Grundman and Repatriation Commission - [2000] AATA 598

DECISION AND REASONS FOR DECISION [2000] AATA 598

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos V1994/787

VETERANS'     APPEALS     DIVISION     )          V1996/157
           Re      VERNA RUTH GRUNDMAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr C. Ermert, Member Dr P.D. Fricker, Member

Date24 July 2000
PlaceMelbourne

Decision      The Tribunal affirms the (2) decisions under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Assessment – deceased veteran – whether eligible for Special Rate pension – degree of incapacity for payment of General Rate pension – whether eligible for Extreme Disablement Adjustment – Decisions (2) affirmed.
Words and Phrases
Veterans' Entitlements Act 1986, ss. 14, 15, 19, 22, 24, 120
Veterans' Affairs (1994-95) Budget Measures Legislation Amendment Act 1994, s. 3
Re Lomas and Repatriation Commission (AAT Decision Nos. N1994/1268; N1995/1556 : 18 February 1997)
Re Clements and Repatriation Commission (AAT Decision No. V1995/132 : 15 August 1997)
Repatriation Commission v Strickland (1990) 22 ALD 10
Re Repatriation Commission and Smither (M.J.) (1987) 7 AAR 1
Guide to the Assessment of Rates of Veterans' Pensions, Fifth Edition.

REASONS FOR DECISION

24 July 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr C. Ermert, Member Dr P.D. Fricker, Member
Introduction

These proceedings are in respect of two applications for review lodged by the late Matthew John Grundman.
Mr Grundman died on 9 January 1999. His applications for review are continued by his widow, Mrs Verna Ruth Grundman, pursuant to section 126 of the Veterans' Entitlements Act 1986 ("the Act").
At the hearing before this Tribunal Mrs Grundman was represented by her solicitor, Mr De Marchi.
Mr Ginnane, of Counsel, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") in respect of both applications, lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Other material, to some of which it shall be necessary to refer, was also received by the Tribunal during the proceedings.
Witnesses
During the hearing evidence was given by:

Verna Ruth Grundman
Dr W.E. Stone
Dr J.J. Scally
Lynda A. Gunn
Dr W.F. Cooper

Matters Not In Dispute

Several matters relevant to these proceedings are not in dispute:

That the late Mr Grundman was born on 10 January 1920;
That he served in the Royal Australian Air Force from 15 October 1942 to 25 April 1945;
That he served in Australia and the South West Pacific Area, being service which constitutes eligible service including operational service as defined in the Act;
That he was a veteran within the meaning of section 5C of the Act;
That, as already recorded, he died on 9 January 1999.

Decisions Under Review

The two applications with which these proceedings are concerned relate to assessments made of Mr Grundman's degree of incapacity for the purposes of payment of pension.
The history of the two applications, which is somewhat complicated, is discussed in some detail later in these Reasons.
Standard of proof
Pursuant to subsection 120(4) of the Act, the Tribunal in making a decision in respect of assessment or reassessment of the rate of pension, is to decide the matter to its reasonable satisfaction. A standard of proof on the balance of probabilities is therefore applicable (Repatriation Commission and Smith (M.J.) (1987) 7 AAR 1).
Contentions
At the commencement of the hearing Mr De Marchi contended that the late Mr Grundman was eligible for payment of pension at the Special Rate pursuant to section 24 of the Act, or, in the alternative, that he was eligible for the Extreme Disablement Adjustment ("EDA") to his General Rate pension pursuant to section 22 of the Act. As Mr De Marchi correctly observed, in the event that her husband was so eligible, Mrs Grundman would automatically qualify for a war widow's pension.
For reasons which shall be addressed later, Mr Ginnane contended on behalf of the respondent that Mr Grundman neither qualified for the Special Rate of pension, nor for payment of the EDA.
Chronology
On 20 July 1993 the late Mr Grundman, who at that time was in receipt of pension at 50 per cent of the General Rate, made a claim for increase in pension ("AFI"). On 29 July 1993 he also made a claim for medical treatment and pension for incapacity from carcinoma of the prostate.
On 9 November 1993 a delegate of the respondent determined that Mr Grundman's level of pension should remain at 50 per cent of the General Rate.
In a separate determination the delegate determined that carcinoma of the prostate was not war-caused.
Mr Grundman subsequently made application to the Veterans' Review Board ("VRB") for review of the respective determinations, and on 6 July 1994 the VRB affirmed both determinations.
In so doing the VRB concluded that a reasonable hypothesis connecting Mr Grundman's cancer of the prostate with his war service did not exist.
It should be mentioned that in respect of his application for an increase in pension, Mr Grundman claimed an entitlement to a certain number of impairment points under the Guide to the Assessment of Rates of Veterans' Pensions, in respect of bilateral orchidectomy. He did so on the basis that irrespective of the cancer of the prostate not being war-caused, orchidectomy was performed on him because his irritable colon (an accepted war-caused disease) was such that it restricted the possibility of ray treatment of the cancer. In this connection the VRB stated as follows:
"In the Board's view, this application for increase should be treated as an informal claim for acceptance of bilateral orchidectomy as a war-caused condition on the basis of a sequela to the Veteran's irritable colon. If accepted, the question of assessment under Table 10.2.1, as suggested by Mr Horan, would need to be addressed by a delegate of the Repatriation Commission."

