Graham and Repatriation Commission
[2009] AATA 312
•6 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 312
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4807
GENERAL ADMINISTRATIVE DIVISION ) Re RUSSELL JAMES GRAHAM Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member
Dr MEC Thorpe, MemberDate6 May 2009
PlaceSydney
Decision The reviewable decision, that Mr Graham is not entitled to the Special or Intermediate Rate of pension under ss 23 and 24 of the Veterans’ Entitlements Act 1986, is affirmed. ....................[sgd]..........................
Presiding Member
Mrs Josephine Kelly, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Special or Intermediate Rate – Claim for – Accepted conditions for Post Traumatic Stress Disorder (PTSD) and cervical and lumbar spondylosis – Applicant argued ceased work due to war-caused incapacity alone – Whether incapacity from war-caused incapacity alone renders incapable of working more than 8 or 20 hours per week –– Held no incapacity to work more than 8 or 20 hours per week from PTSD and lumbar spondylosis alone - Decision affirmed
Veterans’ Entitlements Act 1986, ss 23, 24, 31, 120
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION
6 May 2009 Mrs Josephine Kelly, Senior Member
Dr MEC Thorpe, Member1. On 27 June 2005 Mr Russell Graham lodged a claim to increase his disability pension from 100% of the General Rate to the Special or Intermediate Rate of disability pension under s 24 or s 23 of the Veterans’ Entitlements Act 1986 (the Act). Mr Graham was born on 8 July 1950 and is 58 years old. He has had operational service in the army in Vietnam in 1971. He suffers from a number of medical conditions that have been accepted as war-caused under the Act. He seeks review of the decision made by the Repatriation Commission (the Commission) on 28 November 2005 refusing his claim. The Veterans’ Review Board (VRB) affirmed that decision on 3 July 2007.
2. For the reasons set out below, we have decided that Mr Graham does not satisfy the stringent statutory criteria for the Special or Intermediate Rate of disability pension. We therefore affirm the reviewable decision made by the Commission on 28 November 2005 refusing Mr Graham's claim.
ISSUE
3. The issue in these proceedings is whether Mr Graham is entitled to the Special or Intermediate Rate of pension under s 24 or s 23 of the Act respectively.
4. The statutory tests that have to be satisfied in ss 23 and 24 of the Act are the same except for one matter. In summary they are:
Test 1
The degree of incapacity from war-caused injury and/or war-caused disease must be 70% as determined under the Act (s 23(1)(a), s 24(1). Both parties accepted that Mr Graham satisfies that criterion and there was no reason on the evidence before us to reconsider that question.
Test 2
(i) In the case of the intermediate rate, the veteran's incapacity from war-caused injury and/or war-caused disease of itself alone, renders the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently (s 23(1)(b)), which is either 50 per cent of what is ordinary worked in a particular kind of work or 20 or more hours per week; and
(ii) In the case of the special rate, the veteran is totally and permanently incapacitated, that is his incapacity from war-caused/injury and/or disease of itself alone renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
Test 3
The veteran's incapacity from war-caused injury and/or disease alone is preventing him from continuing to undertake remunerative work that he was undertaking and is therefore suffering a loss of salary or wages or earnings that he would not be suffering if he were free from that incapacity (s 23(1)(c), s 24(1)(c)).
5. In Flentjar v Repatriation Commission, the Full Federal Court considered s 24(1)(c) of the Act. Adapting Flentjar to the present case, the following questions must be asked in relation to the third test:
1) What was the relevant remunerative work that Mr Graham was undertaking?
2) Is Mr Graham, by reason of his war-caused injury or disease, or both, prevented from continuing to undertake that work?
3) If the answer to question 2) is “yes”, is Mr Graham’s incapacity from PTSD the only factor preventing him from continuing to undertake that work?
4) If the answer to question 2) and 3) is “yes”, is Mr Graham suffering a loss of wages or salary of his own account that he would not be suffering if he were free of his incapacity from PTSD?
