Gregory and Repatriation Commission
[2003] AATA 521
•4 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 521
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1727
VETERANS' APPEALS DIVISION ) Re RICHARD GREGORY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date4 June 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution thereof determines that the Applicant is entitled to the payment of a disability pension at the special rate with the date of effect being 9 February 2000.
] Dr J D Campbell
Member
CATCHWORDS
Veterans' Entitlements - accepted disabilities of post traumatic stress disorder and Carcinoma of Prostate - special rate.
Veterans' Entitlements Act 1986, ss 9, 24, 120.
REASONS FOR DECISION
Dr J D Campbell, Member
1. In this application, Mr Richard Gregory (“the Applicant”) seeks a review of the decision of the Veterans’ Review Board of 23 August 2001 which sets aside the decision of the Repatriation Commission dated 13 July 2000, and in so doing determined that the Applicant’s disability pension should be assessed at 90 per cent of the General Rate to operate from 9 February 2000.
2. A hearing was held before the Tribunal on 10 March 2003 at which the Applicant was represented by Mr Dawson of Counsel. The Respondent was represented by Mr Modder, a solicitor from the Department of Veterans’ Affairs. The Applicant, Doctor Dinnen and Mr Selth presented oral evidence before the Tribunal.
3. The following written material was placed into evidence before the Tribunal.
Exhibit No.
Name of Document
Dated
T1-T13
P1-P47
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1
Applicant’s Statement of Facts and Contentions
7 August 2002
A2
Medical Report Doctor Dinnen
5 June 2002
A3
Letter from Defence Intelligence Organisation dated 12 September 2002 to Wyburn & Associates
12 September 2002
A4
Medical Report Doctor Burns
27 May 2002
R1
Respondent’s Statement of Facts and Contentions
13 December 2002
R2
Clinical Notes Doctor R Bills
R3
Clinical Records of the Applicant from DOD
R4
VRB transcript
23 August 2001
R5
Medical Report Doctor McGrath
6 March 2002
R6
Medical Report Doctor Sabosky
18 April 2002
R7
Medical Report Doctor Sabosky
24 July 2002
R8
Letter to DIO from Respondent
19 September 2002
R9
Letter from DIO to Respondent
24 October 2002
R10
Letter from Air Force Headquarters to Respondent
10 October 2002
ISSUES:
4. The relevant issues in this matter is whether the assessment of the Applicant’s war caused disabilities should be at the special rate, as opposed to the assessment of disability pension by the Veterans’ Review Board at 90 per cent of the General Rate.
LEGISLATION:
5. The relevant legislation in this matter is the Veterans’ Entitlement Act 1986 (“the Act”) and in particular sections 9, 24, 28, 120.
BACKGROUND:
6. The Applicant lodged a claim for stress/nerves on 9 May 2000 (T4). Included with the claim was a medical report from Doctor Altman, a consultant psychiatrist, who considered the Applicant to be suffering from a severe post traumatic stress disorder with an associated major depression; that an assessment of this condition pursuant to table 4 of the fifth edition of the Guide to the Assessment of Rates of Veterans Pensions is 48 points and that the Applicant was totally and permanently unfit to work (T3).
7. The Applicant had previously had accepted the condition of Carcinoma of the prostrate as a war caused disability by the Respondent, and in a decision dated 13 July 2000 (T7) determined that the Applicant’s post traumatic stress disorder was a war caused disease and that disability pension was assessed at 80 per cent of the general rate with the date of effect being 9 February 2000 (T7).
8. On 23 August 2001, the Veterans’ Review Board, in considering the Applicant’s appeal on the issue of assessment, concluded that the Applicant was not entitled to payment at the Special Rate as the Board was not reasonably satisfied that the veteran ceased work due to accepted disabilities alone in the circumstances that there was no corroborative evidence as to the Applicant’s understandings as to the reasons for ceasing work. The Board however did increase the assessment of the Applicant’s disability pension to 90 per cent of the General Rate (T2).
