Forbes and Repatriation Commission
[2004] AATA 600
•11 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 600
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/213
VETERANS’ APPEALS DIVISION ) Re RONALD McEWAN FORBES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, MemberDate 11 June 2004
PlacePerth
Decision The Tribunal sets aside the decision of the Veterans’ Review Board dated 21 May 2003 and, in substitution therefor, decides that the special rate of pension is payable to the applicant pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth), with effect from 11 October 1999.
..............................................
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – special rate of pension – applicant served in Royal Australian Navy between 1951 and 1972 – applicant operated tourist coach business and worked as coach driver from 1986 to 1994 – applicant closed business and ceased work as coach driver in February 1994 – in February 1994 applicant claimed service pension by reason of ischaemic heart disease, diabetes, hypertension – in December 1994 applicant claimed disability pension in respect of back pain, heart and artery closure – in September 1997 applicant’s lumbar spondylosis determined to be war-caused – applicant also suffered from cervical spondylosis, thoracic spondylosis and post traumatic stress disorder – in March 2002 applicant’s thoracic spondylosis, cervical spondylosis and cervicogenic headaches determined to be war-caused – pension paid at 100% of general rate with effect from 11 October 1999 – applicant totally and permanently incapacitated from war-caused diseases – applicant, by reason of incapacity from war-caused diseases alone, prevented from continuing to undertake remunerative work – applicant’s non-war-caused conditions made no contribution to his being prevented from continuing to undertake remunerative work – applicant thereby suffering loss of earnings that he would not otherwise be suffering – applicant eligible for special rate of pension – decision under review set aside.
Veterans’ Entitlements Act 1986 (Cth) s 19, s 24(1) and s (24(2)
Banovich v Repatriation Commission (1986) 6 AAR 113
Forbes v Repatriation Commission (2000) 101 FCR 150
Leane v Repatriation Commission [2004] FCAFC 83
Magill v Repatriation Commission [2002] FCA 744
Repatriation Commission v Hendy [2002] FCAFC 424
REASONS FOR DECISION
11 June 2004 Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, MemberIntroduction
1. Ronald McEwan Forbes (“the applicant”) has applied to the Tribunal for review of a decision of the Repatriation Commission (“the respondent”) dated 1 May 2002, as affirmed by the Veterans’ Review Board (“VRB”) on 21 May 2003. That decision was that disability pension was payable to the applicant under Part II of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”) at the rate of 100% of the “general rate” (within the meaning of s22 of the VE Act), with effect from 11 October 1999.
2. At the hearing the applicant was represented by Mr H Christie, solicitor, and the respondent was represented by Mr C Ponnuthurai, an advocate employed by the Department of Veterans’ Affairs (“DVA”). The Tribunal had before it the documents (“T documents”) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and the following documentary exhibits tendered in evidence by the parties:
·Statement of Ronald McEwan Forbes, dated 27 January 2004 (Exhibit A1);
·report of Dr Douglas Cavaye, dated 4 April 1996 (Exhibit A2);
·report of Dr Robert Goodwin, dated 2 July 1996 (Exhibit A3);
·report of Dr Peter Sharwood, dated 8 July 1996 (Exhibit A4);
·report of Dr Peter Sharwood, dated 6 October 1997 (Exhibit A5);
·report of Dr Louis Fenelon, dated 1 August 1997 (Exhibit A6);
·report of Dr Louis Fenelon, dated 30 June 1998 (Exhibit A7);
·report of Dr Kay Lane, dated 11 November 1998 (Exhibit A8);
·report of Dr Oleh Kay, dated 20 January 2004 (Exhibit A9);
·“Service Pension Claim – Permanent Incapacity Details” form, signed by the applicant and dated 4 February 1994 (Exhibit R1);
·“Medical Report – Permanent Incapacity for Service Pension Purposes” form, signed by the applicant and by Dr Martin Fox and lodged with the DVA on 14 February 1994 (Exhibit R2);
·“Emotional and Behavioural Condition – Medical Impairment Assessment” form, signed by Dr Louis Fenelon and dated 19 October 1998 (Exhibit R3);
·Report of Ms Cecilia Bendall, Psychologist, dated 27 August 1998 (Exhibit R4);
·Report of Dr Janine Clarke, dated 4 November 1998 (Exhibit R5).
Oral evidence was given by the applicant. There were no other witnesses.
Factual Background
3. Those relevant background facts which are not in dispute, and which are found by the Tribunal on the basis of the T documents and exhibits, are as follows.
4. The applicant, who was born on 6 October 1934, served in the Royal Australian Navy (“RAN”) between 1951 and 1972. During that period the applicant had various periods of “operational service”, which also constituted “eligible war service”, within the meaning and for the purposes of the VE Act.
5. In February 1994 the applicant lodged with the DVA a claim for a service pension. In the claim form (Exhibit R4) the applicant described the illnesses for which he was claiming “permanent incapacity”, and their commencement dates, as follows:
“High blood pressure September 1972
Heart attack … October 1974
Diabetes November 1989
5 heart bypass performed November 1989
Bypass required on legs January 1992”.
In response to the question, “How does your injury/illness stop you from working?”, the applicant stated:
“Short of breath. Can only walk 500 metres and have to rest. Can no longer drive a coach because of fatigue after a short time. Can’t lift any weights”.
As regards his work history for the previous 10 years, the applicant stated that he worked as a “Coach Captain” from 1983 to 1994, and, in response to the question, “When did you last work?”, he stated: “28/2/94”. In response to a request to give “details of any other circumstances that prevent you from working, that you think should be taken into account”, the applicant stated:
“By virtue of age (59½) could not get a position for 6 months when I would be due for pension plus being a danger to public in a heavy vehicle could not even change a tyre on the road”.
6. In an accompanying medical report form lodged with the DVA on 14 February 1994 (Exhibit R2), Dr Martin Fox summarised the applicant’s medical history as follows:
“Diabetes Mellitus – first diagnosed Nov 89.
Acute Myocardial Infarction 1974.
Coronary Artery Bypass Grafts x 5 1989.
Hypertension since 1972”.
In recording the results of his physical examination of the applicant, Dr Fox stated, under the heading “Locomotor system/Physique deformities”, “No disorders present”. Under the heading “Major diagnosis”, Dr Fox stated:
“Ischaemic heart disease
Diabetes Mellitus
Peripheral Vascular Disease
Hypertension”.
Under the heading, “Significant residual abilities” (sic), Dr Fox stated:
“Difficulty walking up stairs because of shortness of breath”.
As regards the applicant’s capacity to perform full-time work, Dr Fox commented:
“Unable to do any manual work or walk distances greater than 100 metres at one time. Cannot drive coach because of risk of hypoglycaemic episodes”.
In response to the question, “Is the claimant’s condition likely to improve in the foreseeable future?”, Dr Fox ticked the “No” box. Finally, in response to the question, “In your opinion is the degree of incapacity 85% or more?”, Dr Fox stated “Yes” and added:
“Cannot carry out work for which he is trained or has skills”.
7. On 2 December 1994 the applicant lodged with the DVA a claim for a disability pension in respect of “severe back pain, skin and foot disease, hearing defect, and heart and artery closure”.
8. A report of Dr Douglas Cavaye, Vascular Surgeon, dated 4 April 1996 states as follows:
“Mr Ronald Forbes has seen me on four occasions with peripheral vascular disease. He has bilateral calf claudication and a tight left carotid stenosis. He has previously undergone coronary artery bypass grafting for occlusive coronary artery disease. Mr Forbes underwent carotid endarterectomy some three weeks ago at which time an ulcerated tight stenosis of the left internal carotid artery was removed and a vein patch applied.
It is my opinion that Mr Forbes has widespread vascular disease and a major contributing factor is his cigarette smoking, which he commenced while in the armed services. I would support his application for pension entitlements regarding his arteriosclerotic disease, based on his commencement of cigarettes during his service.
In addition, Mr Forbes has pain in his lower extremities which may be referred pain from back pathology. Arteriography performed recently shows there are focal stenoses in the superficial femoral artery but no significant lesion that would cause such leg pain that he describes. It is therefore more likely to be due to another pathology rather than vascular disease alone.
…”
(Exhibit A2)
9. A report of Dr Robert Goodwin, Physician, dated 2 July 1996 regarding the applicant, states as follows:
“…
He had served in the Royal Australian Navy, joining in 1951, discharged 1972. He had a brief period of approximately 20 days in the Vietnam area during the Vietnam War. His history of ischaemic heart disease and atherosclerosis commenced in 1973, shortly after discharge from the Navy, when he noted chest pains with exertion. At that time, he had applied for an Executive position with Myers in Melbourne, but was rejected because blood pressure was known to be elevated. In 1974, he developed severe central chest pain, radiating into the left arm. His wife was a Coronary Care nurse and took him to the Frankston Hospital, where he was admitted. He had an acute myocardial infarction the next morning. He spent one month in hospital, resuming work later as Transport Manager for an industrial firm. In 1986, he bought his own bus line, operating for holiday tourists. He found that he needed frequent nitrates sub-lingually to keep going. In 1989, he was subjected to exercise testing and angioplasty and, on the basis of the findings, to coronary artery bypass grafting. As far as his heart is concerned, he’s been relatively symptom-free since operation. Following operation he was found to have non-Insulin dependent diabetes mellitus, for which he now takes medication. He did not cease smoking until January of this year. He had gained weight and had started a walking programme, but he found that he developed pain in both calves with exercise. He has been assessed by Vascular Surgeon, Dr Douglas Cavaye, and in February of this year was found to have a critical stenosis of his left internal carotid artery. This was operated on in March, 1996. In a report dated 4th April, 1996, Dr Douglas Cavaye comments on his tight left carotid stenosis and peripheral vascular disease. Dr Cavaye draws attention to the fact that he has back pathology which may contribute to some of the pain experienced in his lower extremities. Dr Cavaye supports the recognition of arteriosclerotic disease based on the commencement of cigarette smoking during service. I note that he had commenced smoking in 1952 and ceased smoking in 1996. He has generalised atherosclerosis and has associated hypertension and a history of heavy smoking pattern.
…
On physical examination, on 2nd July 1996, I noted his weight to be 83 kgms. Blood pressure was 170/90. The heart sounds were normal. There was no evidence of heart failure. He had absent pedal pulses and poor pulsation in both femoral vessels. I noted the scar of the bypass surgery and the scar over the lefthand side of the neck relating to his previous carotid thrombectomy.
