Bruin and Repatriation Commission
[2006] AATA 53
•25 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 53
ADMINISTRATIVE APPEALS TRIBUNAL N° V2004/920
VETERANS’ APPEALS DIVISION
Re: JOHANNES BRUIN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Dr P.D. Fricker, Member
Date:25 January 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Patricia D. Fricker
Member
VETERANS' AFFAIRS ‑ disability pension – rate of pension ‑ special rate
Veterans' Entitlement Act 1986 s 24
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
25 January 2006 Dr P.D. Fricker, Member
1. This is an application by Mr Johannes Bruin (the applicant) for review of a decision made by the Veterans' Review Board (VRB) on 12 July 2004. The VRB affirmed a decision of Repatriation Commission (the respondent) dated 5 December 2003. The respondent decided to increase the applicant’s pension to 100 per cent of the general rate.
2. At the hearing on 8 December 2005 the applicant was represented by Mr Gary Moore of counsel and Mr Robert Douglass appeared on behalf of the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T12), together with documents tendered by the applicant (Exhibits A1‑A6) and documents tendered by the respondent (Exhibits R1‑R15).
BACKGROUND
4. The applicant was born on 17 June 1946. On 29 May 2003 he applied for an increase in his disability pension at age 56. He joined Victoria Police at the age of 19 having earlier been a police cadet. The applicant served in the Australian Army (the army) from 26 September 1966 to 7 October 1968 and served in South Vietnam during the period 20 December 1967 to 27 August 1968. After discharge from the army he returned to the police force where he worked for a total of 21 years. He worked in the field of criminal investigation and attained the rank of detective senior constable. He left the police force in 1986 on medical grounds, having suffered a nervous breakdown in 1983 and a relapse in 1984. He received compensation of $40,000 and from that time he has been in receipt of an indexed pension from the police force sufficient to have prevented him from qualifying for a service pension. The applicant owns a four‑acre hobby farm on which he lives with his wife. He has the following disabilities accepted as war‑caused:
·post traumatic stress disorder (PTSD) accepted from 9 July 1995;
·alcohol dependence or alcohol abuse, bilateral sensorineural hearing loss, bilateral tinnitus, tinea and gout accepted from 26 February 2000; and
·solar keratoses accepted from 19 May 2002.
5. The applicant is currently receiving pension at 100 per cent of the general rate.
6. Since leaving the police force the applicant has undertaken intermittent manual work on a casual basis. In his statement of 30 November 2005 (Exhibit A1) the applicant wrote:
…I made numerous attempts to return to work, however I have only been able to hold down some short term casual positions. I did obtain work driving a truck for a garden supply company, because I had the option of how often I wished to work, however I was unable to manage that after three weeks. I have tried a number of jobs, such as casual unskilled work at D'Alberto Farms, however ill‑health has prevented me from maintaining that work at a consistent level.
7. In evidence Mr Bruin said that the work he had done was primarily casual work. He said that the longest period of employment had been three weeks with D'Alberto Farms and this had been about six years ago. He said he still goes down there and prunes a hedge, re‑nails down a roof and helps with the plastic on the glass houses. Sometimes he is paid and sometimes he works under a barter system. The applicant stated, "I've got a farm. I use their machinery and so forth" (at transcript page 34). He referred to receiving free eggs and tomatoes. He agreed with Mr Douglass that since he left the police force he has never applied for a full‑time job. He has never applied for any clerical work. He said that he could not see any point in ever registering with an employment agency. All the jobs he did were for cash or barter.
8. The issue before the Tribunal is whether the applicant is entitled to a pension at the special rate.
CONSIDERATION OF THE ISSUES
9. The relevant legislation is the Veterans' Entitlement Act 1986 (the Act). Section 24 of the Act sets out the requirement that must be satisfied in order for a veteran to qualify for the payment of the special rate of pension. Section 24(1) states:
24(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.
10. Section 24(1)(b) of the Act requires that a veteran be totally and permanently incapacitated. The veteran's incapacity from war‑caused injury or disease, or both, must itself alone render the veteran incapable of performing an aggregate of eight hours remunerative work a week in order to qualify for pension at the special rate.