MR GREGORY
9. Mr Gregory detailed to the Tribunal that he commenced service with the RAAF at age 16 in 1958 as an apprentice radio technician; was accepted for pilot training in 1964; completed pilot training in 1966: enjoyed three periods of service at Butterworth; a period of service at Ubon between July 1966 and July 1967; a period of service in Vietnam between November 1969 and June 1970 as a forward air controller directing fire against enemy targets in support of the 25 Infantry Division, and was also involved in spraying of agent orange; stationed in Sinai in 1984-1985; RAAF Staff College 1985 – 1987; Australian High Commission Malaysia 1987 – 1989; Base Support Wing Williamtown 1990 – 1993; DIO 1993 – 1996; retired from active service in July 1996 – rank Group Captain.
10. After retirement from active service in July 1996, with his last full time service position being Director North Asia Sector at Defence Intelligence Organisation, Mr Gregory stated that he was employed as a reserve officer by the RAAF. Mr Gregory indicated that his first activity in this role was disrupted by his operation for his prostate condition in September 1996, and that when he returned to the workforce towards the end of 1996, his task was to assist in a research project at Defence Intelligence Organisation, with his commitment being for 100 days per financial year.
11. Mr Gregory stated that he continued to work on the same project during 1996, 1997 and 1998 on the same time commitments. During this period of work Mr Gregory stated that he had little contact with his branch head, wondered when he would finish his project and thought that he was working slowly, which was certainly a change as he used to consider himself productive.
12. During this period Mr Gregory stated that he often felt frustrated, internalised his anger and tried not to show his feelings at work, but would let it go when he got home. During this period Mr Gregory stated that he often felt ill and under stress and that at times he was physically unable to attend work, making days up at a later time. Mr Gregory indicated that he had been under Doctor Altman’s care since November 1997 and that his current medication was Lovan.
13. Mr Gregory told the Tribunal that since his cessation of his reserve work, he has been working slowly on some projects, which include restoration of two cars (many years) and the building of a cupboard (two to three years). He spends his time feeding the animals, doing some gardening, assisting with housework, attending a veterans group and assisting at legacy (sporadic).
14. In response to questions asked in cross-examination Mr Gregory stated:
· at age 55 it was compulsory for retirement from active service and that at age 60, compulsory retirement from the reserve occurs with no further reserve commitment.
· that in his history to Doctor Altman (T3, p5), he may not have used the words “threatened to punch on a couple of occasions” for he made no direct threat to punch anyone, but more in the context of talking to a third person.
· that he obtained the letter from Defence Intelligence Organisation (Exhibit A3) to satisfy record of service with Defence Intelligence Organisation as a reserve officer.
· that in his final posting as a serving officer with Defence Intelligence Organisation, he felt that he related satisfactorily to others and when he returned as a reserve officer, while feeling more isolated, contact with others was general.
· in his reserve officer activities he enjoyed good relationships with his section head (Doctor Nash), although she used to often ask as to when his work was going to be completed.
· in 1998 there was significant tension in the workplace, with a spill of the four section heads and a lowering of morale, and during this period it was difficult to remember the degree of supervision received.
· at this time (1998) he put in an application for a position he had occupied at an earlier stage (1993-1996) to test the waters, although he did not believe he had a hope of getting it. He felt such an application was more a reflection of how he was feeling about himself.
· during his period of active service he believed he had a reputation as being a work alcoholic (80 hours per week).
· that the assigned project during his reserve period was not a large project, and that the project did give him access to extra money and to a library which helped him complete a Masters degree in Defence Studies in 1999, a part time course work degree.
· that he noted that his motivation for activities after his prostate cancer diagnosis and treatment was lessened, and it was a relief when more reserve days were not forthcoming in 1999/2000.
· that he moved to his current property after his operation in 1996, with the property comprising 20 acres of rural residential land, with no fences and upon which he has some 40 fruit trees and grows some vegetables. He spends some 10-20 hours per week tending to the property, but has found coping with the drought both stressful and depressing.
· that his wife works as a teacher two days per week; that he is not looking for work and that he undertakes irregular voluntary work for legacy (1-2 hours per week) and for the RSL.
· that there was an exacerbation of his depression in December 1998 following the death of two close family members in a car accident.
· that his activities at his rural residential property are minimal, there being only a small amount of arable land; that he enjoys reading; has few friends and no airforce acquaintances:
· that his course activities involved a few hours per week.
· that he is afraid of working because of the difficulties associated with the creation of new relationships
· that he has been sleeping poorly for years, tends to read late, often awakes sweating and unable to return to sleep, laying awake for several hours, with sleep finally returning as sun rises.
