Bird and Repatriation Commission
[2001] AATA 603
•29 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 603
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/454
VETERANS' APPEALS DIVISION )
Re Brian Bird
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member Dr MEC Thorpe, Member
Date29 June 2001
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) that Mr Bird is entitled to payment of Disability Pension at the Special Rate from and including 1 February 1999.
....................[sgnd]....................
Ms SM Bullock
Presiding Member
Catchwords
VETERANS' AFFAIRS - Assessment - Special Rate - Legislation
Legislation
Veterans' Entitlements Act 1986 (Cth) ss 24, 28, 29, 120
Authorities
Banovich v Repatriation Commission (1986) 69 ALR 395
Birtles v Repatriation Commission (1991) 33 FCR 290
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers v Repatriation Commission (1995) 55 FCR 9
Moorcroft v Repatriation Commission [1999] FCA 862
REASONS FOR DECISION
29 June 2001 Ms SM Bullock, Senior Member Dr MEC Thorpe, Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Brian Bird of a decision made by the Repatriation Commission ("the Commission") on 28 April 1999 (T2) which increased Mr Bird's Disability Pension to 90 per cent of the General rate. The Commission's decision was affirmed by the Veterans' Review Board ("the Board") on 19 January 2000 (T25).
A hearing was held before the Tribunal in Sydney on 22 March 2001. Mr Bird was represented by Mr N Dawson of Counsel and the Respondent, the Commission, was represented by Mr S Modder, Departmental Advocate. Mr Bird provided oral evidence at the hearing as did Dr A Dinnen, Consultant Psychiatrist. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T-Documents", T1-T26) and the following exhibits:
Exhibit Number Description Date
T1 – T26 Section 37 Statement and Documents. Various
A1 Report by Dr A Dinnen, Consultant Psychiatrist 11 August 2000
A2 Applicant's Statement 19 October 2000
A3 Reports by Dr M Burns, Occupational Physician 29 November 2000 28 February 2001
R1 Report and Supplementary Report by Dr R Pryor, Vocational Psychologist 15 September 2000 29 January 2001
Issues
The issues in this matter are:
(a)Whether or not the correct rate of Assessment of Mr Bird's Disability Pension is 90 per cent of the General rate.
(b)Whether or not Mr Bird is qualified for payment of an earnings-related pension at the Special rate.
Legislation
A determination in this matter requires consideration of the Veterans' Entitlements Act 1986 (Cth) ("the Act").
In relation to the assessment of the rates of pension, subsection 120(4) of the Act applies, requiring that such matters be determined to the decision-maker's reasonable satisfaction. As relevant, subsection 120(4) states:
"120 Standard of proof
…(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"
Section 29 of the Act requires that pensions be assessed according to the "Guide to the Assessment of Rates of Veterans' Pensions" ("the Guide").
Section 24 of the Act deals with qualification for pension at the Special rate and as relevant, section 24 of the Act states:
"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 than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(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 than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A) This section applies to a veteran if:
(a) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person--had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling--had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
…"
Section 28 of the Act deals with the capacity to undertake remunerative work and as relevant states:
"28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."
Background
The following information is provided by way of background and the facts contained within are not in dispute.
On 1 February 1999, Mr Bird lodged a claim for an increase in pension in respect of his accepted conditions of post traumatic stress disorder, bilateral sensorineural hearing loss and hypertension (T12). Mr Bird claimed that his war-caused post traumatic stress disorder was worse: he was sleeping less; experiencing recurrent dreams; consuming more alcohol; suffering a loss of drive and enthusiasm (T12, p37).
On 28 April 1999, the Commission allowed Mr Bird's application for an increase in pension, determining that Disability Pension would be increased to 90 per cent of the General rate from and including 1 February 1999. The Commission assessed Mr Bird's combined impairment rating at 55 points, with a lifestyle rating of 4 points. No Special rate of pension was considered appropriate because of Mr Bird's age and his time out of the workforce. The Commission further determined that it was not Mr Bird's accepted disabilities alone which prevented him from working (T2, p5). Mr Bird has non-accepted conditions of diabetes mellitus (Type 2) and background diabetic retinopathy.
On 26 May 1999, Mr Bird lodged an application for review to the Board (T21).
On 23 September 1996 (T3) and 23 September 1999 (T24), Dr B S Keshava, Consultant Psychiatrist, reported on his patient, Mr Bird, who Dr Keshava had been treating since 16 August 1996. Dr Keshava diagnosed Mr Bird as having post traumatic stress disorder with symptoms of: a low frustration tolerance; easy loss of temper; early insomnia; frightening dreams and flashbacks to his service in Malaya; and, short term memory impairment. In 1996, Dr Keshava assessed Mr Bird under Edition 4 of the Guide as having an impairment rating of 30 points for his post traumatic stress disorder. Mr Bird's prognosis at the time was "guarded". By 1999, Dr Keshava concluded that Mr Bird was not fit for any employment and would be "a liability for any employer". Mr Bird was noted, by Dr Keshava in 1999, to be: "depressed" and agitated; isolated and not wanting to talk to anyone; restless at home and unable to sit and watch television for more that half an hour; and continuing to have early and late insomnia, with recently increasing dreams.
On 19 January 2000, the Board affirmed the Commission's decision (T25). The Board noted the evidence that Mr Bird became easily frustrated because of his post traumatic stress disorder and that he was prone to anger and potential violence. The Board concluded that Mr Bird may well be incapable of working in a position which involved ongoing contact with the public or work mates, but noting his evidence and the evidence of his General Practitioner, determined that Mr Bird was capable of working in situations which did not involve that form of contact (T25, p82). The Board affirmed the Commission's decision that pension was appropriately assessed at 90 per cent of the General rate with no Special rate.
On 28 March 2000, Mr Bird lodged his application for review to the Tribunal (T1).
Evidence of Mr Bird
Mr Bird told the Tribunal that he left school when he was approximately 15 years of age. He was a boilermaker by training and in fact worked in this field for approximately five years before he enlisted in the Army in 1957. Mr Bird completed his career in the Army in 1963. During his six years of service he spent approximately two years in Malaya. Mr Bird was a Bren gunner. Mr Bird told the Tribunal that he had enjoyed his life in the Army and had felt successful. He had in fact tried to rejoin the Army but had not been successful.
Mr Bird married in 1964, however, this marriage ended in divorce in about 1981. Mr Bird remarried in about 1984 and has remained married. He has two children from his previous marriage but has very little, if any, contact with his two adult daughters.
