Hatfield and Repatriation Commission
[2001] AATA 517
•12 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 517
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N1999/531
VETERANS' APPEALS DIVISION )
Re Brian James HATFIELD
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member
Date12 June 2001
PlaceSydney
Decision The Tribunal Sets aside the decision of the Repatriation Commission dated 22 September 1997 that continued disability pension payable to Brian James Hatfield ("the Applicant") at 100 per cent of the General Rate, and substitutes therefor its decision that the Applicant is entitled to payment of pension at the Extreme Disablement Adjustment Rate.
..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Assessment - Applicant in receipt of invalidity service pension and 100 per cent General Rate - whether Applicant entitled to Special Rate pension – whether Applicant unable to undertake remunerative work for more than 8 hours per week – whether Applicant undertook remunerative work for a continuous period of at least ten years – whether Applicant entitled to Extreme Disablement Rate
Veterans' Entitlements Act 1986: ss24(1)(b), 24(2A)(d), 24(2A)(e), 24(2A)(g), 24(2B)(a), 119(1)(h), 22(4)
Re Smith and Repatriation Commission (1987) 12 ALD 534
Re Woodward and Repatriation Commission (AAT, 11721, 30 May 1996)
Thomson v Repatriation Commission (2000) 96 FCR 550
Thomas v Repatriation Commission (1994) 50 FCR 112
REASONS FOR DECISION
Mrs M T Lewis, Senior Member
This is an application for review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 22 September 1997 that continued disability pension payable to Brian James Hatfield ("the Applicant") at 100 per cent of the General Rate. That decision was affirmed by the Veterans' Review Board ("the VRB") on 1 March 1999. All applications for review were in time.
The Tribunal had before it the documents produced by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1) and sundry documents from the Departmental files relevant to the decision under review (T2). The Applicant gave oral evidence at the hearing. Oral evidence was also given by his wife, Josephine Mary Hatfield, and his son, Damien James Hatfield.
The following documentary evidence was tendered on behalf of the Applicant:
Report of Dr M Baz, occupational physician, dated 19 August 1999 (exhibit A);
Statement of Maryella Hatfield dated 24 May 1998 (exhibit B);
Statement of Damien Hatfield dated 13 January 1999 (exhibit C);
Statement of Justin Hatfield, undated (exhibit D);
Statement of Peter Moloney dated 17 March 1998 (exhibit E);
Sundry documents from businesses in Rosebery relating to the Applicant's occupation of his office (exhibit F);
Chronology of Business Activities of Brian Hatfield from 1976 to 1999 (exhibit G);
Statement from Lance Rosenberg dated 25 February 2000 (exhibit H);
Letter from Dr V Duncombe dated 8 November 1996 (exhibit J);
Letter from Associate Professor Richard J Millard, urologist, dated 4 July 2000 (exhibit K);
Request from Respondent to Energy Australia dated 16 August 2000, to produce electricity accounts relevant to the Applicant's business for the period 1986 to 1996 pursuant to s128 of the Veterans' Entitlements Act 1986 ("the Act"), and reply dated 31 August 2000 (exhibit L).
The following documentary evidence was tendered on behalf of the Respondent:
Reports of Dr N J Schultz dated 8 and 22 February 2000 (exhibit 1);
Medical Report from Department of Veterans' Affairs dated 12 October 1985 (exhibit 2);
Special Medical Report or Opinion of Special Medical Board dated 19 March 1986 (exhibit 3);
Information provided by the ATO in response to Section 128 request (exhibit 4);
Letter from Applicant's solicitor dated 24 July 2000 in response to Section 128 request (exhibit 5);
Statutory Declaration of the Applicant dated 13 January 1985 (exhibit 6);
Decision of Repatriation Commission dated 10 April 1984 (exhibit 7);
Report of Dr Souza dated 23 January 1984 (exhibit 8);
Report of Departmental Medical Officer dated 5 April 1984 (exhibit 9);
Service Pension Application (exhibit 10);
Examiner's Report in relation to Service Pension Grant (exhibit 11).
The Applicant has bronchial asthma, post traumatic stress disorder ("PTSD") and emphysema accepted as war-caused disabilities. His claims for hypertension, cervical spondylosis and capsulis right shoulder have been rejected.
At the application date, 14 February 1997, the Applicant was 71 years of age. He has been in receipt of full Service Pension continuously since 10 April 1984 on the basis of permanent unemployability. His wife has also received Wife's Pension.
The Applicant is now seeking pension at the Special Rate. To be so entitled, all the criteria in s24(2A) of the Act must be met. The matter is to be determined by applying the "reasonable satisfaction" standard of proof as set out in s120(4) of the Act. At the hearing the parties agreed that only s24(2A)(d) to (g) were in dispute. Section 24(2A), insofar as is relevant, provides -
(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(Tribunal's emphases)
Section 24(2B) of the Act provides:
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.In the alternative the Applicant seeks payment at the Extreme Disablement Adjustment ("EDA") rate pursuant to s22(4)(a) of the Act which provides that rate is payable where either-
(a)
(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).
evidence
The Applicant
The Applicant was born on 26 January 1926. When he left school he enlisted in the Australian Army at the age of 18 years and served from 1 June 1944 to 18 January 1946, including operational service. After the war he studied medicine for three years, but was unable to finish because he could not "settle down". He married in 1953 and then traded in real estate for a while before he went into the hotel business when he owned and operated several hotels. He said that when he was aged between 30 and 40 years "the gloom and doom factor started" and he began to take a negative attitude towards everything he did. He ceased operating hotels in 1976 because the smoky environment worsened his chronic bronchitis.
Thereafter the Applicant was involved in real estate until he bought a "gold seat" on the Sydney Futures Exchange in about 1980 that he held for three or four years. He became a client of a Future Source, a licensed enterprise that developed software for technical analysis. He said he made an income from this for about 12 to 18 months until he suffered a breakdown in his health and financial affairs because he could not concentrate, and he experienced the "horrors" at night. The Applicant said around 1984-85 he began losing weight, drinking too much, experiencing "terrific" anxiety and a worsening of his asthma. It was not until 1986 that asthma was diagnosed.
The Applicant said that until the late 1980s he and his wife continued Futures analysis, working out of a broker's office and other people's offices. This involved entering into arrangements whereby they received money from clients for their analysis and financial advice. He said this money was deposited into a broker's account over which he had discretion to trade, but he could also use it for other purposes.
The Applicant said that around 1989 he ceased working from the broker's and other people's offices and set up his own office at Gardeners Road. He kept this office going until around 1996 when, after being served with an eviction notice (exhibit F), he and his wife left the premises. He said that until then he attended the office at Gardeners Road every day and would leave there around 4pm. He said he did "concentrated work" for about half an hour each day and otherwise he was there more as an "observer", to assist and instruct his wife.
The Applicant attended Dr Miller in March 1998. The information he gave to Dr Miller was that he was earning about $350 gross per week from his business at Gardeners Road. After expenses, the profits of the business came to $30 or $40 per week. The Applicant said that until 1996 he paid $1,000 a month in fees to Future Source for use of their software for his business, but by 1996 he could no longer afford those fees. He said his inability to pay the fees, together with the effect of his psychiatric condition, caused him to close his business. He said he could not have set up the business at Gardeners Road if it were not for his wife's capacity to concentrate, a capacity he believed he lacked. The Applicant said he owed about $3,000 to the Futures Group by the time he closed the Gardeners Road office.