· consumes an average of two glasses of alcohol per day.
15. In response to a question in re-examination Mr Gregory stated that he had stated to Doctor Burns that he may be able to return to doing one to two days per week of research work (Exhibit A4,p3), and this produced the effect nominated in Doctor Dinnen’s report (Exhibit A2, p4 penultimate paragraph).
MEDICAL EVIDENCE:
DOCTOR ALTMAN – CONSULTANT PSYCHIATRIST
16. Doctor Altman, in his report dated 11 November 1999 (T3) detailed the Applicant’s medical history which includes an itemised list of stressors experienced by the Applicant while serving in Vietnam and his response to these stressful experiences and also an itemised list of symptoms.
17. Doctor Altman summarised his opinion in the following manner:
“In summary, in my opinion as a result of his Vietnam experience Mr Gregory suffers from a severe chronic post traumatic stress disorder with an associated major depression...
Furthermore in my opinion as a result of the above mentioned war related psychiatric disorder alone he is totally and permanently unfit to work.”
DOCTOR SABOISKY – CONSULTANT PSYCHIATRIST
18. In a medical report dated 18 April 2002 (Exhibit R6) Doctor Saboisky, having detailed the Applicant’s history and symptomatology concluded:
“1. His medical employment history is as above. He does voluntary work for a group of war veteran ladies.
2. I do not believe he has ever suffered from post traumatic stress disorder as described in DSM IV. He has had post traumatic dreams and nightmares but certainly there is no evidence up until 1998 that he was in any way significantly impaired or required medical attention. As described above I do believe that he had a major depressive disorder because of multiple losses and this was a primary reason why he went off work.
3. The reason he left work was primarily related to lack of productivity, a discussion highlighting this with his superiors and the fact that increasingly he felt that he was not able to produce the same standard as previously because of diminished concentration. He had for some time been concerned about his irritability at home and felt that all in all it was not worthwhile risking his domestic homeostasis by putting himself under continuing work pressure.. He is not currently working and has no requirement to do so. He works around his farm and says he is quite capable of doing most physical work. He does voluntary work for the group of Veteran ladies.
4. I believe that as he currently presents to me he is quite able to work. I see no reason why he could not work for more than twenty hours per week although I doubt that he could perform at his previous high level as a Section Head. He has no desire to be responsible for others or to supervise others.
5. I believe he could do project work involving his area of expertise. He would be quite capable of doing research in various areas for which he has been trained and I believe he could, given time, produce excellent reports. He could I believe work in most non-physically demanding clerical type jobs.
6. I believe that he has no real motivation to work given the fact that he is sixty and is comfortably retired.
7. His GARP assessment regarding his current condition is attached (13)”.
19. On 24 July 2002 Doctor Saboisky in a supplementary report (Exhibit R7) and having read the report of Doctor Dinnen dated 5 June 2002, stated that he disagrees with Doctor Dinnen’s diagnosis of post traumatic stress disorder with depressive features. He believes the more appropriate diagnosis is a depressive disorder with some post-traumatic features.
Further Doctor Saboisky considered that the Applicant’s inability to work on a full time basis is inextricably linked to his depressive disorder.
DOCTOR DINNEN – CONSULTANT PSYCHIATRIST
20. In a medical report dated 5 June 2002 (Exhibit A2) Doctor Dinnen, having reviewed the psychiatric reports of both Doctor Altman and Saboisky and having detailed the Applicant’s history and symptomatology, summarised his opinion in the following terms:
“Opinion: With regard to diagnosis, I have no doubt that post traumatic stress disorder with depressive features is the appropriate description of this patient’s long standing psychological difficulties.
A man of integrity, intelligence and achievement is not likely to admit to difficulties coping with work unless it is a reality. While all of us may find it difficult to accept that a man of this standard should “burn out”, and be unable to continue with his career, the reality is that it happens commonly with individuals who have been affected by traumatic war service. Incidentally, little attention appears to have been paid to the range of experiences which this man had in Vietnam, and at Ubon Air Base, and indeed I would venture to suggest that many other traumatic memories have been uncovered or could be uncovered in therapy.
I am satisfied that this patient is not able to engage in his usual employment for more than 8 hours per week. If he were to attempt to work one or two days a week, I believe it would significantly worsen his condition.