Mr Bird told the Tribunal that when he left the Army, he undertook a number of different jobs, it was easy for him to obtain work and at one stage he had three jobs within a three week period. Mr Bird's employment included working at "Electrolux" as a door to door salesman. He then worked for an engineering supply company and did trade work, worked selling roller-shutter doors and for "B and D Roller Doors". Mr Bird later reapplied to "Electrolux", working out of the Eden and Kiama areas of New South Wales. At that time, Mr Bird noted that he was listed in the top 100 "Electrolux" salesmen in Australia. Mr Bird stated that it was at this time that "things started to unravel". Mr Bird had an argument with someone in management in "Electrolux" and he told the company that it could "keep your job" and he ceased employment. In the 1970s, Mr Bird purchased a truck for approximately $500.00, which he used to carry building supplies. This small business then ceased because of the collapse of the building industry. Mr Bird moved to Sydney to work and it was about this time in the early 1980s, that his first marriage broke up. During this time, the longest period of his employment was for approximately four years as a salesman with "Redbook Carpets". He resigned from this position because he felt that it had been implied that he was not doing his job properly and the expectations, he felt, were too high, involving his being out doing door to door work and then being expected to come back to the office at night. Mr Bird also undertook some freelance work in terms of being a representative for floor covering and furnishing companies for some time. From about 1983, Mr Bird worked for approximately two years in a kiosk in a caravan park at Blackhead Beach on the North Coast of New South Wales. He then operated a take-away business at Kew after the caravan park was sold. Next, for approximately seven and a half years, he ran a bottle shop at Kendall, in the mid North Coast region of New South Wales.
During his work at the bottle shop, Mr Bird noticed himself becoming aggressive and very impatient with the customers. He told the Tribunal of one occasion when a younger customer had abused him and Mr Bird demanded the customer leave the shop. Mr Bird then proceeded to chase the young man up the street. Mr Bird stated that he became worried that he might physically harm someone and he was just not coping.
Mr Bird then moved to Mudgee. It was at about this time in 1995, that Mr Bird came to the conclusion that if he were to be successful in obtaining work in his previous field of boiler-making, then he would have to update his skills. Accordingly, he enrolled at the Mudgee TAFE College and proceeded to successfully complete a year long course in occupational studies – autometal fabrication/welding. In 1995, Mr Bird received a prize from the Western Institute of TAFE, Mudgee College (T24, pp 71-73). In 1996, Mr Bird also completed four subjects in the National Engineering Training Program, again through Mudgee TAFE.
Mr Bird provided a list of places from which he sought employment during 1995-1996 in Mudgee (T24, p69). These included applications to furniture manufacturers and engineering firms, although he acknowledged that one of the engineering firms was not accurately recorded. He also sought work in a number of hotels. During this period, Mr Bird successfully obtained employment with the company "K and N Fabrication". Mr Bird liked this work; however, after a short period the business went into liquidation and again Mr Bird was out of work. Mr Bird was unable to recall whether or not the places to which he then made applications for employment were chosen because of newspaper advertisements or whether he simply approached the organisations unannounced. Between 1997 and 1998 in Kempsey, Mr Bird again applied to a number of firms including "Macleay Welding and Engineering"; "Mitre 10 Hardware"; an automotive business; "Giddy Fencing"; "Smart Tiles"; and, a number or other engineering firms. It was also during this time that Mr Bird commenced working with the State Emergency Service ("SES"), where he stayed for approximately three months. Mr Bird stated that he could not work with the SES any longer because he became impatient, he had made some suggestions to improve the organisation of the service but had been told that he had to be patient. Mr Bird also tried working as a supermarket trolley collector. He only lasted three weeks in this position, not being able to deal with the seven days a week on-call nature of the work and he also found himself unable to deal with other younger work colleagues.
Mr Bird told the Tribunal that he was not sure why people did not employ him. He said he could assume that perhaps it was because people knew about him. He stated that often his name would be taken down by prospective employers and often he was told he would be contacted but he never was. Mr Bird agreed that he could conceivably undertake such work as cleaning, but noted that it was one thing to be able to physically undertake the work, but he found that there were days when he just could not cope with anything. Mr Bird described days where he did not want to do anything and felt depressed and unmotivated. Mr Bird stated that he had difficulty dealing with people and found himself anxious and aggressive in such circumstances. At present, he will not drive any further than the distance between Kempsey and Port Macquarie.
Mr Bird told the Tribunal that he became concerned about the way he was feeling and sought advice from his General Practitioner, who in August 1996, referred him to Consultant Psychiatrist, Dr B Keshava. Dr Keshava first saw Mr Bird on 16 August 1996. Mr Bird stated that he continues to see Dr Keshava approximately every three months. He is taking the medication "Cipramil", 30mg daily. Mr Bird stated that consulting Dr Keshava assists him. His sessions with Dr Keshava usually last for approximately half an hour, during which time Mr Bird discusses how he is feeling. Mrs Bird usually accompanies Mr Bird to his appointments with Dr Keshava. They travel by train, as Mr Bird feels incapable of driving the distance from Kempsey to Sydney. Further, Mr Bird noted that Mrs Bird assists him to remain calm, as he finds it very difficult to deal with the different and numerous people travelling on trains and dealing with the hustle and bustle of the city. Mr Bird agreed that he prefers his life in the country, although he noted that he has previously worked for considerable periods in the city.
Mr Bird usually consumes alcohol each day but has limited himself to not drinking until after 5.00pm. He can drink between six to eight cans of beer per day and on some occasions, may drink up to 12 cans of beer. During the day, Mr Bird stated that he did not do very much and spent quite some time in his shed. He does have a hobby of working with metal, which he does from time to time. He does not socialise, such as going out to the movies or out for dinner. He occasionally watches television or "just wanders around". He finds that he is often irritable and anxious and "can't be bothered". Further, Mr Bird reported to the Tribunal that he has poor sleep habits. He often has nightmares when he dreams of being in a jungle and of children being attacked.
Mr Bird told the Tribunal that he has not looked for work since 1998. When asked when had he first considered that he could not work, Mr Bird hesitated before replying that in fact he had not actually come to that conclusion. He did acknowledge, however, that he was coming to the view that because of his difficulty in getting on with people, his feeling of being in a constant state of conflict and his inability to be motivated, that it was more and more obvious that he had reached a point where work was an increasingly difficult option for him.
In relation to his hypertension, the Tribunal understood that this is under control through the use of medication. In terms of Mr Bird's hearing difficulties, he does not use a hearing aid, but is finding it increasingly difficult to hear.
Medical Evidence
Dr Dinnen, Consultant PsychiatristDr Dinnen provided a report dated 11 August 2000, having interviewed Mr Bird and his wife on 1 August 2000 (Exhibit A1). Dr Dinnen reported symptoms of early and late insomnia and also nightmares. Dr Dinnen further noted that Mr Bird does not drive long distances; does not socialise; and, does little around the house other than make a cup or tea. Dr Dinnen further recorded a history of Mr Bird having been married twice and having two children and two grandchildren, but that his daughters did not "talk to him". Dr Dinnen interviewed Mrs Bird, who stated that she tries to keep the peace between herself and her husband with "kindness" and that she also likes to accompany him to the city when he is amongst people, because he "gets a bit uptight if anything aggravates him".