I concluded that his generalised arteriosclerosis has precipitating causes of a long-continued smoking pattern, the presence of hypertension, and is made worse by the development of non-Insulin dependent diabetes mellitus.”
(Exhibit A3)
10. A report of Dr Peter Sharwood, Orthopaedic Surgeon, dated 8 July 1996 states as follows:
“In order to prepare this report, I examined Mr Forbes on the 8th July 1996.
HISTORY: Mr Forbes is complaining of problems of pain in his back, his neck and his shoulder which he believes may be related to his war service as a Sailor in the Australian Navy. He tells me he enlisted in the Navy in 1951 and served for some 22 years until his discharge in 1973. His medical documents, copies some (sic) of which were available in the Section 37 documents, indicate a report of some back pain in June of 1969. X-rays were taken at that time which showed no evidence of any abnormality. There is another record of a history of back pain in 1970 which states that he had had troubles for some four years prior. A report on the 23rd April 1970 indicates that there was some evidence of Schmorl’s nodes though the intervertebral disc spaces were said to be normal. Degenerative changes were seen in the lower thoracic region and there is a possibility when one interprets this report that he may have had some evidence of Scheuermann’s osteochondritis which of course had long pre-dated his enlistment in the Navy. A medical examination on the 6th January, 1971, in HMAS Sydney indicated that he had had back pain of unknown origin which had been investigated. Unfortunately there is no clinical record of the investigation, nor of the clinical history of it. The member himself states that, whilst serving on the HMAS Sydney and specifically on one episode when at anchor in Vung Tow (sic) Harbour, he was required in his job to examine the hull on the ship from the inside. On two occasions he fell whilst climbing down ladders inside the hull. He said he hurt his back at the time but the stress of his job prevented his attending the Sick Bay and reporting the episodes. He had had pain in the past, it had got better and he had lived with it.
Shortly before joining the ship, he sustained a significant injury to his back and neck as a result of a motor vehicle accident and had spent one month in Balmoral Hospital. Unfortunately in the Section 37 documents there are no records of his hospitalisation and it would seem to me rather relevant that this injury needs to be considered.
Throughout this member’s military career, his job was initially arming aircraft and this involved a lot of heavy lifting into difficult areas. He had complained of backache over a period of time and the records of investigation and management of this, to say the least, are scanty. There seems little doubt though, that there is radiological evidence to suggest that he may have had radiological changes described as Scheuermann’s disease present and it is well recognised that this predisposes patients to lumbar disc problems. This I think could be considered a depositional joint disease in the relevant area before the clinical onset of lumbar spondylysis from which he undoubtedly suffers now.
There is a history to suggest that he has had significant trauma to his back if one accepts his history of the motor vehicle accident and the falls into the ship. There is, as well, a history recorded in November, 1971, of significant right sciatica. This affects the right leg with irritation and clinical signs of damage to the L5 and S1 nerve roots on the right side. This was recorded by Dr Hopper, consultant Specialist in Orthopaedics on the 15th November, 1971 and contained on page 83 of the Section 37 documents. The referring doctor there suggested it may date back to the road traffic accident two years before. I think, as well, the history of the falls into the hull of the Sydney, if this history is to be accepted, would be a significant contributing factor as well.
Currently Mr Forbes complains of severe back pain and pain extending down both legs. He gives a very classic history of spinal stenosis with an inability to walk more than about 300 metres without having to sit down. He has had significant problems with cardio-vascular disease and recently with carotid artery disease following which he has developed some pain the left shoulder and down the left arm.
EXAMINATION: Clinical examination today reveals that he has good forward flexion of his neck, but restriction of lateral flexion and lateral rotation, particularly to the left side. Movements of his shoulder cause him pain and he cannot abduct it without discomfort. His grip on the left side is good and wrist flexion test is negative. There seems to be no sensory dysfunction in the hand.
Examination of his back reveals that he has reasonable flexion, but no hyper-extension. Lateral flexion is as well, restricted, particularly to the left side. Although he can do a bilateral straight leg raise, there is some discomfort on straight leg raising, though he can achieve a normal range. He cannot do a sit-up without discomfort.
When assessing his pain reporting and activity level, he scores on his perception 34 from 51. Waddell’s evaluation of the function of his spine reveals a score of 21 out of 49, giving him an overall score of 56 from 100. His x-rays show severe lumbar spondylitis with facet joint osteoarthritis and root canal stenosis. There is marked narrowing of the L5-S1 disc on plain films and some evidence to suggest that at the L4-5 level there is some instability
This man’s condition in his back is far greater than one would anticipate in someone his age if one just considers his degenerative changes. He has significant spinal stenosis and his symptoms would be more consistent with a patient many years older. The symptoms seem to be worse than the radiological signs. One can see a long standing partially calcified disc protrusion in the lower lumbar spine. Although the x-ray report suggests there is no specific spinal stenosis, I don’t concur with this, but would suggest that the narrowing of the lateral recesses is significant root canal stenosis and it is this which is causing his symptoms. This can only be effectively relieved by surgical intervention.
OPINION: I believe this man is significantly disabled. I think he is going to need surgical treatment for his back fairly soon and that there is evidence to suggest that his symptoms relate to his military service. I think that he has been subjected to many years of stresses on his back, relating to his Naval employment and there are episodes in his defence service and possibly war service which are contributing factors in this problem.”
(Exhibit A4)
11. A further report of Dr Peter Sharwood dated 6 October 1997 concerning the applicant states as follows:
“…
He now appears to be quite significantly disabled and has great difficulty getting out of a chair He indicates most of his pain to be in the lower lumbar region with still some troubles around his neck and the right shoulder. He tells me he can only walk one hundred metres and has to sit down. I believe the Department of Veterans’ Affairs in their wisdom told him he should go back to work. I just wonder whether they would employ him
Examination today reveals that he does have significant difficulty when moving. He has reasonable flexion of his back to about 40 degrees but beyond that, he cannot move. Extension was not possible and lateral flexion and lateral rotation were less than half the normal range. He complained of discomfort in his left leg on straight leg raising and can achieve only 45 degrees on both sides. He was able to do a bilateral straight leg raise and a sit-up with difficulty. As far as I could detect, power, tone, reflexes and sensation in the lower limbs were within normal limits.
I reviewed his x-rays and they show extensive spondylitis throughout his thoracic and lumbar spine. Essentially I believe he has ankylosing spondylitis and one can see on the AP films that union between the vertebrae is progressing. I noted his chest expansion was at the best 1.5 cm and this would confirm the likelihood that he has ankylosing spondylitis.
So far as surgical intervention is concerned, it may improve his ability to walk, but certainly will not change his backache. I don’t think anyone need do anything about his thoracic spine as this is now fairly rigid and not likely to change. He has some evidence of narrowing of the root canals in the cervical area which may benefit from surgery in the future, though in my experience most of these do not require surgical intervention.
…
Clearly he is significantly disabled. I could not imagine his ever being able to be employed again and I cannot understand the logic of anyone suggesting that he should try to find a job, because even if he did, he won’t last. …”
(Exhibit A5)
12. A report of Dr Louis Fenelon dated 1 August 1997 states as follows:
“Mr Forbes has been my patient for approximately two years, initially at the Currimundi 7 Day Medical Centre and at my current practice. In the preparation of this report I have read and noted the extensive correspondence and records relating to Mr Forbes’ hearing with the DVA.
I have been aware of Mr Forbes’ back pain since first consulting him. I have good understanding of his longstanding pain and the history of injuries whilst serving in the Royal Australian Navy. I have prescribed analgesics and updated physiotherapy referrals regularly. There has been cause to order further investigation of his spine at times.
Notwithstanding his other medical problems and the fact that he has been disabled temporarily by hospital admissions relating to vascular surgery, his underlying disability is his lumbar spondylosis.
A recent exacerbation of thoracic spine pain is documented in his general practice and physiotherapy notes. His degenerative thoracic spinal changes have been recognised for many years and were reported prior to discharge from Naval Service around 1970. However, whilst this condition may be related to his lumbar spondylosis in that recorded injuries may have led to both conditions developing, the thoracic pain has not been the cause of total disability at any time prior to 1997.
Therefore in summary, during my attendance of Mr Forbes I believe he has been work disabled due to lumbar spondylosis and that his other medical and musculoskeletal problems have only intermittently had a disabling effect on his lifestyle. His lumbar spondylosis not only prevents work, but necessitates regular physiotherapy and the continuous use of narcotic based analgesics. This condition will be permanent.”
(Exhibit A6)
13. In September 1997 the Tribunal made a consent decision that the applicant’s condition of lumbar spondylosis was a war-caused disease, within the meaning of s 9 of the VE Act, with effect from 2 September 1994, and disability pension was paid to the applicant at the rate of 40% of the “general rate” with effect from that date.
14. A further report of Dr Louis Fenelon dated 30 June 1998 states as follows:
“I have prepared this letter on the basis that the Department of Veterans’ Affairs seems to regard Mr Forbes’ work disability as being due to a combination of medical problems including ischaemic heart disease, thoracic spondylosis, torticollis etc.
Historically, Mr Forbes’ work disability began with an episode of acute lower back pain. He has subsequently suffered severe ongoing lumbar pain which prevents sitting, walking, lifting and day to day activities. At times he requires assistance with bodily functions including cleaning after toileting.
In my opinion Mr Forbes’ ability to perform his prior duties of office work and driving related to his bus charter service are not possible entirely due to his lumbar spinal disease. His other medical problems do not prevent such work duties.” (original emphasis)
(Exhibit A7)
15. A report of Ms Cecilia Bendall, Psychologist, dated 27 August 1998, addressed to Dr Louis Fenelon, states as follows:
“Thank you for referring Ron for twelve sessions of therapy, on approval through the Department of Veterans’ Affairs (DVA). Ron advises that he has a DVA pension with accepted disabilities of a back injury and hearing defect (70%).
Clinical Presentation
An immaculately attired gentleman in his early sixties, Ron is severely physically disabled (uses a walking stick, and cannot sit for more than 15 minutes without experiencing extreme difficulty in getting out of the chair, and discomfort if he continues to remain seated).
