Head and Repatriation Commission - [2001] AATA 947

DECISION AND REASONS FOR DECISION [2001] AATA 947

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1428

VETERANS' APPEALS DIVISION          )
           Re      JAMES HEAD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date16 November 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and in substitution therefor decides that the appropriate impairment rating of the Applicant's post-traumatic stress disorder and hypertension is 45 and that the Applicant qualifies for payment of disability pension at the special rate with effect from the first pension payday on or after 26 September 1996.
  [sgd]Ms N Bell
  Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension – rate assessment – whether entitled to special rate – post-traumatic stress disorder – hypertension – whether war-caused diseases – whether ability to work for more than eight hours per week

Veterans' Entitlements Act 1986

Banovich v Repatriation Commission (1986) 69 ALR 395
Forbes v Repatriation Commission [2000] FCA 328
Birtles v Repatriation Commission (1991) 33 FCR 290
Turnbull v Repatriation Commission [1997] 421 FCA

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mr James Head ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 20 February 1997 to grant disability pension at 60 percent of the general rate with effect from 13 June 1996. That decision was affirmed by the Veterans' Review Board on 18 July 2000.
The Applicant was represented by Mr Dawson of Counsel and the Respondent was represented by Ms Hook. Oral evidence was given at the hearing by the Applicant and by Dr A Dinnen. The following the documentation was taken into evidence:
TD1 Documents under section 37 of the Administrative Appeals Tribunal Act (1975), T1 – T24, pages 1 – 130
A1      Applicant's Statement of Facts and Contentions
A2      Applicant's statement dated 1 April 2001
A3      Applicant's statement dated 22 February 2001
A4      Dr K Helme's report dated 8 February 2001
A5      Dr A Dinnen's report dated 10 January 2001
R1      Respondent's Statement of Facts and Contentions
R2      Mr D Cipriani's report dated 27 January 2001
R3      Mr J Raue's report dated 15 January 2001
R4      Applicant's table of work history

The issues for consideration in this application are:

a) the correct assessment of the rate of pension to be paid to the Applicant; and

b) whether the Applicant is entitled to be paid the special rate of pension.