The Applicant's PTSD was diagnosed in 1996. In the same year a book was published about the battle at Tarakan in which he had fought. The Applicant said had he been aware of his condition earlier, and the impact of the Tarakan campaign on the men involved, he would not have kept his office at Gardeners Road running. He considered that if he had not suffered from PTSD he would have continued to make money from his business in Futures analysis and advice.
The Applicant said he continues to have a "horror" dream every second night. He said he wakes feeling as if the world will collapse. He said that because of his PTSD he felt negative. He did not want to meet his friends because of the shame he felt "from being something to nothing". He said he had attended only two social occasions in about three years. He did not encourage his family to visit him at home. He spoke to his sister on the telephone about twice a week. The Applicant's evidence was to the effect that when they lived in a larger unit he needed to distance himself from his wife for a while after he came home. However, notwithstanding their arguments the marriage has survived.
The Applicant said his main activity each day was reading. He watched television for about 1½ hours each day. He did the shopping once a week and needed to rest afterwards. A trip to the city would "knock him out" for a few days. They have someone to clean the unit once a fortnight. Although he was a social member at the Bondi Junction RSL club, he had frequented the club only three times in the past year.
The Applicant said he attends Dr Altman, his psychiatrist, once every two months for his PTSD. He takes medication to take the "hard edge" off his condition and if he cannot sleep. The Applicant said for about five months of the year his breathing affects his capacity to walk, and for the remainder of the year he has to walk slowly and sit down intermittently.
The Applicant was medically examined in 1985 in respect of claims he had lodged for chronic obstructive airways disease, asthma, hypertension, alcoholism, insomnia, anxiety state and osteoarthritis of the right shoulder (exhibit 2). A history was recorded in that report that the Applicant was a floor member of the Commodities Futures Exchange with a family company Leton Pty Ltd in 1979, he started decreasing his workload in 1981 and he stopped work in 1983. It was noted "hasn't worked since 1983". It was also noted that he was a Director and shareholder of Ross, McConnell, Kitchen and Co. in 1981, that went into liquidation about 1983 due to trading losses and "? legal fees". In cross-examination the Applicant conceded this, but said although he did not have a job at the time he would have been looking for one.
The Applicant has received a Service Pension since 1984. He signed an income statement relating to this on 21 September 1992 (T30), in which he stated it he had not been in full-time, part-time, seasonal or casual employment or doing "odd jobs" in the previous 12 months. When asked whether this statement was correct, the Applicant said at the time he believed he was self-employed and did not consider what he was doing was "employment". The Applicant also noted on the statement that he did not receive any income not otherwise disclosed on the form. In cross-examination he said that the "no" response indicated that he and his wife did not generate any money. The Applicant conceded that in 1992 he did have other income, but he said at the time he signed the statement he did not believe he did. He said he was severely stressed because of his PTSD. Similarly, in a letter requesting an advance against his pharmaceutical allowance (T29) he said he had no other income besides the money he received from the Department of Veterans' Affairs and his disability pension. In cross-examination he said he did not consider the work he was doing in 1992, namely "using other people's money," to be generating an income.
In cross-examination the Applicant was referred to Special Medical Report signed by Professor Breslin and Dr Killick dated 19 March 1986 (exhibit 3) that noted he had not worked for four years. The Applicant said he meant "less than normal work", that is, that he not worked in "normal" work for four years.
The Tribunal notes from the Australian Taxation Office records that the Applicant did not lodge a tax return for the year 1980/81, nor for any year since that time (exhibit 4). That coincides with the time he bought the "gold seat" on the Futures Exchange.
After giving his evidence the Applicant was asked to provide documents concerning his business activities in 1986. He advised through his solicitor that on searching the documents he has retained he still had no 1986 business records available (exhibit 5).
Josephine HatfieldJosephine Hatfield, the Applicant's wife, gave oral evidence at the hearing. She married the Applicant in 1953. Her father worked in the hotel business and so she had experience in hotel management.
Mrs Hatfield said the Applicant sold his hotel in Granville around 1976 because he did not feel well and could not cope. After he sold the hotel he then became involved in Futures. At this time they lived and ran their business from a unit they owned in Coogee. As part of her involvement in the new enterprise, Mrs Hatfield did public relations to raise funds and she later learnt how to "chart".
Towards the end of their business Mrs Hatfield said they were not receiving enough money to pay the mortgages on various investment properties. She said the Applicant's poor concentration and ill health due to asthma, contributed to their financial troubles and their ultimate decision to sell the unit at Coogee in June 1985. After losing all their assets, she said the Veterans' pension was their sole income.
Mrs Hatfield said she and the Applicant moved to Futures analysis in the late 1980s. She said she started at Voice Call in late 1985. Initially, a friend provided them with working space at his business, and they later expanded their business to a number of brokers' offices. She said she became more involved in Futures analysis because she believed there was a prospect of making money from it to offer a way out of their financial difficulties. She said the Applicant also spent time undertaking analysis, but she controlled most funds from about 1989. The amounts invested in the funds totalled about $120,000. The Applicant contributed $10,000 that was used for expenses. She could not recall how many years the money lasted, nor could she recall precisely when she and the Applicant last put in a tax return. She thought it would have been around the time they left Coogee in 1983 of 1984.
Mrs Hatfield said they had not made money from analysis in recent years. She also noted that the industry had changed significantly over time. She considered that one reason why they had not made money from the business was because they could not afford to purchase new equipment needed to continue the analysis. Therefore, they had technical problems when trying to read the markets.
Mrs Hatfield said that from about 1989 to 1996, they conducted their Futures analysis business from their Gardeners Road office. She said from about 1994 to 1996 the Applicant would arrive early and leave around 4.00pm each day. The Applicant would lie on a sofa at the office for about an hour and half over lunch. During the other times he would sit with her. She said they both did the analysis but she did most of the talking with the broker because the Applicant became nervous when speaking on the telephone. They received earnings of about $350 gross per week. Their expenses included about $250 a week to Future Source, about $100 per week in telephone and $100 per week in rent, and also electricity. She said that according to Dr Miller's assessment (T19) their combined net income was $30 to $40 per week.
Mrs Hatfield considered that from 1990 to 1996 the Applicant's health affected their ability to make judgments and to give advice, and as a result she became fearful and nervous. She thought they would have been more successful had the Applicant received treatment earlier. Mrs Hatfield said the Applicant has always worked, except during the time he was in hospital in 1985 for his alcohol related problems. After their offices at Gardeners Road closed they continued to run their business from home. However, she said the Applicant is no longer involved in the business because of his poor health.