11. The respondent submitted that Mr Bruin's war‑caused injury or war‑caused disease, or both, alone, did not prevent him from performing remunerative work. The applicant’s work capacity was not so reduced that he was unable to work eight hours a week. Mr Douglass relied primarily on the evidence of Dr T.H. Gidley, psychiatrist, who had the opportunity to examine the applicant on two occasions over a period of eight years. Mr Moore on behalf of the applicant argued that Mr Bruin can only work at a menial level in an unstructured way and that Mr Bruin is incapable of more structured work on a sustained basis.
12. Dr Gidley examined Mr Bruin on 22 September 1997 and concluded that he was suffering from delayed onset PTSD. After he again examined Mr Bruin on 31 May 2005, Dr Gidley confirmed the diagnosis of PTSD. When he took a history from Mr Bruin, Dr Gidley recorded the following in his report dated 1 June 2005 (Exhibit R13):
…
The veteran reported that provided he is not under stress, he is able to "get by". When stressed he says he reacts in 2 different ways - he becomes extremely anxious, develops the shakes and needs to get away by himself; or he flies off the handle, shouts out , can throw things and generally upsets others. These aggressive reactions take some time to get over and have become a source of increasing domestic conflict, as well as being the reason, he says that he has difficulty working or even being with others.
Minor situations can cause him to feel stressed and he cannot predict when this might happen. He certainly feels stressed when things go wrong or when he is with groups of people. Recollections of his Vietnam experiences can influence his mood and these recollections can occur spontaneously or they can be triggered by reminder events. He says he avoids reading about Vietnam and he won't watch movies about war. He continues to have nightmares about his experiences as a machine gunner in Vietnam and a recurring nightmare is where a friend refuses to operate his machine gun which relates to an actual event where his life was under threat as a consequence. He maintains regular contact with 4 former army colleagues and even with them he does not like to talk about the war.
Depression is a recurring problem, where he can withdraw socially, be easily moved to tears, have suicidal thoughts and find it an effort to pursue activities. His depressed periods last varying lengths of time but have generally been less severe since he has been taking regular antidepressant medication. Over recent years he explains that his depression had troubled him less although his anxiety and intrusive recollections have not altered. He continues to have interrupted sleep and he occasionally takes sleeping medication for this problem.
13. Dr Gidley recorded the following under the heading "Personality and Social Functioning:”
He tries to keep himself occupied about his own 4 acre property. He has an established vegetable garden, he grazes a couple of steers and tends to his trees. He likes to play golf once a week, he has regular contact with a group of former army friends, he goes out to dinner with his wife and spends some time socially with his neighbour. He reads, watches some TV and regularly goes to the football, where he follows St Kilda in the AFL. He says he has preserved a good relationship with his children and apart from the occasional argument gets on reasonable well with his wife. His wife no longer works…
He continues to consume alcohol most days… He does not see his drinking as a problem because it helps him relax and it does not seem to increase his aggression. He considers that he mixes better with people when he is having a drink.
In relation to Mr Bruin’s ability to work, Dr Gidley recorded as follows:
1.In my opinion the veteran's psychiatric condition alone does not prevent him from working more than 8 hours/20 hours per week.
2.His psychiatric conditions impact on the kind of work he might be able to perform. He obviously has difficulty working in a pressured situation or in circumstances where potential for interpersonal conflict is high.
3.The length of time he has been out of the workforce increases the difficulty of him being ever able to adjust to a new work situation should one become available. His age now also acts against him finding appropriate regular employment.
4.As stated his superannuation pension from the police force has reduced financial imperatives for him to return to regular work.
5.My answers in 1 to 3 apply throughout the assessment period.
14. In oral evidence, Dr Gidley said that he believed that Mr Bruin's PTSD does affect his work capacity making it difficult for him to pursue work and obtain pleasure from work. Dr Gidley concluded that Mr Bruin was not totally incapable of working provided that he was able to find an appropriate occupation. He restated the opinion in his report that if a person is receiving reasonable financial support it creates some disincentive to pursue a job which in itself offers minimal satisfaction.
15. Mr Moore submitted on behalf of the applicant that Dr Colin Seabridge, had also examined Mr Bruin on two occasions, although within a short space of time. He submitted that Dr Seabridge's opinion together with views of Dr Brendan Holwill, who had treated Mr Bruin, should outweigh that of Dr Gidley.
