trained and have the physical capacity to undertake. Associate Professor Jones opined that Mr Beresford-Maning could work as a driver or pursue his hobby interests on the farm.
Associate Professor Jones concluded:
"It is my opinion on the balance of probabilities that Mr Beresford-Maning's accepted and claimed disabilities would not render him incapable of undertaking remunerative work for at least eight hours or more per week or indeed up to more then 20 hours or more per week. I can make no authoritative assessment of his capacity for working from 4 May 1997 to the present as I first saw him on 8/11/2000. However on the basis that his symptoms have not changed significantly since that time, then my assessment would remain as a best guess from 4 May 1997. " (Exhibit R6, p4)
Associate Professor Jones was not of the view that Mr Beresford-Maning's age would preclude him from vocational placement in the work which he had considered.
Associate Professor Jones further noted that there were different histories obtained by different experts who had then reached different conclusions.
mr t k hawkins, vocational psychologistMr Hawkins provided a report following an assessment undertaken on 19 October 2000 (Exhibit R5). Mr Hawkins noted the problems reported to him by Mr Beresford-Maning as breathlessness resulting in his inability to tend to his farm. He could only walk 100 metres before resting. Mr Beresford-Maning reported to Mr Hawkins poor circulation and pins and needles in his hands, which sometimes lock up. Mr Hawkins noted that Mr Beresford-Maning experiences cramps in the back of his legs from standing too long. Mr Beresford-Maning's lifting capacity is restricted by his ischaemic heart disease and he is prone to blackouts if he overextends himself. A further symptom noted by Mr Hawkins is forgetfulness, with Mr Beresford-Maning needing to write himself reminder lists. Mr Beresford-Maning also reported being a loner, preferring to be by himself. He experiences frequent loss of bowel control, a problem that has existed for some 25 years. Mr Hawkins noted that Mr Beresford-Maning is able to work around this particular problem as it has existed for such a long time and he was able to continue working with it. Mr Beresford-Maning is also experiencing a ringing in the ears and is supposed to wear two hearing aids, which he does not wear.
Mr Hawkins administered a number of psychological tests. He concluded that Mr Beresford-Maning's school achievement to Year 8 was an underestimate of his ability. His test scores indicated a moderate level of anxiety, mid levels of stress and a level of depression which was equivalent to that experienced by the normal population. Mr Beresford-Maning was assessed to be socially introverted, cautious, serious and not a risk-taker. Mr Beresford-Maning's occupational interest focussed on jobs involving outdoor work with a practical or technical orientation.
Mr Hawkins concluded that Mr Beresford-Maning is a man of average cognitive abilities, which would equip him for many skilled and semi-skilled positions in the labour market. From a cognitive perspective, his chances of employment are considerable, Mr Hawkins opined. He would need to focus on work which had little or no training or where the training occurred on the job. Mr Beresford-Maning has been unemployed for many years and Mr Hawkins opined that he appears to have little intention at the present time of returning to the workforce. Mr Hawkins noted that Mr Beresford-Maning left the workforce because he was not physically able to pass a test involving his survival under water in the event of a helicopter crash. Mr Beresford-Maning had given up the tow truck business because he was not prepared to do what was necessary to secure a steady flow of work. This venture failure was not, Mr Hawkins opined, related to his accepted disabilities. Even with his accepted war-caused disabilities, Mr Beresford-Maning was capable of working in his previous job at least on a part-time basis of 20 hours per week, Mr Hawkins opined. The more difficult period for his employment was prior to 1990 when Mr Beresford-Maning was drinking.
