Conway and Repatriation Commission
[2005] AATA 467
•24 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 467
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/955
VETERANS' APPEALS DIVISION ) Re GEOFFREY DAVID CONWAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date24 May 2005
PlaceCanberra
Decision The decisions under review are set aside and in substitution thereof the Tribunal decides that:
1. the Applicant's loss of sight is a war-caused injury,
2. the Applicant is entitled to a disability pension at the special rate to be calculated from 16 July 2003,
3. the matter is remitted to the Respondent to calculate the amount of disability pension that is payable in accordance with these reasons.
..............................................
Mr S. Webb
Member
CATCHWORDS
VETERANS' ENTITLEMENTS - injury – loss of sight resulting from industrial accident – alcohol dependence and post traumatic stress disorder war-caused - reasonable hypothesis - statement of principles - loss of sight war-caused - decision set aside - rate of disability pension - 'alone' test - entitlement to disability pension at the special rate - date of effect - decision set aside
Veterans' Entitlements Act 1986 ss 6C, 7, 9, 15, 20, 23, 24, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Hardman v Repatriation Commission [2005] FCAFC 83
Benjamin v Repatriation Commission (2001) 64 ALD 411
Hill v Repatriation Commission [2005] FCAFC 23
Repatriation Commission v Bendy (1989) 18 ALD 144
Chambers v Repatriation Commission (1995) 129 ALR 219
Flentjar v Repatriation Commission (1997) 26 AAR 93
Leane v Repatriation Commission [2004] FCAFC 83
Magill v Repatriation Commission [2002] FCA 244
REASONS FOR DECISION
24 May 2005 Mr S. Webb, Member 1. This application by Geoffrey Conway is for review of two decisions made by the Repatriation Commission, and affirmed by the Veterans’ Review Board (“VRB”), whereby his claims for acceptance of loss of sight as a war-caused injury and for an increase in the rate of disability pension were rejected.
2. The matter came on for hearing before me in Canberra on 16-17 May 2005. Mr Conway was represented by Mr B. Winship. The Respondent was represented by Mr N. Bunn. Mr Conway, his wife Cheryl Conway, Dr L. Le Leu, Dr A. Dinnen and Dr R. Gertler gave oral evidence. At hearing, the Tribunal had before it documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Documents were tendered and labelled as exhibits during the hearing.
factual context
3. Mr Conway was born on 19 December 1948.
4. He served in the Australian Army between 9 July 1969 and 8 July 1971. He rendered operational service in Vietnam from 14 May 1970 to 19 May 1971.
5. Mr Conway has the following accepted war-caused injuries and diseases:
· Post traumatic stress disorder
· Impotence
· Bilateral sensori-neural hearing loss with tinnitus
· Gastro-oesophageal reflux disease
· Contact dermatitis
· Alcohol dependence
· Tinea.
6. On 21 May 2003 Mr Conway lodged an application for an increase in the rate of his disability pension, which was then paid at 100 percent of the general rate (T7). That application was rejected by the Respondent on 23 May 2003 (T2).
7. On 16 October 2003 Mr Conway made claim for a disability pension in relation to his loss of sight in both eyes (T11). That claim was rejected by the Respondent on 27 October 2003 (T3).
8. On 10 May 2004 the VRB decided to affirm both decisions (T16).
9. On 30 July 2004 Mr Conway made application for review of those decisions by the Tribunal (T1).
issues for determination
10. The issues for determination are:
(a) Is Mr Conway’s loss of sight a war-caused injury?
(b) Is Mr Conway entitled to an increase in the rate of his disability pension?
the law
11. Mr Conway’s application rises for determination under the Veterans’ Entitlements Act 1986 (“the Act”). His case has two limbs, each of which is addressed in these reasons.
12. In relation to Mr Conway’s claims concerning war-causation of his blindness, the Act provides that “an injury suffered by a veteran shall be taken to be a war-caused injury … if … the injury … arose out of, or was attributable to, any eligible war service rendered by the veteran” (subparagraph 9(1)(b)). Mr Conway has operational service (subs 6C(1)), which is taken to be ‘eligible war service’ (subs 7(1)). The ‘standard of proof’ to be applied when determining whether an injury claimed by a veteran with operational service is war-caused is set out at subs 120(1) and (3) of the Act:
120(1) Where a claim under Part II for a pension in respect of the incapacity from injury … of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1)… in respect of the incapacity of a person from injury … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury…;
… if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury … with the circumstances of the particular service rendered by the person.