He will require ongoing psychiatric care.”
21. In oral evidence before the Tribunal Doctor Dinnen stated that there are two elements to be considered as regards the Applicants capacity to work. The first is his illness and the second is his ability to function as a result of the constraints of his illness, which includes an ability to adapt to and work under the conditions of workplace.
In this regard Doctor Dinnen considered it important to consider the patient’s view of his capacity to work.
22. Doctor Dinnen also disagreed with the opinion of Doctor Saboisky considering his opinion to be myopic or one eyed, with no credit given to the reality of Mr Gregory’s service. Doctor Dinnen felt Doctor Saboisky’s report failed to give weight to all factors, with a lack of balance in the report arising from an overemphasis on extra service factors.
23. Doctor Dinnen considered that the clinical onset of the Applicant’s PTSD was when he presented for treatment, but he would not be surprised if there had not been outbursts at work being noted or, there may have been occasions at work where the Applicant was irritable.
24. In his report dated 27 May 2002, (Exhibit A4), Doctor Burns, having reviewed the Applicant’s history and symptomatology, detailed the following conclusion:
“With respect to employment, I believe that Mr Gregory was under significant stress at the time his cancer of the prostate was diagnosed. This aggravated his pre-existing post traumatic stress disorder and made it impossible for him to continue at work. From today’s consultation, it is obvious that his carcinoma of the prostate has been treated successfully with surgery and that his post traumatic stress disorder is coming under control with medication. It is unlikely, though, that he will ever be totally free of his post traumatic stress disorder.
I do not believe that Mr Gregory would be wise to return to full time work, as this is likely to aggravate his psychological problems. He should be able to return to work on a part time basis, for between 8 or 20 hours per week in a less stressful area. Today he himself talked about working as a tutor.
In conclusion, I believe that his accepted disabilities alone would prevent him from working more than 20 hours per week. I do not believe, though, it would prevent him from working between eight and 20 hours per week.”
DOCTOR D. MCGRATH – OCCUPATIONAL PHYSICIAN
25. In a report dated 6 March 2002 (Exhibit R5), Doctor McGrath, having reviewed the Applicant’s history and symptomatology, concluded that the Applicant has work capacity currently unrealised because of a competitive environment and that with social support he should have the current work capacity of between eight and 20 hours per week being entirely reasonable and recommended for his psychological health.
MR SELTH – ASSISTANT SECRETARY DEFENCE INTELLIGENCE ORGANISATION
26. In a report from the Defence Intelligence Organisation dated 24 October 2002 (Exhibit R9) the following statements were included;
“Question 10
The following statement is provided by the relevant Branch Head.
“During his time in NAGI Branch I did not have regular, or even frequent contact with GPCAPT Gregory, who was supervised day to day by his Section Head (EL2 level). As far as I could judge, however, he fitted into the Defence Intelligence Organisation work environment very easily. He seemed comfortable in his role as an analyst, and got along well with his colleagues. However, I became concerned that he was making slow headway on the main analytical project assigned to him, and raised this on more than one occasion with his Section Head. When GPCAPT Gregory failed to produce any significant increase in his level of work performance after two years, I decided not to submit a bid for further RSG days from DRES-AF. At the initiative of his Section Head, however, and without my knowledge or endorsement, a further bid for FY 98/99 was submitted and a further 100 RSG days approved. No bid was submitted for FY99/00. At no time while he worked in the Branch did I see any obvious signs of physical or mental disability, nor do I recall ever seeing him angry.”
Question 11.
As there were still no signs of improved performance after GPCAPT Gregory’s third year in NAGI Branch, no further bid for his service was submitted. At that time he had still not completed the main analytical project, for which RSG days had been allocated.”
27. In oral evidence before the Tribunal Mr Selth, who had been with the Applicant at Joint Service Staff College in 1989, and who was the relevant branch head at Defence Intelligence Organisation at the relevant period stated that there were four section heads. At that time Mr Gregory worked to Doctor Nash as section head (i.e. during his reserve work activity).
28. At the relevant period, Mr Selth stated that he rarely saw the Applicant in the workplace, but indicated his temperament in the workplace to be fine, of good humour and no displays of temper, although on one occasion the Applicant became angry with the Director of Human Resources.