On all of the information available to Mr Hawkins, he concluded that:
"Given all the information available there are good prospects for employment in Mr Beresford-Maning's case. He has chosen not to seek alternative employment in recent times hence increased level of pension is not warranted in this case. He does live in a region where finding work, especially at his age, will be difficult. This however is a problem for all local job seekers and is not related to his accepted disabilities. " (Exhibit R5)
dr b d parsonage, consultant psychiatrist
Dr Parsonage provided a report dated 11 November 1997 (T6). Using DSM-IV, Dr Parsonage opined that Mr Beresford-Maning would be diagnosed as having alcohol dependence in remission. While Mr Beresford-Maning describes flashbacks of traumatic incidents with recurrent outbursts of anger, suggesting that he was suffering from a post traumatic stress disorder syndrome, Dr Parsonage stated that on the available information, he did not consider that Mr Beresford-Maning's symptoms reached the criteria for post traumatic stress disorder as defined in DSM-IV.
Dr Parsonage noted Mr Beresford-Maning had abstained from alcohol, at that time, for seven years and had been able to work since that time. Dr Parsonage noted Mr Beresford-Maning's tendency towards anger and that this had affected his social relationships and would limit his ability to work in some occupations, although he probably could work in his usual occupation as a full-time cook.
dr a hordern, consultant psychiatristDr Hordern reported on 23 December 1998 (T14). Dr Hordern diagnosed severe chronic post traumatic stress disorder resulting from a series of traumatic experiences whilst on active duty as a cook serving in HMAS DUCHESS in 1965 and 1966.
submissionsMr Winship submitted that the Applicant accepts the Board's decision in relation to alcohol dependency in remission answering the claim for "nervous condition" and for post traumatic stress disorder. Accordingly the applications for review for the conditions of post traumatic stress disorder and irritable bowel syndrome are not being pursued. Mr Winship conceded that Mr Beresford-Maning could not meet the Statements of Principles for Post Traumatic Stress Disorder and Irritable Bowel Syndrome.
The only issue for determination is the assessment of the rate of pension. Noting that the Respondent accepts the General Rate pension of 100 per cent, an assessment that the Tribunal finds is correct, the issue is whether or not Mr Beresford-Maning is qualified to receive pension at the Special Rate. Mr Winship contended that Mr Beresford-Maning's circumstances qualify him for Special Rate with an effect from 26 May 2000. Mr Winship stated that Mr Beresford-Maning consulted Dr Willcocks who had declared that Mr Beresford-Maning was not fit for work (Exhibit R8). Up until 26 May 2000, Mr Winship contended that Mr Beresford-Maning had been genuinely trying to obtain work as detailed in the attachment to Exhibit A1.
Considering the Service Pension claim (Exhibit R9), the Department had accepted that Mr Beresford-Maning could not work from 26 May 2000 as detailed at Question 7 of the claim form. Mr Winship submitted that Mr Beresford-Manning's accepted conditions of alcohol dependence in remission, bilateral sensorineural hearing loss, chronic bronchitis and emphysema, ischaemic heart disease and atherosclerotic peripheral vascular disease all contributed to his total inability to work.
Mr Winship submitted that Mr Beresford-Maning is incapable of working for longer then eight hours per week. As Mr Beresford-Maning himself says, he runs out of "puff" and has breathing difficulties. Furthermore, Mr Beresford-Maning also has memory problems and cannot concentrate, all details included in the invalidity details of the Service Pension Claim (Exhibit R9).
Mr Winship's main submission is that it is Mr Beresford-Maning's war-caused conditions alone which prevent him from working. In this regard, while Mr Winship noted the diagnosis of personality disorder made by Dr Shand and other psychiatrists diagnoses, he contended that it is a well known fact that as a result of alcohol dependence, there are associated personality problems, including problems with concentration and memory. Mr Winship contended that just because the alcohol dependence is in remission, this does not mean it is not there. There are psychological consequences as a result of Mr Beresford-Maning's alcoholism, Mr Winship submitted. Mr Winship noted that Dr Shand's diagnosis of personality disorder is his alone. Dr Hordern is a well-qualified psychiatrist and if there was a personality disorder present, he would have detailed it. The Applicant had not pressed the claim for post traumatic stress disorder because he does not meet the RMA requirements. Mr Winship noted that it is open for the Tribunal to find that whatever psychological problems Mr Beresford-Maning suffers, these are due to alcohol dependence.