16. In his report dated 7 October 2005 (Exhibit A4) Dr Seabridge stated:
…
Mr Bruin occasionally spends time with the local primary producers, where he does a little light work, for no payment, and this is seen as a commendable form of occupational therapy. He has no recreational interests, and despite having 4 acres, has no specific projects in mind. He has no hobbies, no involvement with clubs or groups, and he continues to experience outbursts of anger with little or no provocation. He is angry on the road, and he loses his temper at home and alarms his wife by throwing things around. He is not comfortable in company and cannot mix with people without having a drink.
To imply that Mr Bruin is not working because he is on a pension, and thus to infer that he is enjoying his retirement, is quite without foundation.
In my considered clinical opinion, Mr Bruin suffers from war-related PTSD.
His retirement from work on medical grounds was solely due to the symptoms of this disorder, which were unrecognised at the time, partly because Mr Bruin disclosed nothing of his service history, and partly because of the state psychiatry at that time did not prompt such enquiry.
Mr Bruin has been rendered incapable of working for 8 or more hours in any form of employment, since that time, and this level of incapacity for employment is permanent, and is due solely to his war‑related PTSD.
17. Having read and considered all the documentation and heard all the evidence, I prefer the opinion of Dr Gidley for a number of reasons. The most compelling is that in my view, the information that Dr Gidley recorded and based his opinion on is the more accurate. Dr Gidley's report demonstrates that he is cognisant of Mr Bruin's symptoms and also has an understanding of his lifestyle and level of function that is consistent with the evidence of Mr Bruin’s lifestyle and level of functioning that emerged during the tribunal hearing.
18. Unfortunately Dr Holwill was not available for cross‑examination which lessened the weight I put on his report.
19. Dr Seabridge's history contains factual errors with regard to payment for work and to recreational interests that in my opinion could have influenced his conclusions with respect to Mr Bruin's level of functioning and impairment for work. One of these errors was related to Mr Bruin's recreational activities.
20. At the hearing Mr Douglass reminded Mr Bruin of evidence that he had given to the VRB in 1998 (at transcript page 34):
You were asked about things you did - about your activities and you said:
He also enjoys his involvement in sailing and Saturday races at the Sandringham Yacht Club and post race socialising.
Mr Bruin said he was no longer a member of the yacht club and he was asked why he had left it. His answer was:
… The guy that I was sailing with most of the time, he off and on had boats here and there, sold boats and been without, so I've sailed with other people but he sold his boat and moved up to Hervey Bay so I've altered my lifestyle and gone into golf instead.
Mr Bruin said he was not a member of a golf club but that he played once a week, primarily with his brother. He agreed that he had gone on holidays with his wife to Vietnam in 1995, to Nepal in 2000 and to Thailand in 2003. He was asked how much time he spent on his farm each day and his reply was (at transcript page 40):
…As much as I like. There is always something to do. I grow my own vegies. There is always a fence to fix, there is lawns to mow and yes, there is plenty to do.
21. It is clear that Mr Bruin does have recreational interests and it is difficult to accept that he has no hobbies when it appears that the activities on his farm are consistent with the term used to describe such properties. The informal nature of his working arrangement with D'Alberto Farms appears to fit in admirably with Mr Bruin's lifestyle and be complimentary to his activities on his own farm.
22. At the hearing Mr Bruin was asked to clarify his working arrangements with D' Alberto Farms. He stated (at transcript page 40):
…I go there and I pick up a bit of part-time work on a semi regular basis. I wander down the back and have a beer with the boys and say: you got anything that needs doing. Sometimes they'll say: yes, this needs to be done and other times , no, there is nothing going.
When asked what semi‑regular meant his answer was:
It is very hard to put it into a time limit. Sometimes it would be just going out to Lang Lang to the other farm with the father and we'd go out and fix a fence and feed the cattle and then we would go to the pub for a counter lunch…or the boys sometimes too. If they had a days work…the sons…David is one of the sons. He would say: right, can you give us a hand to fix the fence or put up a new fence.