13. I note the Respondent’s references to relevant cases and I am mindful that there is substantial body of caselaw concerning the application of this standard of proof relation to subs 120A(3), which applies in this case, and statements of principles determined by the Repatriation Medical Authority pursuant to section 196B (see Repatriation Commission v Deledio (1998) 83 FCR 82; Hardman v Repatriation Commission [2005] FCAFC 83). In the circumstances of this case it is appropriate to follow the steps set out by the Full Federal Court in Deledio (supra at 83 FCR 97-98). I note that the ‘reasonable satisfaction’ standard of proof set out at subs 120(4) applies in relation to issues of diagnosis and assessment of pensions (see Benjamin v Repatriation Commission (2001) 64 ALD 411).
14. In relation to the second limb of this case, Mr Conway’s claim for an increase in the rate of his disability pension must be considered under sections 23 and 24 of the Act in relation to the intermediate rate and the special rate respectively, and with reference to section 28.
summary findings
15. There is no issue of diagnosis concerning Mr Conway’s loss of sight. It is accepted and I find that he lost sight in both eyes on 2 January 1993.
16. Considering all of the material before me, there is material pointing to a hypothesis connecting Mr Conway’s loss of sight with his operational service. Each element essential to that hypothesis is raised on the material before me.
17. Applicable statements of principles are in force, being Statement of Principles No. 37 of 1994 concerning External Burns as amended by Statement of Principles No. 195 of 1995 (“the applicable SoP”).
18. The raised hypothesis is consistent with the applicable SoP, insofar as it relates factor 1(c) of the SoP to the operational service rendered by Mr Conway. It follows that the hypothesis is a reasonable hypothesis.
19. On the material placed before me I am not satisfied beyond reasonable doubt that Mr Conway’s loss of sight was not war-caused injury.
20. Mr Conway’s claim for increase in the rate of disability pension is within the terms of section 24 of the Act and he is entitled to disability pension at the special rate from 16 July 2003.
decision
21. The decisions under review are set aside and in substitution thereof the Tribunal decides that:
(a) the Mr Conway's loss of sight is a war-caused injury,
(b) Mr Conway is entitled to a disability pension at the special rate to be calculated from 16 July 2003,
(c) the matter is remitted to the Respondent to calculate the amount of disability pension that is payable in accordance with these reasons.
reasons for the decisions
22. Making these decisions I have carefully considered all of the material before me, the submissions of the parties, the relevant caselaw and legislation.
is mr conway’s blindness a war-caused injury?
23. It is not in dispute and I find, to the reasonable satisfaction standard, that Mr Conway lost sight in both eyes on 2 January 1993.
24. It is necessary to carefully consider the essential elements of the hypothesis posited by Mr Conway connecting his operational service and his loss of sight in order to ascertain whether each of those elements is raised on or pointed to by the material before me. Proof of facts is not in issue at this stage.
25. The Tribunal was not assisted in this aspect of the case by Mr Conway’s legal representative, Mr Winship, who declined to clearly set out the Applicant’s hypothesis of war-causation and the material on which it was purportedly raised despite being invited to do so by the Tribunal. Nonetheless, insofar as I comprehend Mr Conway’s case, there are two hypotheses contended for: that Mr Conway’s loss of sight arose out of or was attributable to his war service, or, in the alternative, that the accident which caused his loss of sight would not have occurred but for his war service. In both cases it is hypothesised that his war-caused alcohol dependence and post traumatic stress disorder adversely affected his concentration and judgement on 2 January 1993, in consequence of which he omitted or failed to follow the usual workplace safety procedures and did not read the refrigeration plant log book. That omission or failure meant that he was not aware that the foul air purge system was in operation when he commenced procedures to pressurise the refrigeration plant. The simultaneous operation of both systems caused the increasing plant pressure to vent through the foul air purge system, causing the purge collection bowl to rattle. Mr Conway noticed the rattling bowl and immediately reached to switch off the purge system, at which point the purge collection bowl detached from its mounting, spraying its contents into the air and into Mr Conway’s eyes. The chemical contents of the purge collection bowl burned Mr Conway’s eyes as a result of which he lost his sight in both eyes. Those, in so far as I understand it, are the hypotheses contended for by Mr Conway.
