Cunningham and Repatriation Commission
[2000] AATA 1134
•21 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1134
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº N99/1383
VETERANS' APPEALS DIVISION)
Re: BERNARD ROBERT CUNNINGHAM
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Date: 21 December 2000
Place: Sydney
Decision:The Tribunal sets aside the decision under review, and substitutes a decision that the applicant is entitled to be paid pension at 50 per cent of the general rate under section 22 of the Veterans' Entitlements Act 1986 ("the Act") on and from 14 November 1994, at 100 per cent of the general rate on and from 9 January 1996 and at the special rate of pension under section 24 of the Act on and from 18 September 1997.
(sgd) H.E. Hallowes
Senior MemberVETERANS' AFFAIRS — rate — not yet turned 65 years — whether capable of undertaking remunerative work for more than eight hours per week — whether ceased work for reasons other than accepted disabilities — substantial cause of inability to work
Veterans' Entitlements Act 1986 ss.22, 24, 28
Fry v Repatriation Commission (1997) 47 ALD 776
Re Cripps and Repatriation Commission (AAT 12220, 8 September 1997)
REASONS FOR DECISION
21 December 2000 Mrs H.E. Hallowes, Senior Member
The applicant seeks review of a decision of the Veterans' Review Board ("the VRB") made on 3 August 1999. The VRB decided to set aside the decision of the Repatriation Commission made on 12 December 1996 and to substitute a decision that pension be assessed at 20 per cent of the general rate from and including 14 November 1994 and at 90 per cent of the general rate from and including 9 January 1996 and at 100 per cent of the general rate from and including 18 September 1997.
It is one of the applicant's contentions that he is entitled to be paid pension at the special rate under section 24 of the Veterans' Entitlements Act 1986 ("the Act") from 29 February 1996. Section 24 provides, so far as relevant:
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.
(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.
Section 28 provides with respect to capacity to undertake remunerative work:
28 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).
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), together with a considerable amount of additional material lodged by both parties at the hearing. The applicant was represented by Ms J. Buchanan, of the Legal Aid Commission (New South Wales), and the respondent was represented by Mr S. Modder, an advocate with the Department of Veterans' Affairs. It was also the applicant's contention that pension should be paid to him at 70 per cent of the general rate under section 22 of the Act from 14 November 1994 and at 100 per cent of the general rate from 9 January 1996.
The applicant gave oral evidence to the Tribunal that he was born on 28 November 1937. He confirmed his employment history which was before the Tribunal. He enlisted in the Australian Army in 1955 when he was aged 17 years and 8 months. He served for a 20-year period, following his family's tradition of serving in the Forces. He was promoted from Private to Corporal and then Sergeant. He described his trade in the Army as that of a driver. He was also a qualified storeman. He further qualified as a Regimental Duty Instructor, teaching all arms, drill, and weapons handling at Puckapunyal in Victoria. He enjoyed this work until National servicemen were killed in Vietnam. He wrote that from that time onwards he started ". . . losing myself and I started to hit the grog. I was binge drinking". He saw service in Vietnam between 4 May 1967 and 30 January 1968. On 23 July 1970 he transferred to a Citizen Military Force unit as a transport supervisor and instructor. He also carried out duties as Company Sergeant Major and transport operations officer. He stated:
. . . I was now at this time responsible for collating all figures on manpower availability vehicle figures for three Transport Platoons under our Company Headquarters. These figures had to be accurate so that I could then pass all this information on to Command headquarters. Vehicles to be available at all times were cars, trucks, buses, semi-trailers, motor cycles and amphibious vehicles. This task became very stressful at times as you couldn't leave the headquarters when you were trying to do the job of three people.
The applicant suffered a cerebral haemorrhage in 1974 undergoing surgery, and rehabilitation for approximately two months during which time he states that he was ". . . just picking up my pay every fortnight". The applicant was not able to resume his previous duties and he applied for discharge from the Army rather than being medically discharged. The applicant was discharged on 30 September 1975. He told the Tribunal in oral evidence that he was very upset and disappointed at having to be discharged as he had intended to stay in the Army as long as he could to provide for his family.