As to the assessment of Mr Grundman's then accepted disabilities, namely irritable colon with sigmoid polyp and renal calculus, the VRB determined that it was reasonably satisfied that a degree of incapacity of 50 per cent had been the appropriate assessment for the purposes of payment of pension at the General Rate, since the "application" day. Accordingly, the VRB affirmed the decision under review.

On 2 September 1994 Mr Grundman applied to this Tribunal for review of the VRB decisions in respect of both the claim and the AFI.
The review by the Tribunal (V1994/787) addressed both of the VRB decisions. However, after Mr Grundman had filed his application for review, but prior to determination by the Tribunal, he made a claim to have his disability "nervous problem" (diagnosed as chronic anxiety), accepted as war-caused.
On the same day that he made his claim, 4 October 1994, Mr Grundman again made an AFI. Thus the Tribunal had before it a claim in respect of entitlement and an AFI.
On 16 February 1995 the respondent determined that Mr Grundman suffered from post traumatic stress disorder ("PTSD") and that the disability was war-caused, the date of effect for pension purposes being 4 July 1995. In doing so the respondent assessed Mr Grundman at 60 per cent for the purposes of payment of pension at the General Rate.
On 7 March 1995 Mr Grundman applied to the VRB for review of the assessment of 60 per cent and on 11 October 1995 the VRB set aside the decision and increased the assessment to 70 per cent.
On 9 February 1996 Mr Grundman applied to this Tribunal for review of the decision of the VRB. The application was accorded the Tribunal number V1996/157.
On 21 June 1996 the Tribunal determined bilateral orchidectomy to be war-caused and remitted the issue of assessment to the respondent. The Tribunal further reserved liberty to apply when Mr Grundman's application for review of the VRB's decision to increase pension to 70 per cent of the General Rate was heard by the Tribunal (V1996/157).
On 26 March 1997 the respondent determined that Mr Grundman's pension should continue at 50 per cent of the General Rate from 29 April 1993 to 3 July 1994. The respondent further determined that pension should be increased to 80 per cent with effect from 4 July 1994.
In view of the foregoing it follows that the Tribunal in these proceedings has before it two separate applications (V1994/787 and V1996/157), based on claims for the acceptance of disabilities made at different times.
The assessment made by the respondent on 26 March 1997 following the remittal by this Tribunal on 21 June 1996 (V1994/787), firstly assessed the effect of the bilateral scrotal orchidectomy and the previously accepted disabilities. Pension was continued at 50 per cent.
As PTSD had been accepted by the respondent on 16 February 1995 following the 4 October 1994 claim, the degree of incapacity resulting from that disability was also included by the respondent in the assessment made on 26 March 1997, with the result that pension was increased to 80 per cent with effect from 4 July 1994.
Thus the assessment period in respect of application V1994/787 (bilateral scrotal orchidectomy together with Mr Grundman's previously accepted disabilities) is from 29 April 1993 until 3 July 1994.
In respect of application V1996/157 (in respect of all accepted disabilities together with PTSD), the assessment period is from 4 July 1994, being the date from which pension could be paid for all of these disabilities, to the date of determination by this Tribunal.
Legislative Framework
As was correctly observed by Mr Ginnane, any consideration of the late Mr Grundman's entitlement to the Special Rate of pension must be made having regard for the amendments made to section 24 of the Act which commenced on 1 June 1994. Section 3 of the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994, which is the relevant amending Act, provides that the amendments apply to claims for pension, or for an increase in the rate of pension, made on or after 1 June 1994. Section 24 as amended states as follows:
"24(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)(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.
(2A)This section applies to a veteran if:
(a)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
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work ("last paid work") that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking his or her last paid work, the veteran:
(i)if he or she was then working as an employee of another person – had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)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
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason."