26. In the Respondent’s submission, there is no material pointing to Mr Conway being adversely affected by alcohol or post traumatic stress disorder on 2 January 1993, and there is no material pointing to Mr Conway being burned by chemicals as a consequence of any lapse of judgement or impairment arising from alcohol consumption or post traumatic stress disorder. As will appear, I do not agree. Simply, in the Respondent’s submission, Mr Conway may have failed to read the log book for a variety of reasons and, in any event, was unlucky and was only burned because he was in the wrong place at the wrong time, or the workplace was unsafe.
27. I am mindful of what the Full Federal Court said in relation to the terms “points to” and “raise” in Hill v Repatriation Commission [2005] 23 at paragraph 98:
“An hypothesis is neither pointed to, nor raised, unless it emerges both obviously and directly from the evidence in question. If it is necessary to couple a fertile imagination with a selective rendition of the evidence in order to create the hypothesis, it is not an hypothesis of the kind which the Full Court in Deledio [supra] had in mind.”
28. In this case, elements of the purported hypotheses are, in substantial measure, raised on Mr Conway’s account of events given in oral evidence, which is largely consistent with the accounts recorded by medical practitioners in reports that are before me. Plainly, those reports draw upon a history that was provided by Mr Conway. Nevertheless, Mr Conway’s evidence was not seriously challenged, nor is it contra-indicated by other material placed before me. I note that his evidence concerning his consumption of alcohol and sufferance of features of post traumatic stress disorder prior to 2 January 1993 was corroborated by Mrs Conway. That evidence and Mr Conway’s account of his actions and the sequence of events leading to the industrial accident on 2 January 1993 are consistent with histories obtained by doctors who have examined Mr Conway (see reports of Dr Gertler, Dr Le Leu, Dr Dinnen, Dr Whitaker, Dr Metcalfe and Dr White). I am satisfied that Mr Conway and his wife were credible witnesses. Their evidence was not seriously challenged by the Respondent and I accept it, in relevant part, as a sufficient basis on which to raise the hypothesis of war-causation.
29. Issues of war-causation of Mr Conway’s alcohol dependence and post traumatic stress disorder are not before this Tribunal in these proceedings. The materials before me indicate that the Respondent has accepted those conditions are war-caused. Mr Conway gave sworn evidence that he usually consumes “six to twelve beers” on a daily basis as well as port and occasionally rum, and has done so since serving in Vietnam. His evidence was that the volume of his alcohol consumption increases periodically, especially during periods surrounding Christmas and ANZAC Day and at other times when he is reminded of traumatic experiences in Vietnam. That evidence was corroborated by Mrs Conway and was not contested. I note references in medical reports, for example reports by Dr Gertler’s (Exhibit R1, p6) and Dr Le Leu (Exhibit R2, p12), are consistent with Mr Conway’s oral evidence. The medical evidence points to a clinical onset of alcohol dependence during or soon after Mr Conway’s operational tour in Vietnam.
30. The evidence of Dr Le Leu, Dr Gertler, Dr Dinnen (oral evidence and Exhibits R2, R1 and A1 respectively), Dr Metcalfe (T10 folios 53-54) and Dr White (Exhibit R3, folio 102) points to Mr Conway experiencing features or elements of post traumatic stress disorder during or soon after his service in Vietnam, especially around Christmas and ANZAC Day, even though that disorder was not diagnosed until 1994.
31. Mr Conway’s leave from his employment over the Christmas and New Year period, and the reasons for it, were corroborated by Mrs Conway’s evidence. Those stated reasons were that each Christmas Mr Conway was reminded of an incident in which two sergeants he knew were shot and killed in Vietnam, in the mess in close proximity to Mr Conway, and that that recollection caused an increase in his post traumatic stress disorder symptomatology (increased anxiety, flashbacks, interrupted sleep, nightmares and difficulty interacting with others) and his consumption of alcohol. Mr Conway’s unchallenged evidence was that he avoided work over the Christmas period each year for those reasons. Dr Gertler gave oral evidence that Mr Conway’s symptoms around Christmas each year were consistent with a person reacting to a post traumatic stress disorder ‘trigger’ event.
32. The oral evidence of Dr Gertler and Dr Dinnen was that the features of post traumatic stress disorder described by Mr Conway prior to his injury on 2 January 1993 would have been sufficient to adversely affect his memory, concentration and cognitive functioning at that time.