23. Under cross‑examination, Mr Douglass asked Mr D. D'Alberto, director of D’Alberto Farms Pty Ltd whether by using Mr Bruin as a farm hand for various projects within the company meant that Mr Bruin was employed for particular jobs. Mr D’Alberto replied that this was so and agreed that once the repairs or maintenance was complete the particular job would be finished. When asked how often Mr Bruin was employed on that basis Mr D’Alberto replied (at transcript page 58):
…It varied. He could spend three or four days over a fortnight. Sometimes we may not need him for a month or so.
24. Mr D'Alberto gave evidence that Mr Bruin had attempted to put Mr Bruin on as a full‑time employee about six or seven years ago when the green houses were completed and that the strain was too much for him, his performance was unsatisfactory and he was asked to do less. Mr D’Alberto was asked what sort of work Mr Bruin was doing once he started full-time and he replied that it was the general running of the farm, the irrigation and crop husbandry. He said (at transcript page 55):
…It went all right for six to eight weeks and everything was good. Then we gave Hans a bit more responsibility at the farm, into that side of it…some days [it] was all right (sic), some days maybe he couldn't handle the pressure. It varied.
With respect to that particular job Mr D'Alberto said (at transcript page 55):
...he was employed as a leader. He had a very important job and if the leader is not doing it right you can’t expect other staff members to.
25. The evidence is consistent with the conclusion that Mr Bruin was unable to carry out a leadership role in the agriculture industry for which he had no formal training but according to Mr D'Alberto's evidence has shown interest in and aptitude for. This is consistent with Dr Gidley's opinion that Mr Bruin's psychiatric conditions impact on the kind of work he might be able to perform and with his observation that he has difficulty working in a pressured situation or in circumstances where potential for interpersonal conflict is high. I find, however, that Mr Bruin is in fact comfortable undertaking part‑time casual employment on a semi‑regular basis and that the arrangement is satisfactory to both parties.
26. There appeared to be no disagreement that Mr Bruin is currently suffering from PTSD as a consequence of his war service. At the hearing Dr Gidley conceded that symptoms of an adjustment disorder arising out of difficulties with the police force have largely disappeared and they are no longer a significant contributor to his psychological symptoms. A number of other conditions have been accepted as war‑caused but it has not been argued that they are contributing to any work impairment. The clinical notes of Dr A. Beveridge (Exhibit R1) and Dr L. Shapero (Exhibit R11) make reference to Mr Bruin also suffering from a recurrent low back condition and from gout, which are not accepted as war‑caused conditions. An opinion as to what effect these conditions had on Mr Bruin's ability to work was sought by the applicant from a consultant rheumatologist, Dr Warren Kemp, who in a report dated 13 January 2005 (Exhibit A5) stated:
…
In my opinion it is likely that he has some mild degenerative changes affecting the lumbar spine and consistent with his age of 58 years, but the history indicates that there is minimal disability of the lower back and there are no objective clinical signs of any significant permanent physical impairment. In addition there is a history of previous acute gout that is controlled by his ongoing treatment with Zyloprim tablets. There are no objective clinical features of gout or physical impairment affecting the peripheral joints… In my opinion he does not have any significant physical condition that might cause incapacity for work.
27. I therefore find that the only medical condition affecting Mr Bruin's ability to work is war‑caused PTSD. In my view Dr Gidley's opinion on Mr Bruin's ability to work is consistent with the evidence presented and for that reason I preferred Dr Gidley’s opinion to the other psychiatric opinions presented. I failed to be persuaded that the PTSD alone prevents him from working eight hours a week. Therefore the applicant does not satisfy s 24(1)(b) of the Act.
28. Another substantive issue that was argued in this case was whether Mr Bruin satisfied all the provisions of s 24(1)(c) of the Act, in particular the second limb of s 24(1)(c) which provides:
…is, by reason thereof, suffering a loss of salary or wages, or of earnings of his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity.
According Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50 this is to be read in conjunction with s 24(2)(a) of the Act which provides:
…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…
29. Mr Moore argued that from the outset, Mr Bruin's psychiatric difficulties were entirely explainable in terms of his experience in South Vietnam and that his work with the police force played no part in his breakdown. He submitted that the Tribunal should prefer the conclusion of Drs Holwill and Seabridge that Mr Bruin's breakdown was solely due to PTSD and unrelated to his employment.