In a letter dated 4 July 2000 Associate Professor Millard, urologist (exhibit K), noted that the Applicant had successful prostate surgery on 19 December 1996. Mrs Hatfield said that after the operation his asthma problems continued but he recovered from the operation within a few weeks and has not complained of any difficulty from his prostate since that time. She said the Applicant suffered from anaemia but she could not recall when that was, although she was fairly sure they were at Gardeners Road at the time. The Tribunal notes that a report from Dr Law, psychiatrist, dated 24 March 1997 (T6) recorded that in November 1996 the Applicant was found to be anaemic. Similarly, in a letter addressed to the Applicant from Dr Vic Duncombe dated 8 November 1996 (exhibit J) he noted that the Applicant had been admitted to hospital in October 1991 suffering from anaemia that required transfusion and treatment with iron therapy. All investigations of the cause of the anaemia were negative. Mrs Hatfield's evidence did not assist in clarifying this discrepancy, but the general gist of her evidence was that the episode of anaemia was quite separate in time from the prostate cancer.
Mrs Hatfield said one of the symptoms of the Applicant's nervous condition is his inability to discard anything, including newspapers and food from the fridge. She said before the Applicant first saw Dr Altman about 1998, the Applicant would not allow her to let anyone enter their unit unless she placed sheets of paper over everything. She said people could not visit them at the Housing Commission Unit because it was a mess and the neighbours used coarse language, which they did not want their grandchildren to hear. However, she said the main reason was because they felt too ashamed. Their son visits them each Saturday morning and he and the Applicant go out for coffee. They keep in contact with their daughter regularly by telephone.
Mrs Hatfield said the Applicant has not had a driver's licence for about seven years because of his condition. She said that until he consulted Dr Altman he rarely socialised. Mrs Hatfield said her relationship with her husband began to deteriorate in the 1960's, and continued until his "collapse" in 1985. She said there were periods of up to two weeks during which they do not communicate. She said the communication problems continued while they were working together, side by side.
Mrs Hatfield also signed the Income Statement on 21 September 1992 relating to their Service Pension (T30). She also noted therein that she had not been in full-time, part-time, seasonal or casual employment or doing odd jobs in the last 12 months. In cross-examination she conceded that the business at Garderners Road was running at the time she signed the form. She said she was self-employed.
Damien HatfieldDamien Hatfield, the Applicant's son, gave oral evidence to the effect that he completed a Bachelor of Business degree in 1977 and started work in the Futures Industry in 1979. He is an expert in Managed Futures Funds and Hedge Funds in Australia.
In his written statement dated 13 January, 1999 (exhibit C) Mr Hatfield said the Applicant continued working until the age of 65 years, starting from their premises at Coogee and finally at Gardeners Road. He also said the decision made by the Respondent that the Applicant had "no anxiety state" was instrumental in his decision to work, in a limited capacity, to attempt to recover the financial standing he lost "due to his war-caused disabilities". Subsequently Mr Hatfield prepared a chronology of the Applicant's business activities for the period 1976 to 1996 as an addendum to his written statement (exhibit G).
In his oral evidence Mr Hatfield said he was involved in his parents' business activities in relation to Futures in the late 1970s and early 1980s. At that time the Applicant worked as an "associate member" rather than a "floor member" which allowed him to have his own client base and conduct business on his own account. The Applicant advised clients on buying and selling and received remuneration as a share of the profit on the clients' accounts. He said the Applicant was very successful when he first became involved in these business activities. However, from about 1982 the Applicant struggled to make money because of the volatile market, and his business finally collapsed in 1985. During this time Mr Hatfield noticed stress symptoms in the Applicant, and he began to drink more. He recalled the Applicant having a breathing problem since the late 1970s. During this period of financial crisis his breathing worsened, particularly during the late 1980s.
Mr Hatfield was aware that at the time of the Applicant's financial collapse around 1985 he suffered from alcoholism and spent time at the Sydney City Mission because of a "breakdown". Things got "too much" for him and he was incapable of doing the accounts and other paperwork related to the business. He said the Applicant did not work for a period.
Mr Hatfield said that after the Applicant's business collapsed in 1985 they were evicted from the premises from where the conducted their business, and they were forced to operate from a broker's premises. Their business involved analysis of the markets and making recommendations to investors, and then orders would be placed with the broker from whose premises they were conducting business. The Applicant and his wife were clients rather than employees of the broker, which is a standard industry practice. The Applicant's remuneration would have been a profit shared with the investor. Overheads accrued by the Applicant in the course of business activity were paid by the broker. He said Mr Lance Rosenberg was an investor they used from 1993 (exhibit H).
Mr Hatfield said the Applicant could not apply himself because things got too hard, and "beyond his comprehension". He believed this to be an issue separate from the Applicant's drinking, stress, and breathing problems. He thought his parents' business success was also impeded by their "fear" that their clients might suffer a financial loss on the basis of their recommendations. He said the biggest problem was they did not have direct interaction with the relevant industry, which is largely conducted through organisational groups. However, Mr Hatfield said the Applicant's PTSD and breathing disability was a major contribution to his inability to follow through with his business. He also said that the Applicant suffered from the stress condition before he became involved in the business.
In relation to the business set up at Gardeners Road, Mr Hatfield said his parents spent all day at it. Their market analyses were conveyed to several clients every few days. He said his mother made the telephone calls because the Applicant would become short of breath.
Mr Hatfield said the Applicant had difficulty relating to his family. He would often cancel family functions because he had "come down with a bug". Similarly, he has not maintained contact with old friends despite their efforts to invite him to social functions. Mr Hatfield believed that the Applicant's reluctance to maintain contact with friends was because of his breathing disability, but also because of "their lack of success".
To meet the expenses of running their office, Mr Hatfield said his parents used moneys received from their pension, their business client Mr Rosenberg, and profits made from their business. Mr Hatfield sometimes paid their bills but primarily the bills were paid by Mr Rosenberg or from pension money. He said the bills were primarily for telephone, the live data feed for the analytical tool, and office rent.
In relation to the documentation of the Applicant's business activities during the period 1986 to 1996, Mr Hatfield said his parents had no official paper work after their business collapsed in 1986. He described their business activities after this time as at the "cottage industry" end, that is, they operated "underground" and were no longer registered as an "associate member" of the Futures Exchange. Mr Hatfield said that in order to return to a mainstream operation, the Applicant would have needed $50,000 to become an "associate member" of the Futures Exchange, and an accounting infrastructure costing around $150,000 to $200,000 per year.
Mr Hatfield said that the Applicant's drinking problems had improved since 1986. However he has continued to be unable to cope. He said that, apart from the drinking, stress and breathing problems, the Applicant would be able to deal with the significant change in the market since the 1980s. However, the Applicant had not done any computer work since the early 1990s and hence he could not work as a Futures operator.
Other documentary lay evidenceIn her statement dated 24 May 1998 (exhibit B) Maryella Hatfield, the Applicant's daughter, said her parents had been self-employed for all of their working lives. Their field of work since about 1983 had been in the area of research and advice on market movements in stocks and bonds. She said the Applicant ceased working at the end of 1996 and her mother "is still attempting to work to this day".
Justin Hatfield, the Applicant's son, also said his parents have been self-employed all their lives. He said the Applicant ceased working in October 1996 and noted that his parents had worked "tirelessly analysing the stock and bond market" (exhibit D).
Evidence regarding Applicant's employment in 1980s and 1990sAdvice was tendered from the Australian Taxation Office (exhibit 4) that the Applicant has not lodged tax returns for the financial year ending 1981 or since that time.
In an application for Service Pension dated 16 January 1984 (exhibit 10) the Applicant indicated that he had been in receipt of Unemployment Benefit, for which he had made application on 7 December 1983.