33. Mr Conway and Mrs Conway gave consistent accounts of Mr Conway’s activities on 1 January 1993, that is he consumed alcohol, but neither could quantify the extent and amount of his drinking on that day with any certainty. Their evidence was that Mr Conway drove himself to work on the morning of 2 January 1993.
34. The oral evidence of Dr Gertler, Dr Le Leu and Dr Dinnen was that a person consuming the amount of alcohol Mr Conway was consuming on a daily basis could expect to suffer from difficulties with judgement, concentration, cognitive functioning, memory and performance.
35. On 13 May 2004 Dr White reported (Exhibit R3, folio 102):
“I note the history that around that time [the time of Mr Conway’s accident in 1993] it would not have been unusual for him to have 6 stubbies of beer and the equivalent of a 700 mil of port the night before, leaving considerable residual blood alcohol the next morning. Given that I consider it would have been likely that he was still under the influence of alcohol when he attended work and this would have been a major factor in the accident.”
Dr White’s opinion is consistent with the weight of the medical evidence before me.
36. Dr Le Lou gave oral evidence that Mr Conway’s consumption of alcohol may have caused a lapse in his judgement and concentration on 2 January 1993.
37. Dr Dinnen gave oral evidence that on the morning of 2 January 1993 Mr Conway did not properly investigate the work place, as he should have done, and cut corners, which directly contributed to the accident. Dr Dinnen’s evidence was that absent Mr Conway’s drinking and post traumatic stress disorder features that were then existent, “he would have exhibited greater caution of risks and greater vigilance and efficiency in doing his job”. Dr Dinnen gave evidence that it was reasonable to conclude that Mr Conway’s consumption of alcohol and post traumatic stress disorder may have contributed to cause the accident and that if he had no such psychological problems it was much less likely that the accident would have occurred.
38. Dr Gertler’s oral evidence was that prior to 1993 post traumatic stress disorder interfered intermittently with Mr Conway’s ability to work at certain times of the year and would have affected his concentration and motivation at those times, also causing him to consume more alcohol. Dr Gertler was of the opinion that Mr Conway’s dependence on alcohol was likely to affect his ability to work at all times, especially in relation to his concentration, alertness, his ability to relate to others and his physical co-ordination, stating “if he was drunk and required to operate machinery he could harm himself and others”. Dr Gertler noted that Mr Conway stated that he did not want to go to work on 2 January 1993 because he had been drinking heavily over previous days and stated that if Mr Conway was hung-over or had been drunk the day before he would be likely to have problems with his concentration and level of awareness at work on 2 January 1993.
39. Mr Conway’s uncorroborated, but unchallenged, oral evidence was that he did not check the refrigeration plant log book when he commenced work at 6am on 2 January 1993, as he should and would usually have done. In consequence, in his submission, he was unaware that the foul air purge system was in operation at that time and proceeded to pressurise the plant. He stated that he would not have pressurised the refrigeration plant if he had known that the foul air purge system was in operation, without first switching it off, and that in 21 years working at that plant there had been no similar incident. Mr Conway’s unchallenged evidence was that pressurising the refrigeration plant while the foul air purge system was in operation ultimately caused the foul air system collection bowl to detach. His evidence was that as pressure in the plant increased it vented through the purge system into the collection bowl, thereby increasing the pressure in that chamber and causing the bowl to rattle. He stated that the foul air collection bowl was held in place by a spring clip and that there was no gasket between the glass of the bowl and the metal mounting against which it was held by the clip. His evidence was that it was only a matter of time after he commenced pressurising the plant with the purge system operating that the increased pressure in the purge system collection bowl would cause it to blow off. There is not any material before me to either corroborate or contra-indicate Mr Conway’s account of events at the refrigeration plant on 2 January 1993. Nor is his account impossible or so implausible to be dispensed with for present purposes. I note that Mr Conway’s account before this Tribunal is consistent with the history recorded in medical reports in evidence that were prepared by medical practitioners who have examined Mr Conway over time, to which I have already referred.
40. Mr Conway gave oral evidence that the purge collection bowl contained a solution of ammonia, the concentration of which increased in proportion to the amount of time the purge system was in operation. He stated that the contents of the bowl that morning were highly concentrated and he was later informed that the foul air purge system had been in operation since the previous day. The materials in Exhibit R3 point to Mr Conway’s blindness being the result of chemical burns to his eyes.