The applicant's unspecified deformity of toe, subarachnoid haemorrhage, post-traumatic stress disorder with substance abuse and sleep apnoea are now accepted as war-caused or defence-caused. The applicant has non-accepted disabilities of right inguinal hernia, aneurysm of left middle cerebral artery with left retinal haemorrhage and lumbar spondylosis. Dr I. Lorentz, consultant neurologist, and Dr T. Anderson, occupational physician, were both puzzled by the acceptance of the applicant's subarachnoid haemorrhage as war-caused or defence-caused and the rejection of his aneurysm, Dr Lorentz, commenting in his report dated 3 May 2000, "This last determination is puzzling as the sub-arachnoid haemorrhage was the result of a burst aneurysm of the left middle cerebral artery.". In an earlier report dated 31 January 2000, Dr Lorentz stated:
I have no direct documentation to confirm the diagnosis of subarachnoid haemorrhage, but I have no reason to doubt previous statements and the patient's history that he in fact did suffer from a subarachnoid haemorrhage, presumably from an aneurysm which is probably of the left middle cerebral artery. This diagnosis incorporates Mr Cunningham's accepted disability of subarachnoid haemorrhage. The subarachnoid haemorrhage is due to an aneurysm of the left middle cerebral artery. Aneurysms occur as a result of congenital weakness in the artery, and can be aggravated by hypertension or on other occasions by such things as bacterial endocarditis, which causes a mycotic or infective aneurysm. Therefore, the aneurysm is a condition which can give rise to a subarachnoid haemorrhage, but there are no separate diagnoses. The left retinal haemorrhage could have resulted from a subarachnoid haemorrhage.
The applicant was employed at the Reserve Bank from 1975 to 1991 as a security officer and later as a messenger. A consultant neurosurgeon, Dr A. Gonski certified him fit to carry out bank guard duties on 26 August 1975. He manned a control panel with lights, switches and buttons but he found that he had difficulty differentiating between the colours of the lights. The hours of his shift work were unsettling and he was confused. He attended his medical practitioner and was advised that his blood pressure was raised. He was unable to remain in the security section of the Reserve Bank and after approximately one year he moved to the messenger section. His emolument was reduced. He sorted light mail and delivered warrants, but at one stage, after being accused of losing a warrant, he was hospitalised for approximately 10 days in 1989 with stress. In 1991 he took a voluntary redundancy from the Reserve Bank.
The applicant told the Tribunal that the Reserve Bank was downsizing messengers and he was in the last batch of messengers to take a redundancy when numbers were reduced from the 101 messengers there had been when he started with the Reserve Bank to 5. Security services were then contracted out. The applicant stated that he would have liked to keep working as a messenger had his position continued. He believed that, if he did not take the redundancy, there would have been no job for him because of his disabilities. As far back as April 1982, the applicant had been advised by the Reserve Bank, ". . . you have been declared medically unfit to carry out the full range of messenger duties at that branch". A file note dated 20 January 1982 records:
. . . The above officer is employed as a messenger in the mail room and has, for a number of years, been endeavouring to obtain a transfer to Canberra. He joined the Bank in September 1975 as a security guard after 20 years' army service. He was transferred to the messenger force in August 1976 following his concern that he may bump his head on shift work. Cunningham's medical problem stems from a cerebal [sic] haemorrhage in November 1974 which Dr Hurt said, in July 1976, causes him:
speech difficulty at times;
memory loss;
left eye – 20% lost since operation; and
difficulty in making a decision.
He was subsequently placed in the Mail Room to undertake light duties only. Sydney were advised that he was not permitted to carry a firearm.
. . .
Later correspondence before the Tribunal (exh C), includes the following:
2nd June 1987
. . .
This is to certify that despite present irreversible medical condition the above is capable of performing all duties except heavy lifting.. . .
24 June 1987
. . .
The Chief Medical Adviser has concluded that you are fit for all messenger duties with the exception of heavy lifting.
. . .