During the assessment interview, unintentionally questions elicited secondary traumatisation of an event which had occurred in his Navy career. He ‘broke down’ and sobbed as he asked why the vision remained so clear after more than thirty years.
Brief History
[Ms Bendall summarised the applicant’s family and marital history, and continued:]
After leaving school at the age of 16, Ron was apprenticed (motor mechanic) for approximately one year, giving this up to play football in a semi professional capacity. He then joined the Australian Navy, retiring as a Chief Petty Officer, after 22 years (in 1972) due to his being advised that he had to ‘go back on the Melbourne’. Whilst in the Navy, his overseas service consisted of ‘225 days of active service in Vietnam, South East Asia, Malaya, and the Strategic Reserves’.
Subsequent to his retirement from the Navy, he was employed as Transport Manager for Brambles in Melbourne ‘walking out after twelve months, without giving notice, when they would not do what I told them’. He worked for the next two years as Transport Manager/Security Officer for Smorgans. This was the last time he worked as an employee and, until being forced to retire in 1994, had his own businesses (taxi, travel agency, coach).
Prior Medical and Psychological history
Ron sustained injury to his back, whilst in Vietnam, ‘ in Vung Tau harbour’ and after a protracted process, including attendance at the Administrative Affairs (sic) Tribunal was granted a 40% disability pension in September 1997.
Suffering from untreated hypertension for most of his Navy career, Ron had heart bypass surgery in November 1989. A recent appointment with his heart specialist has lead to a referral for tests to check lung capacity, which will involve hospitalisation for two days next week.
He continues to experience severe and disabling back pain and has attended the pain clinic at Greenslopes to have ‘an epidural’, with further such ‘nerve block’ processes being planned for next month.
…
Details of Traumatic Experience as narrated by Ron
‘We were escorting the Sydney in the Melbourne in 1965 … I was Petty Officer in charge of the flight deck, the No 1 Parking Officer, loading aircraft on the catapult … I shot this bloke out one night, I knew him … I saw he missed the wires … he put power on too late and hit the side of the gun swanson on the port side … I could see it all happening and, stupid as it seems, I ran towards him … I could hear the propeller and the shrapnel whizzing past me … what could I have done … his plane hit the water upside down … there was froth everywhere … they got the helicopter to him … and got the two passengers but not Cavanagh (the young pilot) … they brought back his helmet with half his head in it … that’s all I saw … and it was not pleasant … I tried to put it out of my mind … but it is still there as vivid as the day it occurred … I was never able to go back to the Melbourne after that incident and was transferred to Adelaide …’
As stated, Ron experienced retraumatisation whilst recounting this event, and to date, therapy has not explored any further experiences of a traumatic nature that he may have experienced whilst serving in the Navy.
Symptoms as described by Ron
·Insomnia ‘ever since that day when Cavanagh was killed it has been difficult to go to sleep before 3 am … and some nights I walk the floor all night’
·Night terrors ‘wake screaming, kicking, dripping sweat, and my heart pounding … at other times Lois tells me I cry out in my sleep’
·Nightmares, ‘often like a reliving of that night, or feeling terrified and helpless’
·Irritability and unexpected outbursts of verbal aggression
·A number of instances of physical aggression, for example ‘when I was the Manager of Brambles, whilst driving one day, a person cut me off … I chased his vehicle, cut him off, stopped him, and punched him through window and then burst into tears … I am not a violent man and yet I have done things like this …’
·Avoidance of reminders of the trauma (resigning from the Navy rather than return to the Melbourne)
·Crying ‘for no reason’
·Concentrative and attentional deficits
·Exaggerated startle response
·Hypervigilance, ‘it is amazing, I take my hearing aids out at night, but can hear the slightest sound’
·Depressed
·Demotivation
·Rapid mood swings
·Suicidal (Two prior suicide attempts)
·Inability to adjust to incapacity and being dependent on Lois ‘to even help me wash myself’
·Sense of emotional isolation
·Inability to maintain or form close friendships, ‘we have been up here for four years and I have not formed a friendship, and I have broken contact with what few mates I had’
·Inability to enjoy previously enjoyed activities (music)
·Avoidance of public places, ‘On Anzac Day I was determined to go to the RSL but I could only stay for a half an hour’
·Ashamed … ‘all these years I have blamed everyone else, I was right and they were wrong … now I look back and realise I was so intolerant … so rigid’
·Hypertension
·Chronic and incapacitating back pain
Formal Test Results
The following psychometric instruments were administered:
·Beck Depression Inventory (BDI) Ron scored 50, indicative of his currently experiencing a Major Depressive Episode, with suicidal ideation.
·State Trait Anxiety Inventory (STAI) Ron scored highly on the anxiety measures, indicative of his currently being highly anxious and that he would have difficulty in coping with unexpected stress.
Diagnosis
The symptoms described by Ron meet Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria for Post Traumatic Stress Disorder, Chronic (PTSD) as a result of the traumatic experiences associated with his Navy career.
He was forced to retire in 1994, due to increasing difficulty in controlling mood swings and maintaining civility with others, indicative of his PTSD symptomatology precluding him from being able to continue working.
In addition, he is currently experiencing a Major Depressive Episode with suicidal ideation, and suffers from chronic pain.
[Ms Bendall then summarised the therapeutic intervention to date, set out her recommendations, and concluded:]
Thank you once again for referring Ron for therapy. A person with Chronic PTSD and depression, as well as being severely physically disabled, it is considered that Ron will require regular therapy for a considerable period of time.”
(Exhibit R4)
16. In a DVA “Emotional and Behavioural Condition – Medical Impairment Assessment” form, dated 19 October 1998, Dr Louis Fenelon provided an assessment of the applicant’s post traumatic stress disorder (“PTSD”). In the course of that assessment Dr Fenelon commented on how that condition affected the applicant’s capacity to work as follows:
“Although he has been incapacitated by his spinal condition since I first met him, I have discussed his past work as a tour bus owner/driver. He had episodes where anger interfered with that job”.
Dr Fenelon also stated that he was seeing the applicant every 2-3 weeks “for his back and other medical and psychological problems” and that the applicant had (apart from his PTSD symptoms) “other symptoms due to other problems”. (Exhibit R3)
17. A report of Dr Janine Clarke, Consultant Psychiatrist, dated 4 November 1998, states as follows:
Mr Forbes was referred to me by his general practitioner, Dr Louis Fenelon, and first attended my surgery on the 7th October, 1998. He has attended on one further occasion on the 27th October, 1998.
Mr Forbes described a number of physical symptoms to me. I do not intend to address these as they are not within my speciality and I cannot make appropriate comment. I will restrict myself to writing this report about his psychological status.
Mr Forbes reported to me that he had been speaking to his advocate at the RSL about his claim to DVA regarding back injuries when his advocate suggested to him that he should also be looking at a claim for PTSD. He then went on to tell me that he had never discussed his symptoms with his general practitioner as he believed that he should be able to handle the situation himself. He stated that he had recognised for a long time that he “couldn’t handle things”. He also believed that he was the only one who was right and everyone was wrong and would argue with people extensively at this level. He found that he had lost a lot of friends and now has increasing difficulty mixing with other people. He gave a history of getting over-involved in situations and then just when things seemed to be going well he would suddenly walk away from them because he could not cope with the intensity that they generated. This attitude can also be seen with his relationships in that he has been twice divorced and now feels his third marriage is in trouble. I do believe they are trying to sort out this situation. He told me, with some shame, that in all his relationships there had been varying degrees of violence towards the women, including physical on occasions. He said this was not like his normal character in his youth.
Mr Forbes told me that he left the Navy in 1974 with the rank of Chief Petty Officer. He had served for 22 years. He described to me a number of instances during his service life that had caused him concern but the one that frequently recurs in his mind involves a posting as the equivalent of a parking director on the Melbourne. He became quite friendly with a young pilot seeing him on a social level as well as their service contacts. He said he had taught him his ‘touch and goes’. In 1965 the young pilot came in to land and missed the wire. The aircraft went into the water and Mr Forbes rushed to help him through flying metal at some danger to himself. He still sees this instance very clearly. In his dreams he sometimes goes into the water after the young man. He then became quite tearful as he told me what the rescue service had handed him after their retrieval operation. This was the pilot’s helmet with half his head still there. He said he could not then or now handle the situation effectively. He attempted to ease his distress by drinking heavily for some time but found that that did not work. He was also prescribed Valium but this caused excessive day-time somnolence and he ceased that as well. Since this incident he has never been able to go back to the Melbourne, even for family days with his son. One of the reasons he resigned from the Navy was because he was due to have another Melbourne posting and he could not cope with that thought.
Other symptoms he described to me involved feelings of depression, crying for no apparent reason, loss of interest in some of his previously enjoyed past times, and as mentioned before ongoing problems with his temper. He has also recently cancelled all contact with the Fleet Air Arm, refusing now to attend their reunions. He is increasingly isolative. He also described two attempted suicides, both via over-dose. He had recently thought of this again when he believed his third marriage was in serious trouble. I do not believe he is specifically at risk at the moment.
Mr Forbes attracts a diagnosis of Post-Traumatic Stress Disorder based on DSM-IV criteria.”
[Dr Clarke then set out those criteria, and concluded:]
“Although Mr Forbes has some symptoms of depression, they would appear to be related more to the symptoms of his PTSD and do not on their own, at this stage, constitute a separate diagnosis of Major Depressive Illness. Nevertheless, I have suggested that he try an anti-depressant (Aurorix) to help him cope with his symptoms and to deal with his increasing anger. It will also assist his tearfulness and his frequent feelings of sadness. I have also asked him to come along for regular supportive counselling and specific treatment for his flashbacks of the traumatic events.
…”.
(Exhibit R5)
18. Following an application by the applicant for an increase in the rate of his disability pension, the VRB, on 15 December 1998, set aside a decision of the respondent and, in substitution therefor, decided that disability pension was payable to the applicant, in respect of war-caused conditions of lumbar spondylosis and bilateral sensorineural hearing loss with tinnitus, at the rate of 90% of the “general rate”, with effect from 13 July 1997. The applicant subsequently lodged with the Tribunal an application for review of the VRB’s decision.