41. On that evidence I am compelled to find that there is a hypothesis raised on the material before me connecting his loss of sight with his operational service, to the extent that Mr Conway’s injury on 2 January 1993 arose out of or was attributable to his war-caused alcohol dependence and post traumatic stress disorder. The Respondent submitted that there was no evidence that Mr Conway’s alcohol consumption or dependence was the reason that he did not check the log book on the morning of 2 January 1993, asserting the that it was ‘bad luck that the bowl broke at that time” and Mr Conway’s injury was more likely to have been the result of an unsafe workplace than his operational service in Vietnam. I note that proof of facts is not in issue at this stage and there is material before me, to which I have referred, pointing to a causal relationship between his alcohol dependence and post traumatic stress disorder, or features thereof, and his failure or omission to follow standard safety procedures on 2 January 1993.
42. As there is an applicable SoP in force to which I have referred, the next question is to determine whether the raised hypothesis is reasonable. It will be so found if it is consistent with the terms of the applicable SoP.
43. The applicable SoP relevantly states that:
“1. …the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting external burn … with the circumstances of that service [operational service rendered by veterans], are:
…
(c) application of chemicals, caustics, acid or ionising radiation to the external body;
…
2. … at least one of the factors set out in paragraphs 1(a) to 1(e) must be related to any service rendered by a person.
…
4. For the purposes of this Statement of Principles:
“external burn” means an injury to external body tissue attracting ICD codes … 940-946 …;”
I note in passing that the International Classification of Diseases 9th Revision sets out codes concerning burns to the eye at 940.
44. In the Respondent’s submission, the application of chemicals to Mr Conway’s eyes was not ‘related to’ his operational service and other factors may have been operative, such as tiredness. In order for Mr Conway to succeed the requisite relationship between his claimed injury and his operational service that is referred to in the applicable SoP must be more than de minimis (Repatriation Commission v Bendy (1989) 18 ALD 144). There is no requirement that the operative factor of causation must be exclusive of any other factor. The mere existence of material pointing to operative factors that are not war-caused in relation to the causation of any element that is essential to a hypothesis connecting claimed injury and relevant service does not extinguish that hypothesis and a veteran’s entitlement under claim. It is necessary for the Tribunal to consider the whole of the material before it in order to determine whether the material points to the hypothesis posed. In this case the material before me points to the essential causal links in the hypothesis posed by Mr Conway. Even though other factors may have been operative, there is no material before me pointing to other possible factors that were put forward by the Respondent.
45. On the material to which I have already referred I am compelled to find that the raised hypothesis is consistent with the ‘template’ of the applicable SoP and is, therefore, reasonable.
46. That being so, what remains is to consider under subs 120(1) of the Act whether I am satisfied beyond reasonable doubt that Mr Conway’s accidental blinding and resultant incapacity was not war-caused. The Respondent conceded that there is insufficient evidence before me on which to make such a finding, negating Mr Conway’s claim, if a reasonable hypothesis is found to exist. I am compelled to agree.
47. While it is possible that Mr Conway was not impaired by alcohol or features of post traumatic stress disorder on 2 January 1993, there is no evidence to support such a conclusion. The weight of the evidence is that he had been drinking heavily over the Christmas and New Year period prior to being called into to work on 2 January 1993 and I so find. The medical evidence is that it was likely that his judgement, concentration, memory, cognitive functioning, physical co-ordination and alertness would have been adversely affected on that morning. There is no evidence to the contrary. I am satisfied that there is a causal relationship between those factors and Mr Conway’s failure or omission to follow the safety procedures at the refrigeration plant on 2 January 1993, in consequence of which he did not read the plant log book and set in train a sequence of events that would ultimately lead to his blinding. There is no evidence to prove beyond reasonable doubt that the possibilities raised by the Respondent are true, whereby the reasonable hypothesis raised by Mr Conway would be disproved beyond reasonable doubt. I am persuaded by the evidence of Dr White, Dr Dinnen and Dr Gertler that the effects of Mr Conway’s consumption of alcohol were likely to have contributed to cause him to cut corners, whereby he failed or omitted to consult the plant log book on that day.