The applicant understands that security officers at the Reserve Bank retired at 65 years of age.
Between 1991 and 1993, the applicant sought employment at Westpac Bank and he applied to be a taxi driver, but he said that he was not successful in obtaining employment due to his cerebral haemorrhage. His brother-in-law who owned a plastic factory would also not employ him due to his cerebral haemorrhage. He obtained work as a cleaner and he cut the grass at the units where he lived, being paid between $250 to $500 a month, but his raised blood pressure continued to cause him problems. He continued to binge drink and his back "played up". He gave up this work in 1993.
The applicant said that he was unaware of benefits under the Act and between 1993 and 1995 he did not look for work due to his health problems. He lived on the proceeds of his redundancy package. He sought work through the Commonwealth Employment Service in 1995; he was then referred to the RSL, and he was assisted to make a claim for disability pension under the Act. He was granted invalidity service pension, payable from 24 October 1996.
In answering Mr Modder's questions the applicant said that he continues to have pain in his foot at times. He conceded that his back is part of the difficulty for him in finding work. He experienced some repetitive strain injury in his right arm when working in the mail room at the Reserve Bank and he hurt his neck when he fell off a chair and he now has some arthritis. Other evidence before the Tribunal supports the applicant's evidence. However, after physiotherapy his neck "came good". He suggested that it was his back and raised blood pressure and other medical problems which stopped him working at the units. He is now aged 63 years and he thought he may still be able to do the job in the mail room at the Reserve Bank. He has cut down his drinking a little each day and he said to the Tribunal that, if he found employment, he would not drink. He noted that he was drinking when employed by the Reserve Bank and that that had not stopped him from working. Although he is colour blind, it has not affected his driving ability and in his opinion the real impact on his driving has been his cerebral haemorrhage. He has difficulty communicating because he cannot think of what to say and that upsets him. Dr K. Koller, psychiatrist, who provided the Tribunal with a medical report, has told him that he could give him medication for his psychiatric conditions but the applicant feels that he would be unable to take it. The applicant was frank in responding to questions put to him.
The applicant has been reviewed by a number of medical practitioners for the purpose of determining his entitlement to pension and the rate of pension payable to him under the Act. In a report dated 10 December 1999, Dr R. McMurdo, consultant psychiatrist, stated that it was difficult to make an accurate diagnosis of post-traumatic stress disorder in the applicant's case as the picture was clouded by the effects of the applicant's subarachnoid haemorrhage. The most accurate diagnosis he could make would be dementia due to subarachnoid haemorrhage. It was Dr McMurdo's opinion, that when he saw him, the applicant was not capable of performing any type of employment. Dr McMurdo provided a further report dated 9 May 2000. He confirmed that he could not support a diagnosis of post-traumatic stress disorder. With respect to the applicant's ability to work, Dr McMurdo said:
. . .
(B) The duties described in the Folio 88 for his position as Relieving Messenger on Floors certainly do not read to be arduous. It would be my opinion, though I did not see him in 1994 that he could probably cope with these from the physical health point of view. . . .
However, the applicant's difficulty with comprehension, his impatience, irritability and depressed mood, which reduces his confidence and self-esteem, would affect his ability to carry out his duties. Dr McMurdo expressed no opinion as to whether the applicant could work for more than eight hours a week in 1994, but it was his understanding that the applicant had been advised by his treating doctor to seek employment that year. He went on to say that it would now be exceedingly difficult to get the applicant back into the workforce.