Dr Dinnen noted reports by Mr Bird's treating Psychiatrist, Dr B Keshava, dated 23 September 1996 (T3) and 23 September 1999 (T24). Dr Keshava had reported Mr Bird's symptoms of: irritability; aggressiveness; temper; frightening dreams and flashbacks; and, social withdrawal and avoidance of public places. Dr Keshava had also noted sleep disturbance, sweating and a history of consuming alcohol after joining the Army and a more recent history of alcoholic blackouts.
Dr Dinnen opined that Mr Bird made little real effort to explain his situation and noted a "belligerent attitude". Mr Bird made no effort to get on with people generally. Considering Mr Bird's work history, Dr Dinnen noted that the work record was poor and that Dr Keshava's view is in fact that Mr Bird is unemployable and "a liability". Dr Dinnen also concluded that the reality is that Mr Bird is "unemployable". This relates, to a large extent, to Mr Bird's underlying personality style. Having so concluded, however, Dr Dinnen noted that it could not be discounted that Mr Bird had operational service in Malaya and that such service, in his opinion, has a causal link to Mr Bird's psychiatric problems and associated alcohol dependence/abuse. Dr Dinnen concluded that Mr Bird is unlikely to gain significant further employment because of his psychiatric problems.
Dr Dinnen undertook an assessment of Mr Bird's post traumatic stress disorder under Chapter 4 of the Guide and concluded that the correct impairment rating for this condition is 36 points (Exhibit A1).
At hearing, Dr Dinnen noted concerns he had with the report prepared by vocational psychologist, Dr R Pryor (Exhibit R1). Dr Dinnen stated at hearing that Dr Pryor's report did not in any way change the views he had expressed in his report about Mr Bird's unemployability as related to his psychiatric condition. Dr Dinnen further stated that he considered Dr Pryor's conclusions were "cavalier" and not backed up by objective evidence or reasoning.
Dr Dinnen wished to counter Dr Pryor's criticism of his report that Dr Dinnen did not address issues of Mr Bird's possible psychological improvement through therapeutic intervention, other than medication and condition monitoring. A second criticism made by Dr Pryor is that Dr Dinnen did not consider that motivational problems and Mr Bird's lack of personal responsibility might be issues in relation to Mr Bird not taking reasonable and appropriate action to enhance his employability. Dr Dinnen stated categorically that these very things were considered by him as part and parcel of his assessment of the Applicant. Dr Dinnen noted for the Tribunal that it is part of his job in providing an opinion to ensure that he does cover issues such as motivation, personal responsibility and other possible therapeutic interventions. Dr Dinnen told the Tribunal that his history of Mr Bird was of a work instability and of a difficulty in dealing with people. Dr Dinnen noted that it is most prevalent in people with psychiatric disorders to also have unstable work patterns. Further, the opinions reached by Dr Dinnen fitted the factual history of Mr Bird's restless nature and living in a number of places. Part of Dr Dinnen's assessment also involved consideration of issues such as motivation. Dr Dinnen opined that post traumatic stress disorder is often evidenced by symptoms such as lack of motivation.
While it is true, Dr Dinnen noted, that objectively Mr Bird may be able to physically undertake work, one has to look at the psychological and mental functioning of Mr Bird. Dr Dinnen emphasised that as a psychiatrist, his conclusions must be based on the whole history of the person and the evidence before him. Dr Dinnen stated he takes into account the objective evidence as well as what the patient tells him about his or her situation and about their feelings. Dr Dinnen opined that Mr Bird is depressed and that is part of the problem. He is also consuming excessive alcohol. Dr Dinnen noted that Mr Bird clearly has symptoms of post traumatic stress disorder. Dr Dinnen stated that given the clinical picture and diagnosis he has made, the objective evidence of Mr Bird's work history and his wife's information, then Dr Dinnen concluded that Mr Bird is unable to work because of his psychiatric condition. The evidence of Mr Bird being able to work only for three weeks at the supermarket trolley collection business is one example of his inability psychologically to handle employment. In order for Mr Bird to be able to work in a hypothetical job, he would require no supervisory responsibilities, no dealing with people, no time lines and an ability to have time off when he felt the need. Dr Dinnen concluded that Mr Bird would not last in any remunerative employment.
Dr Dinnen did not agree that Mr Bird's depression emanated from his being unemployed. He acknowledged that there are circumstances when a person may well be depressed because of unemployment and an adjustment has to be made to the circumstances. If there are no other underlying problems and employment is reinstated, then it would be expected that the depression would lift as part of the adjustment to the new work situation. This is not the case with Mr Bird. Dr Dinnen also acknowledged that people can experience depression for other reasons such as age or hormonal change. In Mr Bird's case, however, one has to consider that the history given, the facts of his unsettled lifestyle and poor work history in recent times, combined with Mr Bird's level of depression and its associated lack of motivation, provide a picture of a person who is psychologically incapable of working.
Dr Dinnen noted Mr Bird's past history of being a capable and effective worker prior to about 1995. Dr Dinnen further noted that Mr Bird had not said to him that he could not work and the evidence is that he in fact did try to work.
Dr Dinnen did not take any history of Mr Bird either enjoying or not enjoying his Army life. When advised at hearing of Mr Bird's evidence that he did enjoy Army life despite its stress, Dr Dinnen was not surprised. In this regard, Dr Dinnen noted a complicated pattern of behaviour involving adaptations to stressful situations. In psychological terms, Dr Dinnen did not consider that Mr Bird's statements that he enjoyed Army life in any way changed his opinion about the diagnosis of Mr Bird's psychiatric condition or his unemployability.
Dr Dinnen did not in any way consider that Mr Bird's credibility was questionable. He believed that everything Mr Bird told him combined with Dr Dinnen's observations, were consistent with the conclusions he reached in his report. Dr Dinnen did not see any inconsistencies in the fact that Mr Bird's personality was difficult and that he was a cantankerous fellow. While Mr Bird's personality may impact in some measure on the level of his psychiatric illness, it was not an explanation for his depression or his post traumatic stress disorder. Dr Dinnen agreed that there were some circumstances which were beyond Mr Bird's control and which had caused him to cease work, such as the liquidation of the business in Mudgee or the selling of the caravan park at Blackhead Beach. There were, however, only a few situations where there were circumstances beyond Mr Bird's control. Explanations still had to be found as to why Mr Bird was unable, in the latter part of his working life, to keep a stable work history or to stay in one location for any length of time. It is to Mr Bird's post traumatic stress disorder and its associated symptoms of depression and alcohol abuse that one must turn to provide the total explanation for Mr Bird's circumstances, Dr Dinnen opined. It is not uncommon, Dr Dinnen concluded, that post traumatic stress disorder becomes apparent years after the time the period of service has ceased. There are other things which may take account of the lack of presentation of symptoms such as the structure, the discipline and the rules of Army life.
Dr M Burns, Occupational PhysicianDr Burns provided a report dated 29 November 2000 and a supplementary report dated 28 February 2001 (Exhibit A3). In relation to Mr Bird's bilateral sensorineural hearing loss, Dr Burns noted that from an audiogram performed on 18 March 1999, Mr Bird had a 48.8 per cent binaural hearing loss, age adjusted. Mr Bird also reported constant tinnitus in both ears but does not use a masking device.