By virtue of subsection 19(5) of the Act the Tribunal, when conducting a review of assessment, has an obligation to assess the rate or rates at which pension would have been payable from time to time during the assessment period, and the rate at which pension is payable from the date of the Tribunal's determination. Subsection 19(9) of the Act provides that the "assessment period" in relation to a claim or application relating to a pension, means the period starting on the "application day" and ending when the claim or application is determined. It was Mr Ginnane's submission that for these reasons it is not possible for the Tribunal to assess Mr Grundman's entitlement to the Special Rate of pension in accordance with the legislative criteria existing prior to 1 June 1994.
As Mr Ginnane again correctly observed, the conditions which existed at the time of the claim on 29 July 1993 until the date of effect of the pension to be paid for PTSD, were such that Mr Grundman was unable to fulfil the requirements of section 24(1)(a) of the Act. That is to say he had not been determined to have a degree of incapacity of at least 70 per cent. It was only as a result of his claim dated 4 October 1994 that Mr Grundman's position changed such as to enable entitlement to Special Rate. However, as the claim postdated 1 June 1994, the amendments apply.
In the circumstances, the only basis upon which an assessment of the 29 July 1993 claim could be made according to the pre 1 June 1994 amendments would be if the Tribunal assessed the appropriate rate between the date of the claim, being 29 July 1993, to 3 July 1994 (the date ending before the first available postdating of the claim made on 4 October 1994, which accepted PTSD as war-caused), at more than 50 per cent and at least 70 per cent.
It was Mr Ginnane's further submission that Mr Grundman could not have satisfied section 24(1)(c) of the Act in that it was not the case that it was by reason of incapacity from war-caused injury or disease, alone, which prevented him from continuing to undertake remunerative work that he was undertaking. In support of his submission Mr Ginnane stated that there is a diagnosis by Dr Cooper of general debility such that this would have reasonably interfered with Mr Grundman's capacity to work. He also asserted that the words "continuing to undertake remunerative work that the veteran was undertaking" suggests the requirement of a contemporaneous link between the work which was being performed and its cessation, and not a "resumption" of work last undertaken many years previously. Mr Ginnane pointed out that Mr Grundman had not been working since 1975. Thus, at the time of his claim dated 29 July 1993, Mr Grundman had not been engaged in remunerative work for a period of some 18 years.
It was Mr Ginnane's further submission that the only means by which it could be argued on behalf of Mr Grundman that the legislative provisions applicable to the 4 October 1994 claim are the pre 1 June 1994 amendments, would be to urge the Tribunal to ignore the existence of separate claims and instead treat the assessment as one continuum beginning when the 1993 claim was made (29 July 1993) and ending when the Tribunal makes its determination. There is, submitted Mr Ginnane:
"No other means by which the applicant can urge upon the Tribunal the application of the current legislative criteria to the first claim. The language of the Statute creates no provisos and no existing rule of statutory interpretation commends any means of applying the previous Special Rate provisions to the October 1994 claim."

Mr Ginnane argued that such an approach would be wrong in law, the reason being that it confuses on the one hand the question of assessment, and on the other hand the making of a claim or application for increase. As observed by Mr Ginnane the issue has been the subject of authoritative determination by this Tribunal in Re Clements and Repatriation Commission (Unreported V1995/132 : 15 August 1997), a decision of Mathews J when she rejected just such a type of submission and did so in the following terms at page 16:

"The applicant on the one hand urges that I am dealing in these proceedings with the claim made on 1 December 1992. It is the decision made in relation to that claim, as varied by the VRB, which is under review in these proceedings, not the claim of 29 November 1995. When the assessment period commenced namely on 1 December 1992, there was a set of statutory criteria in existence which specified the conditions to be fulfilled by veterans seeking the intermediate rate of pension. Certainly the Tribunal is entitled to take into account any change in the veteran's physical circumstances during the assessment period, but the legislative criteria remained those which were enforced when the initial claim was made."