In relation to the condition of irritable bowel syndrome, Mr Winship submitted that although this condition required Mr Beresford-Maning to be near a toilet, he had been able to cope with this requirement and the condition for many years prior to his having to cease work. Thus there are no other problems or matters which would preclude Mr Beresford-Maning's qualification for Special Rate.
Mr Winship submitted that the Respondent's medical reports are either irrelevant or inconsistent with Mr Beresford-Maning's evidence given on oath. Referring to Associate Professor Jones' opinion (Exhibit R6, p4), this is consistent with Mr Beresford-Maning's evidence to the Tribunal and also consistent with the opinions of Dr Baz and Dr Willcocks. Mr Winship noted that the Tribunal should take into account that Associate Professor Jones was "blissfully ignorant of the fact that Mr Beresford-Maning was granted service pension on invalidity grounds." Mr Winship further stated that it is not sensible for Associate Professor Jones to make a statement that on the balance of probabilities, Mr Beresford-Maning's accepted and claimed disabilities would not render him incapable of undertaking remunerative work for at least eight hours or more per week or indeed, twenty hours or more per week.
Mr Winship further contended that Mr Beresford-Maning is 56 years old and that the substantial and predominant cause of his permanent inability to work is his incapacity from war-caused disabilities.
Mr Winship referred the Tribunal to the Federal Court decision in Hall v Repatriation Commission (1994) 33 ALD 454, in which Spender J referred to the Full Federal Court decision in Banovich v Repatriation Commission (1986) 69 ALR 395, in which the Full Court said at 402:
"…It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity…."
Later in the decision in Hall v Repatriation Commission (supra), Spender J noted that:
"…It should be pointed out that the question of capacity for remunerative work is not the same question as the obtaining of employment in fact, it would be wrong to identify reasons for the latter as necessarily relevant or applicable to the former question. …
…
It seems to me that the question of whether a veteran has been "genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to so seek" has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade. …"
Mr Winship urged the Tribunal to make a practical decision, as was made in the decision Re Rudge and Repatriation Commission [1999] AATA 982. It is not a practical approach to expect Mr Beresford-Maning now to look for work given his war-caused incapacity. Mr Winship further noted that not only must the Tribunal make a practical decision but do so in view of the beneficial nature of the legislation. Mr Beresford-Maning had genuinely sought work up until he saw his doctor on 26 May 2000. It was medical opinion that Mr Beresford-Maning should not work and so he ceased to do so. While Mr Winship conceded that there might be different tests for qualification for a Service Pension and the Special Rate of pension, he submitted that one of the tests is incapacity. Furthermore, Mr Winship concluded that Mr Beresford-Maning satisfied the "alone test" because of the ameliorating provision which can be applied to his circumstances. Mr Winship submitted therefore that the decision under review in relation to Special Rate should be set aside and Mr Beresford-Maning be granted a pension at the Special Rate from 26 May 2000.
Ms Breuer, for the Respondent, submitted that there is no dispute about the General Rate of assessment of Mr Beresford-Maning's pension. The only issue is his qualification for Special Rate.
From 26 May 2000, Mr Beresford-Maning was already in receipt of a pension at 100 per cent of the General Rate and therefore he met the requirements of subsection 24(1)(a) of the Act.
In relation to subsection 24(1)(b) of the Act, Ms Breuer referred the Tribunal to Dr Baz' report (Exhibit A4, p5). This is the crux of the case, Ms Breuer submitted. Dr Baz opined that Mr Beresford-Maning is limited predominantly to sedentary light activity as a consequence of his accepted conditions and he is unfit for his usual work as a labourer and working on an oil rig. Dr Baz noted Mr Beresford-Maning's irritability, intolerance and difficulty with interpersonal relationships. Such problems would preclude him from lighter work because of the necessity of contact with co-workers and customers, Dr Baz opined. Furthermore Dr Baz noted that Mr Beresford-Maning has considerable anxiety symptoms and difficulty with interpersonal relationships. She noted that Mr Beresford-Maning's alcohol dependence in remission no longer impacts on his work fitness. Ms Breuer submitted that while in providing her opinion, Dr Baz had subsumed all of Mr Beresford-Maning's conditions, accepted and non-accepted, for the purposes of determination of a Special Rate claim, this approach was precluded in relation to the assessment of qualification under section 24 of the Act. Ms Breuer contended therefore that Mr Beresford-Maning does not meet subsection 24(1)(b) of the Act. In this regard, Ms Breuer contended that Mr Beresford-Maning's accepted disabilities would not preclude him from undertaking light work for eight hours or more per week. The Respondent also relies on Associate Professor Jones who concluded that Mr Beresford-Maning's accepted disabilities would not render him incapable of undertaking remunerative work for at least eight hours or more per week up to twenty hours per week.