The applicant was examined by Dr Lorentz on 27 January 2000. He considered the Guide to the Assessment of Rates of Veterans' Pensions ("the GARP"), Table 5, with respect to Neurological Impairment, finding an impairment rating of 20 points. In his later report, Dr Lorentz expressed the opinion that the applicant did not cease work in 1991 as a result of ill health and that he would have been capable of working for a number of years, at least until the age of 60 years, had it not been for the combination of other factors including hypertension, sleep apnoea, lumbar spondylosis, cervical spondylosis and tenosynovitis of the right elbow. He noted that, in addition, excessive drinking may have caused further deterioration of behaviour and memory. Dr Lorenz further advised:
c)Mr Cunningham has multiple incapacities. He has a mild organic impairment. As suggested buy [sic] Dr McMurdo, psycho-metric examination may help for his assessment. The impairment is related to multiple causes. These included hypertension and sleep apnoea which could reduce his alertness, in addition excessive alcohol is a well known cause of memory loss. The sub-arachnoid haemorrhage is also significant in that it may to some extent cause word finding difficulties and in addition there could be frontal lobe damage resulting from the sub-arachnoid haemorrhage. I would consider that the applicants organic mental impairment is at least 50% due to the sub-arachnoid haemorrhage. 25% in my opinion is due to substance abuse, namely alcohol and 25% to other causes.
He noted that the applicant did not have significant difficulty in performing his duties with the Reserve Bank before retirement and there was no evidence placed before Dr Lorenz that pointed to a further deterioration in the applicant's condition since then. If the applicant's organic mental impairment was due to the subarachnoid haemorrhage, he would expect it to remain stationary. Impairment may be progressed as a result of hypertension, sleep apnoea or the effects of alcohol.
Dr Anderson reported with respect to the applicant on 14 February 2000. As well as noting matters referred to above, Dr Anderson recorded that the applicant had raised cholesterol, gout and diabetes. He obtained a history that the applicant often experienced "ache and pain" in his back, although on examination there was no complaint of pain on the day he was seen; no tenderness; spinal curvatures were normal, and there was no scoliosis or muscle spasm; movement being within normal parameters. As a result of his examination, Dr Anderson expressed the opinion that it was only a "possibility" that the applicant suffered from mild [emphasised] lumbar spondylosis.
In Dr Anderson's opinion all the applicant's conditions are constitutional apart from the injury to his right toe. In expressing some surprise about the acceptance of the applicant's subarachnoid haemorrhage as war-caused or defence-caused whereas his cerebral artery haemorrhage was not, Dr Anderson noted they "are one and the same phenomenon" (see paragraph 6 above). Dr Anderson concluded that the applicant would still be fit to continue his job at the Reserve Bank. He was not called to give evidence so the Tribunal was not in a position to raise with him the comments he made in his report, which may suggest that he had a negative attitude towards the applicant. He expressed the view that the applicant had very wisely ceased smoking (Dr Anderson stated that he should never have started in the first place), but he noted that the applicant kept drinking. In light of the applicant's presentation before the Tribunal, the Tribunal is surprised that Dr Anderson found the applicant to be "cheerful" and that he had spoken philosophically about all his experiences. Dr Anderson provided a supplementary report on 30 May 2000 which did not take the matter much further. The Tribunal considered whether it should call Dr Anderson to give evidence, but, in light of the rest of the evidence, it decided not to do so.
The respondent also placed before the Tribunal material with respect to the applicant's acceptance of a redundancy package from the Reserve Bank. Letters to members of staff of the Reserve Bank, dated 9 May 1991, invited staff to give serious consideration to the offer of voluntary redundancy. It was suggested that the terms of the offer were attractive and that the offer did not reflect in any way on the person's contribution to the work of the Reserve Bank. From the terms of the letter, the Reserve Bank was clearly downsizing. Options were apparently available with respect to the receipt of superannuation payments although the applicant was below the minimum retirement age of 55 years.
The applicant also placed a number of medical reports before the Tribunal, including a report by Dr G. Coffey, consultant neurologist, dated 20 June 2000. Dr Coffey advised that the applicant presented with evidence of significant brain damage as a consequence of the subarachnoid haemorrhage and it appeared to him that the applicant had been left with an organic change in personality, a disturbance in language functioning, incomprehension, and short-term memory loss. Dr Coffey thought that the applicant could have continued with his position in the mail room at the Reserve Bank as a delivery officer, but, once he was retrenched, it was Dr Coffey's opinion that it would be difficult for him to obtain alternative employment.