Later at page 17 of the decision expanding upon and applying the facts of that case to the matter of principle, the learned President stated:

"It is clear that under section 19(5), the Tribunal is bound to take account of any changes in the applicant's circumstances during the assessment period which might affect his pension rate and to reflect those changes in the orders it makes. In this case a significant change in the applicant's case occurred when his generalised anxiety state was accepted as being a war caused incapacity. This occurred by virtue of his claim made on 29 November 1995 and led to an increase in his rate of pension, backdated to 29 August 1995. Under the scheme of the Act, that incapacity was not able to be taken into account for the purposes of sections 22, 23 or 24 until that claim was made and accepted. In other words, under the conditions which applied on 1 December 1992, the applicant was ineligible for consideration under section 23 or section 24 as he failed to fulfil the requirements of paras. (1)(a) and (1)(b). It was only as a result of his claim on 29 November 1995 that his situation changed and he potentially came within the purview of section 23. However, that being a claim which postdated 1 June 1994, the 1994 amendments clearly applied to it."

It was Mr Ginnane's submission that in the circumstances the claim made by Mr Grundman on 29 July 1993 cannot be assessed at the Special Rate, the reason being that the degree of incapacity was determined at less than 70 per cent. Mr Ginnane acknowledged, however, that the Tribunal might determine the portion of the General Rate of pension to be higher than 50 per cent and that the Tribunal could therefore consider the Special Rate, but in doing so it would have to apply the pre 1 June 1994 provisions of the Act.
Mr Ginnane submitted that, accordingly, Special Rate could only be granted in relation to the application V1994/787.
Basis for Consideration – Applications V1994/787 and V1996/157
We accept Mr Ginnane's submission that Special Rate could only be granted in relation to application V1994/787. However, to achieve that rate it would be necessary for the level of pension to be increased to at least 70 per cent for the period ending on 3 July 1994. Furthermore, consideration of eligibility for Special Rate would in this instance require the pre 1 June 1994 provisions of the Act and any assessment beyond 3 July 1994 must include PTSD. Special Rate, for claims lodged before 1 June 1994, is determined under section 24(1) of the Act:
"24(1) This section applies to a veteran if:
(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;
… 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.
(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."
As to application V1996/157, Mr Ginnane submitted that the Tribunal's consideration of assessment of rate of pension only arises if:
(a)The Tribunal is satisfied that 80 per cent of the General Rate is insufficient; or
(b)The Tribunal is satisfied that Mr Grundman should have been in receipt of pension at the 100 per cent level; and
(c)The Tribunal determines that Mr Grundman was entitled to receive the EDA.
As we have noted earlier, (paragraphs 31 and 32), the assessment period in respect of application V1994/787 is from 29 April 1993 to 3 July 1994, and in respect of application V1996/157, from 4 July 1994 to the date of determination by the Tribunal.
Evidence
In a document dated 14 March 1996 the late Mr Grundman stated:
"I served a Panel Beating apprenticeship with Alf A. Mitchell, Motor Body Builders, Kavanagh Street, South Melbourne for 5 years. I remained with Mitchell's for 2 years before enlistment in 1942.
I returned to Australia from New Guinea in 1945 and worked at Alf A. Mitchells from 1945-1946.
I worked at Ansair from 1946-47.
I commenced a business, "Fairview Motors" at 609 Keilor Road, Niddrie in 1947 in partnership with Mr. Norm Wild for 10 years until 1957. The business was carried out under the name of G & G Body Works for the next 12 years after the partnership, with Norm Wild, was dissolved.
In total I spent 31 years as a Panel Beater.
As a result of my disability of irritable colon, I had to give away work on 1st April, 1975. I have not worked since.
But for my accepted disability I would still be employed as a Panel Beater proprietor today.
I had no intention whatsoever of retiring at age 65.
As a result of my inability to continue my business as a Panel Beater I have lost remuneration."