30. Mr Douglass submitted that Mr Bruin ceased work substantially because of a work related adjustment disorder and that Dr Gidley's evidence is far more consistent with the medical evidence compiled by the applicant's treating psychiatrist and the police psychiatrist at the time.
31. It is possible that Mr Bruin was suffering the manifestations of undiagnosed PTSD at the time he left the police force in 1986. To accept that this was likely and that this was the sole diagnosis or even the major diagnosis at the time, would require acceptance of a theory put forward 19 years after the event; a theory which contains a number of assumptions. It must be assumed that: the psychiatrists who examined Mr Bruin at that time did not obtain a history that Mr Bruin had served in the army or that he had served in South Vietnam; that he was exhibiting such avoidance that he failed to give such a history if asked; that he described none of the identifying features of PTSD because of avoidance; that neither Dr Colm Moore nor Dr Leonard Marinovich had knowledge of the condition of PTSD despite it's having appeared in DSM III from 1980; and that the circumstances that Mr Bruin described at the time he initially broke down had no bearing on his condition. Dr Seabridge correctly pointed out that by 1985 Dr Marinovich did not accept that Mr Bruin's work was the only factor in the change in Mr Bruin's psychiatric presentation when he examined him earlier in December 1984 and that his reactions were far greater than could be accounted for by a transient personality reaction. It was open to Dr Marinovich to find that Mr Bruin's condition was not related to his work. Instead he concluded in his report of 8 January 1985 (Exhibit R3):
…it seems likely that the work plays some part in the onset of this though I do not accept that work is the only factor.
32. In my view the presence of unrecognised PTSD in this situation is one of only a number of possible explanations for Dr Marinovich's concerns. It is an explanation that is possible but does not explain why the factors that Mr Bruin reported to Dr Auteri and the treating psychiatrist, Dr Moore were upsetting him should be completed discounted. The first documented presentation of any psychiatric symptoms were in the notes of Mr Bruin's treating general practitioner, Dr S. Auteri who wrote early in 1983 (Exhibit R10, page 2):
depressed ++ over work problems…
33. Dr Auteri promptly referred Mr Bruin to a psychiatrist stating in the referral letter that Mr Bruin had recently not been able to cope with the pressures of work. Dr Moore, consultant psychiatrist, reported on 24 February 1983 (Exhibit R10, page 10):
…He had clearly reached "the end of his tether"…He reached those limits by way of:-
(a)A particularly unsatisfying and fairly revolting series of rapes, assaults and incest cases, which… inevitably has the effect on persons working in this area of depressing them, particularly if as in this case there appears to have been quite a large number in a short period of time.
(b)There were two major incidents involving internal police administrative matters, which appear even by the exalted standards of the Victoria Police to reach to highs of managerial incompetence.
34. Dr Moore only recommended two or three weeks off whilst expressing concern about the future of independent minded intelligent detectives and their vulnerability to psychological pressure imposed particularly in the police force. Dr Moore wrote to Dr Auteri again on 2 August 1984 (R10, page 14) reporting that Mr Bruin was at a cross road in his career using heavy alcohol intake as a coping mechanism. He expressed optimism about being able get him back to work with less destructive coping mechanisms. On 10 October 1984 (Exhibit R10, page 15) Dr Moore reported that after a couple of months off work Mr Bruin was no better, despite having substantially reduced his alcohol intake. He recorded that Mr Bruin had many of the classic features of a depressive illness. On 14 February 1985 Dr Auteri wrote to the officer in charge of the Personnel Branch at Police Headquarters (R10, page 17):
…Mr. Bruin was first seen by me in February 1983. On this occasion he was extremely depressed and unable to cope with his every day (sic) duties at work. He was put off and referred to Dr C. Moore, Frankston for psychiatric evaluation.
As time passed it became apparent that Mr. Bruin was no longer able to cope with police work, as even the thought of returning to active duty increased his severe depression and varying moods. He was advised to stop work totally.