In relation to hypertension, Mr Bird was taking both "Adalat" and another medication whose name he could not remember. His blood pressure is checked approximately every 12 weeks and appears to be well controlled.
In relation to Mr Bird's post traumatic stress disorder, Dr Burns noted that this was first diagnosed by Dr Keshava in 1996. Dr Burns noted that Mr Bird has been a very poor sleeper, particularly for the last five or six years and he dreams on a regular basis, quite often about the Army.
Dr Burns noted that Mr Bird has been married on two occasions, has moved homes frequently and changed jobs regularly. He also reported that Mr Bird drank heavily on a daily basis, mainly consuming beer. Dr Burns noted that Mr Bird currently consumes six or more schooners of full strength beer per day, but that this quantity is less than his past consumption. Twenty years ago, Mr Bird had a conviction for driving under the influence of alcohol. Dr Burns noted that Mr Bird becomes irritated very easily and has difficulty getting on with people. He finds it difficult to deal with people on a one-to-one situation and also in groups. Dr Burns characterised Mr Bird as "socially avoidant".
Dr Burns noted Mr Bird's employment history between 1963 and 1981 involving employment in a number of short-term jobs. The longest period was four years when Mr Bird worked at "Redbook Carpets". He left due to conflict with the State Sales manager. His other jobs have included welding, door to door sales, working with "Electrolux" and being self employed in various fields. Dr Burns noted that in about 1983, Mr Bird became manager of a caravan park for two years. He then operated his own take-away shop for a further two years. From approximately 1987 to 1985, Mr Bird ran a bottle shop. Towards the end of his working life, Mr Bird was becoming very aggressive with his customers and Dr Burns noted that in 1995, Mr Bird sold the bottle shop because he was worried that he was going to become physically violent towards customers. This was prior to his having his first consultation with Dr Keshava, his current treating psychiatrist. Dr Burns reported that subsequently Mr Bird looked for work in the hotel industry as well as bottle shop work or working as boilermaker and welder. Mr Bird obtained a job in Mudgee in the general metal work area but unfortunately this business went into liquidation after two months. In 1997, Mr Bird moved to Kempsey. He obtained work as a shopping trolley collector and supervisor. Dr Burns noted that Mr Bird was on call and had a team of six younger people. Mr Bird had difficulty coping with the young adolescents and eventually gave up work as he was not coping. He has not worked since.
Dr Burns noted that Mr Bird's manner was "off-hand". Mr Bird was abrasive and would not give answers unless directly questioned. It was difficult at times, Dr Burns noted, to obtain information form Mr Bird.
Undertaking as assessment under the Guide, Dr Burns concluded that Mr Bird should be assessed as follows:
Disability Table(s) Impairment
Post Traumatic Stress Disorder 4.1 – 4.8 36
Bilateral Sensorineural Hearing Loss 7.1 24
Tinnitus 7.1.11 5
Hypertension 2.1.1 2
Combined Impairment 54, rounded to 55
In relation to Mr Bird's lifestyle rating, Dr Burns opined that this would be appropriate at 4 points, which would then produce a pension at 90 per cent of the General rate.
In relation to Mr Bird's employment, Dr Burns opined that Mr Bird has significant difficulties in dealing with other people. While Dr Burns noted that Mr Bird would be physically capable of returning to work, he doubted if any employer would ever put up with Mr Bird, particularly because of his attitude. Dr Burns opined:
"…I do not believe he would be capable of returning to any work where he was having to work with the general public or other employees. He may be capable of returning to work where he was self paced and where there was very little in the way of stress or time pressures. I do not believe that this type of work is available within the general workforce.
In conclusion, I believe that the substantial reason that Mr Bird is unlikely to be able to return to work for eight hours or more per week is his post traumatic stress disorder. I believe that this is a chronic condition and is unlikely to improve in the foreseeable future." (Exhibit A3, p5)In his supplementary report of 28 February 2001, Dr Burns noted that he had read Dr Pryor's report of 18 August 2000. Dr Burns agreed with Dr Pryor that Mr Bird may be socially isolated by having moved to Kempsey in 1997, but Dr Burns noted that he had previously reported that Mr Bird had moved 14 times over 17 years from 1964 to 1981. This inability to settle down is often associated, Dr Burns opined, with underlying psychological problems. In such circumstances, he contended, that it is just as plausible that Mr Bird's social isolation was ultimately associated with his post traumatic stress disorder which is causing his inability to settle. Dr Burns further considered Dr Pryor's comments that Mr Bird's actions after he was diagnosed with post traumatic stress disorder in 1996 were part of a "self-fulfilling prophesy". Dr Burns concluded that Dr Pryor's comments were at best "speculative". In relation to Mr Bird's employment situation, Dr Burns commented that he did not consider that Mr Bird had worked for over thirty years and was successful. Dr Burns noted Dr Pryor's listing of a large number of jobs undertaken by Mr Bird during his employment history. Dr Burns commented that this is not the work history of an average worker of Mr Bird's generation. Further, Dr Burns noted that it is far more common for people to settle into one job and remain there for a prolonged period. Mr Bird was not very successful in the jobs he did have and this history led Dr Burns to suspect that Mr Bird's post traumatic stress disorder had been the underlying problem for many years.
In relation to criticisms of Dr Burns by Dr Pryor that Dr Burns had "assumed" a diagnosis of post traumatic stress disorder, Dr Burns stated that he made no such assumption, but felt there was evidence substantiated not only from his own assessment but also from medical reports prepared by psychiatrists, Dr Keshava and Dr Dinnen. Dr Burns did not consider he had provided a "sympathetic diagnosis" but rather a statement of truth. Dr Burns noted from his own experience of assessing veterans for the past ten years, that it is quite common for veterans to cope for many years, but then eventually decompensate when they get older. By way of example, this scenario is also common in many physical areas of medicine and the discipline of geriatrics has arisen because the elderly respond differently than younger people.
Dr Burns commented on the second last paragraph on page two of Dr Pryor's report, in which Dr Pryor opined that Dr Burns and many other assessors may have a:
"…predisposition to support those who have "fought for their country" such uncritical acceptance of such a set of circumstances would from my experience for example over the last 10 years in the Workers Compensation system, be considered andeluvian (sic)…." (Exhibit R1, p2)
Dr Burns opined that this statement indicated Dr Pryor's opinion and did not actually look at the specifics of Mr Bird's case. Dr Burns agreed with Dr Pryor that Dr Burns had attributed Mr Bird's inability to work to his post traumatic stress disorder. Dr Burns further referred to Dr Pryor's discussion of "motivational factors", which should have been considered and further, Dr Pryor's opinion that Mr Bird had a strong vested interest in "appearing unemployable". Dr Burns opined that Dr Pryor's opinions sounded rather like "a conspiracy theory and would require Mr Bird to be a complex schemer". Dr Burns believed there to be a simpler explanation and that is that Mr Bird's post traumatic stress disorder led to his loss of motivation and that that was truly the cause of his work incapacity.