In an undated document Mrs Verna Grundman, the applicant in these proceedings and widow of the late Mr Grundman, stated:
"My Late husband served overseas during World War II and was badly affected by his service.
As soon as he came home from New Guinea he had this terrible bowel condition.
He would lose control and his underwear would often be soiled, he found it difficult to carry on his panel beating business.
This was getting worse over a period of ten years; in the end he decided that he could no longer cope. The Doctor agreed that it was the best thing to do.
The business was sold quite cheaply. We had savings and we lived on those but our yearly income was reduced from what we received when the business was operational.
My husband's condition deteriorated quite rapidly from August 1998. He was then transferred from Corpus Christie from (sic) John Fawkner Hospital, where he died.
He was very sick from about June 1996, he had reduced most of his activities especially all social activities and became very withdrawn."
When giving oral evidence Mrs Grundman said that during her husband's lifetime he had a number of interests, including lawn bowls; membership of a dining club and following the football. However, from June 1996 his interest in these activities began to deteriorate. She explained that prior to that time she and her husband went out to dinner quite regularly. She explained that her husband eventually had to give up playing bowls by 1996 because of his need to frequently attend the toilet.
Mrs Grundman agreed that by June 1996 his daily activity was such that her husband tended to rise at about 9.00 am and then take a slow walk in a park. He would then watch television before having a sleep in the middle of the day. This pattern of activity continued until about August 1998, at which time his cancer again flared up. Mrs Grundman said that "the irritable bowel got him down because it just took too much out of him". She added that "the quality of our lifestyle deteriorated because of the irritable bowel".
When asked about her husband's condition during the years following his retirement in 1975, Mrs Grundman stated that her husband did not suffer from arthritis nor did he have any tremor in his hands or knee joint pains. She did, however, acknowledge that while her husband never complained to her about his ailments, he probably did so to his doctors. She was, however, aware that he experienced pain in his kidneys.
Mrs Grundman confirmed in evidence that her husband had never mentioned to her that he had consulted a doctor about a heart condition.
Dr Stone, who is a specialist in rehabilitation and occupational medicine, gave evidence by telephone.
Dr Stone saw the late Mr Grundman on 1 April 1996, for the purposes of assessment in respect of these proceedings. The doctor then rendered a written report on the same date.
It was Dr Stone's understanding that the main reason Mr Grundman ceased employment, which was that of a Panel Beater, was because of PTSD. It was the doctor's further evidence that Mr Grundman said to him that he would have liked to have continued to run his own Panel Beating business, and that he had had no intention of retiring at 65 years of age. However, given Mr Grundman's medical history it was his impression that there "was reasonable reason for him to cease work because of those factors".
In his written report Dr Stone stated that Mr Grundman described experiencing chest pain five years ago, following which he was referred to a Cardiologist. Mr Grundman had his cardiac status investigated at that time, and was told "there is nothing serious". From thereon Mr Grundman took half an aspirin per day and did not experience any further chest pain.
In his oral evidence Dr Stone stated that he was not aware of any non-accepted disability which caused Mr Grundman to cease working in 1975. As the doctor recorded in his report, Mr Grundman did not experience chest pains until five years before he saw him. That is to say the chest pains first occurred in 1991.
When asked about Mr Grundman's restrictions in terms of mobility, Dr Stone stated:
"The examination findings were pretty much nondescript. He had hypertension, his pulse rate was up a bit without it being severely elevated. His heart, he had a fourth heart sound but there were no murmurs and there wasn't any particular abnormality there of note. In somebody of his age it's quite common to hear a fourth heart sound, he was 76 years of age when he saw me."