applicant's evidence

The Applicant, in his oral evidence to the Tribunal, confirmed the contents of his statements dated 22 February 2001 and 1 April 2001. The first of those statements concerns the development of the Applicant's post-traumatic stress disorder, now a condition accepted by the Respondent as being war-caused.
The second statement, dated 1 April 2001, concerns the Applicant's employment as a relief maintenance worker at Peel Technical High School for a period of two weeks. The Applicant described this as his last formal employment. He said that his duties included mowing lawns, doing yard work, cleaning guttering, repairing sprinkler systems, marking out sports fields, maintaining lights and heaters, sharpening tools and other general maintenance duties. While undertaking this work he experienced dizziness when climbing ladders and pain in his wrists. He described one occasion when he flooded the whole of the school Administration Block. He said that at night he would keep thinking about his work at the school and become very worried. He stated that he had done only odd jobs following his two-week period of employment at Peel High School.
The Applicant also confirmed Exhibit R4, a table of his work history, prepared by him. He stated, however, that the position of item 13 in the table, concerning employment with Norman Ross, may be out of sequence. That table shows that immediately prior to working at Peel High School he undertook, for a period of 26 weeks, a "New Work Opportunities" Skill share program organised by Centrelink and comprising short courses in work such as paving, painting, fencing, forklift driving, first aid and firefighting. The table shows that immediately after his two weeks at Peel High School, the Applicant did one day's work cutting firewood in July 1996, one day laying carpet in August 1996, one week as a field hand in August 1996 and two days doing yard duties for a real estate agent.
The Applicant said that in 1994 he decided to do handyman work but found that he began to get the shakes, lose concentration, drop things and become very stressed. He was unable to continue doing this work.
The Applicant said that he sees his treating psychiatrist, Dr Helm, approximately every month. He experiences frequent nightmares about Vietnam and has trouble sleeping, tossing and turning and having to watch television and change rooms in his house and often only getting to sleep between 4.00 and 6.00am. He said that he gets upset easily and becomes irritable, and when he is at home he feels "down". He feels shaky in the mornings, not looking forward to the day and never having a bright outlook.
An average day for the Applicant is one in which he tends his yard, plays with his dog and reads the newspaper. He said that he does short amounts of gardening, being unable to mow his lawn completely, and relies on a neighbour to finish the job for him. He said that around his house he is able only to vacuum, clean his bedroom and do basic cooking for himself.
The Applicant said that he goes fishing approximately once per month and stays one night in a friends caravan. He watches television but often cannot concentrate on the program. He said that he is currently reading Australian pioneer history, and has an interest in genealogy, old maps, and antique clocks. He used to go shooting but cannot do this any more because of his shakes. He was closely associated with the Vietnam Legion in Tamworth but can no longer take part in this because he cannot concentrate sufficiently and got into too many arguments.
The Applicant told the Tribunal that about once every fortnight he sees a friend that he used to work with. He only visits his niece and one former workmate. He never goes to the pub or the club because he cannot stand the noise and crowds. For the same reason he is unable to go to shopping centres and finds that he must rely on small shops. He said that he came to the hearing by train and needed his brother's assistance. He is unable to drive for more than 30 minutes -- any longer and he has a panic attack. He also experiences panic attacks on trains, hence his need for his brother's company on this trip. He said that he is in regular telephone contact with his brothers. He sees his niece about once per week, often to look after her small son which he finds stressful.
The Applicant said that he is currently taking medication for hypertension and for his post-traumatic stress disorder. He is taking Efexor 75 mg once daily and has been taking this medication for about two years. He has recently cut down to one tablet daily because his doctor was concerned about his blood pressure.
In cross-examination the Applicant agreed that he contracted Hepatitis B just after he worked for one week as a field hand in August 1996 at Currabubula. He said he didn't go to hospital for this disease and instead took Tazac and was well after one week. He said the reason he did not work again was his post-traumatic stress disorder and the accompanying shakes, stress, jumpiness and lack of concentration.
The Applicant agreed that he has a bad back and that in winter he gets some pain but said that it is irregular, doesn't stop him from lifting and is relieved by Panadeine. He also agreed that he had carpal tunnel problems, mostly in his right wrist, for which he had an operation in June 1995. He said, however, that he only has a small amount of residual pain. He also agreed that he experiences headaches which affect his vision and make it impossible for him to drive. He said that he has these approximately three times per month and that they last for one or more hours. He takes Panadeine to relieve these headaches.
In answer to a question from the Tribunal, the Applicant said that he has fewer friends now than he has had in the past.
dr a dinnen
In his report, (Exhibit A5) Dr Dinnen noted that the Applicant drinks approximately two litres of port per week and admitted to "thoughts of self harm" and to feeling depressed and irritable. He assessed the Applicant's rate of impairment under tables 4.1 to 4.8 of the Guide to the Assessment of Rates of Veterans' Pensions ("GARP") as a total of 46 points. The individual scores allocated by Dr Dinnen under these tables are discussed later in this statement of reasons. He expressed the following opinion:
"This patient suffers from chronic post traumatic stress disorder. He requires ongoing psychiatric care because of the associated major depression which very much limits his capacity to function both in the family and in the general community. His interests and activities are restricted to some degree, and his irritability and suppressed aggression would make it very difficult for him to relate to anyone in the workplace.
It is my view that his psychiatric condition alone would prevent him from working at all, certainly not more than eight hours per week, independent of any other health problem which he might have. I believe that his health has limited his employability in this fashion for at least the last three years or so."
In oral evidence, Dr Dinnen said that the Applicant's work history, as set out in Exhibit R4, shows an increasingly unstable series of frequent job changes with limited periods of employment in casual, unskilled jobs. He concluded that over the years the Applicant's work performance has deteriorated and he has found it increasingly difficult to keep jobs. He said that in his view the Applicant cannot work at all because of his post-traumatic stress disorder. Dr Dinnen also referred to the Applicant's alcohol abuse and noted that, from a clinical point of view, chronic alcohol abuse is one of the most obvious features of post-traumatic stress disorder and cannot be differentiated from that condition in assessment under the GARP. He said that in the Applicant's case it is impossible to separate the effects of post-traumatic stress disorder and alcohol abuse.
Dr Dinnen said that if the Applicant entered into full-time work it would worsen his condition, and the problems he has with interacting with others would mean that he would not last at all in any job. He also said that the need to deal with unusual demands, change, frustration, anxiety about getting to work on time and staying there and customer issues would, in the face of his psychiatric condition, cause massive incompetence in relation to work performance. Together with the Applicant's difficulty with sleeping and his impaired concentration, this means he simply would not last in any employment.
In cross examination Dr Dinnen said that the Applicant would have been working at a low level of efficiency at the Skillshare program, where he worked for 26 weeks, and that the Employer's Report at T5 which noted only six hours absence is of little significance given that the job may have been a sinecure and was probably not demanding. He also said he considered the Peel High School job did not amount to substantial employment. When asked where the evidence of the Applicant's deteriorating work performance was, Dr Dinnen referred to the Applicant's own account, reports from his treating psychiatrist and his own clinical observations. He described the Applicant as being "moderately severely impaired" and said that at this level of post-traumatic stress disorder a person cannot work. He also noted that the Applicant may not be aware of his own poor work performance.
Dr Dinnen said that he considered that suppressed aggression was evident in the Applicant through the language he used and that it indicated significant underlying hostility that would make him intolerant in the workplace. In relation to the Applicant's family relationships, Dr Dinnen noted that the Applicant was estranged from his wife, had no children and that his brothers, with whom he keeps contact, all served in the army as did his friends. He noted that normal relationships include marriage and a family and that a person's ability to cope in society has to be viewed in a global sense. He considered that the Applicant is overly dependent on his brothers and that this does not constitute normal family functioning. Finally, in re-examination, Dr Dinnen agreed that sufferers of post-traumatic stress disorder generally deny the level of their anger or irritability.
dr helme
In his report of 8 February 2001, (Exhibit A4), Dr Helme confirms, as the Applicant's treating psychiatrist, his diagnosis of post-traumatic stress disorder which he describes as a chronic condition. He stated:
"Although the intensity of the symptoms may be relieved by the regular use of medication it would be unreasonable to expect a cure or recovery from his post traumatic stress disorder. In my opinion he will suffer that chronic disorder for the rest of his life."
At T15 is a GARP Emotional and Behavioural Medical Impairment Worksheet completed by Dr Helme on 22 September 1999. Dr Helme allocated a total impairment rating under table 4 of 40. The individual ratings allocated by Dr Helme on that worksheet are detailed later in this statement of reasons. However, Dr Helme included the following comments on the worksheet:
"Subjective distress -- frequent feelings of panic. Often unable to distract self. Distressed by difficulty sleeping.
Manifest distress -- preoccupied with symptoms. Distress obvious to untrained observers. Anxiety and irritability clearly obvious.
Functional effects – avoids public transport and activities outside the home. Marked interference with day-to-day function.
Occupation -- has not been employed. Unable to concentrate on tasks. Not fit for work.
Domestic situation -- separated from wife. Lives alone. Conflict with relatives.
Social interaction -- substantial reduction in social interaction. Visits one friend.
Leisure activities -- few interests or leisure activities. Visits a friend. Rarely participates in leisure activity.
Current therapy -- takes regular medication for PTSD. Receives outpatient treatment."