In relation to subsection 24(1)(c) of the Act, Ms Breuer noted Mr Beresford-Maning's more recent work as a cook, working on the oil rig and also as a tow truck driver. Mr Breuer submitted that Mr Beresford-Maning was not prevented from undertaking these positions because of his accepted disabilities alone. Clearly the accepted disabilities did impact upon his inability to walk up hills and, for long distances, standing for prolonged periods and because of his breathing difficulties, difficulty in passing the HUET test. Mr Beresford-Maning could still drive the tow truck, work as a courier or start his own small parts business, Ms Breuer submitted. The fact that he was unable to do this, Ms Breuer submitted, related to Mr Beresford-Maning's biggest hurdle of having to deal with customers, co-workers and the police. In this regard, Ms Breuer referred the Tribunal to the report by Vocational Psychologist, Mr Hawkins. The negotiating of contracts for tow truck work and working with customers has little to do with Mr Beresford-Maning's accepted disabilities, Ms Breuer contended.
In relation to employment as cook or kitchen hand, Ms Breuer submitted that Mr Beresford-Maning's accepted disabilities alone would not prevent him from undertaking such work. He could vary his position, sit, stand or move around. This submission is consistent with the opinion of Dr Baz, Dr Shand, Associate Professor Jones and Mr Hawkins.
If the Tribunal did find that Mr Beresford-Maning's accepted disabilities alone prevented him from working, it then had to be determined when he ceased to be able to work eight hours per week because of his accepted disabilities. Based on Mr Beresford-Maning's statement, he last looked for work on about 19 April 2000, which was when he approached Newman's Bus Company. There were other dates for cessation of work, but Ms Breuer stated that the Department could accept that the cessation of work was 26 May 2000.
Ms Breuer submitted that considering all of Mr Beresford-Maning's circumstances, they do not meet the "alone test contained within subsection 24(1)(c) of the Act. " In this regard, Ms Breuer contended that a number of factors prevented Mr Beresford-Maning from working. In this regard, Ms Breuer noted that Mr Beresford-Maning lives in a geographical area where there is no suitable work available. While there were new industries establishing themselves in the area, Mr Beresford-Maning had agreed they were not in his line of work or suited to his particular skills and health. This conclusion was also consistent with Dr Baz's opinion.
The other significant matter, Ms Breuer submitted, is Mr Beresford-Maning's personality disorder, diagnosed by DR Shand, which leads him to have poor interpersonal relationships with customers and co-workers, impacting significantly on his ability to work. Personality disorder is not an accepted disability.
Ms Breuer further referred the Tribunal to the condition of irritable bowel syndrome, which requires Mr Beresford-Maning to work near a toilet. Mr Beresford-Maning also has a problem with his vision.
Another factor which impacts upon Mr Beresford-Maning's inability to work is that he has made a lifestyle choice to live where he does on his property. Therefore, Ms Breuer submitted that all these factors impact significantly on his inability to work and therefore he fails to meet the requirements of subsection 24(1)(c) of the Act.