19. On 6 August 1999 the Tribunal affirmed the VRB’s decision: Re Forbes and Repatriation Commission [1999] AATA 735. In its reasons for decision (in which it found that the applicant was not eligible for payment of disability pension at the “special rate” under s 24 of the VE Act), the Tribunal stated (at paras 16-17):
“16. …In February 1994, in his claim for service pension, the applicant claimed to be incapable of performing his previous employment due to high blood pressure, ischaemic heart disease and diabetes. The medical evidence also added PTSD as a reason for his incapacity for work. However, as already stated, the PTSD was brought under control by appropriate treatment. The heart and blood pressure conditions have become non-symptomatic.
17. The Tribunal finds that the reason the applicant is prevented from continuing in his previous remunerative employment as transport company manager/driver is a combination of his lumbar and thoracic neck spinal conditions, and not lumbar spondylosis alone. For this reason, the applicant does not satisfy the ‘alone’ test set down in s 24(1)(c).”
An “appeal” to the Federal Court of Australia against the Tribunal’s decision was dismissed on 24 March 2000: Forbes v Repatriation Commission (2000) 101 FCR 50.
20. In the meantime, on the 28 September 1999, the applicant had lodged with the DVA a claim that his conditions of thoracic spondylosis and headaches were war-caused, and an application for an increase in the rate of his disability pension to the “special rate” pursuant to s 24 of the VE Act.
21. On 19 March 2002 the Tribunal, following a review of earlier decisions of the respondent and the VRB, decided that the applicant’s conditions of thoracic spondylosis, cervical spondylosis and cervicogenic headaches were war-caused, with effect from 11 October 1999. The matter was remitted to the respondent to determine the appropriate rate of disability pension payable to the applicant, having regard to the Tribunal’s decision.
22. On 1 May 2002 a delegate of the respondent decided to increase the rate of the applicant’s disability pension to 100% of the “general rate”, with effect from 11 October 1999. On 7 May 2002 the applicant lodged with the DVA an application for review by the VRB of the delegate’s decision. On 9 December 2002 the VRB adjourned the hearing pending the receipt of further specialist medical opinions from an orthopaedic surgeon and a physician.
23. Dr John Suthers, Occupational Physician, provided a report, dated 11 February 2003, to the DVA as follows:
“Thank you for referring Mr Forbes to me for a review of his medical problems the eyes, heart and diabetes. I saw him in my rooms at Mt Lawley on 11 February 2003.
…
HISTORY
Mr Forbes is aged 68. Between 1951 and 1972 he was a member of the Royal Australian Navy until he retired at the age of 38 as a CPO. He saw service on several ships during which he did about 7 trips to Vietnam.
PRESENT PROBLEMS
Mr Forbes is currently experiencing:
·constant neck pain
·frequent headaches
·constant low back pain.
The low back pain feels like central red hot poker that spreads in a band like fashion over the iliac crest and upwards towards L1. He tells me that his other problems dealing with his eyes, diabetes and heart are non issues.
He tells me that on a typical day at home he does nothing but read, sits around and watches TV. He has been in this mode since he gave up working 12 months ago because he was unable to drive easily except on main roads as he was unable to rotate his neck. He has actually been driving regularly up until about 6 weeks ago. He is now entirely dependant on his wife as a chauffeur.
In addition to the above he attends Lions Club meetings at Bassendean twice a month. He is unable to wash a car, as he cannot reach on top of the vehicle. His wife from whom he is separated acts as his carer.
Over the last 10 years the treatment for his lower back has been based on physiotherapy. He has also had 12 rhizotomies. These are directed at about the level of L5/S1 and give him 3 to 6 months relief. He has also had chronic neck pain again treated with 3 rhizotomies, 2 of which were in Perth. These normally give him about 3 months’ relief. He has not had any for about 18 months as he has lost faith in them. The most recent injections were by Dr Graziotti and directed to the neck and lumbar region. He has not had any for the last 18 months. He tells me that Veterans’ Affairs gave him a walking stick in Brisbane about 6 years ago because of low back pain. He always uses it in his right hand when he is out. When he is around the house he is usually in pretty good shape and uses the furniture to lean on. He uses the walking stick because of the pain in the right side of the hip.
He tells me that his neck feels as if the head weighs a ton. He has constant headaches for which he takes 8 Panadeine Forte a day.
He recounted how the original injury occurred when he fell 20 feet onto the deck of the Sydney landing flat on his back which caused the original injury in about 1969. I understand his back was accepted as a compensable war injury in 1996. Following a Federal Court hearing in 1999 the neck likewise was accepted. He attended an AAT hearing assisted by Dr John Croser in September 2002.
PAST HISTORY
Mr Forbes had an appendicectomy as an emergency procedure in 1954.
In 1974 Mr Forbes had a myocardial infarct. He had a coronary artery bypass graft (x5) in 1989. At the time of the coronary artery bypass graft in November 1989 Mr Forbes was diagnosed a diabetic. This has never been a problem to him and he has always kept it under control with Amaryl and Diaformin. For the last 7 years he has been taking Lipitor for hypercholesterolaemia. His current cholesterol is 3.2 mg/dL. Hypertension has been treated with Avopro for the last 5 years.
In 1997 he had a left carotid endarectomy in Royal Brisbane Hospital which was asymptomatic.
He has had 2 benign growths removed, one in 2000 and the other in 2001.
Bilateral carpal tunnel release by Dr Alan Wang in 2001 for treatment of paresthesia in the fingers. These have now resolved completely.
He has also had trigger finger treated with a steroid injection into the right middle finger.
INVESTIGATIONS
Mr Forbes did not bring any imaging studies with him today. He tells me that after arriving in WA there was a flood in his house and he lost all his x-rays.
PRESENT TREATMENT
Mr Forbes medication has been detailed above. He tells me that at the moment his diabetes is under excellent control both for blood sugars and his haemoglobin A10. He has no problems with his eyes, kidneys or liver and when he gets regular checks for his glasses prescription he also has fundoscopy checks.
WORK HISTORY
Mr Forbes is separated although he still lives and shares a house with his wife. She acts as his carer. Their children have left home. He still smokes about 10 cigarettes a day such as he has done since 1952. As a young man aged 16 he played second and reserve grade football for Carlton in 1948/49. He has also played golf, cricket and indoor bowls. He has not been able to play lawn bowls since he has been in Perth.
Mr Forbes left school at the age of 16 and then entered the Navy as described above. After discharge in 1972 he worked for Brambles for 12 months as a transport manager, Brambles Industrial Waste for 15 months as a manager, 2 ½ years with Cargo as a transport security manager and then 6 months in Adelaide with a transport company. He then returned to Frankston in Victoria where for 8 years he owned and operated a taxi. He then moved into the travel agency business which he operated for 2 years. He then was a coach driver for interstate coaches progressing from being a driver to a sales manager. He worked for 8 ½ years through until 1994 with Pat & Ron’s Tours as a tour operator taking clients from Melbourne to NSW and also extended tours. This business was sold to New Zealand operatives at that time because of his ongoing back problems. It would appear that in 1994 after he was awarded a Veterans’ Affairs pension he then remained out of the work force for some 6 years. During this time they lived in Caloundra, Queensland. His daughter in Perth asked them to help in her business called South Australia Travel of which she is the director. He started working August 2000 as the despatch officer of the Indian Pacific Railway where on 2 days of the week, Monday and Friday, he would spend 2 hours at the desk seeing off the train. He did this for 6 months but because of the low back pain and neck pain he then had to change his job. He then spent 12 months in another role planning itineraries and visiting clients, working scattered hours and earning about $90 a week.
He has been unemployed for the last 12 months.
CLINICAL FEATURES
Mr Forbes is 172 cm tall and weighs 73kg. His heart sounds were normal. The chest was hyper expanded, he had scattered rales at both basis. The right carotid had an audible bruit the left was unremarkable. The peripheral pulses and skin nutrition in the lower limbs appeared normal. Fundi were normal. Abdominal examination was normal.
One examination of the lumbar spine he was able to forward flex to the level of the upper thighs. There was no measurable lumbar extension. Lateral flexion and rotation were similarly reduced. He was extremely tender over the lower lumbar region. Straight leg raising was 10° bilaterally, he could walk on his heels and toes and there was no evidence of any neurological deficit in the lower limbs. His hip joints appeared mobile and flexible. In addition to the superficial tenderness he also had positive distraction testing and reaction testing.
On examination of the cervical spine he was able to forward flex minimally. Lateral flexion was likewise minimal. Rotation to the right was better than on the left but limited to about 30°. Lateral flexion was also extremely restricted. His posture was stiff, he walks with a very slow gait and had a right sided limp. He was unable to squat. I note the evidence of Heberden’s nodes on his hands. He indicated that these arthritic changes were asymptomatic. In addition to the marked tenderness he had positive distraction signs and reaction testing.
DIAGNOSIS
Mr Forbes has chronic neck and back pain. I note from the correspondence that this is due to spondylitic changes. I have not had the opportunity to review any imaging studies. He also has significant non organic signs.
He also has a history of ischaemic heart disease requiring coronary artery bypass grafting. He has responded well to this and appears to be in a rather stable asymptomatic situation. He is receiving treatment for hypertension and hypercholesterolaemia. Medication seems to be controlling these issues well.
Since 1989 he has had diabetes mellitus. This is well controlled on oral medication again based on his history. He does not have any specific complications of the condition.
He did not describe symptoms of post traumatic stress disorder. I notice the claims of tinea pedis and ocular problems. He did not raise these with me as an issue. There was no clinically significant pathology with regard to those items.
OPINION
As requested and as Mr Forbes pointed out he is due for review by an orthopaedic surgeon with regard to his spinal problems. I will leave such further comments to my orthopaedic colleague to review.
With regard to the non orthopaedic issue it is my opinion that the heart condition while quite serious some 15 years ago has now stabilised and is well under control and appears to be causing him minimal, if any, impairment and disability.
Likewise, the diabetes is under good control and again not causing any significant impairment or disability.
Certainly with regard to his work capacity I do not believe that there has been any time in the last 5 years when he has had clinical problems from these non compensable issues likely to limit his work capacity in either the choices or to the extent that he can do the work. I notice that he has been working reasonably well through until just recently. He attributed the difficulty with this work to his orthopaedic problems. It is worth reiterating the emphasis that Mr Forbes made about him not having any difficulty with the non compensable diagnosis as it relates to his work capacity….”.