dr ferguson

At T14 is a report from Dr BJ Ferguson dated 27 July 1999. Dr Ferguson described the Applicant's psychological state as being one of severe chronic anxiety and depression. While providing no detail of calculation, he rated the Applicant's disability at 45 in the GARP emotional and behavioural scale. He stated that the Applicant is indulging in uncontrolled heavy binge drinking, has back and abdominal symptoms consistent with neurotic illness with absolutely no motivation, and exhibits chronic symptoms of severe depression with a loss of insight or intent and has been unresponsive to medication so far used.
mr d cipriani
Mr D Cipriani, psychologist, in his report dated 27 January 2001, agreed that the Applicant has lifetime and current post-traumatic stress disorder. He undertook an assessment under table 4 of the GARP and arrived at a total final impairment rating of 18. He made the following specific comments:
"Subjective distress…Mr Head reports significant PTSD symptoms, severe depression and moderate anxiety. However, clinically he does not present as severely depressed and he showed no apparent distress when recounting his experiences in Vietnam. On the basis of reported frequency/intensity of symptoms, I would give him an impairment rating of 6. He is able to distract himself from his distress via hobbies and activities with his mates.
Manifest distress…Mr Head does not show disturbances of behaviour, emotion or thinking. Clinically, however, I would grant that distress is sometimes apparent to those familiar with him.
Functional loss…Mr Head is independent in self care, domestic activities and most community activities. The symptoms associated with variable blood pressure have a moderate effect on some everyday functions (e.g. bending, climbing letters).
Occupation…Mr Head has been able to perform a range of work since 1996 including handyman, picking vegetables and cleaning properties for real estate agents on a casual basis. He reportedly contracted the Hepatitis B. at Currabubula Station in 1999, which made him lethargic and weak. At that stage, he was working seven hours per day, 3 -- 5 days per week (for two weeks). He did not seek work after this, however, he indicates that he would be capable of retail work (6 hours per week), lawn mowing (20 hours per week) and spare parts sales. He has done voluntary work as Treasurer of the Light Horse Regiment Association and helps his mates with maintenance work. He has limited motivation to re-enter the workforce as his current pension is sufficient for him to survive. His psychiatric condition (PTSD) would not prevent him from doing a range of unskilled or semi skilled work on a part-time basis (at least 20 hours per week). PTSD symptoms and alcohol abuse could result in short absences from work...
Domestic situation…Mr Head has been divorced since 1985. He has no children. He has some regular contact with mates with whom he appears to relate well. His PTSD symptoms would affect domestic interpersonal relationships if he were involved in relationship.
Social interaction… Mr Head still has some regular contact with mates with whom he occasionally shares hobbies and interests. There appears to have been a significant reduction in social interaction because of his PTSD symptoms.
Leisure activities…Mr Head is able to relate well in clinical situation. He reports a loss of interest in his usual activities, however, he still engages in a range of activities and hobbies despite reported PTSD symptoms.
Current therapy…Mr Head attends Dr Helme on approximately a monthly basis and currently takes an antidepressant." (Exhibit R2)