Dr D'Souza, the Applicant's local medical officer at the time, certified on 23 January 1984 (exhibit 8) that the Applicant had suffered from multiple disabilities for the previous five years, including chronic obstructive airways disease, hypertension, acute anxiety with depression, osteoarthritis right shoulder and insomnia. He also noted that the Applicant "has given up work" and that he was "totally incapacitated".
The Applicant was examined by a Departmental Medical Officer on 5 April 1984 in respect of his claim for Service Pension (exhibit 9). He was considered to be "moderately incapacitated" but not "permanently unemployable". The doctor noted that the Applicant had been a publican until 1973 and a "commodity broker until retired 1983". The doctor also recorded "inability to tolerate smoking and aircondition (sic) led, in part, to company failure". It was noted that "veteran would be interested in further employment, subject to capabilities".
The Applicant was granted Service Pension on 10 April 1984 on the grounds that he was permanently unemployable (exhibit 7).
A Statutory Declaration was sworn by the Applicant dated 13 January 1985 (exhibit 6) in which he stated, in effect, that because of his respiratory condition he was virtually housebound, and he was "totally unable to work or conduct business". He said he left his unit only to go to the doctor or the chemist.
A computer generated history of payments of Service Pension to the Applicant show that from 4 February 1993 he has been in receipt of pension at the maximum rate (exhibit 11). It appears from that document that there has been no income review since 5 April 1993. It is not clear on its face why the earliest date on this document is 4 February 1993, in light of the evidence before the Tribunal that the Applicant has been in receipt of Service Pension since 10 April 1984.
A certificate from Peter G Moloney & Associates, Futures Broker, dated 17 March 1998 (exhibit E), confirmed that the Applicant and Mrs Hatfield "were employed full time as consultants" by him through 1987 and 1988, and that their work mainly comprised researching and clerical work. He specified that during this period they were "self employed" whilst working at his office. The Tribunal understands, therefore, that as consultants, the Applicant and Mrs Hatfield were self-employed rather than being "employees" of Mr Moloney.
Lance Rosenberg, of Tricom Securities, noted in a document dated 25 February 2000 that from 1993 the Applicant and Mrs Hatfield provided him with advice from time to time on the direction of Share Price Index Future Contracts, and he said "I would remunerate them accordingly" (exhibit H).
Sundry documents (exhibit F) provide evidence of the fact that the Applicant and his wife conducted a small business at Gardeners Road between 1989 and 1996, including an eviction notice dated 19 August 1996, giving two months' notice.
Documents provided to the Tribunal from the Departmental Files (exhibit T2) include reasons for decision of a VRB hearing on 18 September 1986 , at which the Applicant gave evidence. He said in evidence (p4) –
His condition now was much the same as in 1983 when the Commission made its decision now under review. He said he was virtually housebound. Ability to walk was restricted to about 50 yards. Sometimes he could undertake no exertion at all. Severe dyspnoea set in at any time of the day, and the concern about it also affected him. He slept badly, awake up to six hours on end on some nights. In 1983 he was doing some work, as a commodity broker, at home – he was unable to work in an office.
Medical Evidence
In a report dated 22 February 2000 (exhibit 1), Dr Schultz, psychiatrist, noted that the Applicant was limited in his ability to work in his usual occupation primarily because of his lung condition limiting his communication ability, and to a lesser extent his concentration impaired his ability to perform market analysis for long periods. He did not address the issue specifically of whether the Applicant was fit to work for more than 8 hours per week, and if so whether he was fit to work for 20 or more hours per week. However, he considered that it was not feasible for the Applicant to undertake his usual work in a part time capacity because of the nature of that work. He also considered that it was "remote" that a person of the Applicant's age who had been medically retired and had a history of "significant financial setbacks in his career" would obtain part-time work of this nature.
Dr Baz, occupational physician, provided a report dated 19 August 1999 (exhibit A) in which she opined that because of the Applicant's war-caused disabilities he was unfit to perform any work for 8 or more hours per week. Dr Baz also considered that the Applicant's other disabilities, including his musculoskeletal disabilities, have not precluded him from continuing with work as a stock broker. She also noted that the Applicant ceased work because of a combination of accepted disabilities and financial difficulties within his business. In relation to the Applicant's work as a market analyst, Dr Baz obtained the following history –
He reports he had been interested in stock market technical analysis for 30 to 50 years. He purchased a seat on the futures exchange in about 1982 and sold it in 1985. He then acted on behalf of clients, trading and giving investment advice…... He stopped in November 1996.
submissions
Respondent
It was submitted that there were several deficiencies in the Applicant's case to establish entitlement to pension at the Special Rate. The Applicant failed to find any documents pertaining to his core business activities for the period between 1986 and 1996 and he had not lodged any taxation returns since 1981. Therefore it was submitted that he did not satisfy s24(2A)(g). It was submitted that on the Applicant's evidence he worked continuously as a Futures trader until the mid 1980s and later as a Futures trading consultant with his wife until 1996. This work was fairly continuous throughout the 1980s except for a period in which he was treated for alcoholism. Documents provided by the Applicant show he was employed during 1987 and 1988 (exhibit E), he purchased office furniture in 1989, he insured electronic equipment in 1993-4, and rented premises at Gardeners Road Rosebery during 1989, 1991, 1993, 1994, 1995 and 1996. The Applicant also informed two doctors at the Department of Veterans' Affairs on 19 March 1986 (exhibit 3) that he had not worked for four years.
The Respondent also submitted that there were several references regarding the Applicant in various documents about his employment status. The Applicant noted in an employment questionnaire dated 4 August 1983 (T2, p58) that he had not earned anything in the previous six months. In his pension application dated 16 January 1984 (exhibit 10) he stated he had received Unemployment Benefit since 7 December 1983. In his report dated 23 January 1984, Dr Souza noted the Applicant had "given up work and as he is totally incapacitated he may be given totally and permanently incapacitated pension" (exhibit 8). A report of a Departmental Medical Officer dated 5 April 1984 noted the Applicant had been a commodity broker until he retired in 1983 (exhibit 9) and a decision by the Respondent dated 10 April 1984 deemed the Applicant to be permanently unemployable (exhibit 7). In a Statutory Declaration dated 13 January 1985 (exhibit 6) the Applicant swore that he was totally unable to work. In a report dated 19 March 1986 (exhibit 3) Professor Breslin and Dr Killick noted "no work for 4 years". In 1992, the Applicant informed the Department of Veterans' Affairs that he had no other income besides his "Vets Affairs" (sic) and disability pension (T29).
It was submitted that the Applicant's wife continued to do all the work in the office. The Applicant merely attended the office as a support for her, rather than being actively engaged in any work.
It was also submitted that the employment and earnings information was "ludicrous" in that two people do not work full-time for ten years for $40 per week. It was submitted, therefore, that the figures offered by the Applicant in relation to their income were tailored to avoid recovery of an overpayment. It was submitted that the Applicant's minimal effort when undertaking the spirometry test for Dr Schonell was an attempt to reduce lung function for the purpose of pension assessment and that this was consistent with his attempt to tailor his income to avoid recovery of an overpayment.