THE CASE FOR MR GRAHAM
6. Ms Wood, counsel for Mr Graham, contended that Mr Graham retired from his position at the Directorate of Flying Safety in the Australian Defence Force because of his incapacity from his war-caused injury or disease alone, specifically, his PTSD. She argued that if it were not for Mr Graham’s PTSD, he would not have retired and moved to his home near Batemans Bay on the south coast of New South Wales with his wife in 2005, and would have continued to work until he was 60 years of age. She argued that on the evidence we would find that his condition had deteriorated to the point where he could not continue to work.
7. Ms Wood relied on the evidence of Mr Graham, Dr Burns, occupational physician, and two psychiatrists, Dr Dinnen, and Mr Graham’s treating psychiatrist, Dr White.
CONSIDERATION
Uncontested Matters and Concessions
8. The standard of proof applicable is “reasonable satisfaction” (s 120(4) of the Act).
9. The following conditions have been accepted by the Commission as war-caused: PTSD, lumbar and cervical spondylosis, solar skin damage, bilateral pingueculae, irritable bowel syndrome and bilateral tinnitus. Epydidmitis has been rejected as war-caused.
10. Mr O’Reilly, who appeared for the Commission, made a number of concessions, which taking into account the evidence, we find were properly made. Mr Graham has operational service as defined in the Act and is entitled to 100% of the general rate of pension and therefore satisfies Test 1, that is, his degree of incapacity from war-caused injury and/or disease is at least 70%.
Mr Graham's Evidence
11. The following is a summary of Mr Graham's evidence. After leaving school, Mr Graham worked as a sales assistant with a local seed and produce retailer. He served in the army from 1967 to 1988 and was promoted to Warrant Officer 2 in 1984. He trained in aircraft maintenance. After he left the army, he worked as a civilian technical officer in the Department of Navy in Canberra. He was supporting engineering and maintenance aspects of the naval helicopter fleet, then Seahawks. He assessed publications from manufacturers, transcribed publications into a particular format, and assessed contractor documents. His role changed after various reorganisations. He became a computer network manager, carrying out database administration training.
12. Mr Graham changed jobs in November 1997, becoming the database manager for the Directorate of Flying Safety. It was an aviation safety occurrence reporting system for the three services. He left on 8 July 2005. He said that he developed a database for reporting air occurrences. It was a desk job but involved travelling to the major flying units.
13. Initially it was not too bad, but then he found facing people a bit difficult. He could not sit down all day and every half an hour or 40 minutes would have to get up and move around, doing stretches. He had sciatica in the left leg, and his left arm goes numb. In about 1998 to the end of 199 his body started changing. He suffered stomach cramps, pains, his concentration levels were down and he was snapping at people.
14. At the end of 2004 he was working full-time. He had had enough. He inquired about a position in a Quality Assurance area at an Executive Level 1 (EL1). He was an Australian Public Service - Level 6 (APS6) and was upgraded to EL1 in his current position.
15. He said that he had made inquiries in late 2004 about medical retirement from the public service. There was a lot of paper work involved and no difference in entitlements. He did not pursue medical retirement because it was too overbearing for him.
16. During his oral evidence, in response to the question why he had not seen Dr White for two years from 2002 to 2004, he said that there had been a decline in his health over that time and he finally said ‘enough is enough, I've got to go back and see him’.
17. In early 2005 he reduced his working hours to three days a week based on the advice of his supervisor at that time, Wing Commander Blaise, who had taken up the position at the end of 2004.
18. Mr Graham described how he went into the Wing Commander's office and told him that he was quitting. He hit the desk and said that he was not concentrating. His medical conditions were interrupting his work flow. He could not cope with this any longer and something drastic is going to happen. He said that he would retire on 1 January 2005. Mr Graham said that the Wing Commander's response was that he was not going anywhere and Mr Graham then said that if he stayed he was going to die. The Wing Commander suggested Mr Graham reduce his hours to three days a week. Mr Graham was the only person working on a new system and had had three years' experience
19. Mr Graham also gave evidence about going to the Vietnam Veterans counselling service from early 1999 and consulting Dr Greenhalgh, general practitioner, for a number of years. He had symptoms of stomach cramping and discussed work problems with Dr Greenhalgh. He first saw Dr White in May 1999. He consulted him about every six weeks and continues to do so. He said that he had taken various medications over the years but felt like a zombie and would feel disoriented when driving. He described how he snaps at his family and picks on his wife all the time. He has a list of chores a mile long but does not get them.