35. I find that Mr Bruin retired from the police force in 1986 by reason of a depressive illness that was precipitated by pressures experienced in the police force. There is ample contemporary evidence for this which I find more reliable than opinions derived from symptoms described 11 years later in a completely different setting. It is not in dispute that Mr Bruin is now suffering from PTSD. I accept as Dr Seabridge has reported, that Mr Bruin's is suffering no re-experiencing or dreaming or distress over his past police work. As I understand it, the respondent is not suggesting that Mr Bruin is suffering from PTSD as a result of his police work. The evidence shows that when he ceased work he was suffering from a depressive illness that was precipitated in part or in whole by circumstances related to his work. A diagnosis of PTSD has later been made. Dr Gidley appears to have retreated from or clarified the opinion he expressed in 1997 where he stated in his report of 22 July 1997 (Exhibit R2):
…Although his nervous illness has been previously diagnosed as Recurrent Major Depression, it is my view his depression is a manifestation of, or secondary to his PTSD…overlooked by past assessors…almost certainly triggered by aspects of his later police work.
36. Dr Gidley re-examined Mr Bruin again in 2005. In his report of 1 June 2005 (Exhibit R13) he stated:
He retired from the police force on health grounds in 1968, receiving an early superannuation payout. At that time he was experiencing severe work pressure and in my earlier report I stated that his police operational experiences activated a stress reaction that originated from his eligible war service…
Dr Gibley remained of the view that Mr Bruin's depression is best understood as a manifestation of his PTSD. At the end of his report he stated:
…
The onset of PTSD and associated alcohol abuse is about 1983, although at that time stress factors directly related to police work, were also contributing to psychopathology. These police stressors are probably best described as aspects if an additional diagnosis-adjustment disorder with anxiety and depressed mood, which has largely resolved since the veteran's retirement from the police force. The emotional dysfunction remaining, is attributable to his service related accepted psychiatric disabilities.
37. In my view it is significant that at the time when Dr Gidley was first requested to examine Mr Bruin in 1997 he was not provided with relevant contemporary evidence from the period of Mr Bruin's retirement from the police force. Dr Gidley said that he had not seen any of Dr Moore's reports until just before entering the Tribunal room on the day of the hearing. Dr Gidley's initial opinions, as reproduced above, were made without the benefit of the opinions of the two treating doctors at the time, Dr Auteri and Dr Moore. As I have pointed out earlier, all the later psychiatric opinions are theory and theory based on quite incomplete evidence at that.
38. At the hearing, having seen Dr Moore's report, Dr Gidley was asked if documentation at the time of Mr Bruin's retirement from the police force, containing no references to Vietnam and only to his police experiences, was relevant to the diagnosis. He replied (at transcript, page 81):
… Well, I think it is. I think it means that the police force experiences were probably the more significant contributor to his psychological difficulties at the time…
He went on to say:
…It was my view that Mr Bruin's depression was mainly a manifestation, a feature of his post traumatic stress disorder, certainly the depression that was evident at the time of my examination. There may well have sort have been depression earlier you know. At the end of his period in the police force it was related to his adjustment disorder.
39. I am satisfied on the balance of probabilities Mr Bruin ceased remunerative work with Victoria Police for reasons other than war‑caused injury or war‑caused disease or both.
40. I find that Mr Bruin continues to perform some work on a part‑time casual basis. The arrangements are informal. There is some evidence that he attempted to perform some full‑time work on a neighbouring farm. It is not in dispute that the attempt was not successfully undertaken. The arrangement was not formalised by the provision of work cover; no group certificates were issued and the work was not terminated in the formal way. It cannot then be said to be the remunerative work that the applicant was undertaking as specified in the Act.
41. Mr Bruin is not suffering a loss of salary or wages or of earnings by reason of war‑caused incapacity. He does not satisfy the requirements of s 24(1)(c) of the Act and therefore is not entitled to pension at the special rate.
DECISION
42. The Tribunal affirms the decision under review.
I certify that the forty‑two [42] preceding paragraphs are a true copy of the reasons for the decision of:
P.D. Fricker, Member
(sgd) Catherine Thomas
Clerk
Date of hearing: 8 December 2005
Date of decision: 25 January 2006
Counsel for the applicant: Mr G. Moore
Solicitor for the applicant: Mr P. Liefman
Advocate for the respondent: Mr R. Douglass
Solicitor for the respondent: Advocacy Branch, Department of Veterans’ Affairs
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