Dr M. Baz, occupational physician, reported on 16 December 1999. She expressed the opinion that the applicant experiences ongoing significant disability due to his subarachnoid haemorrhage and post-traumatic stress disorder. She assessed the applicant under the GARP. Dr Baz also stated that the applicant
. . . is not capable of working more than 8 hours per week in work commensurate with his skills and qualifications, or with his last occupation.
In my opinion he has been similarly unfit for such work over some time, and at least since the date of Dr Koller's assessment on 6.3.96.When Dr Koller examined the applicant on 29 February 1996 (report dated 6 March 1996) he found the applicant to be "Serious and depressed looking". He stated that the applicant, at times, broke down into tears. He went on to say that the applicant was overtly distressed and that he was "unable to work". In his opinion the applicant's psychiatric impairment rating was 45 points (under GARP Fourth Edition). The documents included a later assessment of the applicant's emotional and behavioural responses under Table 4 of the GARP, undertaken by Dr Koller on 10 July 1999, in which Dr Koller did not provide any rating under Table 4.4 — Occupation. The VRB inferred from that, that Dr Koller did not consider the applicant's post-traumatic stress disorder prevented him engaging in a return to work. However, in determining this matter the Tribunal must consider all the applicant's war-caused and defence-caused injuries and diseases and all the evidence before it and, in light of Dr Koller's earlier expressed opinion that the applicant was unable to work, there is possibly another explanation as to why he failed to give an assessment under Table 4.4.
Dr Baz appears to have assumed that the applicant was vulnerable to be made redundant due to his accepted disabilities. There is no evidence before the Tribunal in the documents provided with respect to that redundancy to support Dr Baz's opinion. The applicant described considerable problems in recent years of low back pain to Dr Baz which has, more recently, been relieved by the use of orthotics. She noted that his sleep apnoea has been partially controlled by the use of a C-pap machine and that his hypertension is currently reasonably controlled with medication. He also described some pain in both his knees. It was Dr Baz's understanding that the applicant had difficulty mowing lawns due to back pain and she obtained a history that he had stopped work in 1994, having worked approximately five to six hours a week on average. She noted that gout affected the applicant's right great toe, gout not being accepted as war-caused or defence-caused. He does however have a deformity of his right great toe nail.
Dr Baz is the one medical practitioner who has considered the applicant's combined impairment ratings in considerable detail at the various dates when the applicant's conditions have been accepted as war-caused or defence-caused and, as it is her assessment that Ms Buchanan put to the Tribunal should be accepted, if the decision under review is to be set aside or varied, the Tribunal will consider those findings. As at 14 November 1994, the applicant's deformity of his right big toe and subarachnoid haemorrhage were accepted conditions. Before the VRB the applicant did not contend that he had any functional loss under Table 3.2.1 of the GARP with respect to his toe. Dr Baz assessed his functional loss as 5 impairment points under Table 3.2.2 and 5 under Table 3.4.1 as the applicant told her he experiences an increase in pain in his right big toe after walking two kilometres. The applicant also experiences pain at rest. A medical examiner, Dr Yung recorded on 11 May 1995 that the applicant had had a recurrent painful right big toe nail, but that "it is fine after operation" although there had been symptoms in the past, needing constant analgesics. Turning to the relevant Tables, the Tribunal is not satisfied, in the context of Chapter 3, that the applicant's functional loss with respect to his toe attracts 10 impairment points although, whether or not the applicant is entitled to an impairment rating of 5 points, makes little difference to the rate of pension payable at that time. The Tribunal notes the report by Dr J. Evans, orthopaedic surgeon, dated 15 May 1995 where he recorded that the applicant's big toe was sore after walking and that there was some loss of movement at the MP joint although the area was not particularly tender.