mr j raue

Mr J. Raue, vocational psychologist, in his report dated 11 December 2000 (Exhibit R3), stated:
"Mr Head is a 54 year old man who has not worked since 1997. The exact reasons for him not working are not clear. He attributes his problems to post traumatic stress disorder and hypertension and his date of ceasing work appears to have coincided with health problems related to contracting Hepatitis B. He also reports significant alcohol abuse."
Mr Raue said that while the Applicant used the words 'post-traumatic stress disorder', his specific concerns seemed to relate to his slowness of doing things, concern that he will get headaches which made driving difficult and concern at his level of ability and his low frustration tolerance. He said that the possibility must be considered that this issue is a consequence of alcohol abuse and not necessarily a symptom of post-traumatic stress disorder. He stated that this is an area for further investigation by clinical psychologist. Mr Raue considered a range of possible vocational options for the Applicant and noted a number of limitations on his functioning.
Mr Raue suggested that the most likely employment options for the Applicant are in the Elementary, Sales and Service categories of the Australian Standard Classification of Occupations ("ASCO"). He said that other roles may be the labourers and related workers categories or in the intermediate production and transport workers and the intermediate clerical service and sales categories of the ASCO. He also suggested the options of sales representative (tools and other products), rentals salesperson, motor vehicle salesperson or storeperson. In addition, he suggested metre reader, kitchen hand, leaflet and newspaper deliverer, and horticultural nursery assistant.
submissions

Mr Dawson, for the Applicant, took the Tribunal through the various assessments made by the Applicant's treating doctor, Dr Helme, psychiatrist Dr Dinnen, and psychologist Mr Cipriani. He provided the Tribunal with the following helpful comparative table of assessments made by the assessors mentioned above and by the Veterans Review Board under Table 4 of the GARP:
TABLE 4:
           DR HELME   DR DINNEN MR CIPRIANI          CURRENT (VRB)
4.1-Subjective distress       10       15       6         10
4.2-Manifest distress          10       15       3         10
4.3-Functional effects        5         2         2         1
4.4-Occupation        8         8         2         1
4.5-Domestic situation       6         1         2         1

4.6-Social interaction         5         3         3         5
4.7-Leisure activities          3         3         2         3
4.8-Current therapy 5         5         3         5
TABLE 4      40       46       18       33
Hypertension 5         5         5         5
TOTAL         43       49       [22]     36
ROUNDED TOTAL 45       50       [20]     35
WITH CURRENT LIFESTYLE OF 3       80%    80%    [50%] 60%