The doctor then went on to state:

"So far as his chest was concerned there was a slight respiratory wheeze. He had reduced air entry without that being severely reduced and there were no basal crepitations so there is no evidence of heart failure and indeed his jugular venous pressure wasn't raised either with respect of heart failure. In the abdomen he had hyperactive bowel sounds indicating that his bowel was more active than usual which I attributed to the irritable bowel syndrome and I noted he had a left iliac fossa surgical scar which related to the removal of a sigmoid polyp and he had a midline scar at the … extending to the symphysis pubis which was with respect to an open prostatectomy and there is no swelling of the ankles."

It was Dr Stone's opinion that there was nothing physical that he found on examination that would have prevented Mr Grundman from working. He also gave it as his view that if Mr Grundman had been free of his accepted disabilities he could have continued to manage a Panel Beating shop. However, the doctor added that while Mr Grundman's renal calculus would have resulted in severe pain from time to time, "it was more interacting with people and the irritable bowel syndrome which were the things that impacted upon his work. And if he didn't have those well then I think that he could have continued on in that capacity".
It is noted that Dr Stone also addressed the question of Mr Grundman's capacity to work, stating:
"The impact of the renal calculi upon his ability to work is only marginal. There was no other factor that I am aware of that contributed to his inability to continue working. Thus, I believe it is reasonable to state that Mr Grundman ceased working at 56 years of age because of the effect of War caused disabilities alone. He felt unable to continue to conduct his business, even in a less involved manner. It would seem more likely that he would be unable to work greater than 8 hours per week rather than more than 8 hours and less than 20 hours per week, though it is difficult to be very confident about this because my comments are relating an event that occurred more than 20 years ago."
During her oral evidence Mrs Grundman explained that her late husband had been a very thin man. Indeed, she thought that at one stage his weight went as low as seven and a half stone. She thought that the weight loss, which she attributed to her husband's irritable bowel syndrome, occurred over a period of time during his working life. The weight loss occurred despite her husband mainly eating steak.
Dr Scally, Lincolnville Clinic, was Mr Grundman's treating physician for a period commencing in 1981 to the time of his death.
In addition to providing a written report Dr Scally also gave oral evidence at the hearing.
When questioned concerning Mr Grundman's reviewal by a cardiologist, Dr Scally stated:
"Mr Grundman developed angina in 1989 and he actually had a two, or I think maybe three day admission to the Melbourne Hospital at that time. He was placed on medication, he was investigated further and his treating cardiologist Dr John Dowling believed that his angina really wasn't of serious note and it turned out over subsequent years he had very little problems with his angina. It appeared to be an episode that occurred at that time and then basically settled down and we just controlled it with medication and it gave him very little problem."

It was Dr Scally's evidence that angina was not a problem in either 1993, 1996, or 1997, prior to the spread of Mr Grundman's prostatic cancer.

Dr Scally's evidence was that Mr Grundman's irritable colon was the major factor in him ceasing work. While he also had kidney stones, any problems associated with those were intermittent and not the reason for ceasing work.
It was Dr Scally's understanding that Mr Grundman was suffering from the time he returned from service in New Guinea. As to Mr Grundman's prostatic cancer, Dr Scally stated:
"His cancer was diagnosed in 1987 and Mr Tony Costello was his treating urologist and he saw him and advised him of the options. Now I can only make an educated assessment here, I would think that he would have advised him he had a choice of surgery or radiotherapy and because of his bowel problem the radiotherapy would have caused a significant flare up of his irritable bowel and so it left him really only with the option of proceeding with surgery. Now unfortunately when he had surgery, he was having surgery to remove prostate, have a radical prostatectomy, they discovered that the cancer had already spread beyond the prostate so therefore there was no point proceeding with that particular form of treatment. Then they just had to sort of leave it at that and go ahead and do the next surgical measure which was the bilateral orchidectomy, removal of both testicles."

The doctor went on to state:

"The removal of the testicles removed any production of testosterone and this had a fairly immediate effect on Mr Grundman as it does in most men, having a feminising affect. He put on weight, he got some breast development, his legs became a little bit thicker; they were the major physical issues and I think that that probably had a psychological effect also on him on seeing his body form change to being like that."

Dr Scally further stated that he believed this would have aggravated Mr Grundman's PTSD.