In relation to Dr Pryor's comments concerning the availability of work for Mr Bird, Dr Burns noted that Dr Pryor's comments were "impractical and slightly contradictory". In support of this conclusion, Dr Burns referred to the last paragraph on page three of Dr Pryor's report, in which he states that Mr Bird is able to work in low stress environments where he is mainly alone. This appeared to cover the metal fabrication work Mr Bird did in Mudgee in 1995 for only one month. Dr Burns commented that Dr Pryor then generalised from this to state that Mr Bird should have been able to find similar work if he were "appropriately motivated". Dr Burns pointed out that one of the major problems with individuals who suffer from post traumatic stress disorder is their lack of motivation. Dr Burns further commented that he did not believe that the workplace cannot adapt to an individual's limitation, but there is a limit to reasonable accommodation, Dr Burns emphasised. Dr Burns referred to his own experience in the last 15 years working in occupational rehabilitation, including four years as an occupational health and safety manager for a multinational company. Dr Burns noted that companies will try and accommodate disabled employees, but employees must eventually be able to perform a near normal job to be productive. Dr Burns noted that he did not assume that Mr Bird was incapable of change or that work places are intractable. He did note that Mr Bird has now been treated for post traumatic stress disorder since 1996 without significant improvement. This fact led Dr Burns to believe that any future change would be slow in occurring, if at all.
In conclusion, Dr Burns noted that Dr Pryor's comments were not "practical" and "very idealistic". Dr Burns saw no reason to alter his opinion that Mr Bird is unlikely to be able to return to work for eight hours or more per week, substantially due to his post traumatic stress disorder.
Dr R Pryor, Vocational PsychologistDr Pryor provided a report dated 1 September 2000 and a supplementary report of 29 January 2001 (Exhibit R1).
Dr Pryor reported that Mr Bird had a long and varied work history, including work as a metal fabricator, sales representative, caravan park manager, shop manager, bottle shop owner, take-away business proprietor and working within the local State Emergency Service. Dr Pryor noted that at interview, Mr Bird was preoccupied with his problems. His manner was described as "uninterested, compelled, hostile and tense". Dr Pryor noted that Mr Bird appeared to relate to others with difficulty and impressed him as "angry and depressed". Dr Pryor noted that while Mr Bird's answers to most questions were appropriate, he had a tendency to overelaborate his problems. It was difficult to establish rapport with Mr Bird, Dr Pryor commented.
During psychometric assessment, Dr Pryor noted that Mr Bird appeared absorbed by the task; however, he noted certain paranoid statements from Mr Bird which suggested to Dr Pryor that Mr Bird was "looking for hidden agendas". In the "Freedom from Preoccupation with Ill Health, Social Skills and Work Motivation Scales", this data suggested that Mr Bird is likely to be obsessed with health issues such as fatigue, nerves, illness and futility. The data further revealed that Mr Bird feels uncertain in group situations and seeks to limit social contact. He is likely to feel threatened by people he does not know and has a low desire for employment for monetary and social reasons. This data appeared to Dr Pryor to be difficult to reconcile with Mr Bird's history and presentation behaviour. One possibility for this discrepancy could be that Mr Bird's more positive attitudes to being free from major barriers at work may be a consequence of his current situation where he has moved to a new area and is not employed. Therefore, as a result of not being forced to interact with others in a work context where he believes his skills are lacking, Dr Pryor commented that perhaps Mr Bird is now exhibiting less interpersonal barriers to employment. The alternative and preferred explanation for the discrepancy between Mr Bird's presentation behaviour and reported history, as suggested by Dr Pryor, is that Mr Bird is "acting up in the assessment context". Dr Pryor opined that such behaviour could be consciously or unconsciously motivated. It could be situational in origin, in a way analogous to examination anxiety. Such behaviour is not uncommon, Dr Pryor noted, especially if the person is having other adjustment difficulties or has a strong vested interest to appear as cantankerous, belligerent and as vituperative as possible. Dr Pryor opined that this explanation had not been seriously canvassed by the other experts. On all three measures administered to Mr Bird, Dr Pryor noted that there were trait, skill and interest responses indicative of average to above average capacity and preference for interacting with others. Dr Pryor noted that this data appears anomalous with the conclusions reached by other experts such as Dr Dinnen, who, Dr Pryor opined, relied exclusively on Mr Bird's self-reported problems and his presentation behaviour to make conclusions about his capacity for employment, rather than objectively analysing the material and all possibilities in terms of alternative explanations or treatment modalities.
Dr Pryor concluded from psychometric assessment that Mr Bird's principal barriers to employment appear to be his preoccupation with ill-health and belief in having low social skills and not wanting to interact with people socially in a work context. All these are consistent with his self report, Dr Prior noted. Dr Pryor noted that the test findings that Mr Bird was generally satisfied with his life, had a positive self image, was free from depression, resentment, aggression and persuasive distrust and sought status in the work context, appeared contradictory to his reported current problems. Dr Pryor opined that Mr Bird has above average numerical and verbal problem solving skills, suggesting ongoing vocational potential. Overall, to Dr Pryor, Mr Bird indicated a wide range of transferable skills at the average to above average range across physical, intellectual, social and attitudinal general skill categories. The results obtained by Dr Pryor revealed to him that Mr Bird sees himself as having a wide range of social competencies. In this case, Dr Pryor opined that Mr Bird's reported social interaction difficulties may be more a function of either choice or limitations of impulse control.
Dr Pryor concluded that there is significant incongruity between Mr Bird's assessment behaviour and his self-reported typical behaviours. Mr Bird's desire to avoid social interaction may be as much a function of his preference and personality as an adjustment disorder, Dr Pryor noted. Dr Pryor expressed surprise that other factors were not considered in assessments by others about Mr Bird's employability, such as the conclusions reached by Dr Dinnen in his report of 11 August 2000. These other possible factors included occupational burnout related to the immediate context of Mr Bird's work, rather than a personality disorder which was concluded by psychiatrists to have been sustained over 30 years previously. Another factor which no one had considered is Mr Bird's hearing impairment which, Dr Pryor opined, may have detrimentally effected his capacity for effective interpersonal interaction. Dr Pryor noted the social interaction impact of hearing loss is well documented. Dr Pryor noted that hearing impaired people "often appear rude, neglectful, retarded or stupid to those who are not aware of their impairment". Dr Pryor further noted that at interview, Mr Bird recognised his own need for hearing amplification, but Dr Pryor concluded that Mr Bird is not motivated sufficiently to obtain a hearing aid.
Dr Pryor also noted that Mr Bird's reported long-term alcoholism, particularly when he was employed as the owner of a bottle shop, would be likely to have significant effects on his social interaction and level of impulse control.