(T16, pp85-88)
24. Mr Stewart Brash, Orthopaedic Surgeon, provided a report, dated 18 February 2003, to the DVA as follows:
“I refer to your letter dated 16 January 2003. At your request I saw this 68 year old man on 13 February 2003 for the purpose of preparing a medico-legal report.
The original service medical records were not available for my review, so I had taken a history from this patient.
This patient served in the Royal Australian Navy as a medical Chief Petty Officer from October 1951 until August 1972. During this time he saw service in Korea, Malaysia and Vietnam.
I understand that he was discharged in August 1972 and that his medical status was, according to Mr Forbes ‘alright’. He did state that he put on the back of his form, ‘severe headaches, haemorrhoids and severe back aches.’
He told me that when he was aboard the HMAS Sydney the ship ran aground at Vung Tau. He was not sure when it ran aground. His job was to check the lower holds. He went down a steel ladder which was wet. He slipped, and he tells me that he fell 20 feet and landed on his back. He landed on a steel deck. There were no cuts but there were bruises. There was no loss of consciousness.
He was able to get himself up. A rope was sent down from above and he attached himself to the rope and was hauled up.
He went to the ship’s hospital where he remained for only 15 minutes. He was not admitted to the ship’s hospital. He then told me that he was given analgesics and he lay on his bunk for 3 days. He then got up and moved around the ship and started to perform his normal duties, although he was complaining of low back pain and shoulder pain. He has complained of low back pain and shoulder pain since that time.
He told me that 6 weeks after the accident on the HMAS Sydney he did have x-rays. These x-rays were not available for my review. No fractures were seen according to Mr Forbes. He also saw a Orthopaedic Surgeon, but apparently no specific treatment was given.
That is, he had the incident when he fell on the HMAS Sydney. He was 3 days on his back and then he was back on full duties and he remained on full duties up until his discharge in 1972.
Towards the end of his career he was a transport officer.
Upon his discharge he worked for 8 months for Brambles as a transport manger. He then, still working with Brambles, was the manager of industrial waste. He then worked with Smorgons as transport and security manger for 2 ½ years. He was then made redundant.
He then bought a taxi and taxi plates, and he was a taxi driver around Frankston, Victoria for 8 years.
Following this he was a coach driver for VIP Coaches for 6 months. He then became Sales Manager for VIP Coaches. Following this, with a partner, he commenced his own business running coach tours. He did this for 8 ½ years up until 1994. In 1994 he retired on a Department of Veterans’ Affairs service pension.
Upon his retirement he started to go around Australia with a caravan. He got to Cairns. He had a sudden onset of severe low back pain which prevented him getting out of bed. He was then taken to Cairns Hospital. He was then flown to Melbourne. No operation was undertaken. He then describes 18 visits to a chiropractor for neck and back problems.
Thus, past treatment, beside chiropractic treatment has consisted of manipulative physiotherapy. He also has had 8 rhizotomies which has given temporary relief only. He also has had cortisone needles in the neck.
When going into a bit more specific detail about the neck he told me that he first had neck problems in 1989.
His present treatment is Panadeine Forte tablets, 8 per day. He was given a walking stick in 1998 and he continues to use the walking stick. He does have ischaemic heart disease, in fact in 1996 he had a carotid endarterectomy. He is also taken (sic) diabetic tablets for diabetes.
Besides the carotid endarterectomy in 1996 he has had two growths removed from his throat. The last was using laser. 18 months ago he had a bilateral carpal tunnel syndrome.
At the present time this patient is complaining of constant pain in the neck and the back. He tells me that he has lost 14kg in the last 12 months and I believe this has been investigated. If not it should be thoroughly investigated.
He has constant pain in the neck with decreased range of motion. The neck pain radiates to the shoulders and to both armpits. He knows of nothing which makes the pain severe. The pain is relieved with a head rest and resting in bed. On a scale of 0 to 10 with 0 being no pain and 10 being the worst pain imaginable the pain can go up to 10 out of 10. Compared to a year ago the symptoms have remained the same. He has attended the pain clinic but this has not helped his neck. As stated above he told me that he first had neck pain in 1989.
This patient continues to have constant low back pain made worse with bending and twisting. On the same scale this man’s back pain can be up to 9 out of 10 and compared to a year ago the symptoms are remaining the same.
This patient continues to have neck aches radiating from the occipital area to the frontal area. One interesting history is that if he walks more than 100 metres he gets a left cortication pain causing him to sit down. If he sits down for 5 minutes then the pain does go away.
Examination
Examination showed in the standing position that he was unable to fully flex. Extension was decreased. Lateral bending and lateral rotation all were markedly reduced. There was marked limited straight leg raising.
I could not feel peripheral pulses in the legs.
With respect to the cervical spine this patient's flexion was severely limited such that the chin could only to (sic) 5 finger breadths from the manubrium. Extension was virtually zero. Lateral rotation and lateral bending were severely limited.
With respect to the shoulder, again there was marked decreased range of motion in all areas and all directions of the shoulders.
Investigations
X-rays taken 16 January 2002 have shown significant degenerative disc disease and this also is shown on the CT scan of the cervical spine of 22 November 2002.
Discussion and Opinion
There is no doubt this is a very sick man.
He has diabetes and generalised arteriosclerosis. This is evidenced by his ischaemic heart disease, the necessity for him to have had a carotid endarterectomy as well also to having intermittent claudication in the left leg. I notice that these conditions have not been accepted as war caused by the Repatriation Committee (sic).
This patient also definitely does have marked problems with cervical and lumbar spondylosis.
With respect to neck pain it would appear from what he told me that he first had neck pain in 1989. On this basis I cannot see any objective evidence that his neck pain is due to anything other than naturally occurring, age related, progressive degenerative disc disease.
With respect to the lumbar spine, again, this patient does have significant degenerative disc disease. It would be my opinion that the incidents he describes in the 1960s when he fell some 20 feet while aboard the HMAS Sydney would not have caused significant long term damage. Clearly it would have caused soft tissue damage. According to him, x-rays taken 6 weeks later did not show any fractures. It is also important to note that he was seen in the ship’s hospital for only 15 minutes, then he was on his bunk for 2 or 3 days, then he got up and continued to do his full duties until his discharge in August 1972. Subsequent to that this patient would appear to have had a very full life.
Thus, I am of the opinion that his lumbar spondylosis is nothing more than naturally occurring, age related degenerative disc disease.
I notice that he has been accepted for service related disabilities for lumbar, thoracic and cervical spondylosis as well as cervicogenic headaches. Be that as it may, I cannot see any evidence that his generalised spondylosis is anything other than age related. If there are any service medical records to the contrary, of course I would like to see them. From the papers you sent to me I would give this patient an impairment rating of 40 for the significant age related spondylosis in the whole of the spine. Bringing into consideration the age adjustment, this impairment of 40 would come down to an impairment of 32 rating.
…”.
(T16, pp91-94)
25. On 21 May 2003 the VRB affirmed the decision of a delegate of the respondent, dated 1 May 2002, that disability pension is payable to the applicant at the rate of 100% of the “general rate”, with effect from 11 October 1999.
26. On 30 May 2003 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 21 May 2003.
The applicant’s evidence
27. The applicant confirmed that he had signed two written statements in this matter and that their contents are true and correct.
28. The applicant’s first statement, dated February 2001, is as follows:
“1 I was born on 6 October 1934.
2 I enlisted in October 1951 and discharged August 1972 when my then term of engagement expired.
3 I had operational service in Malaysia and Vietnam.
4 I was active sportsman. I played Australian Rules football for NSW and for the Navy between 1955 and 1960 and I continued to play Australian Rules for a Crib Point team in 1963. Later coached a navy and a Iocal club side up to about 1970. I also played first grade cricket in 1965.
5 I recall that I had episodes of low back pain in the mid to late 1960s, but I did not complain of them at the time because I felt that they would get better. They were not of any great significance.
6 I had a motor vehicle accident in Sutherland, NSW Australia when I was driving to join the Sydney in Sydney. I suffered a broken left foot and bruising to my right shoulder. I was in plaster and on crutches for about 4 weeks. I note my records show that I was at HMAS Penguin, which is a shore-based depot from 22 August 1969 to 22 September 1969. Balmoral Naval Hospital is part of HMAS Penguin. I joined the Sydney shortly after the plaster was removed and shortly thereafter we sailed to Vietnam. I consider I made a full recovery from the injuries sustained in that motor vehicle accident and I did not have any continuing problems with my left foot or my shoulder.
7 My duties on the Sydney included being in immediate charge of all damage control. Whilst the ship was in Vung Tau Harbour in Vietnam, where we were disembarking troops, we had divers checking for mines and damage to the outside of the Hull and I regularly checked the inside for leaks and structural damage. I suffered injuries when I fell approximately 25 feet from a vertical ladder at the bottom of the hold, which I was descending. On this occasion I landed heavily on my feet on to a steel deck. I jarred my spine from the force of the fall. I felt sore and shocked by the accident.
8 I briefly completed the visual inspection and climbed out of the hold. I attended at the sick bay and got some painkillers. I reported the accident to the chief sick bay attendant. He gave me the painkillers and told me to lie down and rest and relax. On this occasion I only recall the pain up the length of my spine lasting for about a day and half. I was able to continue my office duties and I would lie down when I had any spare time. I didn’t do any inspection duties during this initial period of a couple of days.
9 After that accident I appeared to recover to my previous condition with
continuing occasional low back pain.10 On my 3rd trip on the Sydney to Vietnam, which was in October to November 1970 we ran aground in Vung Tau Harbour when entering the harbour in the early morning. We all lost power and I went to the lower hold in the dark but with a torch and there was some battery powered emergency lighting. I was with an ordinary/able seaman watchkeeper. The accident was similar to the previous fall. On this occasion I had a torch in one hand when I lost my grip and fell roughly 20 to 25 feet to the steel deck. As I was falling my head was initially close to the rungs of the ladder. I pushed my head away from the ladder and I toppled backwards and landed flat on my back striking the length of my back and my head. I tried to stand but I was dazed. I couldn't stand properly. The seaman threw me a rope and I tied it around my waist. I managed to climb the ladder. The rope helped pull me up. It took me a long time.
11 I went to the sick bay but the doctor was not there. The chief Sick Berth Attendant told me to lie down until I felt better. I was really sore for about the first 3 days and I stayed in bed for the whole of this period. After that I resumed my office duties, my spine and head remained sore and tender to any movement particularly when I later attempted to move about the ship on my general inspection duties.