The Respondent submitted that the Applicant ceased work because of osteoarthritis of the right knee, possible anaemia and prostatic hypertrophy. Dr Laws in his report dated 24 March 1997 (T6) stated that in November 1996 the Applicant was found to be anaemic. It was submitted that these disabilities would have contributed to his decision to cease work. Therefore, the "alone test" required by s24(2A)(d) was not met.
In reply, it was submitted for the Applicant that the report of Dr Duncombe dated 8 November 1996 (exhibit J) established that the Applicant's anaemia occurred in 1991, a date which Dr Law appears to have misunderstood. Furthermore, Dr Miller in his report dated 17 March 1998 (T19) opined (at 63) that the Applicant's incapacity -
is mainly a result of his post-traumatic stress disorder and his bronchial asthma. I do not consider that his rejected or unclaimed disabilities of cervical spondylosis, capsulitis of the right shoulder, hypertension, or carcinoma of the prostate would contribute in any way at all to his incapacity for working.
It was submitted for the Respondent that Dr Miller provided financial advice to the Applicant in a way that suggests he was also an advocate for the Veteran. The Tribunal concurs with the Respondent on this point and notes this role did not come within the medical expertise of Dr Miller.
It was submitted for the Respondent that the bad business decisions made by the Applicant also contributed to his decision to cease operating his business in 1996, and thus he did not satisfy s24(2B)(a) of the Act. Furthermore, the bad business decisions could not be attributed to the Applicant's anxiety or post-traumatic stress disorder. It was submitted the Applicant ceased work because he was losing money as well as clients. The loss suffered by the Applicant was not because of his war-caused disabilities, and therefore he does not satisfy s24(2A)(e).
ApplicantIt was submitted for the Applicant that, as a probability, he was prevented from continuing to undertake his remunerative work as a Futures investment analyst and adviser because of his accepted disabilities. It was his accepted disabilities that prevented him from continuing to undertake that work. He ceased this work after he turned 65 years of age. It was submitted that when he stopped working he had been working on his own account and he had been doing so for at least ten years. As a result of his ceasing that work he has suffered a loss of earnings on his own account that he would not otherwise be suffering.
It was submitted the Tribunal is not required to make precise findings under s24(2A) of the Act. A mere finding on the issues noted above was all that is necessary. It was submitted that the Tribunal can apply s119(1)(h) of the Act by taking into account the difficulties in ascertaining precise facts about the Applicant's business activities. Such difficulties include the passage of time since the 1980s, the long-standing effects of the Applicant's nervous condition, that the business activities were conducted in their clients' offices and using their clients' facilities, and that the Applicant and his wife did not require accounting or recording for income tax or service pension purposes. It was also submitted that the Applicant's current business records are incomplete due to their financial difficulties and having to move house.
It was submitted for the Applicant that the notion of "remunerative work" includes work that is not necessarily profitable and work that is part-time. Moreover, in the case of a seriously disabled veteran, "remunerative work" may also include work that was unprofitable and limited: Re Smith and Repatriation Commission (1987) 12 ALD 534; Re Woodward and Repatriation Commission (AAT 11721, 30 May 1996) at paras 34, 53-55.
It was submitted that the Applicant undertook remunerative work with his wife until 1997. They incurred relatively substantial expenses and put considerable time into their activities at the Gardeners Road office. Their goal was to obtain remuneration by way of commission and payment of expenses. They also had clients who paid them. Although the pursuit of these activities may have appeared "extraordinary" and even "misguided", it was submitted they were clearly engaged in "remunerative work".
It was submitted the evidence of the Applicant, his wife and his son Damien Hatfield, show the Applicant withdrew from his business activities but Mrs Hatfield continued such activities in order to improve their financial position. It was also submitted that but for his health, the Applicant would have continued to undertake this work. It was unnecessary to inquire into the reasons for closing their Gardeners Road office, although the closure may be explained by the long-term unprofitability of the business and the Applicant's difficulty in making investment decisions because of his anxiety.
It was submitted that the requirement under s24(2A)(e) of finding a "loss of earnings" does not require a quantified loss of earnings. Rather, the question the Tribunal must ask is what "would have obtained if the applicant was not incapacitated due to his war-caused disabilities: Thomas v Repatriation Commission (1994) 50 FCR 112 at 125. Thus in the present case s24(2A)(d) and (e) are satisfied if the Tribunal concludes that, if the Applicant had not been disabled, it is probable he would have continued in partnership with his wife and sought to obtain remuneration from Futures analysis. It was also submitted the Applicant had marketable expertise in Futures analysis and would have exploited this skill if it was not for his psychiatric condition.
It was submitted that the requirement the Applicant had worked for a continuous period of ten years was satisfied. The Full Court in Thomson v Repatriation Commission (2000) 96 FCR 550 noted that the provision looks for at least ten years' continuity "in the capacity in which the veteran worked", and not necessarily in the continuity of the work performed in that capacity. That is, it must be shown that there was a ten-year commitment to working in a particular capacity, rather than continuity of actual physical activities in employment. It was submitted, therefore, that gaps in the continuity of work during the relevant period are allowed, if the reasons for the gaps do not indicate that a commitment to the employment has ceased. It was also submitted that gaps resulting from temporary medical incapacity or financial set back might also be irrelevant.
Secondly, the Full Court in Thomson (supra) noted the significance of gaps in work continuity should be viewed by reference to the whole ten-year period, rather than the patterns of work at the end of the period. Therefore, even though there has been gaps in work at the start of the ten-year period, the requisite "continuity" may still be satisfied if continuity of a pursuit of employment can be traced over a longer time span which commenced more than ten years before the work finally stopped.
It was submitted that the Tribunal ought to consider the remunerative work undertaken by the Applicant in a self employed capacity, around 1978, in the activity with Futures analysis, and on a full time basis when he sat on the Gold Futures. This means that his work patterns at the start of the ten-year period take on less significance. Moreover, after the Applicant's personal and financial "crash" in 1985, his commitment to continuing the same employment must be viewed in light of the work being undertaken in joint enterprise with his wife. The fact that his involvement may have fluctuated, particularly at the start of the period where his health broke down completely, should not cause the Tribunal to find a break in the "continuous period". It was submitted, as per Thomson (supra), it would be contrary to the object of the provision not to allow the ten-year period to include temporary interruptions of, and alterations to, self-employed activity due to ill health or financial hardship. All that is required is a finding that the self-employed capacity of the last remunerative work goes back at least ten years.
It was submitted the Tribunal should be satisfied the Applicant worked "on his own account" in an "employment, vocation or calling" of Futures investments analyst and advisor, to the extent his health and finances permitted. The Applicant said in oral evidence that in his mind he ceased work in futures on his own account in 1996. However it was submitted that a precise finding of this date is not needed since he turned 65 later than 1991. It was submitted that applying Thomson (supra) it is irrelevant that prior to this time there were periods when his health limited the extent to which he performed work in this activity, by reason of his disabilities producing either temporary total incapacity or rendering him able to be a part-time assistant to Mrs Hatfield. It was also submitted that there was sufficient evidence to corroborate the finding that the Applicant's work was remunerative in nature as clients, brokers, and other investors had entrusted their money with them.