Turning to lifestyle in November 1994, Dr Baz assessed the rating as 4. There is limited evidence before the Tribunal with respect to the applicant's lifestyle in 1994 and, taking into account that the applicant's reported chronic recurrent back pain as a result of his lumbar spondylosis, is not relevant, the Tribunal considers that a lifestyle rating of 2 is more appropriate. The Tribunal notes that the Repatriation Commission found a lifestyle rating of 0 in June 1995. The Tribunal finds that the applicant's personal relationships were markedly affected in 1994 but his mobility was only intermittently affected by his big toe and he was still managing to carry out some work at the units where he lived. He was probably unable to continue accustomed recreational pursuits and his domestic activities were only intermittently affected, perhaps more so by his non war-caused or defence-caused disabilities and his relationship with his wife. Turning to the shaded area in Chapter 23 of the GARP, converting the applicant's ratings to establish a degree of incapacity, and rounding up the applicant's impairment points to 30, a lifestyle rating of 2 provides a degree of incapacity of 50 per cent.
At 9 January 1996 the applicant's post-traumatic stress disorder was also accepted as war-caused, and the Tribunal finds that he then had a combined impairment rating of 60 points. He was no longer working at that time and the evidence before the Tribunal points to a considerable deterioration in his lifestyle such that the lifestyle rating of 4 attributed by Dr Baz is, in the Tribunal's opinion, accurate. At that time the applicant was entitled to be paid pension at 100 per cent of the general rate. However, the applicant's lumbar spondylosis, hypertension and sleep apnoea were not accepted as war-caused or defence-caused, and he would have been precluded from being paid pension at the special rate at that time.
By September 1997, the applicant's sleep apnoea and hypertension had been accepted as war-caused or defence-caused and the issue remains for the Tribunal as to whether the applicant was then entitled to be paid pension under section 23 or section 24 of the Act. The Tribunal has considered what the Federal Court said in Fry v Repatriation Commission (1996) 47 ALD 776 where Spender J said, at page 777, that:
. . . "remunerative work that the veteran was undertaking" in s 24 of the Act does not refer to any particular job that the veteran had, but to the type of work that the veteran previously undertook. It need not be the last remunerative work that the veteran was undertaking, but it must be remunerative work that the veteran would have been undertaking at the relevant time in the assessment period had the veteran not been incapacitated by his war-caused disabilities. . . .
Dr Baz expressed the opinion that the applicant was not capable of working more than eight hours per week in work commensurate with his skills and qualifications, and that he had been similarly unfit since Dr Koller's assessment in March 1996.
The applicant had satisfied the provisions of paragraph 24(1)(a) of the Act for some time when his sleep apnoea and hypertension were accepted as war-caused or defence-caused. The Tribunal notes the opinion of Dr D. Rankin, general practitioner, dated 9 June 1999, where he, like Dr Baz, expressed the opinion that the applicant ceased work at the Reserve Bank, not because there was no work available for him but rather because there was no work available for him "with his disabilities". The Tribunal has turned its mind in particular to the effect of the applicant's lumbar spondylosis on his cessation of work at the units, and the fact that he took a redundancy package from the Reserve Bank, and the views expressed by Dr Lorentz that, if the applicant had not been made redundant, he would have been capable of continuing his work with the Reserve Bank. The applicant told the Tribunal that he may still be able to do the job in the mail room at the Reserve Bank. That may have once been so but, since he ceased work, he has had more time to ruminate upon the past (see Dr Koller's report) and there has been no incentive for him to stop drinking.
Turning to paragraph 24(1)(b) of the Act, the Tribunal finds that, by September 1994, the applicant's war-caused and defence-caused injuries and diseases were of such a nature, alone, to render him incapable of undertaking remunerative work for periods of more than eight hours per week. In Dr McMurdo's opinion the applicant has dementia due to subarachnoid haemorrhage and he would not be capable of performing any type of employment. He found the applicant to be impatient, irritable and depressed. Dr Coffey also reported on the effects of the applicant's subarachnoid haemorrhage. Together with his substance abuse, hypertension, sleep apnoea and post-traumatic stress disorder, the effects of his subarachnoid haemorrhage are such that the Tribunal finds he was incapable of working.