48. With regard to the Respondent’s submission that Mr Conway was simply in the wrong place at the wrong time, it may be true that if he had been elsewhere in the plant at the moment the foul air purge system collection bowl blew off he would not now be blind. Plainly, it can be said of many injuries that if the injured party had been in a different place at the critical moment, the injury would not have occurred. On Mr Conway’s evidence, he was attending to his duties in relation to the pressurising of the refrigeration plant, which required him to be in the place where he was when the pressure overcame the collection bowl catch. That was not a matter of mere chance. Furthermore, the Respondent’s submission does not disturb my finding that Mr Conway’s alcohol dependence and the features of post traumatic stress disorder were then present and acting upon his mind and his senses that morning. Those were operative factors in the decisions and actions he undertook on the morning of 2 January 1993, whereby he did not check the log book on his arrival at work at or about 6am and commenced a process to pressurise the plant without first switching off the foul air purge system. In so doing he initiated a sequence of events that would lead to the pressurisation of the purge system collection bowl and the detachment of that bowl in result at or about 8am, spraying chemical into his eyes. It was the chemical burns that caused Mr Conway to lose his sight. There is no sufficient evidence to prove the contrary, beyond reasonable doubt.
49. That being so, I find that the reasonable hypothesis that Mr Conway’s injury on 2 January 1993 arose out of or was attributable to his war service is not disproved beyond reasonable doubt.
50. It follows that Mr Conway’s injury on 2 January 1993 is war-caused pursuant to subs 9(1)(b) of the Act.
51. I note in passing that it is not strictly necessary for me to address submissions made by the parties in relation to Mr Conway’s alternative hypothesis pursuant to subs 9(2) of the Act, concerning the ‘but for…’ test, as the matter is resolved in Mr Conway’s favour.
52. Pursuant to subs 20(1) of the Act, the decision in relation to Mr Conway’s loss of sight is to have effect from 16 July 2003, being three months prior to the date the claim was made.
is mr conway entitled to an increase in the rate of disability pension?
53. Mr Conway made application for an increase in the rate of his disability pension on 21 May 2003 and contended that he is entitled to a disability pension at the special rate pursuant to s 24 of the Act. In Mr Conway’s submission he is entitled to a special rate pension regardless of the outcome of his claim in relation to his loss of sight.
54. The Respondent conceded that in the event Mr Conway’s loss of sight was found to be war-caused then he would be entitled to a pension at the special rate thereafter.
55. In order to qualify for a pension at the special rate the degree of incapacity of the veteran must have been determined to be at least 70 percent. In this case Mr Conway’s degree of incapacity was determined to be 100 percent of the general rate prior to the decision under review (T2). It follows that he satisfies subs 24(1)(a) of the Act.
56. Subs 24(1)(b) requires that, for a veteran to qualify, the veteran’s incapacity from war-caused injury or disease, of its self alone, renders the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (or 20 hours per week in the case of a claim for a pension at the intermediate rate pursuant to section 23 of the Act). Section 28 applies.
57. Following Chambers v Repatriation Commission (1995) 129 ALR 219, I am reasonably satisfied that Mr Conway has the following trade and professional skills, qualifications and experience: dairy farming; labouring; truck driving; refrigeration plant engineering and maintenance; and refrigeration plant supervision, administration and management. I note that Mr Conway has some experience and training in voice operated computer operations, having under gone some workplace retraining in a specific voice operated computer system in the abattoir following his blinding injury. Mr Conway also made reference to operating a copy stylus wood lathe. I am prepared to accept that he has some aptitude in relation to voice operated computer operation and operating a copy stylus wood lathe.
58. The kinds of remunerative work Mr Conway could reasonably undertake are those suitable to a person without sight in the areas of administration, voice operated computing and copy stylus wood lathe operation.
59. Is Mr Conway prevented from undertaking that remunerative work by his war-caused injuries and incapacities, alone?
60. In the Respondent’s submission Mr Conway’s blindness contributes to render him incapable of working for more than 8 hours per week. I accept that submission only to the extent that Mr Conway’s blindness was an operative factor in the deterioration of his psychiatric condition in the period following his injury in 1993. I do not accept that Mr Conway’s blindness per se renders him incapable of working in remunerative employment.
61. I am not satisfied to the requisite degree that Mr Conway was prevented from undertaking such remunerative work by his accepted war-caused conditions, alone, prior to 16 July 2003. The evidence is that Mr Conway suffered from clinical depression following the traumatic accident in which he lost his sight, especially after the termination of his employment at the abattoir where he was under-going retraining following his accident. The medical evidence plainly reveals that Mr Conway suffered a serious deterioration in his psychological condition after his injury in 1993 and the subsequent termination of his employment, and that his alcohol dependence, post traumatic stress disorder and depression developed synergistically thereafter, rendering him incapable of engaging in remunerative employment for more than 8 hours per week.