Counsel for the Applicant noted that in 1986 the VRB set aside the decision of the Respondent dated 8 December 1983 and assessed the Applicant's pension at 100 percent of the General Rate (T2). The VRB noted at the time of his application the Applicant's representative did not seek a higher than General Rate, and thus in the circumstances was "satisfied that he was not eligible at the time for a pension at the Special or Intermediate Rate" (T26, p93). Thus, it was submitted, the Applicant continued to work to his "residual capacity" because he believed he could not get Special Rate. It was submitted that there was nothing inconsistent in recognising that the Applicant's "residual capacity" (that formed the basis of the VRB's decision in the 1980s) came to an end after he had exercised this capacity for more than ten years.
In oral evidence Mrs Hatfield said they had not lodged tax returns since 1983 or 1984. It was submitted that this information ought not to cause doubt about the account given by the Applicant and his wife. They always engaged in their business with the objective of obtaining remuneration. However, the Applicant had become psychologically incapable of making business decisions and advising clients.
It was submitted that the Applicant was an essential part of the business partnership and that Mrs Hatfield looked to him for decision making. Despite the difficulties in corroborating their evidence and the absence of business records, it was submitted that their evidence was truthful. Furthermore, the Respondent failed to put to the Applicant in cross-examination that he was not in fact doing the work for the purpose of remuneration.
consideration of evidence and findings of factAlthough no submissions were made for the Respondent specifically in respect of s24(1)(b), the Tribunal assumes that there is no real issue about the Applicant's inability to undertake remunerative work for a period of more than 8 hours per week. There is no evidence that contradicts the evidence of Dr Baz that the Applicant is unfit for work as a Futures analyst for 8 or more hours per week, although Dr Schultz is somewhat less decisive on the issue. Taking into account all the evidence before the Tribunal, I am reasonably satisfied that, on and from 14 February 1997 (the application date) the Applicant meets the requirements of s24(1)(a) and (b) of the Act. The only real issue is in relation to s24(2A).
At the time of the Applicant's claim, 14 February 1997, he was aged 71 years. There is no real dispute that the Applicant was self-employed, and the Tribunal so finds. There is also no real dispute that at all relevant times his remunerative work was that of a Futures analyst. A central issue in this matter arises from the requirements of s24(2A)(g) of the Act that requires in essence that in late 1996, when the Applicant closed his office at Gardeners Road and ceased having any role as a Futures analyst, he had by that time been working for "a continuous period of at least 10 years that began before the veteran turned 65" as a Futures analyst.
There is a great deal of contemporaneous evidence that the Applicant has not been engaged in remunerative work since 1983, and indeed he has not lodged income tax returns since 1981. While the Applicant's evidence and that of his family is that he continued work as a self-employed Futures Analyst from various venues, that is inconsistent with the contemporaneous evidence that for the period 1983 to 1986 inclusive he did not work. It was the evidence of Peter Moloney (exhibit E) that the Applicant and Mrs Hatfield were self-employed consultants, working from Mr Moloney's office, during 1987 and 1988. The evidence that goes against that evidence is that the Applicant did not lodge tax returns during that period and he did not disclose any income from employment in relation to his receipt of Service Pension for that period. Even if he was performing work as a Futures analyst at that time without disclosing it (and the Tribunal makes no such finding), the Tribunal finds that he ceased any remunerative employment for the period of four years between 1983 and 1987when he worked as a consultant while using Mr Moloney's office. This certainly breaks the continuity of his employment such that on the evidence it cannot be said that he meets the requirements of s24(2A)(g) of the Act.
The Tribunal notes the decision of the Full Federal Court in Thomson (supra) but interprets that a cessation in employment of four years is not a case where the gaps in the continuity of his work could be justified as being counted as continuous employment on the basis that they related to the temporary unavailability of suitable work. There is no evidence in this case that the Applicant maintained any form of indemnity insurance, or registration, or professional membership, during this extensive period from 1983 to 1987. At best, it must be interpreted as an extensive period when the Applicant had to all intents and purposes ceased work. Even if, on the evidence, he worked in the late 1980s and 1990s without the necessary registration or licence (and the Tribunal makes no findings on that issue), the gap between 1983 and 1987 is an insurmountable hurdle for him.
The Tribunal notes that Professor Breslin and Dr Killick in March 1986 (exhibit 3) obtained a history from the Applicant that he had done no work for four years. That would date the cessation of his work from 1982 rather than 1983 when he commenced receiving Unemployment Benefit. However the Tribunal does not consider this discrepancy to be significant.
The Tribunal does not accept the Respondent's submissions to the effect that there was something sinister and dishonest in the activities of the Applicant and Mrs Hatfield while they maintained their office at Gardeners Road, as there was certainly insufficient evidence to be reasonably satisfied on that point. The Tribunal finds, as an alternative interpretation, that the Applicant and his wife for much of their life operated successful businesses and provided their children with tertiary education. Because of the effects of the Applicant's war-caused disabilities, and the vicissitudes of the Stock market and the Futures market, he was unable to maintain that success. Indeed, at the lowest point in his life, in the early 1980s, the Applicant was an alcoholic and dependent on the Sydney City Mission. With seemingly considerable effort he has improved his functioning significantly since then, and it is reasonable to anticipate that the activity now being presented to the Tribunal as the Applicant's remunerative work was in fact their "cottage industry" attempts to regain some of their former economic and social status. Given the extensive period over which it was undertaken without any achievements, however, it has all the hallmarks of the couple having considerable difficulty, psychologically, of admitting defeat. Both had found it quite distressing that their social and economic status had deteriorated in the way in which it did. The Applicant, in particular, felt like a "feather duster" – a shadow of his former self. His going to work each day, albeit for reduced hours, and sitting beside his wife, was a facade.
Except for the purpose of these proceedings the Applicant does not, at any other time since he claimed Service Pension, admit that he was working. The Tribunal does not think he saw his daily attendance at the office as work, nor does the Tribunal find that it was work. This is not a finding that the Applicant or Mrs Hatfield was untruthful. However, for the reasons already given, this is the first time that the activity in which he was involved has been labelled as work for the purpose of these proceedings. This matter is not a case where the remunerative work undertaken by the Applicant is not profitable.
An additional hurdle for the Applicant is that notwithstanding his poor health, it appears, on the evidence of Mrs Hatfield, that the Applicant would also be prevented from operating his business because he does not have the technical equipment for modern analysis.
The Tribunal is reasonably satisfied that the Applicant does not meet the provisions of s24(2A)(g) of the Act, and therefore he is not entitled to payment of pension at the Special Rate.
extreme disablement adjustment rateThe Applicant's war-caused disabilities are bronchial asthma, emphysema and PTSD. The decision under review is that the assessment of the Applicant's accepted disabilities is 100 percent of the General Rate. The Applicant is seeking payment of pension at the EDA rate pursuant to s22(4) of the Act. In effect, to succeed in that part of his claim he must have a medical impairment rating of 70 and a lifestyle assessment of 6.