29. Mr Selth stated that he had concerns about the Applicant not being particularly productive and that he had spoken to Doctor Nash about this issue and had received no real response. Throughout his period of reserve employment Mr Selth stated that Mr Gregory did not produce a single thing they could use, and that he would not have requested a further allocation of time for Mr Gregory’s third year in the light of his failure to produce – the request having been actioned in his absence. Mr Selth detailed a reorganisation in 1998 which involved the spilling of the four section heads and the advertising of these positions and that the Applicant did apply for a position.
30. In response to questions in cross-examination, Mr Selth stated that he had known Mr Gregory since 1989 and was happy to accept him as a section head in 1993. Mr Selth stated that Mr Gregory had a reputation as an effective section head, although he expressed being a little surprised when informed that Mr Gregory had in 1994 received a commendation from the Head of the Defence Force, as he did not think the Applicant to be particularly energetic or original.
31. Mr Selth stated that he considered the Applicant should have been much more productive doing his reserve employment and he was disappointed with Mr Gregory’s work performance as a reserve officer.
SUBMISSIONS:
APPLICANT
32. Mr Dawson, in noting that the Applicant suffered from two war-caused conditions, namely severe post traumatic stress disorder and carcinoma of the prostate and that these two conditions had been assessed by the Respondent as having impairment rating of 38 and 15 points respectively, which converted to a single value of 45 points, submitted that the only issue in question was the Applicant’s capacity to work.
33. In addressing this issue, Mr Dawson drew the Tribunal’s attention to the following:
· the Respondent's assessment that the Veteran cannot work as assessed by the psychiatrist (table 4.4, T6, p32);
· Doctor Altman, the treating psychiatrist’s opinion that the Applicant is totally and permanently unfit to work.
· Doctor Dinnen – unable to engage in his usual employment for more than eight hours per week.
· Doctor Saboisky’s opinion that the Applicant would be able to undertake 20 or more hours of work per week in project and research work in his area of expertise are refuted by Mr Selth’s comments that the Applicant did not produce anything that could be used over a period of three years and that he was not productive in the area of research.
34. Mr Dawson, in drawing the Tribunal’s attention to Section 28 of the Act submitted that the vocational, trade and professional skills, qualifications and experiences of the veteran that could be taken into account when considering S.24(1)(b) of the Act include these of pilot, managerial and project including research activity.
RESPONDENT
35. Mr Modder submitted that there was some evidence of an exaggerated history being given to Doctor Altman, when the Applicant is recorded as threatening to punch someone on a couple of occasions, and indeed there is much evidence to suggest the Applicant has an easy going nature, as reflected in the assessments of Doctors Saboisky and McGrath.
36. Further Mr Modder submitted that the Applicant has a continuing capacity to work in excess of 20 hours per week and in so contending relies upon the opinion of Doctor Saboisky, the activities of what the Applicant does each day, and the Applicant’s ability to pursue and finalise his degree of Master of Defence Studies in 1998/99.
37. Further the Respondent contends that there are issues which prevent the Applicant from working and these include:
· age
· availability of work
· a desire not to seek further work.
CONSIDERATION AND FINDINGS:
38. In this matter the Tribunal has been particular in detailing the Applicant’s work history and the two particular medical conditions that have been determined by the Respondent as being war caused, namely post traumatic stress disorder and carcinoma of the prostate. More importantly the Tribunal has focussed attention on the circumstances surrounding the Applicant's last period of employment with Defence Intelligence Organisation as a reserve officer in the years July 1996 -– June 1999.
39. It is apparent to the Tribunal that the Applicant during his period of active service with the RAAF was a valued and distinguished officer, who having commenced his service as an apprentice radio technician and completed pilot training, served in a variety of increasingly difficult and onerous postings over a period of 38 years. The Tribunal notes that the Applicant’s postings reflected a wide exposure to difficult situations, including an eight month period as a forward air controller supporting the 25 Infantry Division in Vietnam in 1969/70. There is no evidence before the Tribunal to suggest that up to the time of his discharge in July 1996, that the Applicant was other than a highly valued and industrious officer, who had in 1994 received a commendation from the Head of the Defence Force.