Mr Dawson noted that there is agreement amongst the assessors in relation to tables 4.7 and 4.8. In relation to tables 4.1 and 4.2 Mr Dawson noted that the Veterans Review Board agreed with the Applicant's treating psychiatrist, Dr Helme, but submitted that the Applicant's level of distress is more in keeping with the assessment of Dr Dinnen, who considered that the Applicant was generally distressed and was obviously in continual distress. He made no submission in relation to table 4.3. As to table 4.4, he noted that both psychiatrists, Drs Helme and Dinnen, had allocated a rating of eight, given their views that the Applicant cannot work.
In relation to table 4.5, Mr Dawson encouraged the Tribunal to consider the explanatory material that appears below the table in the GARP. That material states:
"This table relates to the effect of the psychiatric condition on the veteran's ability to continue or form domestic interpersonal relationships.
Relevant factors include the ability to maintain usual relationships with other family members and recognition of usual domestic relationships."
Mr Dawson noted Dr Dinnen's evidence of the Applicant's marked dependence on his brothers and submitted that such a degree of dependence falls outside "usual relationships with other family members". He submitted that, taking into account the Applicant's divorce, an appropriate rating is six.
In relation to table 4.6, Mr Dawson encouraged the Tribunal to accept five as an appropriate rating in view of the Applicant's evidence of a substantial reduction in social interaction.
On the question of the Applicant's entitlement to pension at the special rate, Mr Dawson submitted that the evidence supports the conclusion that the Applicant cannot work at all. He referred the Tribunal to the decision of the Full Federal Court in Banovich v Repatriation Commission (1986) 69 ALR 395, in relation to the relevant period to be considered by the Tribunal. He also referred the Tribunal to the decision of the Federal Court in Birtles v Repatriation Commission (1991) 33 FCR 290, in support of his submission that matters such as economic turndowns and geographic locations are not factors to be considered in deciding whether an applicant is prevented from undertaking work, by his disabilities alone.
Ms Hook for the Respondent raised a number of inconsistencies in the evidence as to the Applicant's last date of paid work and submitted that this remained unclear. On the matter of assessment under the GARP, Ms Hook made submissions only in relation to table 4.4. She argued that in order for the Applicant to be rated at the highest level in that table, the combined effect of the Applicant's post-traumatic stress disorder and hypertension must be that he cannot work at all. She argued that Dr Dinnen's opinion to that effect was based only on extrapolation and that if the Applicant's last remunerative work is taken to be his 26 weeks with Skillshare, then his documented absence of only six hours and the fact that he worked successfully with others shows that he is capable of work. Ms Hook also argued that the nature of the work that the Applicant does as a handyman means that it is intermittent and casual.
Ms Hook referred the Tribunal to the decision of the Federal Court in Turnbull v Repatriation Commission [1997] 421 FCA in relation to the contribution of factors other than war-caused injuries to an inability to engage in remunerative work, and to the decision of that Court in Forbes v Repatriation Commission [2000] FCA 328 in relation to the effect of a non war-caused disability on an applicant's eligibility under the Act for payment of pension at the special rate.
Ms Hook raised a number of other disabilities suffered by the Applicant which are not war-caused: migraine, headaches, carpal tunnel, Hepatitis B and arthritis, which are documented at various places in the section 37 documents, and which, in her submission, contribute to the factors that prevent the Applicant from working.
In reply, Mr Dawson submitted that even Mr Cipriani, the Respondent's witness, claimed that the Applicant's main problems are his post-traumatic stress disorder and his alcohol abuse. He also submitted that there is nothing in the medical evidence to suggest that the Applicant's carpal tunnel, his migraines and his back are not improved and stated that the "alone" test in section 24 of the Act does not mean that a veteran cannot have anything else wrong with him.
Mr Dawson also submitted that while the principle stated in Turnbull (supra) applies, it does so only in relation to medical factors and not to matters such as labour market movements, as submitted by the Respondent.
The parties had some discussion in relation to the Applicant's date of last paid work. While they were unable to agree on a date, both consulted the Respondent's pension file and agreed that disability pension had commenced to be paid by the Respondent from 26 September 1996, there having been some exchange between the Respondent and Centrelink in relation to an amount to be paid back to Centrelink by the Respondent for a period before payment commenced. On this basis, the Applicant conceded that entitlement to disability pension at the rate claimed should commence on 26 September 1996.
consideration - assessment
The first issue for the Tribunal to consider is the appropriate impairment rating to be allocated to the Applicant in respect of his accepted disabilities (post-traumatic stress disorder and hypertension) under the GARP. The Applicant has not sought to have the rating of five in respect of hypertension altered. It remains for the Tribunal to decide the appropriate rating for the Applicant's post-traumatic stress disorder.
Taking each of the tables in the GARP relevant to emotional and behavioural conditions in turn, in respect of table 4.1 (subjective distress) the Tribunal considers that the Applicant should be allocated 15 in that table. The Tribunal accepts the Applicant's evidence of his inability to sleep, to concentrate and to exist without the assistance and support of others including select neighbours and his brothers. The Tribunal concludes that this amounts to "persistent symptoms causing considerable distress. Relief for the veteran from that distress is difficult to achieve even with a high level of support and reassurance". Dr Dinnen also rated the Applicant at this level.
In relation to table 4.2 (manifest distress), the Tribunal prefers the assessment of Dr Helme, the Applicant's treating doctor who sees him regularly. His view is that the Applicant's distress is "obvious to untrained observers. Anxiety and irritability clearly obvious". The Tribunal considers that the Applicant falls short of "obvious continual distress", which would attract a rating of 15. Rather, he exhibits obvious distress on an apparently less than continuous basis. The Tribunal considers this attracts a rating of ten as "obvious distress and pre-occupation with the symptoms is evident to casual observers and even persons unfamiliar with the veteran".
Dr Helme, the Applicant's treating doctor allocated a rating of five in respect of table 4.3 (functional effects). This rating indicates "marked interference with function in many everyday situations". The Applicant's evidence of functional limitations was in relation to travelling on public transport, attending places including crowded shopping centres, attending to his garden and to his housework and driving for more than 30 minutes. Dr Dinnen considered that the Applicant experienced "moderate interference with function in some everyday situations" and allocated a rating of two, as did Mr Cipriani. The Tribunal notes that there is no evidence to suggest that the Applicant is unable to deal with personal hygiene, to find his way around or to prepare and consume food (all matters mentioned in the notes to the table). However, the Tribunal considers that, on the basis of the Applicant's evidence, he suffers interference with function in a significant number of important areas and that this constitutes "moderate interference with function in many everyday situations" and attracts a rating of three.