20. He said that his symptoms were the same or a bit worse when he was doing three days a week from February 2005, or four days if he was out of Canberra. He gave notice a month or so before he retired. He said that he had had enough: "I am dying sitting in this chair – simplest way of ending suffering".
21. Before going to the Directorate in 1997 he had no plans to retire until at least 60 years of age. He changed his mind in December 2004 and said he was leaving on 1 January 2005. During cross-examination he said that he made his final decision about leaving work four or five weeks before July 2005. He said that in 2005 he could not have done the job he had done as a technical officer in the Department of Navy. He said that his frustrations were building up and it was bit of a blessing it closed up. He found a new calling with computers. He was not really able to work when he retired. He could not confront anyone and was having trouble sitting at a desk, which remains the case.
22. Since moving to the south coast, he has done a bit of voluntary work. He transferred his RSL membership and did some co-ordination work for ANZAC Day 2006 but gave the paperwork back to the President because he could not do it. He had to liaise with police, local politicians, and the local council and ended up having a run in with a lady at the council. After that ANZAC Day he quit. He had a lot of trouble engaging with people.
23. Mr Graham has recently joined Legacy but is not active. He has one widow whom he telephones once a month and reports back to the chairman of legacy, for example, if she has a pension problem. He has two computers he uses to pay bills, do banking and send email. He uses them two or three times a week for a maximum of 20 minutes. He has made no formal applications for work. He did make an inquiry in a fishing tackle shop. He said that he could not unload truck and had PTSD. He was fobbed off. His only other activity to look for a job has been to search job advertisements in the local papers. He has not seen anything he could do. He could not “pull beers” – he has problems with sober people, let alone drunk people, and he could not deal with kegs.
24. Also during cross-examination, Mr Graham said that his wife had agreed to sell their caravan at Tuross Head if some other accommodation was obtained. They then built a house on a block of land at Batemans Bay which was ready to live in early 2005. We infer from his evidence that they sold their house in Canberra in May or June when his wife moved to Batemans Bay and thereafter he stayed with his daughter until he left work.
Contemporaneous Evidence
Dr White's clinical notes and reports
25. A number of reports from Dr White and his clinical notes were in evidence. His handwritten clinical notes extended over the period June 1999 to April 2008. The last report was dated 13 August 2008.
26. Dr White first diagnosed PTSD in a report dated 21 June 1999. He related Mr Graham's PTSD to service in Vietnam and an incident with a Sioux helicopter in 1972. He noted Mr Graham was drinking heavily, sleeping poorly, and prescribed Cipramil and continuation of Aurorix. There were regular consultations until 16 October 2002.
27. The clinical note dated 16 October 2002 says that Mr Graham is busy at work, with problems concentrating in an open office, which he was treating with regular walking. Critically, it notes the “DVA 100% increment approved”.
28. The next clinical note is dated 23 February 2005. There was a referral from Dr Chan to Dr White dated 28 October 2004. The clinical note dated 23 February 2005 stated that Mr Graham was not doing well. He had had four weeks recreational leave over Christmas. He was involved in home maintenance, and had day trips to the coast. He was stressed once he got back while continually reading the reports of accidents / incidents. He had poor sleep, waking up at 0230am most mornings, and was tired of a morning. Significantly, we understand the note to state that he had his house in Canberra on the market and will move to the coast where a house was partly built.
29. Mr Graham reported that he felt that he could snap all the time, and is snappy, irritable and cynical at work. He had sat down with his boss the previous week, and there was an option of working three days a week. He had been on medication in the past with little benefit. He had suffered side effects. There was reference to certificate to work 3 days a week on Tuesdays, Wednesdays and Thursdays for 4 months, and if not better, will leave work on medical grounds.
30. The certificate Dr White provided issued on 23 February recommended that Mr Graham was only fit for work for three days a week, unless required for work away from the Canberra area, from 7 March to 8 April 2005.