12 The whole of my back including my neck remained sore and with pins and needles sensations and my head was sore for the rest of the voyage. We were only in Vietnam for the one day to disembark the trips (sic) and then approximately a 10 day trip back to Australia. My spine and head continued to be sore the whole of the trip back to Australia, but gradually improved over this period. I had a bruise at the back of my head where it struck the deck, which was tender to touch but I also had a continuous headache with the pain centred across my forehead just above my eyes.
13 On my return to Sydney, Australia this headache was pretty constant, to the best of my recollection, for some weeks or months after I returned to Australia. It faded somewhat, but I continued to suffer from it at regular intervals whenever I was tired or stressed.
14 My back pain had generally cleared up within a few weeks of returning to Australia. However I continued to suffer episodes of back pain from time to time and I recall that I saw a Dr Hooper, orthopaedic speciaIist, about the back pain in November 1971, however no x-rays were taken. The Navy arranged this visit.
15I continued to suffer from pain along the whole of my spine and from headaches throughout the rest of my naval career and when I was discharged in August 1972, I made sure that these complaints were noted.
16 After my discharge I obtained civilian employment. Between 1972 and 1986 I was employed generally in transport, in security and in management. During this period I did not have any accidents or relevant injuries. My work was primarily in the office. I continued to suffer back pain generally in my lower back. I still suffered from the same headaches and they gradually increased in severity. At that time they were not of sufficient severity to prevent my doing the office work. At about this time and in an attempt relieve my episodes of back pain and the continuing regular headaches, I obtained treatment from Dr Ronald Roberts a Dr of Chiropractic at my own expense. I had some 17 visits in total.
17In 1986 I went into business with a partner, Mrs Pat Makrikostas, and we bought 2 luxury coaches to run up to 14-day tours throughout Australia plus local day trips to NSW and return.
18We basically ran 2 coaches with a driver and a hostess. I was regularly one of the drivers. On the day trips Pat Makrikostas worked as one hostess and we employed one other. My wife looked after the office, but on the 14-day trips she would come as the hostess and this would save employing some one else for that long trip. I regularly employed my son as the other driver and 2 police officers worked on a part time basis on occasions when they were off duty.
19 Towards the end and as a result of my worsening back condition, I found that I could not be involved in the work of being one of the coach drivers. I had increasing difficulty in climbing the steps into the coach and I could not change a tyre if a puncture occurred or lift the passengers’ luggage. I continued to suffer from headaches but had always worked despite these. It was because of my worsening back condition, which made me realise that I could no longer cope with being a coach driver.
20 When I found that I could not cope with the driving any more, it became uneconomic to continue the business when we had to pay for an extra driver.
21I tried for a period to work in the office of the business but I found that I was not able to be useful there for anything other than very short periods, as I found that my headaches got significantly worse whenever my head was in flexion and needed to lean back and with my head back and I needed lots of changes of position. The computer screen was also bad for my headaches.
22.As a result of the extra overheads with the extra driver the business was starting to lose money so it was decided to sell the coaches and close the business The business was closed in February 1994.
23 I put a notice in the paper that I was closing the business. I had enquires from 3 other coach companies when they heard I was closing my business as to whether I would work for them. I had to refuse this work as I knew from trying to do my own office work that I would not be able to cope with a regular office job because of the increasing headaches that it caused.
24 My wife and I decided we would have a break and a holiday and then see what we might be able to manage for future employment. This was our first holiday for 12 years.
25 We left Melbourne in May 1994 with the intention of travelling around Australia in a car and caravan. We took turns in driving and we would stop if my back or headaches were bad. We took our time and on average we only covered about 60 km a day.
26 We got as far as Cairns in July 1994 and I suffered a sudden onset of very severe back pain. It came on when I was in bed and when I tried to get up in the morning. I was taken by ambulance to the local doctor. When he was examining me I nearly collapsed. He referred me to the Cairns Hospital. On my discharge from Hospital I had to fly back to Melbourne, as I could not cope with driving back. My brother-in-law collected my car and van.
27 The very severe pain I was in in July 1994 improved to some extent initially, but over the years has gradually got worse.
26I started to get significant neck pain some months after the low back pain started.
29 I had physiotherapy for my back and neck over a period of some 2 years, however it only had minimal and temporary effect.
30 I am in constant severe pain in my low back and have regular neck pain. I still get the headaches and they have continued to gradually increase in severity. My back pain continues to be the worst of my conditions. It remains disabling by itself.
31I take up to 8 painkillers a day. I would take more if I were allowed. They give me very little relief. I have had a number of rhizotomies on both my neck and my low back. They provide some relief, which wears off after a few months.
32In recent months I am now not strong enough to raise myself from the toilets in the house we rent. My wife has to assist me with this which I find embarrassing and upsetting. My wife has had to assist me with showering since the onset of severe pain in 1994; I can’t lean back to clean my backside in the shower.
33 I do not feel that I have been capable of any work on a commercial basis or in competition with the ordinary workforce since the onset of my severe low back pain in July 1994.
34 Nevertheless I have been very unhappy not being able to work and recently in January 2001 an opportunity arose through my daughter’s business, The Rail Holiday Centre of Wesley Centre, 93 William Street, Perth 6000, which obtained the West Australian booking contract for the Indian Pacific train, whereby I attend as a booking clerk for the Indian Pacific for 2½ hours on 2 mornings a week, Mondays and Fridays. I am able to vary my work and mainly stand and move about which best suits my back. I find that my back pain does worsen when I work on these mornings and it takes time and rest over the next day or so to settle down. However I believe that it is better for me mentally to have this work and I intend to continue for so long as I am able. On Monday 26 February 2001 I worked for approximately 2 ½ hours then caught the Iocal train back to the central Perth station and walked down William Street to the AAT for the conference arranged for 12.30pm. That walk took me 30 minutes to achieve with frequent rests. It felt that I had only just made it and was in considerable additional pain.
(T6, pp 40-44)
29. The applicant’s second statement, dated 27 January 2004, is as follows:
“1 This statement is supplementary to my statement dated February 2001.
2I was born on 6 October 1934 and therefore I had my 65'" birthday on 6 October 1999.
3 I referred in my previous statement to commencing work in my daughter's business in January 2001. I initially did the work as a booking clerk at the East Perth Station for about 3 months. However I couldn't cope with this work, it was 2 mornings a week, for 2 ½ to 3 hours each on a Monday and a Friday. However, the counter was too high for me to lean on when talking to the customers and I could not climb onto the seats provided at the counter. I had to cease this work as my back became too painful. After that, I did some advisory work in my daughter's business for about 18 months. For this, I would go out and see local suburban travel agents and tell them of tours which I planned for my daughter’s business. I would see probably a couple of agents in a week; this would take about 3 hours in total, including the paper work planning it. My daughter would occasionally give me a payment for this work, but it was more to provide me with an interest.
4 I stopped the work for my daughter because I found that I could not continue even the occasional driving involved and also because doing the necessary paper work at home would increase the severity and frequency of head aches and my back ache.
5 In 1998, I was told by an ex-commander that he considered that I was suffering from PTSD. I was not aware of this possibility before it was mentioned to me. I thought I was quite normal although I was aware that I was irritable and in particular had arguments particularly with my wife. I spoke to my GP Dr Louis Fenelon about the possibility and he referred me to Dr Janine Clarke, the psychiatrist, in 1998. I received anti-depressant medication on her prescription for a few months. I recall taking one tablet a day. I was also recommended to see Cecilia Bendall, a clinical psychologist, for therapy. I went to several sessions with her over a few months in 1998. When I went back to see Dr Clarke before coming to Western Australia she said that I had improved and that I did not need to continue taking the anti-depressant medication. I came to Western Australia in January 1999. From the time of arriving in Western Australia, I have not received any medication or received any therapy in relation to my PTSD and I have not felt any need for any continuing treatment.
6I accept that I have suffered from irritability for many years and my present and previous wives have suffered from this, however my irritability definitely did not affect my employment. I had my own successful business for 8 years. I had no problems with my customers. By the time we sold the business, I had 5000 customers on the travel club membership list. I prided myself with the service that I was able to provide and the enjoyment that my customers received from travelling with my company. I travelled with customers as their driver for up to 14-day trips. My regular run was a day between Melbourne to Albury so that customers could use the poker machines in Albury. Many of my customers travelled twice a week with me for many years and the same customers would come on the longer tours. I do not believe that I would have continued to undertake this work for 14 years if I could not cope with customers. I ceased this work, not because I could not cope with customers or had in any way become bored or disillusioned with them, but solely because I couldn't cope with the physical aspects of the driving. I was getting significant back pain. Because of my back pain, I couldn’t handle the luggage, although the passengers would help me. The latest coach I had purchased had a spiral staircase with which I had difficulty. The last straw was when I blew a tyre and couldn't change it. I realised that I couldn't continue as a bus driver because of my back condition. I then tried to run the business with employing drivers in my place, but I couldn’t make the business profitable with the extra cost of the drivers and I was not useful in the office because the paper work would increase my back pain and I would get headaches. I therefore sold the business and decided to go on a around Australia holiday. I intended to return to work at the conclusion of the holiday, although at that time I had not decided on what work I would do.
7 My total incapacity for work occurred with the severe onset of back pain in July 1994. The planned holiday around Australia was originally intended to be about 6 months. The severe pain brought an end to our holiday. I had to fly back to Melbourne as I was too sore to contemplate driving. The sole reason I did not return to work after that holiday and that I did not work again was because of my continuing severe back pain. On the recommendation of my specialist we sold the house in Melbourne to move to a warmer climate. We therefore moved back to live in Queensland. In 1998 we moved to Western Australia as my wife's daughter lives in Perth. I have continued to be in very severe back pain since that time, with equally severe restriction of movement. My condition has not improved at all since 1997 when Dr Peter Sharwood confirmed that I was totally incapacitated for work by reason of my back pain. Rather it has continued to slowly deteriorate and my neck pain has significantly worsened.
8 My wife has to wipe my backside after I have been to the toilet for the last 5 years. For last 3 years, my wife has to help me to sit on the toilet. For the same period I have to be helped to lift myself off the toilet. Equally, for the last 5 years, I can't put lace up shoes or socks on without assistance. I have used a walking stick for about the last 6 to 6 ½ years.