In relation to subsection 24(2)(b) of the Act, Ms Breuer submitted that the accepted disabilities are not the substantial cause for Mr Beresford-Maning's inability to work. Ms Breuer contended that the substantial cause is Mr Beresford-Maning's personality disorder, which prevents him dealing with people, including his irritability and impatience. A further substantial cause for his inability to work relates to his geographical location and its poor labour market. The reason Mr Beresford-Maning ceased his tow truck driving and also car detailing was because he could not deal with the people he came across. The evidence is clearly, both from Mr Beresford-Maning and from the experts, that he becomes aggressive and argumentative, Ms Breuer submitted. This has nothing to do with alcohol dependence in remission but with his personality disorder, Ms Breuer submitted. Therefore, Ms Breuer submitted that Mr Beresford-Maning cannot meet the ameliorating provisions contained within subsection 24(2)(b) of the Act.
Ms Breuer also referred the Tribunal to Mr Beresford-Maning's loss of earnings or wages from his lime tree business. From Mr Beresford-Maning's own evidence, he did not know what he was doing in terms of the establishment and continuation of this business. In these circumstances, Ms Breuer submitted that Mr Beresford-Maning would have made a loss on the business quite apart from his accepted disabilities having any impact. Furthermore, the loss of remuneration from the tow truck driving business had to do with Mr Beresford-Maning's inability to deal with people.
Ms Breuer referred the Tribunal to the Federal Court decision in Counsel v Repatriation Commission [2001] FCA, 1032 in which Moore J noted that the Tribunal in that case considered whether a business which, as a matter of fact, was unprofitable, might have been profitable, but for the incapacitating effect of a war-caused injury or disease. In Counsel v Repatriation Commission (supra), the Court could discern no error on the Tribunal's part in not addressing the issue of profitability related to the veteran's accepted war-caused conditions because there had never been any contentions that the farm was unprofitable because of Mr Counsel's deteriorating health from 1988.
Ms Breuer submitted that Mr Beresford-Maning could not rely on the granting of a Service Pension as pointing to his qualification for Special Rate. Qualification for Service Pension and Special Rate require different considerations and tests. Furthermore, the Tribunal does not have available to it any evidence as to why the delegate granted the Service Pension. The detailed histories from Dr Baz, Professor Jones and Dr Shand as to work capacity would be relevant for Service Pension where consideration can be given to medical and non-medical evidence. It is therefore inappropriate to criticise Associate Professor Jones for not relying on the Service Pension as indicative of a service-related inability to work, Ms Breuer contended. Ms Breuer submitted that it was irrelevant in relation to Professor Jones' providing an opinion as to Special Rate, whether or not he knew of Mr Beresford-Maning's receipt of the Service Pension.
Ms Breuer concluded that if the Tribunal considered that Mr Beresford-Maning met subsection 24(1)(c) the Act, that is, the "alone test", then there was no need to consider the ameliorating provision. It was only if Mr Beresford-Maning had difficulty in meeting subsection 24(1)(c), that reference would be made to the ameliorating provisions. Ms Breuer concluded that Mr Beresford-Maning did not meet the substantial cause provisions contained within subsection 24(2)(b) of the Act.
Ms Breuer referred to Cavell v Repatriation Commission (1988) 9 AAR 534, where at 539 Burchett J noted that to consider the "alone test" as the "sole unique and absolute cause" of the cessation of remunerative work was wrong because it has the tendency to:
"…distract the tribunal from its true task - to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in which common sense is the proper guide…."
Finally, while Ms Breuer acknowledged the Act as beneficial legislation, she submitted that this did not excuse the Tribunal from applying the legislation. In all the circumstances, Ms Breuer submitted that the decision under review in relation to the assessment of Mr Beresford-Maning's Disability Pension should remain at 100 per cent of the General Rate.
findingsThe Tribunal has reached the decision in this matter, taking into the account the oral and documentary evidence, the legislation and case law.
The Tribunal finds that there are inconsistencies in Mr Beresford-Maning's evidence which could be explained by his poor memory, the effect of alcohol dependence in remission and the passage of time.