31. The clinical note dated 31 March 2005 recorded that the house on the coast was nearly finished and that Mr Graham would leave work by his birthday. He was trying to hang on at work. They have advertised for a replacement for him. He gets on okay at work with people but the type of work which related to aviation accidents and incidents was getting to him. He was irritable, snappy and intolerant at work. He dislikes going away and talking to groups but has to train people on his database. He has had enough of airplane accidents and near accidents and casualties. He is worse with the reminders, for example, email from ex-army mates. Once he was out of work he would landscape his place. His Canberra house was on the market. He often wakes at 0230hrs but during time off work he slept better.
32. In a report dated 31 March 2005, Dr White referred to his recommendation to work three days a week, and then said:
I also considered he could take prolonged sick leave but he was concerned that the work would not be covered and only accumulate. If he does not improve with the limited hours he may need some weeks of sick leave and may need to consider leaving work on medical grounds.
33. The medical certificate Dr White issued on the same day stated that Mr Graham:
is suffering from a Defence service related medical condition and I recommend that he is only fit for three days a week, unless required for work away from the Canberra area, from 08 April 2005 until 08 July 2005 (inclusive).
34. The notes on 25 April 2005 (ANZAC Day), state that Mr Graham is not good, especially with the Sea King accident with which he had some involvement. He has to do statistics on accounts and crew in the Directorate of Safety (part of RAAF). This took him back to his accident in 1972, where there were people burning and on fire. He was having nightmares, restless sleep, manifestations of these memories. He is trying to be disconnected. He was working three days a week, and was ok so far with three days at work one resting.
35. On 1 June 2005, Dr White noted that Mr Graham was on part time work and that there was continued deterioration of his PTSD and associated problems. Dr White noted a trial of medication again. The doctor also noted removal on Friday to south coast and that Mr Graham was staying with his daughter until he finished work.
36. On the same day Dr White wrote the medical certificate attached to Mr Graham’s special rate claim form. He certified that Mr Graham:
… is suffering from a Defence service related medical condition of post-traumatic stress disorder…
… due to his service he is unfit for work from 8 July 2005. … due to his PTSD he is permanently unfit for any full or part time employment for which he is suited by education training or experience. Due to his poor concentration he is unfit for any significant retraining. I recommend retirement on medical grounds.
37. The next clinical note is dated 29 August 2005. There are numerous clinical notes thereafter until the last one in 2008. On each one the doctor records Mr Graham's symptoms, his activities and stresses he suffers.
38. The clinical notes also chart the progress of the claim the subject of these proceedings. On 20 September 2005 Dr White recorded "no word from DVA". The note of 22 November 2005 stated that Mr Graham had almost finished the house, but has to get a carport and that there was no word yet from DVA. The note dated 12 December 2005 refers to "phone call: DVA". Two issues are noted – one we cannot decipher. The other is "issue of arbitrary decision of when to cease work. Need to give sufficient notice to work. Certificate to keep him useful to work to enable him to not be sacked".
39. According to the 22 May 2006 note, Mr Graham ran the ANZAC Day parade at Batemans Bay and apparently it went "OK". He "nearly pulled out" but was congratulated and praised. There was also a note "… to hear from DVA". A further note on 24 May stated that Mr Graham's service pension was delayed by paperwork. He was awaiting a date for the VRB in Sydney.
40. The 4 August 2006 note includes the comment "recent section 31 .. updated reports". The 9 November 2006 note records that the "161 recce sqn" website keeps Mr Graham busy but he was stressed by the in memoriam part because it referred to people whom he knew who had died. The doctor has also recorded "DVA – on service pension - ; Section 31 review rejected - VRB likely – had spent a week on a houseboat on the Murray River with others – drove up with wife”.
41. On 14 February 2007 Dr White recorded that the RSL advocate was reluctant as Mr Graham was seen as leaving at 55, i.e. retirement age. The 14 May 2007 note recorded "new advocate from NSW RSL", "booked for VRB Hopefully soon". "Struggling at work for some time – turned 55 – anxiety about DVA uncertainty".