Table 4.4 deals with occupation, a central issue in this application. The notes to table 4.4 are as follows:
"This table relates to the effect of the psychiatric condition on the veteran's ability to work.
Relevant factors include ability to concentrate on a task, ability to work with others, ability to take instructions from a supervisor and ability to interact appropriately with clients.
The criteria for gaining impairment ratings under Table 4.4 are different from the criteria of eligibility for benefits under sections 23, 24 and 25 of the Act. For the purposes of applying Table 4.4, only the impairment from accepted psychiatric condition(s) of the veteran is to be taken into account."
Both Dr Dinnen and the Applicant's treating psychiatrist, Dr Helme, consider that the Applicant's post-traumatic stress disorder renders him unable to work. Dr Dinnen, in his oral evidence, described the difficulties the Applicant would have in employment, with change, frustration, anxiety and impaired concentration and concluded that he would not retain any employment. He drew support for this view from the Applicant's work history which shows a steady decline in his ability to hold down permanent employment. In his GARP assessment worksheet, Dr Helme noted impaired concentration as a bar to employment (T15).
On the other hand Mr Cipriani, in his GARP assessment, stated that the Applicant's post-traumatic stress disorder would not prevent him from doing a range of unskilled or semi-skilled work for 20 hours per week or more, albeit with some absences. In reaching this conclusion, he drew on the work undertaken by the Applicant since 1996 which included handyman work, vegetable picking and cleaning properties for real estate agents. He also referred to voluntary work the Applicant did as treasurer of the Light Horse Regiment Association and his assistance to his mates with maintenance work. The Tribunal notes, however, that all of the paid work mentioned by Mr Cipriani is of a very short term nature and only covers the small period of time since 1996. The Tribunal also notes the evidence of the Applicant that he ceased in his role as Treasurer of the Light Horse Regiment Association some years ago because he could not concentrate and got into arguments.
Ms Hook submitted, in relation to table 4.4, that the Applicant's work in the Skillshare program for 26 weeks with an absence of only six hours shows that he is capable of work. However, the Tribunal notes that this labour market program was one undertaken by recipients of newstart allowance, as a condition of receipt of that allowance, and constituted a series of training exercises for which certificates were granted. On the Applicant's evidence, he received some certificates in respect of training he had not undertaken. The Tribunal considers that to describe this program activity as "employment" is stretching the term.
The report of Mr Raue, psychologist, suggested a number of possible occupations for the Applicant. However, Mr Raue also raised the Applicant's alcohol abuse (described by Dr Dinnen as a product and feature of his post-traumatic stress disorder) as a cause of the Applicant's slowness, low level of ability and low frustration tolerance. He stated that this is an area for further investigation by a clinical psychologist.
The Tribunal is satisfied that, on the basis of Dr Helme's and Dr Dinnen's evidence, and taking into account the evidence of Messrs Cipriani and Raue, within the meaning of table 4.4, the effect of the Applicant's post-traumatic stress disorder is that he cannot work. This means that the Applicant attracts a rating of eight.
In relation to table 4.5 (domestic situation), the Tribunal notes that Dr Helme allocated a rating of six given that the Applicant is divorced, lives alone and has "conflict with relatives". The Applicant's evidence confirmed the first two of these matters but he gave no evidence of conflict with relatives. The Tribunal also notes that Mr Cipriani, allocating a rating of two, stated that the Applicant's "PTSD symptoms would affect domestic interpersonal relationships if he were involved in a relationship".
Notwithstanding his allocation of a rating of one under table 4.5, Dr Dinnen, in oral evidence, noted that the Applicant had separated from his wife, had no children and is over-dependent on his brothers, which does not constitute normal family functioning.
The Tribunal found it difficult to relate the categories in this table to the Applicant's circumstances, which, in its view, show the negative effect of post traumatic stress disorder on his domestic situation, ie, his divorce, his living alone and his unusual relationship with his brothers. The table appears to concentrate on the issue of conflict which may have been present prior to the Applicant's separation from his wife but is, after divorce, no longer an issue. Similarly his relationship with his brothers exhibits no conflict but that does not necessarily indicate normality or "usualness". His living alone certainly gives rise to no conflict, but may be the result of it. However, the Tribunal notes the following instructions appearing under the table:
"This table relates to the effect of the psychiatric condition on the veteran's ability to continue or form domestic interpersonal relationships.
Relevant factors include the ability to maintain usual relationships with other family members and recognition of usual domestic relationships."
Given that estrangement and divorce have already taken place in the Applicant's domestic relationship, and taking into account the assessment of Dr Helme, the oral evidence of Dr Dinnen and the opinion of Mr Cipriani that the Applicant's condition would affect his domestic relationship if he were so involved, the Tribunal considers that an impairment rating of six under table 4.5 is warranted.
In relation to table 4.6 (social interaction), the Tribunal accepts the Applicant's evidence of a substantial withdrawal from social interaction, including the cessation of attendance at clubs and hotels, involvement with the Light Horse Regiment Association and involvement with friends. This is supported by Dr Dinnen's evidence of limitation of activities and interests and of the Applicant's irritability and suppressed aggression. Dr Helme, in his GARP assessment, noted that the Applicant only visits one friend and allocated a rating of five. Mr Cipriani allocates a rating of three on the basis of a significant reduction in social interaction but also comments that the Applicant has regular contact with mates "with whom he occasionally shares hobbies and interests". This appears to be in conflict with the evidence of the Applicant which was that he goes fishing with one friend about once per month. On balance, the Tribunal is satisfied that the Applicant has undergone a substantial reduction in social interaction. On this basis, a rating of five is warranted.
In relation to table 4.7 (leisure activities) the Applicant's evidence was that he had ceased to go shooting and had ceased his involvement with the Light Horse Regiment Association. He said he retains an interest in genealogy, old maps and antique clocks. Despite some interests remaining, the Tribunal considers that the Applicant has suffered a significant reduction in recreational activities. This is supported by the assessment of Dr Dinnen, but is less than the assessment of Dr Helme, who appears not to take account of the Applicant's remaining interests. This level of effect attracts a rating of three.
Finally, table 4.8 concerns current therapy. All assessors agree that the Applicant attends for outpatient psychiatric treatment and that he takes anti-depressant medication. Notwithstanding Mr Cipriani's rating of two under this table, this clearly attracts a rating of three under the table, being:
"Psychiatric treatment, at least in the form of medication or psychotherapy, has been used (or deemed necessary), and/or periods of regular supportive therapy at an outpatient level or similar."
Therefore, the Tribunal has allocated the following "scores" in respect of the Applicant's post-traumatic stress disorder:

Table   Score
4.1      Subjective distress   15
4.2      Manifest distress     10
4.3      Functional effects    3
4.4      Occupation   8
4.5      Domestic situation   6
4.6      Social interaction     5
4.7      Leisure activities     3
4.8      Current therapy       3
Final rating              44 (being 15 + 10 + 8 + 6 + 5)

To this must be added the Applicant's undisputed rating of five for his hypertension. Using the GARP method, this produces a total of 47, or a rounded total of 45. Again using the GARP method, and adopting the undisputed lifestyle rating of three, this produces a degree of incapacity of 80 per cent.
consideration – special rate of pension
Section 24 of the Act imposes the following requirements in respect of the payment of pension at the Special rate:
the Applicant must have made a claim under s 14 of the Act (subsection 24(1)(aa));
the Applicant must have been under 65 years of age when the claim was made (subsection 24(1)(aab)).
the Applicant must have an incapacity from a war-caused injury or a war caused disease, or both (subsection 24(1)(b));
the Applicant's degree of incapacity from war-caused injury or disease, as determined under section 21A of the Act must be at least 70 per cent (subsection 24(1)(a)(i));
the incapacity must be of such a nature as, of itself alone, to render the Applicant incapable of undertaking remunerative work for periods aggregating more than eight hours a week (subsection 24(1)(b) and section 28);
that incapacity must, alone, prevent the Applicant from continuing to undertake remunerative work that the Applicant was undertaking (subsection 24(1)(c));
the Applicant must, by reason of the Applicant's prevention from continuing to undertake remunerative work, be suffering a loss of salary or wages, or of earnings on his or her own account, that the Applicant would not be suffering if he or she were free of that incapacity (subsection 24(1)(c)); and
the Applicant must not be in receipt of a temporary payment at the special rate (subsection 24(1)(d)).
A number of the requirements for the Applicant to be paid at the special rate of pension are uncontroversial. It is not disputed that the Applicant has made a valid claim and that he is under the age of 65. His degree of incapacity has been determined by the Tribunal as 80 per cent. Subsections 24(1)(aa), (aab) and (a) are therefore satisfied. The Applicant has two incapacities that have been accepted as war caused. These are post-traumatic stress disorder and hypertension. The first parts of subsections 24(1)(b) and (c) are therefore satisfied. There is no evidence to suggest that the Applicant is in receipt of a temporary rate payment under section 25 of the Act.

The disputed issues are therefore those set out in requirements 5, 6 and 7, above.
does the applicant's incapacity render him incapable of undertaking remunerative work for periods aggregating more than eight hours a week?
Section 28 limits the Tribunal to considering only the following matters:

the vocational, trade and professional skills, qualifications and experience of the veteran;
the kinds of remunerative work a person with those skills, qualifications and experience might reasonably undertake; and
the degree to which the veteran's physical or mental impairment as a result of the veteran's injury or disease, or both, has reduced his capacity to undertake those kinds of remunerative work.

The evidence available as to the Applicant's trade or professional skills, qualifications and experience is that he has experience in sales, having worked at Harvey Norman from 1992 to 1993, and as a handyman, having done a number of casual jobs of that kind from 1995 to 1996. The evidence of Mr Raue, vocational psychologist, was that the most likely employment options for the Applicant are in the elementary, sales and service categories of the ASCO. He said that other roles may be the labourers and related workers categories or in the intermediate production and transport workers and the intermediate clerical service and sales categories of the ASCO. He also suggested the options of sales representative (tools and other products), rentals salesperson, motor vehicle salesperson or storeperson. In addition, he suggested metre reader, kitchen hand, leaflet and newspaper deliverer, and horticultural nursery assistant.
The Tribunal has already found, on the basis of Dr Helme's and Dr Dinnen's evidence, and in relation to assessment under table 4.4 of the GARP, that the Applicant is unable to work for more than eight hours per week. Further, the Tribunal considers that this inability, rendered, according to Dr Dinnen, by the Applicant's problems with interacting with others, dealing with unusual demands or with change, frustration, anxiety about getting to work on time and staying there, customer issues, difficulty with sleeping and his impaired concentration, applies in relation to any of the types of work mentioned above.
does the applicant's incapacity from war-caused disease, alone, prevent the applicant from continuing to undertake remunerative work that the applicant was undertaking?
The Tribunal had regard to the decision of the Full Federal Court in Banovich (supra), which questioned the time at which an Applicant must comply with the criteria in section 24 (1) (c). The Court said:
"The task of the Administrative Appeals Tribunal, in reviewing a decision relating to an application for a pension, is to make the decision which the primary decision maker ought to have made, upon the basis of the evidence before the Tribunal. Subject to any change in the relevant law, the Tribunal should put the Applicant in the position in which he or she was entitled to be put at the time of the primary decision. It follows, we think, that the question whether a particular applicant complies with the criteria in para [1] (b) of the Schedule should be considered as at the time of his or her application to the primary decision maker for the grant of a special rate pension."