40. The Tribunal notes the events and circumstances surrounding the Applicant’s employment as a reserve officer at Defence Intelligence Organisation in the period July 1996 to June 1999. The Tribunal observes that the Applicant himself observed changes in his own personal behaviour, his ability to work effectively and his inability to produce a useable document for his employer over a period of three years. The Tribunal further notes the evidence of Mr Selth who had known the Applicant since 1989, and who had been happy to have him as a section head in 1993. In his evidence Mr Selth points directly to a failure by the Applicant to produce any useable material as a result of work over a three year period, and who in oral evidence indicated that it was his intention not to renew the Applicant’s reserve service one year before it was not renewed, simply because the Applicant was not a productive worker.
41. As a consequence of these considerations the Tribunal concluded that the Applicant’s failure to perform in the work place was the reason as to why his service was not further requested after the year 1998/99.
42. The Tribunal has already noted that the Applicant has two accepted disabilities, namely post traumatic stress disorder and carcinoma of the prostate. The Tribunal, in noting Doctor Saboisky’s opinion that the appropriate psychiatric diagnosis is a depressive disorder with some post traumatic features, noted that while the Respondent wished to rely on the doctor’s opinion as regards work capacity the Respondent did not seek to contest the diagnosis. The Tribunal, nevertheless in the light of the Applicant’s evidence, the detail symptomatology as outlined in Doctor Altman’s report and the opinions of Doctors Altman and Dinnen, concludes that on the balance of probabilities the psychiatric diagnosis in this matter is post traumatic stress disorder with depressive features.
43. The relevant legislation in this matter is section 24 of the Veterans’ Act with the relevant subsections detailed:
“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 a pension that he or she is receiving; and
(aab)the veteran has 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 or undertaking remunerative work for periods aggregating more than eight 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
….
(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 of his or her own account, by reason of 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.”
44. The Tribunal notes that the assessment of pensions involves applying section 120(4) of the Veterans’ Act so that the Tribunal must decide all relevant matters to its reasonable satisfaction.
“120(1) … (3)
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)… (7)”
45. In addressing the Applicant’s claim for special rate, the Tribunal, in noting that the Applicant was under the age of 65 at the time of application and that his disability pension for his war-caused diseases namely post traumatic stress disorder and carcinoma of the prostate, has been assessed at 90 per cent of the General Rate, concludes that the Applicant satisfies subsections 24(1)(aa), (aab), and (a)(I) of the Act.
46. In relation to section 24(I)(b) of the Act, the Tribunal is mindful that it must be satisfied that the Applicant’s incapacity from his war-caused disabilities is of such a nature as of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
47. The Tribunal has previously detailed both the veteran’s vocational, trade and professional skills, qualifications and experience and the kinds of work that the Applicant might reasonably undertake, and also concluded on the balance of probabilities that further employment in his part-time role at Defence Intelligence Organisation was not offered in the light of the Applicant’s failure to produce any useable report over a period of three years. Indeed it would appear to the Tribunal that Mr Selth would have wished to cease the Applicant’s employment a year earlier, and again for the same reason.
48. More importantly in the Tribunal’s view is that the work behaviour and productivity in the Applicant’s reserve employment with Defence Intelligence Organisation would appear inconsistent with that of the previous 38 years when serving full time with the RAAF. In addressing this issue, the Tribunal notes the Applicant’s self appreciation of the events and circumstances from July 1996 onwards and in particular the negative personality attributes which came to the fore and in turn symptomatic of underlying mood variation, difficulty in concentration, difficulties in sleeping becoming more pronounced, difficulties with relationships and apparent comfort in relative isolation on his rural residential acreage and a distinct lowering of motivation as regards task commencement and/or completion whether it be in the work or domestic environment.
49. In addressing the issue of work capacity, the Tribunal, having outlined but a few of the Applicant’s psychological difficulties, notes the opinions of the three psychiatrists. Doctor Saboisky, while differing in his opinion as to diagnosis, concludes that the depressive disorder had its origins associated with the prostate cancer surgery and that further depressive symptomatology has been associated with non service issues, such as the death of two close relatives in a car accident. It is Doctor Saboisky’s opinion that the Applicant was responding to anti depressive medication and that he had a residual work capacity of more than 20 hours per week.