When asked concerning Mr Grundman's capacity to work, Dr Scally stated:
"I knew him very well and he was a very active person. I think he really enjoyed doing physical tasks and it was not in his nature to sit around idly at all. I think he would have found that quite frustrating. I think that if he hadn't had his other problems he would have continued working and even though we are talking about in later years for him, and an older age group for the community generally, I think it's very likely he would have continued working to some degree right up until he was unable to work any longer because of his prostate cancer."
It was Dr Scally's recollection that when Mr Grundman became aware in 1987 that his cancer had spread he was depressed about the finding.
From medical records completed by him for the Department of Veterans' Affairs, following a medical examination of Mr Grundman which he carried out on 28 May 1996, Dr Scally confirmed that there had been no significant variations to symptoms in respect of renal calculus and cancer of the prostate, over the past year. However, in respect of PTSD the doctor confirmed that there had been significant variations over the past year and that Mr Grundman's emotional and mental state had deteriorated over the previous twelve months. In his examination report Dr Scally further recorded that Mr Grundman avoided social contact and that his children were reluctant to visit due to tension and his irritability.
Mrs Linda Gunn, daughter of the late Mr Grundman, made a written statement for the purposes of these proceedings. She also gave oral evidence.
In her written statement Mrs Gunn stated:
"To my knowledge my father operated a panel beating business at 609 Keilor Road Niddre (sic) since I was about 10 years old.
From my observations my later father worked very hard six days a week and would bring paper work home. He was very successful and well known in the area.
His health was obviously deteriorating and by the time I was a teenager and home from school I often saw my father at home in bed. I understand that he was suffering from Chronic Bowel Complaint which caused him to lose a lot of time from work.
He would be very thin and unable to gain weight. The whole family knew, my bother (sic) and sister knew that he suffered from these bowel problems.
I think my father was forced to retire from the business as I believe that he was no longer able to cope.
He was always churned up and stressed about his bowel condition."
Mrs Gunn described her father as having been a very active person who, had his health permitted, would have continued working when he was 73 years of age, although not as a Panel Beater.
Dr Cooper, who is an Occupational and Rehabilitation Physician, examined Mr Grundman in June 1996 and later provided a written report which included an expression of his views on a number of questions posed by the respondent. It should be mentioned that during his oral evidence the doctor stated that the views which he expressed remained true and correct.
It was Dr Cooper's opinion that if the late Mr Grundman had been free of his war-caused disabilities, he would still not have been physically able to work in employment that he could have reasonably expected to undertake, considering his vocational skills and experience. In expressing his view Dr Cooper observed that Mr Grundman demonstrated clinical evidence of spinal degenerative changes and degenerative changes in both knees with a general debility and loss of hand strength.
Dr Cooper stated that Mr Grundman's PTSD was that of a persistent anxiety state with depression and frustration, disturbed sleep, marked hand tremor and lack of nervous energy. He also lacked concentration.
It was the doctor's view that Mr Grundman's war-caused disabilities rendered him incapable of undertaking remunerative work for periods of more than eight hours per week.
In answer to the question whether any of Mr Grundman's non-accepted disabilities or factors would have impinged on his ability to obtain remunerative employment, Dr Cooper responded by stating in his report:
"His cervical spinal and thoraco lumbar spinal degenerative changes together with the osteoarthritis in both knees would impinge on his ability to obtain employment in his certificated trade as a panel beater. He cannot squat for more than three quarters of normal, nor does he have the spinal capacities to maintain bent postures at work. He would require part sedentary work facilities, no work below waist level, and 5-10 kgs maximum material handling by lifting pushing or pulling. I relate these to his vocational trade as a panel beater and there is significant contribution to his impairment by his mental state and physical weakness."

The doctor further stated:

"Thus we are left with a situation where unless the above work restrictions are available, the only jobs that could be considered from a untrained viewpoint, that is without further rehabilitative re-training, would be restricted to sedentary work facilities of a light bench nature, such as light bench assembly/inspection/sorting but I do not believe that he would be able to sustain even this work in excess of 8 hours per week."

EDA – Eligibility Criteria

As we have observed, at the commencement of these proceedings Mr De Marchi contended that the late Mr Grundman had been eligible for the Special Rate pension, the alternative contention being that he was eligible for EDA.
Section 22(4) of the Act states:
"22(4) Where:
(a) either:
(i)the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
(ii)a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
(b)the veteran has attained the age of 65;
(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions; and
(d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;
the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3)."