Medical Impairment for Psychiatric ConditionDr Koller, psychiatrist, provided a report dated 20 March 1998 (T22) in which he assessed an impairment rating of 45 points. It is not clear that Dr Koller used GARP-V in making that assessment, but in any event he did not show the details of his assessment to enable any comparison to be made with the assessments made by other doctors. However the following evaluative comments of Dr Koller are of note –
The PTSD is quite severe and frequent, relief difficult to achieve. He is clearly overtly distressed. There are major difficulties in everyday functioning. There are career difficulties, some marital conflict, marked social withdrawal. He has seen psychiatrists and also his family doctor. Psychotropic medicines have been prescribed. He requires ongoing psychiatric concern. He attempts relaxation and stress management.
Dr Miller, physician, assessed the Applicant in his report dated 17 March 1998 (T19). As that was a date prior to the commencement date of GARP-V, and noting the way in which Dr Miller has structured his assessment in respect of the Applicant's psychiatric condition, the Tribunal concludes that his assessment of 45 impairment points was made using GARP-IV. However, his evaluative comments are of note, viz. –
Mr Hatfield has severe and frequent symptoms causing considerable distress and relief from that distress is difficult to achieve. There was overt evidence of distress, his symptoms cause major difficulties in everyday functioning but are not totally incapacitating. He had major difficulties at work and I am sure that his post-traumatic stress disorder contributed to his inability to continue working. He has permanent family conflict, marked social withdrawal and loss of interest in most recreational pursuits. He is undergoing intensive specialist psychiatric treatment on an outpatient basis and there is a history of a well established alcohol abuse. In my opinion he satisfies the criteria of 45 impairment rating points according to table 4.1.1.
The following table shows, comparatively, the GARP V – Medical Impairment Ratings of those doctors who have used that Instrument, to assess the emotional and behavioural consequences of the Applicant's war-caused psychiatric condition:
Dr Baz Dr Altman Dr Schultz
Subjective Distress 15 15 10
Manifest Distress 15 15 6
Functional Effects 5 6 3
Occupation 8 8 Dr Schultz noted that Applicant was not currently working and he did not continue to work for a full career. Therefore he did not give a rating for this variable
Domestic Situation 5 6 2
Social Interaction 6 6 1
Leisure Activities 6 6 2
Current Therapy 3 5 3
TOTAL 50 50 24
It was submitted for the Applicant that the assessment of Dr Baz should be preferred over that of Dr Schultz. Dr Baz's medical impairment assessment accords with that of the Applicant's treating doctor, Dr Altman (T23) and is consistent with the predominance of psychiatric opinion.
The following specific submissions were made by the parties in respect of some of the tables –
Subjective Distress - it was submitted for the Applicant that further evidence to support Dr Altman's rating of 15 was the Applicant's evidence that he "gets the horrors" at least every two days. It is also consistent with the opinion of Dr Koller (T22) and Dr Miller (T19). The Tribunal agrees with this submission and notes that there is little evidence to the contrary. With reference to Table 4.1, the Tribunal considers that the Applicant's symptoms are consistent with a rating of 15 rather than 10.
Manifest Distress - It was submitted for the Applicant that a rating of 15 points was appropriate. The symptoms of distress and anxiety were apparent when the Applicant gave evidence and this was supported by Dr Altman's opinion that he suffers from "obvious continual stress". It was submitted for the Respondent that the Applicant did not exhibit "obvious continual distress" at the hearing and noted that he could answer questions coherently. The Respondent's advocate also submitted that, on the evidence of Mrs Hatfield "other people are not aware of the Applicant's nervous problem". The Tribunal notes the context in which Mrs Hatfield gave that evidence, and concludes on the basis of that evidence and the assessments and observations made by numerous doctors, that to take Mrs Hatfield's response to that one question, in isolation, is glib and misleading. The Applicant's distress was observed by the Tribunal throughout the hearing. A rating of 15 for Table 4.2 is appropriate.
Functional effects - It was submitted for the Applicant that his ability to function inside and outside his home was limited, and he was dependent on the close support of his wife. It was also submitted that the reference to "gross restrictions" for a rating of 6, was not required in "all everyday situations" and a general view should be taken. The Tribunal notes the description in GARP-V of the purpose of Table 4.3, and in this context considers that a rating of 3 is appropriate.
Occupation – Dr Schultz assessed zero for Table 4.4 because the Applicant is now not working, and it was submitted for the Respondent that zero is the appropriate rating. It was submitted for the Respondent that the Applicant's non-accepted disabilities, his age and his bad business decisions, were reasons why he was not working. It was submitted for the Applicant that a rating of 8 was appropriate for this criterion as his nervous problem, as well as his breathing difficulties, were the significant causes of his inability to work. If the Applicant did not suffer from these incapacities he would still be working in Futures analysis and advising. The Tribunal does not accept that this Table should not be assessed merely because the Applicant is not now working. It is necessary to consider the reason why that is so, and in so doing the Tribunal finds that the Applicant's psychiatric condition alone is sufficient to preclude him from working. Therefore, a rating of 8 is appropriate for this Table.
Domestic Situation – It was submitted for the Applicant that Dr Altman's assessment of 6 points was appropriate. His marriage survived only because of his wife's religious and personal commitment. Mrs Hatfield referred to long periods of silence that sometimes lasted for up to two weeks. Dr Schultz assessed 2 on Table 4.5, that is described in the Instrument as "frequent discord with family members". The Respondent submitted that the Tribunal should rely on the Applicant's evidence that he had "very, very good relationship with his family". Again, the Tribunal considers that to take the Applicant's response on that question out of context with the rest of the evidence is glib. The evidence of Mrs Hatfield about the major communication problems she has with the Applicant puts a very different light on the Applicant's evidence, and causes the Tribunal to conclude that on this issue he shows a lack of insight. The Tribunal notes the explanation in the Instrument regarding this Table, that "relevant factors include the ability to maintain usual relationships with other family members and recognition of usual domestic relationships". Taking this into account, the Tribunal considers that the marital relationship is certainly not a "usual" one, and it appears to be taking its toll on Mrs Hatfield who appears to have carried much of the responsibility for maintaining the marriage. The rating of 6 is appropriate for this Table.
Social interaction – It was submitted for the Applicant that on the evidence of Mrs Hatfield, his psychiatric condition has caused him to withdraw social. He has shunned old friends, and he rarely visited family members. Despite being a "devout Catholic" the Applicant now will not go to Church. When he and his wife do go on outings they do not speak to anyone else. It was submitted that a rating of 6 was appropriate for Table 4.6. It was submitted for the Respondent that in the light of the Applicant's evidence that he had "very, very good family relationships" Dr Schultz's rating of 1 was appropriate. The Tribunal considers that Dr Schultz's rating is not consistent with the weight of the evidence on this issue, and that the Applicant's behaviour can reasonably be described as depicting "general social withdrawal". Therefore, the Tribunal finds that a rating of 6 is appropriate for this table.
Leisure Activities - It was submitted for the Applicant that a rating of 6 points for Table 4.7 was appropriate, because his only remaining recreational interest was reading newspapers and magazines. It was submitted for the Respondent that Dr Schultz's rating of 2 points was appropriate. The Applicant went to free movies, to the beach, he travels in a bus and goes out weekly with his son. It was submitted that this does not reflect substantially reduced leisure activities. It was also submitted that his age and his knee problems were factors that reduced his leisure activities. On the evidence the Tribunal finds that the Applicant has experienced a substantial reduction in most of his recreational pursuits, and therefore a rating of 6 is appropriate for this table.