9 I believe that in late 1997, I did a full month of pain management at Greenslopes Repatriation Hospital in Brisbane, Queensland under the care of Dr Peter Sharwood. It was during that course that I was recommended to use a stick and I have used one ever since. I cannot walk without one.
10 I have been an active member of the Lions Club for last 3 years. I attend meetings twice a month on every second Wednesday. They last for about 2½ hours; they are the main social activity outside the home. I also attend fund raising activities at the local shopping centre and other places. I can stand and cook sausages for about 10-15 minutes at a time but I do not lift anything. I like the organisation and the members There is a particular member who assists me if necessary when I go to the toilet but I try to prepare in advance to avoid that embarrassment. I have been nominated for being President of the Local Chapter which I have agreed to, providing that my physical limitations are recognised. My limitations refer to my considerable back pain and restrictions in movement. I do not believe that my PTSD has any effect on my ability to interact with people in a context which would be similar to employment and my [PTSD] does not cause me to avoid this activity. It has not caused me to avoid mixing with people.
11 I take medication for diabetes, blood pressure, and my heart condition and carpel tunnel syndrome, however I believe that with medication these conditions are well controlled and do not affect my day to day living or my capacity for work.
12In addition to the above medication, I take on average 200 Panamax for headaches and 200 Panadeine Forte per month for my neck and back. I know I take this amount because it is my standard monthly prescription. This limit was set by Kay Lane, the pain specialist I saw in Brisbane. I take up to 6 to 8 tablets of each type per day on most days.”
(Exhibit A1)
30. In his oral evidence-in-chief, the applicant said that he “had no option” but to cease working as a tourist coach driver in 1994 by reason of his sore back. He added that he and his wife then decided to go on a holiday driving around Australia and during that trip, while they were in Cairns in July, 1994, his back pain became “unbearable” such that he was unable to drive and he then became aware of the full extent of his back injury. He said that from 1994 until the present time his back pain has been constant and he takes painkilling medication daily to try to cope with the pain. He added that for the last 12 months his neck pain (which had always been present) has become “acute … for 100 per cent of the day”.
31. The applicant referred to other medical conditions from which he suffers, or has suffered, and which have not been accepted as war-caused. He confirmed that he was diagnosed with type-2 diabetes in November 1989 but that it is controlled by medication and he does not have a problem with it. He added that his diabetes condition did not affect his ability to work between 1989 and 1994. He also confirmed that he had a heart condition for which he had a bypass operation in November 1989 after which he was “as good as gold”. He said that he also takes medication for blood pressure and that he has his blood pressure checked regularly and it is “never a problem”. He said that he also takes medication for cholesterol.
32. The applicant also confirmed that he had been diagnosed as suffering from PTSD in 1998 and that he saw a psychiatrist (Dr Clarke) and a psychologist (Ms Bendall) at that time. He said that, since arriving in Western Australia in January 1999, he had seen Dr Kay, Psychiatrist, twice (in January 2004 – see paragraph 37 below) and he did not recommend any treatment. He acknowledged that he had also suffered from depression from shortly after his discharge from the RAN but that his psychiatric condition had never affected his ability to work.
33. In cross-examination the applicant was first referred to the service pension claim form which he lodged with the DVA in February 1994 (Exhibit R1 – see paragraph 5 above). He said that he filled in that form – in which he indicated that he ceased working by reason of a heart condition, high blood pressure and diabetes – in accordance with advice from his treating general practitioner, Dr Fox. The applicant was also referred to Dr Fox’s accompanying medical report (Exhibit R2 – see paragraph 6 above), and he confirmed that he had been seeing Dr Fox for the previous 2 years.
34. The applicant was next referred to the report of Ms C Bendall, Psychologist, dated 27 August 1998 (Exhibit R4 – see paragraph 15 above), in which it is stated:
“He was forced to retire in 1994, due to increasing difficulty in controlling mood swings and maintaining civility with others, indicative of his PTSD symptomatology precluding him from being able to continue working”.
Asked whether he had any idea where Ms Bendall got that understanding from, the applicant responded:
“I have no idea whatsoever. And that’s the truth. … I know the reason that I gave up driving and it certainly had nothing at all to do with that”.
(Transcript, p42).
35. The applicant was also referred to the report of Dr J Clarke, Psychiatrist, dated 4 November 1998 (Exhibit R5 – see paragraph 17 above), in which it is recorded that he had stated that he had recognised for a long time that he “couldn’t handle things”, and that he would argue with people extensively and had lost a lot of friends and had increasing difficulty mixing with other people. The applicant acknowledged that but explained that the problems he was then having with other people related to social occasions where he was caused embarrassment by people inquiring about his having to use a walking stick.
36. Finally, the applicant was questioned about the work he did for his daughter’s business in 2001. He said that his daughter suggested this to him in order that he would have something to do. He said that he did not receive a salary or wage for that work – rather, his daughter would give him some money from time to time. He said that he did a very good job dealing with customers, but he “couldn’t keep it up”.
Additional Medical Evidence
37. A report of Dr Oleh Kay, Psychiatrist, dated 20 January 2004, was tendered in evidence by the applicant. The contents of Dr Kay’s report are as follows:
“… I confirm that I have examined Mr Forbes on 2 occasions, 13th and 24th (sic) January 2004.
Mr Forbes is a 69 year old, twice married, now separated for 3 years, DVA pensioner, who is in receipt of a Disability Pension at the rate of 100% largely for orthopaedic complaints. He previously claimed for Post-Traumatic Stress Disorder, but the claim was unsuccessful.
On examination, Mr Forbes was, as described by Mr Stewart Brash, a very unwell man. He walked with considerable difficulty, with the aid of a walking stick and he tells me he is now reliant on others to drive him around. Despite his physical difficulties, he remains active at the Lions Club, indeed recently received the President’s Award for his continuing secretarial services to his local club and he has, on occasion, helped out his daughter at her work (she manages the South Australian Tourist Bureau in Perth and, as he has a Diploma in Travel, Mr Forbes worked for her for nearly 2 years).
I discussed with Mr Forbes a particular event which occurred during his naval service – when he was on the flight deck of HMAS Melbourne and a young pilot with whom he was friendly was tragically and traumatically killed before him. He was distressed on recounting that incident.
On reviewing Mr Forbes’ medical file, I noted the following:
ØA report from Ms Cecilia Bendall, Psychologist, dated 27th August, 1998 and a report from Dr Janine Clarke, Psychiatrist, dated 4th November 1998, both making a diagnosis of Post-Traumatic Stress Disorder;
ØDr L A Fenelon in the Emotional and Behavioural Condition Medical Impairment Assessment dated 19th October 1998 made the following comments in relation to his capacity for work (4) –
‘although he has been incapacitated by his spinal condition since I first met him, I have discussed his past working as a Tour Bus Owner/Driver. He had episodes where anger interfered with that job’;
ØIrritability at work was also noted by Ms Bendall.
At that time, Mr Forbes was receiving medical treatment for his Post-Traumatic Stress Disorder, but he has not been on any form of medication for his PTSD for 7 years and he is of the opinion that his PTSD has now largely settled.
In my opinion, Mr Forbes clearly suffered from chronic Post-Traumatic Stress Disorder when he submitted his claim for the condition and it would appear that his PTSD was of somewhat greater severity than at the present time. Despite this and the problems he had with irritability, Mr Forbes is clear in his own mind that the reason he ceased work was solely a result of his chronic pain. Degenerative joint disease of the severity suffered by Mr Forbes would be expected to cause significant problems to the extent that he would have to cease work, given that he was a driver. He subsequently found work in customer service, but did not have problems dealing with members of the public because of PTSD or irritability, eg, when he was 63 years of age, he worked for approximately 3 months on a part time basis at the East Perth Railway station despatching the Indian Pacific and he was complimented for his pleasant attitude and manner and, although he enjoyed the job, he had to stop because of problems with his back and neck.
In conclusion, therefore, I am of the opinion that Mr Forbes does suffer from chronic Post-Traumatic Stress Disorder, but that his chronic PTSD does not prevent him from working and did not cause him to cease work.”
(Exhibit A9)
The Legislation
38. Section 24 of the VE Act relevantly provides:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under Section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more 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.
…”.
Pursuant to s 19 of the VE Act, the special rate of pension will be payable to a veteran where the eligibility criteria prescribed by s 24 of the VE Act are satisfied at some point in time during the “assessment period”. By s 19(9) of the VE Act the phrase “assessment period” is defined to mean:
“the period starting on the application day and ending when the claim or application is determined”.
The phrase “application day” is defined by s 19(9) to mean, inter alia, the day on which the claim or application was received at an office of the DVA in Australia.
The Issue
39. It is common ground that the applicant satisfies the eligibility criteria for the special rate of pension specified in paras (aa), (aab), (a), (b) and (d) of s 24(1) of the VE Act. The sole issue for the Tribunal’s determination is, therefore, whether the applicant satisfies the eligibility criterion specified in para (c) of s 24(1) of the VE Act. If the applicant satisfies that criterion, together with the other criteria specified in s 24(1) of the VE Act, at any time during the “assessment period” (within the meaning of s 19 of the VE Act) the special rate of pension will be payable to him: Leane v Repatriation Commission [2004] FCAFC 83 at para 31.
Consideration and Findings
The assessment period
40. In the present case, the “assessment period”, within the meaning, and for the purposes, of s 19 of the VE Act commenced on 28 September 1999 (being the date on which the applicant lodged with the DVA an application for an increase in the rate of his disability pension to the “special rate”) and continues until the date of the Tribunal’s decision.
Is the applicant, by reason of incapacity from war-caused diseases alone, prevented from continuing to undertake remunerative work that he was undertaking?
41. The Tribunal finds, on the basis of the applicant’s evidence – which was not contradicted and which the Tribunal accepts – that the relevant remunerative work which the applicant was undertaking, for the purposes of s 24(1)(c) of the VE Act, comprised driving a tourist coach in a business owned by him in partnership with another person from 1986 and subsequently, for a short period, working in the office of the business prior to the closure of the business in February 1994.