42. On 20 July 2007 the doctor wrote that Mr Graham went to the VRB and was rejected “because concentrated heavily on departure at 55 and move to the coast -discuss with veteran advocacy service for advice re AAT”.
43. On 14 September 2007 Dr White stated that Mr Graham had stopped being ANZAC Day Parade co-ordinator due to stress and anxiety and referred to a 24 September meeting with Veteran's advocacy service. The 23 November 2007 note refers to Mr Graham's having seen the veterans advocacy centre, and going to the AAT. The 15 February 2008 note states that DVA required him to see Dr Roberts. Mr Graham broke down in front of him. The note on 17 April 2007 refers to problems in the army and that Mr Graham cannot work, and goes on:
Easter: went beserk with neighbour – party next door – could not sleep – complained 11 pm – big argument" not organising ANZAC Day – no plans.
Letter from Wing Commander Blaise
44. In support of his request for a review of the primary decision pursuant to s 31 of the Act, Mr Graham provided a letter addressed to him by Wing Commander Blaise dated 13 March 2006. The Wing Commander stated that he had known Mr Graham since 1999 and was his supervisor from late December 2004 until July 2005. In late January 2005 he was made aware of Mr Graham's medical conditions, including PTSD and chronic lower back and neck problems. He wrote:
Due to his medical conditions, Mr Graham indicated to me that he was going to resign from his position in early 2005.
45. The Wing Commander had asked for Mr Graham's support with the Defence Aviation Hazard Reporting and Tracking System until at least mid 2005, or until a suitable replacement was identified. He provided Mr Graham with flexible working hours "to enable him to take time away from work to deal with his medical conditions". He suggested that Mr Graham begin working three-day weeks with the opportunity for review. As the Wing Commander noted:,
He took this proposal to his psychiatrist who agreed and subsequently issued medical certificate for the period 7 March to 8 April 2005,
and then after review, extending it to 8 July 2005. Wing Commander Blaise understood that Mr Graham left work because of his medical conditions which were affecting his ability to continue to perform as expected.
Superannuation Records
46. Documents provided by Australian Reward Investment Alliance (ARIA) show the following. Mr Graham made his first inquiry about an estimate of his superannuation benefits on resignation by telephone on 24 March 2004. On 13 December 2004 estimates of his benefits available on 1 January 2005 and on 8 July 2005 were provided. On 14 April a one-on-one interview occurred for the purpose of age retirement. We infer from the order of the documents that that was April 2005. His application was dated 30 May 2005 and noted that his address after 10 June 2005 would be Sunshine Bay, which is located near Bateman's Bay on the south coast of New South Wales. Another record dated 11 July 2005 shows that Mr Graham terminated work with the Department of Defence as at close of business 8 July 2005, which was his birthday. When cross-examined, Mr Graham said that he could not recall making the inquiries in 2004, but later agreed that he did plan.
Other Medical Evidence
47. Dr Mark Burns, occupational physician, saw Mr Graham on 28 February 2008. He did not consider that Mr Graham's cervical or lumbar spondylosis would prevent him from doing clerical or administrative work, although they would prevent him from working in areas that required physical or manual activity. In his opinion, it was only the PTSD that has forced Mr Graham out of the workforce. His ability to cope had been reduced. He did not believe that Mr Graham should be disadvantaged purely because he decided to plan out the way he was going to be forced to leave work. Dr Burns commented that it appeared that Mr Graham had not looked for significant employment.
48. Mr Graham told Dr Burns that over the last twelve months of employment he was having significantly increased problems, blowing up fairly easily at work and having marked anxiety problems. He also told Dr Burns that he had drunk alcohol to excess for many years, binge drinking on Friday nights and drinking each night at home when in Canberra, and had continued to drink on most days since moving to Bateman's Bay. This history of alcohol consumption is much greater than that given to Dr White from June 1999 to 2005.
49. When giving oral evidence, Dr Burns said that because Mr Graham did not have disciplinary problems at work or time off work, or was not fighting with other employees, did not mean he was not having problems. He was more introverted. When cross-examined, Dr Burns said that he believed Dr White had recommended the reduction in hours. However, he said that it was easier to accept someone who had tried to work part-time rather than ceasing straight from full-time work.