Current therapy – While neither party has made submissions on Table 4.8, the Tribunal notes that the Applicant continues to attend Dr Altman regularly for psychotherapy and medication, and Dr Altman himself has assessed 5 for this Table, which the Tribunal considers to reflect accurately the Applicant's therapeutic needs.
On the basis of the Tribunal's findings outlined above, the Tribunal finds that the Applicant's PTSD is assessed at 50 impairment points.
Medical Impairment for Respiratory ConditionsIn relation to the Applicant's respiratory problems, it was submitted for the Respondent that the Applicant's condition has improved over the last ten years. It was noted that the spirometry test undertaken by Dr Baz in 1999 was not as bad as when he was examined by Dr Maccioni in 1997, and that there had been a significant improvement in his spirometry results since Dr Schonnel examined him in 1984.
It was submitted for the Applicant the Tribunal should accept the VRB's rating of 55 points. It was submitted that Dr Baz's lesser rating of 35 was unexplained even though she made this assessment on the basis of the same material available to the VRB.
The Tribunal notes that Dr Miller assessed the Applicant's respiratory condition a 3-4 MET's in 1998, which, when applied to Table 1.2 for functional loss in relation to age, gives an impairment rating of 38. Dr Baz also assessed 3-4 MET's in 1999, which gives an impairment rating of 37 when adjusted for age. However, the Tribunal notes that the Application date was 14 February 1997, and the assessment of Dr Miller is closer to the Application date than was Dr Baz's. Moreover, while noting the submissions for the Respondent that the Applicant's respiratory condition has improved, on the assessment of Dr Baz and Dr Miller, and taking into account the evidence of the Applicant and Mrs Hatfield, the Tribunal is reasonably satisfied that there has been no significant improvement in his respiratory functioning since the application date. Therefore, the Tribunal is reasonably satisfied that the conditions of bronchial asthma and emphysema together are appropriately assessed at 38 impairment points.
Combined Impairment RatingUsing the Combined Values Chart, and on the findings that the Applicant's medical impairment for bronchial asthma and emphysema is 38 and for PTSD is 50, the combined impairment rating is 69, which is then rounded to 70.
Lifestyle RatingOnly Dr Baz and Dr Schultz have provided a Lifestyle Rating, using Table 2 – GARP-V. Their assessments are as follows:
Dr Baz Dr Schultz
Personal relationships 5 2
Mobility 6 3
Recreational and Community Activities 6 3
Domestic Activities 5 5
Employment Activities N/a 5
Average, and average after rounding 5.5 6 3.25 3
In relation to the Lifestyle Rating submissions were made for the Applicant with respect to the following headings:
Personal relationships - It was submitted for the Applicant that a rating of 6 was appropriate. Although he had a strong and supportive family, he had a difficult relationship with his wife, with very long periods where there is no communication. It was submitted the Applicant had "severely" rather than "markedly" affected relationships. It was submitted for the Respondent that the Applicant has maintained " a very, very good relationship with his family". He goes out with his son of a Saturday morning, he telephones his sister twice a week, his daughter telephones him and they go out, and he sees his friends, one on one or in a small group. He is a Member of the RSL at Mascot, and a Social Member of the RSL at Bondi Junction. It was submitted that Mrs Hatfield gave a bleaker picture than the Applicant did. The Applicant's evidence showed that he was not reclusive, and his son gave evidence that the Applicant was happy to entertain people in small groups. It was submitted for the Respondent that the Applicant should be assessed at 3 for personal relationships.
The Tribunal considers that Mrs Hatfield is in the best position to give accurate evidence on this point. The Applicant lacks insight, and it is possible that his son is not sufficiently close to the day to day activities of the Applicant to have the best understanding of his personal relationship abilities and activities. The Tribunal notes the assessment of Dr Baz, who has considerable expertise and experience in undertaking GARP assessments. Taking into account the description in Table 22.1 in GARP-V, Dr Baz's assessment, and the weight of the evidence before the Tribunal a rating of 5 for personal relationships is appropriate.
Mobility - It was submitted for the Applicant that a rating of 6 points was appropriate. Relevant factors included that he no longer drove a car, and his breathing and nervous problems restricted him to the vicinity of his home. It was submitted for the Respondent that the Applicant walks to the shop and is able to travel by bus. He goes shopping once a week and is able to go to the beach with his wife. While he does not have a licence to drive he is able to travel as a passenger and he can drive in an emergency. It was submitted that his assessment for mobility should be 3.
The Tribunal finds that the Applicant has been without a licence for the last seven years on medical grounds, and therefore it cannot be held that he can drive a car in emergencies. It would be illegal for him to do so, whether or not he knows how to drive. Therefore, the Tribunal finds that the Applicant is "unable to drive a car in any circumstances whatever". The fact that he can travel in a car as a passenger is not an issue for consideration either for a rating of 5 or 6. The Applicant is largely restricted to the vicinity of his home unless accompanied by another person. However he does not need door to door transport, and can travel by bus. Hence he does not fit clearly into either point 5 or 6. As this is beneficial legislation, and as the Applicant meets one of the two factors in point 6 and partly meets the other, the Tribunal is reasonably satisfied that 6 is the appropriate rating for Mobility.
Community and recreational activities - It was submitted for the Respondent that, on Mrs Hatfield's evidence, the Applicant is a "prolific marvellous reader". He watches television and goes to the RSL to watch free movies. He goes to the beach with his wife. It was submitted that although he puts off some activities with relatives and friends, he has good family relationships. He is unable to take part in some formerly favoured activities, and therefore a rating of 4 is appropriate. It was submitted for the Applicant that a rating of 6 points was appropriate. The Applicant was restricted to "a few passive activities".
When considering Mrs Hatfield's evidence (transcript pp89-90), the Tribunal considers the Respondent's submissions about the Applicant putting off some activities with relatives and friends to be a clear understatement of the facts. The Tribunal considers that a rating of 6 rather than 5 is appropriate for this factor.
Domestic activities - It was submitted for the Respondent that a rating of 5 is appropriate for this factor. The Applicant is retired. He makes his own breakfast and lunch and does some cooking. He is limited to a small range of light tasks, but can go to the shops. It was submitted for the Applicant that a rating of 6 was appropriate on the basis that the Applicant and his wife carry out few domestic activities, and they have outside assistance with cleaning and shopping.
The Tribunal notes that both Dr Baz and Dr Schultz have assessed 5 for this factor. In consulting GARP-V for the description for the rating of 5 for this factor, the Tribunal finds that 5 is the appropriate rating.
On the basis of the Tribunal's findings, the average lifestyle rating is 5.5, which is rounded to 6.
conclusionOn the basis of the Tribunal's findings that the Applicant has a medical impairment rating of 70 points and a lifestyle rating of 6 points, both rounded up as is appropriate to do, he meets the provisions in s22(4) of the Act as at the application date, and therefore he is entitled to payment of pension at the EDA Rate, with effect on and from 14 November 1996.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 25 February 2000 & 20 October 2000
Date of Decision 12 June 2001
Counsel for the Applicant Mr M Smith
Solicitor for the Applicant Rockliffe Solicitors
Solicitor for the Respondent Mr P Godwin, Dept of Veterans' Affairs
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