The Tribunal finds that Mr Beresford-Maning ceased work on 26 May 2000 when advised by his General Practitioner, Dr Willcocks, that he was not well enough to continue working. Mr Beresford-Maning has accepted conditions of alcohol dependence in remission, ischaemic heart disease, atherosclerotic peripheral vascular disease, chronic bronchitis and emphysema and bilateral sensorineural hearing loss. Mr Beresford-Maning also has a number of non-accepted conditions including irritable bowel syndrome. Mr Beresford-Maning has withdrawn his applications for review in relation to irritable bowel syndrome and for post traumatic stress disorder, accepting the Board's decision that his original claim for "nervous condition " is best described by the diagnosis of alcohol dependence in remission.
The Tribunal accepts the evidence of Dr Shand, Associate Professor Bryant, Associate Professor Jones and Mr Hawkins, and is reasonably satisfied that Mr Beresford-Maning has a complex psycho-social history with personality difficulties. Dr Shand has diagnosed Mr Beresford-Maning as having a personality disorder. Whether or not such a diagnosis is made out in terms of DSM-IV is not apparent from Dr Shand's reports. Other medical opinion is that Mr Beresford-Maning has a post traumatic stress disorder or no psychiatric condition at all. Given that at hearing, Mr Beresford-Maning confirmed Mr Winship's advice to the Tribunal that he withdrew his application for review in relation to post traumatic stress disorder, accepting the Board's decision that the diagnosis of his claimed condition of "nervous condition" is alcohol dependence in remission, then the matter of a war-caused psychiatric disorder is not before the Tribunal. Certainly, on all the available evidence, the Tribunal is reasonably satisfied that Mr Beresford-Maning has significant personality difficulties if not a psychiatric condition.
An important question is whether or not Mr Beresford-Maning's personality dificulties are linked to his accepted condition of alcohol dependence in remission. The Tribunal agrees with the opinions of Dr Shand and Dr Baz and is reasonably satisfied that the symptoms of irritability, impatience and poor social relationships are not symptoms of alcohol dependence in remission. Mr Winship has submitted that these symptoms are consequences of alcohol dependence in remission, but the Tribunal prefers the contrary expert opinions of Dr Shand and Dr Baz.
The Tribunal turns to consider section 24 of the Act. Mr Beresford-Maning satisfies subsection 24(1)(a) of the Act in that he has incapacity of at least 70 per cent of the General Rate, noting that he has been assessed as being qualified for a Disability Pension at 100 percent of the General Rate with effect from 27 April 1999.
In relation to subsection 24(1)(b) of the Act, this requires that Mr Beresford-Maning is totally and permanently incapacitated by his war-caused injuries or diseases or both which alone rendered him incapable of undertaking remunerative for work for periods aggregating more than eight hours per week. In this regard, the only matters which may be considered here are Mr Beresford-Maning's vocational training, professional skills, qualifications and experience; the kind of work that Mr Beresford-Maning, with those skills, qualifications and experience might reasonably undertake; and, the degree to which Mr Beresford-Maning's conditions have impaired his capacity to undertake those kinds of work. Reference must also be made to the effect of section 28 of the Act. The ultimate inquiry required by section 28 of the Act is whether the war-caused incapacity, of itself, has prevented the veteran from undertaking any remunerative activity. By contrast, subsection 24(1)(c) of the Act focuses the inquiry as to whether there are other matters, which have also contributed to Mr Beresford-Maning's inability to work. Subsection 24(1)(c) requires that Mr Beresford-Maning's war-caused diseases have not only led him to not being able to work, but have also meant that there is a loss of salary, wages or earnings. Subsection 24(1)(c) focuses therefore on whether there are reasons other then war-related injuries or diseases preventing Mr Beresford-Maning from working. The approach to be undertaken is described in the Full Federal Court decision in Repatriation Commission v Smith (1997) 15 FCR 327 in which Beaumont J noted:
"…the question posed by s24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities. The starting point is an examination of the prospects of employment, including self-employment, in southern Tasmania in early 1985 for a healthy sixty-nine-year old plumber."