50. Dr Chase, occupational physician, also saw Mr Graham on 28 February 2008. He emphasised that Mr Graham had no history of difficulties or problems with job performance. He accepted that he was not capable of continuing employment on a full-time basis as an aircraft maintenance technician or as a database manager or in technical data and policy, but may be able to work on a part-time basis. He did not consider that Mr Graham's lumbar and cervical spondylosis would by themselves prevent him for working altogether. He considered that Mr Graham's PTSD was the major issue, but given his work history and in particular that his supervisor had requested Mr Graham to stay after Mr Graham said he was leaving, “strongly argues” that there appeared to be no decrease in Mr Graham's job performance. Dr Chase thought Mr Graham capable of undertaking some retraining. The PTSD did not at any stage appear to be causing any impairment to Mr Graham’s work capabilities. He did not consider that Mr Graham had been genuinely seeking remunerative employment and had lost interest in work.
51. Doctor Dinnen, consultant psychiatrist, saw Mr Graham on 27 February 2008. During that consultation, Mr Graham was tense throughout the interview and appeared to be struggling to hold back tears. When asked about that, Mr Graham said "I'm like this all the time – something like this (the interview) heightens it". In Dr Dinnen's opinion, Mr Graham's PTSD caused significant impairment with the consequence that Mr Graham cannot work 8 hours. Dr Dinnen believed his account and that of Dr White that his decision to retire from work was as a consequence of his war-caused PTSD, and that he needed ongoing treatment. Mr Graham's condition had become worse before he retired, but he had had supportive management. Mr Graham told Dr Dinnen that he had stopped work at 55 on the recommendation of his general practitioner and psychiatrist. Dr Dinnen noted that he was recently been commenced with the medication Lexapro.
52. Mr Graham reported to Dr Dinnen the following behaviour that occurred from 2002 to 2005. He had become very abusive to his peers and to his superiors. He was very short with people. He would become upset and storm off and have to calm himself down sitting under a tree. He had poor concentration. He could be forgetful and lose his way home. He explained that he had had a break from treatment but his symptoms were so severe that he had to go back to see Dr White. Mr Graham also told Dr Dinnen that he had planned to leave in January but stayed on part-time at the suggestion of his supervisor. He was not coping but and was advised to resign by his doctors. However, to resign before 55 would cost him superannuation benefits, but he hung on until them.
53. Dr Dinnen asked him when he started to drink heavily. Mr Graham gave a history of starting to drink heavily while in Vietnam, drinking heavily on his return from Vietnam, being a binge drinker mainly at weekends. He had "hit the booze" when he saw Dr White in 1999. Mr Graham said that his drinking continued to be heavy although he has cut down since ceasing work. This is different from the history given to Dr White.
54. Dr Roberts, consultant psychiatrist, saw Mr Graham on 14 January 2008. Mr Graham told Dr Roberts that he had been going to walk out on 1 January 2005 but because of support from his boss, co-workers and Dr White, he had stayed on. He had stayed on until 55 in order to obtain superannuation benefits. Mr Graham also told Dr Roberts that he attended the local RSL club regularly and looked after the website of his unit. Mr Graham gave a history of increased drinking over the last 7 to 8 years.
55. In Dr Roberts' opinion, Mr Graham gave a history of cognitive impairment that was not clinically evident. Dr Roberts' opinion was:
Having regard to the spectrum of symptomatology elicited and assuming the diagnosis of PTSD the level of anxiety symtoms is of mild degree and even if PTSD is assume to be present the severity of the condition would be in the milder spectrum of that condition.
Dr Roberts also considered that, there having been no criticism of Mr Graham in the workplace, the fact that at the time of ceasing work he had accrued three to four months of sick leave was inconsistent with PTSD that incapacitates.
56. In summary, Dr Roberts' opinion was that that Mr Graham was not rendered incapable of undertaking gainful employment on the basis of PTSD. He also considered that Mr Graham had not been seeking remunerative employment.