Dr Pryor concluded:
" My impression from Mr Bird was that as soon as he was diagnosed as having post traumatic stress disorder, it became a self fulfilling prophecy for him. The way he described this process was reminiscent of how undergraduates think they have every major neurosis and psychosis when they are taught about them. It is easy to deceive oneself if you have an authority figure telling you on one hand and a strong vested interest both psychologically in terms of blaming something other than your own responsibility and financially in terms of a veterans (sic) claim, to do so on the other.. (sic)
Moreover from the report of Mr Bird about his current treatment regimen for his diagnosed post traumatic stress disorder [this] appears to be principally symptom alleviation rather than active psychological redress and self-efficacy building.
Claims such as those of Dr Dinnen (11.8.00) about the unemployability of Mr Bird do not address the issues of: 1) possible psychological improvement of this man through therapeutic intervention other than medication and condition monitoring; 2) the motivation and personal responsibility of Mr Bird for taking reasonable appropriate action to enhance his employability.
From this evaluation my conclusion is that from his reported work history and his assessed traits, skills ratings and vocational interests that Mr Bird has a wide range or work relevant knowledge, skills and abilities if he is sufficiently motivated to use them." (Exhibit R1).
Submissions
Mr Dawson submitted that Mr Bird is a credible person as was reflected in Dr Dinnen's opinion at hearing. There were no suggestions from Dr Burns, Occupational Physician, or Dr Keshava, Psychiatrist, of Mr Bird's credibility being at issue.
Mr Dawson referred the Tribunal to Cavell v Repatriation Commission (1988) 9 AAR 534 in which Burchett J at 539 stated in an often quoted passage concerning the "alone test" for qualification for the Special rate of pension, as the "sole, unique and absolute cause" of the cessation of remunerative work. Burchett J noted that such a conclusion is 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 respect of which common sense is the proper guide."
Mr Dawson submitted that all the medical opinion is that Mr Bird could not work. The hypothetical job suggested by Dr Dinnen is neither practical nor possible given the realities of remunerative work. Mr Dawson noted that even if physically Mr Bird is able to work, psychologically he cannot. Mr Dawson stated that the Tribunal must look at the possibility and capacity for work in the context of the person and in his submission, Mr Bird does not have the capacity to undertake paid employment.
Mr Dawson submitted that even Dr Pryor at page 12 of his report (Exhibit R1) does not fully conclude that Mr Bird can work full-time.
The Tribunal was further referred to Chambers v Repatriation Commission (1995) 55 FCR 9 in which the Full Federal Court noted in relation to section 28 of the Act, which deals with a person's capacity to undertake remunerative work, that the type of remunerative work considered to be available to a veteran should not be limited to current skills or qualifications acquired independently of formal training or previous employment. Mr Dawson submitted that one has to adopt a reasonable and sensible approach as to Mr Bird's skills, abilities and qualifications. With training and work experience, Mr Bird has varied skills and abilities, including physical attributes. Dr Pryor, in addition to the psychiatric opinions and the opinion of Dr Burns, also noted Mr Bird's difficulties with aggression, depression and having good and bad days, difficulties with crowds, in addition to Mr Bird's stated doubts about his capacity to undertake employment.
Mr Dawson contended that Mr Bird cannot just be expected to undertake menial tasks. He has been trained as a boilermaker and in sales and accounts, and whilst he has wide occupational attributes and capacities, he cannot undertake work suited to those vocational skills, abilities and qualifications because of his post traumatic stress disorder. Mr Dawson further noted that there is no evidence or guarantee that had Mr Bird been able to continue at the caravan park or to continue with the company that went into liquidation, that in fact he would have been able to continue beyond the couple of months he worked in each establishment. The history of Mr Bird's employment is that he has consistently been unable since 1995 to continue in employment. Mr Dawson submitted that while it is a fact that there may be two or three occasions when Mr Bird's employment ceased because of issues beyond his control, when considered in the overall context of Mr Bird's employment, it is more likely than not that he would not have been able to continue his work because of factors previously noted, such as his lack of motivation, his depression and his aggression. Mr Dawson referred the Tribunal to Birtles v Repatriation Commission (1991) 33 FCR 290 in which the Court commented that it is a question of fact as to whether or not the veteran, by reason of his or her war-caused incapacity, has been prevented from continuing a type of remunerative work which he or she had been previously undertaking. As noted in "Veterans' Entitlements Law" at page 209:
"The decision-maker should explore all possible factors affecting ability to work. The central question is whether, given a veteran's prior employment history, there is a real possibility, as distinct from a fanciful one, that work for more than the minimum time specified in s 24 is likely."
Mr Dawson further submitted that Mr Bird has suffered a loss of remuneration because of his inability to work as a result of his post traumatic stress disorder and there is no evidence to challenge this submission.
Mr Dawson submitted that Mr Bird was trying to find work up until 1998. He was not successful and was unable to explain why. Mr Bird should not be penalised for having no explanation. Mr Dawson referred the Tribunal to earlier periods in Mr Bird's employment history when he had been unemployed but had been able to quickly achieve employment in a number of varied fields. The Tribunal should therefore consider that the attempts to obtain employment were genuinely made up until 1998 and in a number of varied positions as detailed in T24 pages 69 and 70.
In relation to Mr Bird's age, Mr Dawson submitted that this did not impact upon Mr Bird's inability to work. He was, as has been noted on many occasions, physically capable of undertaking work and certainly had the skills and qualifications to do it, he simply was unable to obtain work despite his many attempts. However, it got to a point when Mr Bird began to realise his own limitations.
In final submissions in reply, Mr Dawson submitted that it was unreasonable for the Respondent to suggest that Mr Bird should become a cleaner with a vacuum pack on his back. While he may physically be able to do this, that was not the test. The test was his work capacity in a situation where he had a fully diagnosed and accepted post traumatic stress disorder condition.
Mr Modder, for the Respondent, referred the Tribunal to the "Work Ability Report" completed by General Practitioner, Dr U C Stenback, dated 16 February 1999. Dr Stenback reported that Mr Bird could carry out other work "…If he did not have to deal with people, he would be able to work at his own pace" (T14, p46).
Mr Modder noted that Mr Bird had an excellent work record before 1995. The Respondent relied on Chambers v Repatriation Commission (supra) for the proposition that there could be no reliance by the Applicant on the argument that there were other factors impacting on an inability to work, such as a depressed labour market. Mr Modder submitted that the ultimate enquiry required by section 24 of the Act is whether the war-caused incapacity, of itself, has prevented the veteran from undertaking any remunerative activities.
The Respondent relied on Dr Pryor's analysis and opinion of Mr Bird's circumstances. Looking at the work that Mr Bird had undertaken in the past and his skills and training, Mr Modder submitted that Mr Bird could now undertake a number of varied positions. Further, Mr Modder stated that in relation to Mr Bird's employment at "K and N Fabrication", it was not Mr Bird's post traumatic stress disorder that caused him to lose that job, it was the result of circumstances beyond Mr Bird's control in that the business went into liquidation. Further, the selling of the caravan park, in which Mr Bird also experienced a seemingly harmonious work situation, occurred out of the control of Mr Bird's circumstances and it was not his post traumatic stress disorder that caused any problems with that employment.