62. While I accept that it may not be possible to determine the extent or degree of incapacity caused by each condition, it is plain enough on the evidence that Mr Conway’s blindness is an operative factor that prevents him, directly or indirectly, from undertaking remunerative work for more than 8 hours or more than 20 hours per week.
63. That being so I am satisfied to the requisite degree that Mr Conway was rendered incapable of undertaking remunerative employment for more than 8 hours per week because of his war-caused incapacities and injuries from the date his loss of sight is accepted as war-caused, that is from 16 July 2003.
64. The evidence is that prior to his injury in 1993 Mr Conway was capable of working on a full time basis despite his war-caused alcohol dependence and (then) sporadic post traumatic stress disorder. I note in passing that even though post traumatic stress disorder was not diagnosed until 1994, there is sufficient medical evidence before me to establish that the clinical onset of that disorder was during or soon after Mr Conway’s operational service tour in Vietnam.
65. That being so, I am reasonably satisfied that Mr Conway did not satisfy the qualification requirements set out at subparagraph 24(1)(b) of the Act until the date on which his loss of sight is accepted as war-caused, that is 16 July 2003. Prior to that date I am reasonably satisfied that his (then) war-caused injuries and incapacities did not render him incapable of undertaking remunerative work for more than 8 or 20 hours per week.
66. Turning to subparagraph 24(1)(c) and following Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96, I am satisfied that the remunerative work Mr Conway was undertaking was voice operated computer operations in the abattoir where he had worked for more that 20 years. On the preponderance of the medical evidence Mr Conway is, I find, prevented from continuing to undertake that work by his war caused injuries and diseases, namely his alcohol dependence and post traumatic stress disorder that are synergistically overlaid with the psychological effects of the injury that caused him to lose his sight. In so finding I accept the evidence of Dr Gertler, Dr Dinnen and Dr White.
67. There is evidence that Mr Conway was prevented from continuing to undertake that employment by the termination of his employment, purportedly for ‘health reasons’. There is, however, no material evidence before me on this point. Even if I was to accept the purported reason for termination to be true, and I make no such finding, it would not be fatal to Mr Conway’s claim. Plainly enough on the evidence that is before me, it is reasonable to conclude that the purported ‘health reasons’ referred to would relate to the health problems then being suffered by Mr Conway which rendered him incapable of working efficiently or effectively, namely alcohol dependence, post traumatic stress disorder and the psychological effects of the injury in which he lost his sight.
68. The medical evidence is that his alcohol dependence and psychiatric disorder would be obvious to any employer and, furthermore, the medications he takes to manage his post traumatic stress disorder (Exhibit A2) would be likely to reduce his cognitive functioning.
69. The Respondent did not adduce any evidence of non war-caused injuries or diseases that were the cause of any incapacity, or of other factors that rendered Mr Conway incapable of continuing in the relevant employment.
70. That being so, I am reasonably satisfied that Mr Conway’s war-caused injuries and diseases are the only factors preventing him from continuing to undertake the relevant remunerative work and, being so prevented, I am reasonably satisfied that Mr Conway is suffering a loss of salary or wages or earning on his own account that he would not be suffering if he was free of that incapacity. Mr Conway is not precluded from qualifying for a pension at the special rate by the effect of subparagraph 24(2)(a). I so find.
71. It follows that Mr Conway is entitled to a disability pension at the special rate pursuant to section 24 of the Act from 16 July 2003.
72. I note in passing that it is unclear whether Mr Conway genuinely sought employment during the assessment period from 21 May 2003 (see Leane v Repatriation Commission [2004] FCAFC 83). Nonetheless, in the circumstances it is not necessary for me to determine whether Mr Conway is able to benefit from the ameliorating effect of subparagraph 24(2)(b) and I make no findings in that regard (see Magill v Repatriation Commission [2002] FCA 244).
conclusion
73. The decisions under review are set aside. The injury in which Mr Conway lost his sight on 2 January 1993 is a war-caused injury. He is entitled to a disability pension at the special rate from 16 July 2003. The matter is remitted to the Respondent to calculate any amounts that are payable to Mr Conway in accordance with these reasons.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 16-17 May 2005
Date of Decision 24 May 2005
Counsel for the Applicant Mr B. Winship
Counsel for the Respondent Mr N. Bunn
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