57. Neither Doctor Dinnen nor Doctor Roberts issues a prospective medical certificate such as Dr White issued in June 2005. Dr Roberts considered that it is impossible on reasonable medical psychiatric grounds to issue such a certificate.
CONCLUSION
Test 2
58. We have considered all of the evidence before us and have set out above the most significant aspects of it. We find that Mr Graham's evidence is unreliable. It follows that medical opinions based on his reported history without any objective confirmation are also not reliable.
59. We find that Mr Graham had carefully planned his course for retirement, including seeking to maximise his retirement income. We infer that plans for building the house on the coast had begun at least before the end of 2004, given that approvals are necessary, builders have to be retained, and that the house was partly constructed and his Canberra home was on the market on 23 February 2005.
60. We find that Mr Graham began seeing Dr White when he was seeking to claim PTSD as a war-caused condition and ceased seeing him in 2002 when that condition was accepted and he was found to have incapacity of 100%. He did not consult Dr White again until 23 February 2005, although the referral from Dr Chan is dated 28 October 2004, when we infer he intended to try to maximise his veterans' entitlements.
61. Mr Graham began inquiring about his superannuation entitlements in April 2004 and later in the year, details being provided on 13 December 2004 of benefits available on 1 January and 8 July 2005.
62. The clinical notes made by Dr White at the first consultation on 23 February 2005 make no reference to problems at work before Mr Graham returned from holidays in 2005. There is no lengthy history of difficulties during the more than two years he had not seen Mr Graham. There is also no other contemporaneous evidence to that effect. This first clinical note also records that Mr Graham's Canberra home was on the market, and that he will move to the coast where a house was partly built.
63. Mr Graham presented to Dr White the option of working three days a week which had been suggested by his boss after Mr Graham had expressed his intention to leave early in 2005, and Dr White issued a certificate for three days a week, unless required for work away from Canberra. Dr White's clinical note states that Mr Graham had seen his boss the week before he consulted the doctor. There has been no cogent evidence that explains why Mr Graham was capable of working only three days a week when in Canberra, but four days a week away from Canberra.
64. By 31 March 2005, the house on the coast was nearly finished and Dr White noted that Mr Graham would leave work by his birthday. The Canberra house was still on the market. Dr White gave another medical certificate in similar terms to the first, from I April 2005 until 8 July 2005 (inclusive) – the latter being Mr Graham's birthday.
65. On 1 June 2005 Dr White stated that Mr Graham was unfit for work from 8 July 2005. As noted above, neither Dr Dinnan nor Dr Roberts would provide such a prospective certificate. In our opinion, Dr White, for whatever reason, went along with Mr Graham's plans.
66. We consider that Dr Roberts' assessment of Mr Graham's PTSD is the most accurate. Mr Graham's symptoms are “mild-moderate” and the condition does not prevent him from working. We also accept Dr Burns' assessment of Mr Graham's physical incapacity. We find that Mr Graham is not incapacitated from undertaking remunerative work, and in particular his war-caused injuries alone do not incapacitate him from work for 8 hours a week, or 20 hours a week. The reason Mr Graham stopped working was because he wanted to retire, not because of an incapacity to work.
Test 3
67. This conclusion means that it is unnecessary to consider the third test in s 23(1)(c) and s 24(1)(c) of the Act. However, we set out our findings in summary. The kind of remunerative work that Mr Graham was undertaking was data base administration. As is clear from the earlier discussion, we find that Mr Graham is not prevented from continuing that work by reason of his PTSD and cervical and lumbar spondylosis alone. Neither is he suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of those incapacities.
DECISION
68. For the reasons set out above, the reviewable decision, that Mr Graham is not entitled to the Special or Intermediate Rate under ss 23 and 24 of the Act, is affirmed.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member and Dr MEC Thorpe, Member.
Signed: ….…[sgd]...……….
Steven Mulipola, Associate
Date of hearing: 29 and 30 October 2009
Date of decision: 6 May 2009
Counsel for the Applicant: Ms E Wood
Solicitors for the Applicant: Legal Aid Commission of NSW
Representative for the Respondent: Advocacy Section, Department of Veterans’ Affairs
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