Mr Modder submitted that the report and evidence provided by Dr Dinnen applied a very broad brush approach and generalisation to the matters under consideration. Mr Modder pointed out that Dr Dinnen did not look at other possible reasons behind Mr Bird's employment problems such as: the collapse of the building industry; the liquidation of companies; and, the fact that Mr Bird may have been depressed not as a consequence of post traumatic stress disorder but because of unemployment or indeed Mr Bird's age. Dr Dinnen did not provide any information about Mr Bird's employment after 1995 and did not know that Mr Bird was happy either in the Army or indeed in a number of his work situations and this further indicated an incomplete analysis of Mr Bird's circumstances.
In relation to Mr Bird's cessation of voluntary work at the SES, Mr Modder noted that Mr Bird was not happy in this role, as he was not able to undertake or cause change which he thought was appropriate and was also unwilling to work though the system. Further, in relation to the trolley collection job, Mr Bird was exercising some choice and noting dissatisfaction in being constantly on call and not being able to plan his life.
Mr Modder contended that Mr Bird has extensive experience in sales, metal fabrication and boilermaking, to name a few of his capacities. He is capable of undertaking physical or labouring work and if, as he claims, Mr Bird was looking for work between 1995 and 1998, he did so because he felt he could work. The reasons behind his being unsuccessful are more likely to be from issues such as being located in the country and his age.
FindingsThe Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, submissions, legislation and case law.
The Tribunal accepts Mr Bird as a witness of truth. His evidence at hearing, combined with documentary evidence, expert opinion and Mr Bird's demeanour did not cause the Tribunal to doubt Mr Bird's credibility.
There seems to be a suggestion from Dr Pryor that there has been an acceptance by Dr Burns, Dr Dinnen and Dr Keshava, the treating psychiatrist, that a diagnosis of Mr Bird's post traumatic stress disorder has been accepted without question. The Tribunal does not note any suggestion by the Respondent challenging the diagnosis of post traumatic stress disorder nor questioning the acceptance of this condition as a war-caused condition. The Tribunal notes that Mr Bird had consulted his general practitioner in about 1996 because he had become very concerned at his behaviour, his aggression, irritability and anxiety. It was Mr Bird's general practitioner who referred Mr Bird to Dr Keshava, who in turn in August 1996, diagnosed Mr Bird as having a condition of post traumatic stress disorder. Dr Keshava has continued since 1996 to be Mr Bird's treating psychiatrist, seeing him approximately every three months. While there is no doubt that Dr Pryor has much experience in vocational assessment and related matters, including his workers' compensation experience as he noted in his report, one must pause to consider the complexity of factors impacting on veterans' health and entitlements. It is perfectly reasonable for Dr Pryor to urge assessors to not blindly accept evidence of psychiatric disease on face value without objective analysis. The Tribunal would agree with Dr Pryor. It is another thing, however, to suggest that in an individual case that a treating Psychiatrist, an expert in veterans' psychiatric conditions, has unthinkingly or "sympathetically" taken at face value information provided, in this case, by Mr Bird. This matter is more complex than that and reaching a determination is not assisted by generalities. The Tribunal's reading of Dr Keshava's, Dr Burns' and Dr Dinnen's reports and Dr Dinnen's evidence at hearing, did not suggest to the Tribunal a blind acceptance of the veteran's word or a failure to consider objectively the evidence and alternate explanations for Mr Bird's circumstances.
In relation to the assessment of Mr Bird's accepted conditions, the Tribunal has undertaken its assessment of the conditions of bilateral sensorineural hearing loss, hypertension and post traumatic stress disorder by applying the tables and processes of the Guide.
In relation to hypertension, on the medical impairment information and evidence provided by Dr Burns and Mr Bird, the Tribunal considers that the appropriate rating is 2 points under Table 2.1.1 of the Guide.
In relation to bilateral sensorineural hearing loss, applying the tables of Chapter 7 and noting the audiogram undertaken on 18 March 1999, the Tribunal finds that the correct hearing impairment is 24 points with an additional 5 points for tinnitus from Table 7.1.11 of the Guide.
In relation to post traumatic stress disorder, the Tribunal notes that Dr Dinnen and Dr Burns have assessed this condition at 36 points from Chapter 4 of the Guide, while the Commission has rated this condition as 34 points. The Tribunal considers the following ratings are appropriate.
Subjective Distress, Table 4.1 - 10 points. The Tribunal considers this is an appropriate rating to reflect frequent symptoms of anxiety, depression and nightmares. The Tribunal finds that Mr Bird is often unable to distract himself from this distress.
Manifest Distress, Table 4.2 – 10 points. The Tribunal considers that this is the appropriate rating to reflect that Mr Bird's symptoms of irritability, aggressiveness and increased drinking are obvious symptoms evident to casual observers.
Functional Effects, Table 4.3 – 2 points. The Tribunal considers that Mr Bird is able to undertake most activities of daily living and there is only moderate interference in some everyday situations.
Occupation, Table 4.4 – 8 points. The Tribunal considers that this rating is appropriate because the veteran cannot work because of his war-caused disabilities.
Domestic Situation, Table 4.5 – 3 points. The Tribunal considers that this is the appropriate rating to reflect that while Mrs Bird is supportive and tries to keep her husband calm, there is frequent discord and conflict, particularly given Mr Bird's irritability and aggression.
Social Interaction, Table 4.6 – 5 points. The Tribunal considers this rating appropriate to reflect the substantial reduction in Mr Bird's social interaction. He has few friends, he does not like mixing with people, finds it very difficult to maintain a level of calm and is prone to aggression.
Leisure Activities, Table 4.7 – 3 points. The Tribunal considers this rating appropriate to reflect the significant reduction in Mr Bird's recreational activities. He watches television occasionally, does not go out very often, does not socialise or go to the movies. Mr Bird does go to the hotel to drink but is not included in any "shouts" and does not go there to meet any particular person or friend. He often drinks alone.
Current Therapy, Table 4.8 – 3 points. The Tribunal considers that this is the appropriate rating to reflect that Mr Bird consults with Dr Keshava every three months for supportive therapy and is also treated with the medication "Cipramil".
Combined Rating for post traumatic stress disorder, Chapter 4. The ratings for Chapter 4 for post traumatic stress disorder are:
10 + 10 + 8 + 5 + 3 = 36 points.
The combined impairment rating for all of Mr Bird's accepted conditions are:
Condition Table Impairment
Bilateral sensorineural hearing loss 7 24 points
Tinnitus 7.1.11 5 points
Hypertension 2.1.1 2 points
Post Traumatic Stress Disorder Chapter 4 36 points
Combined Impairment 54 points rounded to 55 points
Turning to the lifestyle effects, the Tribunal considers that the appropriate rating is 4 points to reflect the upper shaded area of Scale 23.1. An impairment rating of 55 points with a lifestyle rating of 4 produces a Disability Pension at 90 per cent of the General rate, which the Tribunal determines is payable from and including 1 February 1999.