Findings

As we have recorded, Mr Ginnane has made a number of submissions in respect of the two applications before us.
Having regard for the whole of the material before us, we agree with the submissions and find accordingly.
At paragraph 37 we have noted that Mr Grundman had not been working since 1975, thus at the time of his claim dated 29 July 1993, he had not been engaged in remunerative work for a period of some 18 years.
In Repatriation Commission v Strickland (1990) 22 ALD 10 the Federal Court stated that:
"Age 65 was not an irrelevant matter. It is a common retiring age for employees and can be taken to reflect somewhat arbitrarily the community's general understanding of the effect of age upon ability to undertake gainful employment. Thus, as the Tribunal said, 65 years is the age at which a male person qualifies for the grant of an age pension. It follows that, if nothing more were known of an applicant for a pension than that he was over the age of 65 years when the application was lodged, a tribunal would not be likely to be satisfied that the veteran was then suffering a loss of earnings by reason only of his war-caused incapacity. Of course, that is only a hypothetical case and, invariably, more is known about the matter than that, as it was in the present case. But the point is that a tribunal, especially a tribunal which deals with issues of this nature regularly, might reasonably proceed from the premise that applications for pension made after that age would fail, unless facts were disclosed which tended to the conclusion that the veteran would then still be continuing to undertake remunerative work, but for his war-caused incapacity."
As the Tribunal observed in Re Lomas and Repatriation Commission (N1994/1268; N1995/1556 : 18 February 1997), being over 65 is not determinative. However, given the very substantial period of time involved it could not in our view be said that Mr Grundman was, by reason of incapacity from war-caused injury or disease, or both, alone, prevented from continuing to undertake remunerative work.
We should also make it clear that the application V1996/157, being a claim for entitlement made on 4 October 1994, with payment backdated to 4 July 1994, is one which falls to be determined pursuant to section 24(2A) of the Act. However, no consideration of the application of the Special Rate of pension can apply because Mr Grundman could not satisfy a mandatory criterion specified in section 24(2A)(f). That is to say he was not undertaking his last paid work after he had turned 65. Thus the only issue able to be agitated is the degree of incapacity, that is whether Mr Grundman was entitled to an assessment greater than 80 per cent of the General Rate.
Assessment
The method of assessing incapacity in respect of the General Rate pension is set out in the Guide to the Assessment of Rates of Veterans' Pensions, Fifth Edition ("the Guide"), which is approved under section 29 of the Act.
The assessment method in the Guide involves the calculation of a combined impairment rating and the determination of a lifestyle rating. These two ratings are then combined to give a degree of incapacity. Unless the Extreme Disablement Adjustment or an earnings-related rate of pension is payable, that degree of incapacity becomes the percentage of the General Rate of pension that is payable.
An impairment rating measures the effects of a war-caused or defence-caused condition on a person's health. Each condition is given an individual impairment rating under a Table in the Guide. Individual impairment ratings are not added but are combined using a Combined Values Chart in the Guide. Lifestyle ratings measure the effect of those conditions on a person's lifestyle.
In addressing the issue of assessment we should first record that although Dr Stone examined Mr Grundman for the purposes of these proceedings, he made it clear during his oral evidence that he had not, however, been requested to address Mr Grundman's war-caused disabilities for the purposes of assessment under the Guide. That being so and because his report was rendered as long ago as 1 April 1996, the doctor understandably experienced significant difficulty in providing assessment opinions during his oral evidence.
While Dr Cooper's report was also rendered as long ago as June 1996 the respondent, however, was assisted in its submissions concerning assessment by way of a Combined Impairment Assessment provided by Dr F.J. Morgan, Senior Medical Officer (Appeals).
The accepted disabilities suffered by Mr Grundman were:

Renal Calculus
Irritable Bowel Syndrome with Sigmoid Polyp
Bilateral Scrotal Orchidectomy
PTSD

In view of the material before us and upon application of the Guide, we make the following findings concerning assessment of the late Mr Grundman's accepted disabilities from 4 July 1994 to the date of his death:
Disability Table Impairment Rating

Bilateral Scrotal Orchidectomy  10.1.1  10
Renal Calculus  9.1.1  5
Irritable Bowel with Sigmoid Polyp  6.1.2  30
PTSD  Chapter 4  11

Pursuant to the provisions of Chapter 18 (Combined Values Chart) of the Guide, the abovementioned impairment ratings combine to provide a single value impairment rating of 45.
Pursuant to the provisions of Chapter 23 of the Guide a single value impairment rating of 45 converts to a degree of incapacity of 80 per cent using the "shaded area" of Scale 23.1. As stated in the Introduction to Chapter 23 of the Guide:
"A veteran's lifestyle rating is expected to be broadly consistent with the degree of medical impairment from accepted conditions as measured by the Combined Impairment Rating. In most cases a lifestyle rating that falls within the shaded area of Table 23.1 will satisfy the requirement of broad consistency. There may be exceptional cases and, in accordance with Chapter 22 of this Guide, a lifestyle rating outside the shaded area may be allocated."

Having regard for the material before us we find that the allocation of a lifestyle rating outside the shaded area is not merited.
EDA

In view of our assessment of the late Mr Grundman's degree of incapacity from war-caused disabilities and his impairment and lifestyle ratings it follows that the qualifications for payment of the EDA were not satisfied.
Decision
The decision of the Tribunal will be that the decisions under review are affirmed.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Mr C. Ermert, Member
Dr P.D. Fricker, Member
Signed:.....................................................................................
  Personal Assistant
Date/s of Hearing  30/3/2000 & 27/6/2000
Date of Decision  24/7/2000
Counsel for the Applicant        Mr De Marchi
Solicitor for the Applicant         De Marchi & Associates
Counsel for the Respondent    Mr Ginnane
Solicitor for the Respondent    Australian Government Solicitor