42. According to the applicant’s evidence, he was, and is, prevented from continuing to undertake that work by reason, primarily, of his lower back condition and, to a lesser extent, by reason of his neck condition and headaches. That proposition is supported by the reports of Dr P Sharwood, Orthopaedic Surgeon, dated 8 July 1996 (Exhibit A4) and 6 October 1997 (Exhibit A5) (see paragraphs 10-11 above). In those reports Dr Sharwood opined that the applicant was “significantly disabled” primarily by reason of his lower lumbar spinal condition and had thereby been rendered permanently unemployable. Likewise, Dr L Fenelon, the applicant’s (then) general practitioner, in a report dated 1 August 1997 (Exhibit A6 – see paragraph 12 above), opined that the applicant’s “underlying disability is his lumbar spondylosis” and that he has been “work disabled due to lumbar spondylosis”, a condition which “will be permanent”. In a subsequent report dated 30 June 1998 (Exhibit A 7 – see paragraph 14 above), Dr Fenelon stated:
‘In my opinion Mr Forbes’ ability to perform his prior duties of office work and driving related to his bus charter service are not possible entirely due to his lumbar spinal disease. His other medical problems do not prevent such work duties.” (original emphasis)
43. On the basis of the applicant’s evidence and the medical evidence referred to in the preceding paragraph, the Tribunal is satisfied, and finds, that the applicant is, by reason of his lumbar spondylosis condition – which has been determined to be a war-caused disease (see paragraph 13 above) – prevented from continuing to undertake the abovementioned relevant remunerative work that he was previously undertaking.
44. The next – and critical – question which arises under s 24(1)(c) of the VE Act is whether the applicant’s war-caused diseases are the only factors preventing him from continuing to undertake the relevant remunerative work – the “alone test”. The applicant’s war-caused diseases are:
·lumbar spondylosis;
·bilateral sensorineural hearing loss with tinnitus;
·thoracic spondylosis;
·cervical spondylosis; and
·cervicogenic headaches.
According to the evidence before the Tribunal, the applicant also suffers from other medical conditions which are not war-caused, including (relevantly):
·ischaemic heart disease;
·diabetes mellitus;
·hypertension;
·hypercholesterolaemia; and
·PTSD.
The question which necessarily arises, therefore, for the purpose of applying the “alone test” in s 24(1)(c) of the VE Act is whether any of those non-war-caused conditions – or, indeed, any factor other than the applicant’s war-caused diseases – “plays a part or contributes to [the applicant’s] being prevented from continuing to engage in remunerative work”: Repatriation Commission v Hendy [2002] FCAFC 424 at para 37.
45. The Tribunal notes, on the one hand:
·the applicant’s service pension claim form (Exhibit R1) and the accompanying medical report of Dr M Fox (Exhibit R2) lodged with the DVA in February 1994, which refer only to his non-war-caused conditions of ischaemic heart disease, diabetes mellitus, peripheral vascular disease, and hypertension;
·the reports of Ms C Bendall, Psychologist (27 August 1998 – Exhibit R4), Dr L Fenelon (19 October 1998 – Exhibit R3), and Dr J Clarke, Psychiatrist (4 November 1998 – Exhibit R5), which refer to the applicant’s non-war-caused PTSD condition and associated symptoms;
·the report of Mr S Brash, Orthopaedic Surgeon, dated 18 February 2003 (T16, pp 91-94) which refers to the applicant’s non-war-caused conditions of diabetes and generalised arteriosclerosis (as evidenced by ischaemic heart disease and intermittent claudication in the left leg), as well as his war-caused conditions of cervical spondylosis and lumbar spondylosis.
On the other hand, the Tribunal notes:
·the report of Dr L Fenelon, dated 30th June 1998 (Exhibit A7), in which he opines that the applicant’s inability to perform his prior duties of bus driving and office work is “entirely due to his lumbar spinal disease” and that his “other medical problems do not prevent such work duties” (original emphasis) [the Tribunal infers that Dr Fenelon’s reference to the applicant’s “other medical problems” relates to physical conditions and does not include psychiatric or psychological conditions];
·the report of Dr J Suthers, Occupational Physician, dated 11 February 2003 (T16, pp 85-88), in which he opines that during the previous 5 years the applicant has not had clinical problems from his non-war-caused conditions, namely, ischaemic heart disease, hypertension, hypercholesterolaemia and diabetes, affecting his work capacity, as regards either his choice of work or the extent of his work capacity;
·the report of Dr O Kay, Psychiatrist, dated 20 January 2004 (Exhibit A9), in which he opines that the applicant’s non-war-caused PTSD condition did not cause the applicant to cease work and does not prevent him from working;
·the applicant’s own evidence that he is prevented from continuing to work solely by reason of his lower back and neck conditions and that his work capacity is not affected by his heart condition, his blood pressure, his cholesterol problem, his diabetes or his PTSD.
46. Having regard to the whole of the material before it, the Tribunal is, on balance, reasonably satisfied, and finds, that, although the applicant’s non-war-caused physical and psychiatric problems may have contributed to the applicant’s originally ceasing work in February 1994 and his subsequently being prevented from continuing to undertake remunerative work, none of those non-war-caused physical and psychiatric conditions was contributing to, or playing a part in, the applicant’s being prevented from continuing to undertake remunerative work as at the “application day” (namely, 28 September 1999), and throughout the subsequent “assessment period”, within the meaning of s 19 of the VE Act.
47. The respondent also submitted that the applicant’s age (he turned 65 years on 6 October 1999) and the period of time that he has been out of the work force (that is, since February 1994, apart from the limited work he did for his daughter’s travel business in 2001) have been contributing factors in preventing him from continuing to undertake remunerative work. The Tribunal does not accept that submission. The Tribunal accepts the applicant’s evidence that, were it not for the severity of his lower back and neck-related headache conditions, he would have continued to work in his business as a coach driver or an office manager, and that, after closing that business and embarking on an around-Australia holiday, he intended to return to suitable work. The Tribunal finds that, as at the “application day” (28 September 1999), the applicant’s age and the period of time that he had then been out of the work force were not contributing factors in preventing him from continuing to undertake remunerative work.
48. The Tribunal finds, therefore, that the applicant has, by reason of incapacity from war-caused diseases (namely, lumbar spondylosis, cervical spondylosis and cervicogenic headaches) alone, been prevented from continuing to undertake remunerative work throughout the “assessment period”. Accordingly, the Tribunal finds that the “alone test” in s 24(1)(c) of the VE Act is satisfied in this case.
Is the applicant, by reason of being prevented from continuing to undertake remunerative work that he was undertaking, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of the relevant incapacity?
49. In Forbes v Repatriation Commission (2000) 101 FCR 50 the Federal Court of Australia (Nicholson J) noted (at 53) that the “loss of salary or wages, or of earnings …” limb of s 24(1)(c) of the VE Act is to be read in conjunction with s 24(2)(a) of that Act. In Magill v Repatriation Commission [2002] FCA 744 Drummond J reiterated that proposition, and added (at para 11):
“Unlike s 24(2)(b), which ameliorates the operation of the first limb of s 24(1)(c), s 24(2)(a) only explicates the second limb of s 24(1)(c) by emphasising that a veteran will not be able to satisfy that limb if, though suffering a loss of earnings that may be causally related to a war-related injury or disease, there are other reasons that are also causally related to the veteran’s having ceased to engage in work or related to the veteran’s being prevented from engaging in work.”
In Banovich v Repatriation Commission (1986) 6 AAR 113, however, the Full Court of the Federal Court of Australia commented (at 119):
“In the usual case a loss of salary, wages or earnings will follow any prevention from continuing to undertake remunerative work which the [veteran] was undertaking but there may be exceptional situations under which a person unable to continue that work continues to receive a salary, wages or earnings; in which exceptional case [s 24(1)(c)] would not be satisfied.”
Later the Court added (at 119-120):
“We accept that the loss referred to in [s 24(1)(c)] may be caused either by a loss of existing employment or by an inability to obtain new employment. There is no difficulty in regarding either circumstance as preventing the [veteran] ‘continuing to undertake’ remunerative work. But it is, in our opinion, erroneous to read the phrase ‘remunerative work that the [veteran] was undertaking’ as referring to a particular job with a particular employer. … the phrase … should be read as a reference to the type of work which the [veteran] previously undertook and not to any particular job …”.
50. In the present case there are no exceptional circumstances which remove it from the usual situation in which, as stated in Banovich, “a loss of salary, wages or earnings will follow any prevention from continuing to undertake the remunerative work which the [veteran] was undertaking”. Furthermore, in the present case, the applicant neither has ceased to engage in remunerative work (as explained in Banovich) for reasons other than his incapacity from war-caused diseases, nor is incapacitated, or prevented, from engaging in remunerative work for some other reason, for the purposes of sub paras (i) and (ii) of s 24(2)(a) of the VE Act.
51. Accordingly, the Tribunal finds that the applicant is, by reason of being prevented from continuing to undertake the kind of remunerative work that he was previously undertaking, suffering a loss of salary, wages or earnings that he would not be suffering if he were free of the relevant incapacity, for the purposes of s 24(1)(c) of the VE Act.
Conclusion
52. The Tribunal finds, therefore, that, as at the “application day” (28 September 1999) and during the “assessment period”, the applicant satisfies the criterion for eligibility for the special rate of pension specified in para (c) of s 24(1) of the VE Act. It being common ground that the applicant also satisfies the remaining eligibility criteria specified in paras (aa), (aab), (a) (b) and (d) of s 24(1) of the VE Act, it follows that the special rate of pension is payable to the applicant pursuant to s 24 of the VE Act. It was agreed between the parties that, if it were found by the Tribunal that the special rate of pension was payable to the applicant, the date of effect would be 11 October 1999. The Tribunal agrees that, in the circumstances of this case, by reason of ss 157(2)(a)(ii) and 177(2)(a) of the VE Act, the appropriate date from which the special rate of pension is payable to the applicant is 11 October 1999.
Decision
53. For the above reasons the Tribunal sets aside the decision of the VRB dated 21 May 2003 and, in substitution therefor, decides that the special rate of pension is payable to the applicant pursuant to s 24 of the VE Act, with effect from 11 October 1999.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor SD Hotop, Deputy President and Dr D Weerasooriya, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 28 January 2004
Date of Decision 11 June 2004
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant Christie & Strbac
Counsel for the Respondent Mr C Ponnuthurai
Solicitor for the Respondent Department of Veterans’ Affairs `
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