Specifically in relation to the application of subsection 24(1)(b) of the Act to Mr Beresford-Maning's circumstances, the Tribunal finds that because of his accepted and non-accepted conditions and circumstances, including personality difficulties, Mr Beresford-Maning is totally and permanently incapacitated from undertaking remunerative work for more than eight hours per week as defined in section 28 of the Act. Mr Beresford-Maning therefore does not meet the requirements of subsection 24(1)(b) of the Act.
In relation to subsection 24(1)(c) of the Act, the Tribunal finds that on all the evidence, Mr Beresford-Maning is prevented from continuing to undertake remunerative work because of a combination of factors related to accepted and non-accepted conditions. The Tribunal does not consider that alcohol dependence in remission prevents him from working because Mr Beresford-Maning was continuing to work well after he ceased alcohol consumption in 1990. The Tribunal has already found that it is reasonably satisfied that Mr Beresford-Maning's personality difficulties, including the symptoms of irritability, impatience and poor social relationships are not related to alcohol dependence in remission. If Mr Beresford-Maning did not have his personality difficulties, it is the Tribunal's view that he would be able to undertake work as a tow truck driver or other stores type work. The irritable bowel syndrome does not prevent him from working as Mr Beresford-Maning was able to work previously managing his time and work efforts around this condition.
The Tribunal has gained some guidance from the decision in Cavell v Repatriation Commission (supra) as followed by RD Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50 in which it was noted that:
"…any factor having employment consequences which played a part in the applicant's inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant's case for pension at the special rate."
RD Nicholson J went on to note that it is possible that a war-caused condition may be the more dominant of the causes preventing work or the continuance of work. Where there is also the presence of a non war-caused condition having some preventative effect in combination with the war-caused condition, the result of this set of circumstances is that the presence of a non war-caused condition will deny to the veteran qualification for a Special Rate of pension.
The Tribunal notes that the legislation contains provisions to ameliorate subsection 24(1)(c) by subsection 24(2)(b) of the Act. For a veteran, such as Mr Beresford-Maning, who is under the age of 65, "substantial cause" may be substituted for the "alone test", provided the other pre-conditions in subsection 24(2)(b) are met. The term "substantial cause" has been considered in Fox v Repatriation Commission (1997]) 45 ALD 317 in which Kiefel J noted that this term requires that if the incapacity is not of itself productive of an inability to obtain work, it needs to be the operative factor which more then any other explains it. Therefore something which might be a substantial cause has regard to a situation where there are a number of factors operating which are of sufficient causal significance to qualify as substantial. In Mr Beresford-Maning's case, the Tribunal finds that there are other factors of equal significance to the accepted war-caused conditions preventing him from obtaining or continuing to work. In this regard, the Tribunal considers factors such as Mr Beresford-Maning's non service-related personality difficulties and possible psychiatric condition, his geographical location and the impact of a low labour market contributed to his inability to obtain work and to continue in employment. The real and non-theoretical consideration in this matter is that Mr Beresford-Maning was and is prevented from working because of a combination of equally significant factors. These factors include his accepted war-caused disabilities but also other non service-related matters as detailed above. The Tribunal also finds that in relation to the loss of remuneration, which Mr Beresford-Maning undoubtedly suffered, this was related to other matters besides his war-caused disabilities, namely his lack of knowledge and experience in running a fruit growing business, in addition to the inability to deal with customers.
In all of the circumstances and for the reason set out above, the Tribunal finds that Mr Beresford-Maning does not satisfy the requirements of section 24 of the Act. Accordingly, Mr Beresford-Maning is not qualified to receive the Special Rate of pension and under the provisions of section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review. This means that Mr Beresford-Maning has, as an accepted condition, alcohol dependence in remission but does not have a war-caused irritable bowel syndrome or post traumatic stress disorder. Pension is correctly assessed at 100 percent of the General Rate from and including 27 April 1999.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member
Signed: .....................................................................................
Jessica Purches, Associate
Dates of Hearing 16, 17 August 2001 and 11 October 2001
Date of Decision 7 March 2002
Representative for the Applicant Mr B Winship, Solicitor, Rockliffs Solicitors
Representative for the Respondent Ms S Breuer, Departmental Advocate
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