As Mr Bird has achieved a Disability Pension in excess of 70 per cent of the General rate, the Tribunal turns to consider section 24 of the Act to determine whether or not Mr Bird is eligible for the Special rate of pension. The Tribunal considers that Mr Bird meets the requirements of subsection 24(1)(a) of the Act.
In relation to subsection 24(1)(b) of the Act, the Tribunal is satisfied that Mr Bird suffers from post traumatic stress disorder which was first diagnosed in 1996. On consideration of the evidence and the Tribunal's analysis of the "Diagnostic Statistical Manual of Mental Disorders" ("DSM-IV"), the diagnostic criteria for post traumatic stress disorder, (ICD Code 309.81), the Tribunal considers that Mr Bird meets all the diagnostic criteria. The Tribunal is not troubled by the diagnosis of the condition years after Mr Bird's war-service. Reading the diagnostic criteria, it is not at all uncommon for the disorder to occur at any age, with symptoms occurring at anytime within the first three months of experiencing a trauma up to years later.
There were submissions that Mr Bird's age has caused him to give up work. The Tribunal does not accept this interpretation of the facts. Mr Bird was 61 years of age when he claimed the Special rate. He does have the physical attributes to undertake work such as that previously undertaken by him in areas of sales, metal fabrication, cleaning or the supply business, and this capacity seems to be accepted by the medical practitioners, the vocational psychologist and indeed the Tribunal. Mr Bird has skills and capacities which he has obtained through training and his work experience, which provide him with a wealth of possibilities in terms of employment. The difficulty is, however, that Mr Bird also has a well identified and accepted condition of post traumatic stress disorder which carries with it significant symptomatology. The Tribunal has experienced first hand some of its manifestations at hearing. The Tribunal does not accept submissions that Mr Bird has consciously or unconsciously chosen not to work and has made his post traumatic stress disorder a self-fulfilling prophesy. The Tribunal cannot accept that the symptoms complained of by Mr Bird and more importantly, assessed and used in the diagnosis of the condition of post traumatic stress disorder, are manufactured or exaggerated.
There has been the suggestion that Mr Bird has chosen not to work or to have left work when he has been confronted by practices he does not like or in circumstances where he has no control. It may well be that Mr Bird does have a difficult personality and is cantankerous, but he also has a properly diagnosed and accepted condition of post traumatic stress disorder, the symptoms of which include depression and lack of motivation. Although the Tribunal acknowledges that it is important to look at other explanations for lack of motivation, lack of employment and depression, the Tribunal does not accept that the proposed alternate explanations of depression, related specifically to unemployment or to age, account for Mr Bird's circumstances. The Tribunal notes that prior to 1995, Mr Bird was unemployed but there is no evidence that he became depressed from that and in fact he very quickly found other employment. Further, while it is a fact that Mr Bird was aged 61 years at the time of his claim for Special rate, the Tribunal can find no evidence to suggest that he had adopted a retirement mode or was giving up work because of age-related issues.
There have been submissions that there were other explanations for Mr Bird's not continuing work, apart from post traumatic stress disorder, particularly when reference is made to the liquidation of a business, trouble with the recession in the building industry or indeed an employer selling the business. These are facts, however, and they relate to a period before Mr Bird's claim for Special rate. He then continued seeking employment after those specific incidents, sometimes successfully and sometimes not. One only has to look at the number of applications for employment which Mr Bird made between 1996 and 1998 in various locations around Mudgee and Kempsey, to see the extent to which Mr Bird went to try and obtain employment. The Tribunal does not consider that these attempts were hollow or designed specifically to meet the legislative requirements within section 24 of the Act. The Tribunal finds that Mr Bird was genuinely seeking employment, but was unable to obtain this and the Tribunal cannot identify any specific factor other than his post traumatic stress disorder for his being unsuccessful.
The Tribunal specifically considers the subsections of section 24, all of which relevantly must be met before qualification for Special rate can be established. In relation to subsection 24(1)(b), it must be the veteran's incapacity alone which is responsible for the veteran being unable to undertake work, in this case for periods aggregating eight hours per week. The Tribunal is satisfied on all of the evidence, that it is Mr Bird's post traumatic stress disorder alone which has caused and rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. In coming to this conclusion, as the Tribunal has discussed previously, it has taken into account the requirements of section 28 of the Act.
In relation to subsection 24(1)(c) of the Act, this requires that Mr Bird by reason of his war-caused disabilities alone, is unable to continue to undertake remunerative work that he was undertaking and is also suffering a loss of salary or wages on his own account that he would not have been suffering if he did not have the incapacity. Subsection 24(1)(c) is qualified by subsection 24(2) of the Act in that a veteran who is incapacitated from a war-caused injury, such as that suffered by Mr Bird, shall not be considered to be suffering a loss of salary or wages because of that incapacity, if Mr Bird had ceased to engage in remunerative work for reasons other than his incapacity. There is an ameliorating effect in this subsection in that, if he was incapacitated for some other reason and because of his not being 65 years of age and he is able to satisfy the Commission that he was genuinely seeking to engage in remunerative work that he would, but for the incapacity, be continuing and that the incapacity from post traumatic stress disorder, hearing difficulties and hypertension are the substantial causes of his inability to obtain remunerative work, then he may satisfy subsection 24(2) and hence subsection 24(1)(c) of the Act. While the ameliorating provisions are available to Mr Bird, the Tribunal considers that on all the evidence, Mr Bird is specifically prevented from continuing to undertake remunerative work because of his post traumatic stress disorder. Mr Bird has tried to work and found that he could not continue because of his aggression, depression and lack of motivation. In Mr Bird's case, the Tribunal does not consider that there has been any fabrication of his symptoms or a conscious or indeed unconscious decision that Mr Bird cannot "be bothered" to work, either because he has adopted a retirement attitude or because he is seeking to obtain some specific financial gain. The Tribunal observed Mr Bird in his answers to the question of when did he consider that he could not work. He found this very confronting and upsetting. His response, the Tribunal considers, is not a response of someone who is trying to rort the system. By 1999, when Mr Bird claimed his increase in pension to the Special rate, he had been trying unsuccessfully to obtain work but his motivation and his depression were increasingly impacting on his functioning.
The Tribunal also finds on all the available evidence that Mr Bird has suffered a loss of remuneration as a result of his war-caused inability to work.
In all the circumstances and for the reasons expressed above, the Tribunal considers that Mr Bird satisfies all of the requirements of section 24 of the Act and accordingly, is entitled to payment of pension at the Special rate from and including 1 February 1999.
Accordingly, under the provisions of section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes its decision that Mr Bird is entitled to payment of a pension at the Special rate from and including 1 February 1999, the date of formal lodgement of his application for an increase in pension.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr MEC Thorpe, Member
Signed: ...........[sgnd]...................................................................
Stella Vaughan, AssociateDate of Hearing 22 March 2001
Date of Decision 29 June 2001
Counsel for the Applicant Mr M DawsonSolicitor for the Applicant Ms P Robinson of RL Whyburn and Associates
Representative for the Respondent Mr S Modder, Departmental Advocate
0
2
0