50. Both Doctor Altman, the treating psychiatrist and Doctor Dinnen conclude that the Applicant has a severe post traumatic stress disorder with associated depressive features. In their opinion it is this disorder which has affected the Applicant’s work performance during his last years of part time work at Defence Intelligence Organisation, which in turn led to a non offering of further work and which has created the situation where the Applicant’s work capacity to undertake remunerative work is quantified at less than eight hours per week.
51. The Tribunal, in noting the opinions of Doctors Burns and McGrath and their various assessments of residual work capacity, concludes that on the balance of probabilities the Applicant satisfies section 24(1)(b) for the following reasons:
· the Applicant’s longitudinal history of successful work performance and capacity over 38 years being displaced by a three year history of non work performance and on obviously diminishing work capacity;
· the acceptance of the Applicant’s carcinoma of the prostate and his post traumatic stress disorder as war caused diseases;
· the opinions by both Doctors Altman and Dinnen that the Applicant’s incapacity arising from his war caused disease of post traumatic, traumatic stress disorder with associated depressive symptomatology is of such a nature that it alone renders the Applicant incapable of undertaking remunerative work for more than eight hours per week;
· that the opinion of Doctor Saboisky as regards the Applicant’s work capacity is in part a reflection of his diagnosis – a diagnosis which is inconsistent with the diagnosis before the Tribunal and a diagnosis not favoured by the Tribunal, having examined all the material before it;
· that within Doctor Saboisky’s report, his opinion as regards the Applicant’s work capacity would in the Tribunal’s view appear to minimise any contribution to the Applicant’s psychiatric condition of his 38 years active service in the RAAF in a variety of stressful postings and activities. Further Doctor Saboisky would appear to place significant emphasis on obsessive personality traits and focus on later rather than longer term circumstances which have created the Applicant’s psychiatric disorder, an approach with which the Tribunal noted Doctor Dinnen did not concur;
· that the opinions of the occupational physicians are noted, but in matters pertaining to psychiatric evaluation and assessment the Tribunal must respect and in this matter prefer the opinions expressed by the specialist psychiatrists when it comes to both diagnosis and the effects that such a psychiatric condition will have on both work performance and work capacity.
52. In addressing section 24(1)(c) of the Act, the Tribunal notes that apart from one attempt to apply for a job in 1998 the Applicant has not since the cessation of his employment, actively engaged in searching for a job. As a consequence any ameliorating provisions contained with section 24(2)(b) of the Act do not come into play.
53. The Tribunal has already noted and concluded that the Applicant last remunerative work ceased, because his employer did not wish to offer him any more. The reason for the employer’s action was clearly nominated by Mr Selth, namely the Applicant’s lack of productivity in the workplace. The Tribunal also notes that the psychiatric opinion expressed by both Doctors Altman and Dinnen is that the Applicant’s war caused post traumatic stress disorder with associated depression was the cause for non performance in the work situation which led to his non re-hiring and also continues to prevent the Applicant from undertaking remunerative work.
54. In addressing the four questions outlined by Branson J in Flentjar vRepatriation Commission (1997) 48 ALD 1, the Tribunal makes the following observations;
· the relevant remunerative work that the veteran was undertaking within the meaning of section 24(1)(c) was part time research project work;
· that by virtue of his war caused disease the Applicant was prevented from continuing to undertake that work;
· that while the Respondent has alluded to other factors, e.g. age, retirement, scarcity of work, the Tribunal notes that during the Applicant’s presentation both to the Tribunal and to the many doctors he has seen, such issues of age, retirement lifestyle and work availability have not been directly put to the Applicant, nor in fairness has any evidence been placed before the Tribunal which would allow the Tribunal to properly assess such factors and place them within the context of this particular matter;
· that on the evidence before the Tribunal the only factors preventing the veteran from continuing to undertake that work were his war caused diseases;
· that as a consequence of being prevented from undertaking that work the Applicant has and is suffering a loss of salary.
55. As consequence of the Tribunal’s observations, the Tribunal concludes that the Applicant satisfies s.24(1)(c) of the Act.
DETERMINATION
56. The Tribunal sets aside the decision under review and in substitution thereof determines that the Applicant is entitled to the payment of a disability pension at the special rate with the date of effect being 9 February 2000.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: .......................................................................................
AssociateDate/s of Hearing 10 March 2003
Date of Decision 4 June 2003
Counsel for the Applicant Mr N Dawson
Solicitor for the Respondent Mr S Modder
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