Turning to paragraph 24(1)(c) of the Act and whether the applicant should be taken to be suffering a loss of salary or wages by reason of his incapacity, the Tribunal must consider subsection 24(2). In Re Cripps and Repatriation Commission (AAT 12220, 8 September 1997) Deputy President McDonald said, at paragraph 25:
25. With respect sub-clause (b), there was no suggestion that the veteran had been seeking work since he had taken his redundancy. As was commented on in Re Martin and Repatriation Commission (1987) 13 ALD 83 and Re Harpley and Repatriation Commission (1996) 20 ALD 64 an inherent difficulty arises if s.24(2)(b) is applied literally in circumstances where a veteran is, because of his/her war-caused injuries or diseases, disabled from working, in being required to seek work. The Tribunal pointed out the rationale for the inclusion of sub-clause (b) in Martin as follows:
"It is not there to provide a further hurdle for veterans who were engaged in remunerative work before their retirement due to incapacity. Its role was described as a 'ameliorating' one in Re Sanfead and Repatriation Commission (1986) 11 ALN N77. It is there to cover the case of a veteran who was unemployed but genuinely seeking to engage in remunerative work when his incapacity from war-caused injury or disease became such as to prevent him continuing to undertake remunerative work. It allows such a veteran to satisfy the requirements of s.24(1)(c) even though at the relevant time he was not undertaking remunerative work. If s.24(2)(b) were not in the Act, veterans who had been unemployed at the time when their incapacity became so severe as to remove their capacity for work would never be able to qualify for pension at the special or intermediate rate." (p.95)
The inherent difficulty has also been pointed out by Spender J in Hall v Repatriation Commission (1994) 33 ALD 454 at 461 in the following terms:
"It seems to me that the question of whether a veteran has been 'genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to so seek' has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade."
In the instant case, the veteran ceased work as the result of not being able to continue because of suffering from the accepted disability of headaches. The evidence, including that from Dr Pointon, indicates that that condition has, if anything, increased in severity since his retirement. In those circumstances the Tribunal accepts that, while the veteran may have been willing to continue working, he has been precluded from working as the result of the accepted disability. Accordingly, the Tribunal is satisfied that the provisions of s.24(2)(b) are satisfied.
In this application one of the difficulties for the applicant in satisfying the provisions of section 24 of the Act is that, on the applicant's own evidence, he would have been able to continue working with the Reserve Bank if he had not taken a redundancy package and he thinks that he may still be able to do the job. However, he took the redundancy package in 1991 and the Tribunal is satisfied that, by 1997, the applicant, by reason of his incapacity, was prevented from continuing to undertake remunerative work and he has suffered a loss of earnings. The Tribunal is satisfied that the applicant continues to have a desire to work, but his own assessment of his capacity for work is not a realistic one with respect to the effect of his war-caused and defence-caused injuries and diseases upon him.
The applicant has not attained the age of 65 years. He has not been engaged in remunerative work. There was evidence before the Tribunal that he was genuinely seeking work, but that appears to have been during the early 1990s. The Tribunal is satisfied however that, were it not for his war-caused and defence-caused incapacity, he would still be seeking work. The Tribunal finds that it is his war-caused and defence-caused incapacity that is the substantial cause of his inability to obtain remunerative work. It appears from his own evidence that his back problems played a role in him ceasing work at the units. He provided a history to Dr Anderson that he experienced pain in his back but on examination Dr Anderson found that there was no tenderness, spinal curvatures were normal and there was no scoliosis or muscle spasm and he expressed the opinion that it was only "a possibility" that the applicant suffered from mild lumbar spondylosis. The Tribunal finds that his lumbar spondylosis precludes some work for which he is skilled, but that is not the substantial cause of his inability to find work.
Giving the applicant the benefit of the ameliorating provisions of subsection 24(2) of the Act, the Tribunal is satisfied that, by 18 September 1997, the applicant was entitled to be paid pension at the special rate. The decision under review will be set aside.
I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member(sgd) Catherine Thomas
Personal AssistantDate of Hearing: 24.08.00
Date of Decision: 21.12.00
Solicitor for the Applicant: Ms J. Buchanan, Legal Aid Commission (NSW)
Solicitor for the Respondent: Mr S. Modder, Departmental Advocate
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