The Tribunal notes that paragraph [1] (b) referred to by the Court is in the same terms as section 24 (1) (c). The date of the Applicant's claim for pension was 13 September 1996 (T5). The Tribunal is satisfied, on the basis of the table of work drawn up by the Applicant (Exhibit R4) that by September 1996 the Applicant had, since his last work in sales in 1993, done casual and intermittent labouring or handy man work, the longest period of which was two weeks at Peel High School. The table shows that in this period following 1993 there were numerous periods of weeks and months when no work was undertaken by the Applicant at all and many of the jobs he did undertake lasted for days only. The Tribunal does not consider the period of 26 weeks spent by the Applicant in a Skillshare course to have been "remunerative work" in the sense intended by the Act. Rather, it was training undertaken by the Applicant while he simultaneously received an income support payment.
In Birtles (supra) the Federal Court said:
"What is involved in each case is ultimately a question of fact, namely, has the veteran by reason of his war incapacity been prevented from "continuing" a type of remunerative work which he previously undertook (not being work undertaken only for a short period)? The word "continuing" in this context is used to encompass the case where a veteran may be unable to find a similar kind of work by reason of that incapacity and as a result suffers the loss to which the paragraph refers. If the answer to the question be yes and the other sub-paragraphs apply, then s.24 is applicable to that veteran."
The Tribunal considers that the table of work drawn up by the Applicant shows that from 1993, his work in sales discontinued and his attempts to establish himself as a handyman or "odd jobber" provided only irregular, short lived and quite sparse employment. His longest period of casual, handyman employment at Peel High School, gave rise, on his evidence, to sleeplessness and stress and resulted in mishap. The table shows that, in the three months following his work at Peel High School, he did a total of less than two weeks work. On this basis, the Tribunal is satisfied that, at the date of his claim for pension, the Applicant was unable to continue the remunerative handyman work that he was undertaking.
Both Drs Dinnen and Helme are of the view that the Applicant is prevented from working by reason of his post-traumatic stress disorder alone. There is mention in a number of the "T documents" of other conditions, including migraine (which had been claimed as a war-caused condition), carpal tunnel and arthritis. However, there is no medical evidence to establish that any of these conditions prevent, or significantly contribute to the prevention of, the Applicant working. This is also supported by Mr Cipriani's conclusion that:
"…the main factors affecting Mr Head's employment capacity are PTSD, Alcohol Abuse and Hypertension…"

is the applicant, by reason of being prevented from continuing to undertake remunerative work, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity?

The Applicant's only income is a pension. While the Tribunal has before it no direct evidence as to the precise amount of the pension received by the Applicant, or the precise amounts of earnings he received when he was employed, as a matter of common sense, the Tribunal concludes that the amount of the pension he currently receives is less than the amount that he would receive if he was in full time or substantial part time employment. The Applicant is therefore suffering a loss of salary or wages that he would not be suffering if he were free of his incapacity.
Ms Hook referred the Tribunal to the statement of the Applicant to the effect that he ceased working after he contracted Hepatitis B and that this rendered him unable to work for 6 to 12 months. However, the Tribunal notes that, in cross-examination, the Applicant agreed that he contracted Hepatitis B just after he worked for one week as a field hand in August 1996 at Currabubula. He did not go to hospital for this disease, but instead took Tazac and his condition improved after one week. He said the reason he did not work again was his post-traumatic stress disorder and the accompanying shakes, stress, jumpiness and lack of concentration. The Tribunal also notes that, in his statement, the Applicant said that at the time he contracted Hepatitis B his post-traumatic stress disorder had been worsening.
In any event, the Tribunal is satisfied, given the work history of the Applicant, that he had ceased to be able to continue in remunerative work prior to the time he contracted Hepatitis B. In addition, the Tribunal is satisfied, on the basis of the evidence of Drs Helme and Dinnen, that, even if the Applicant did suffer the effects of other conditions that were not war-caused, his war-caused condition of post-traumatic stress disorder would alone prevent him from working. Ms Hook also drew the Tribunal's attention to the issue of economic downturn in the area in which the Applicant was working and to the piecemeal and often scarce nature of handyman work. The Tribunal is not satisfied, in the absence of any evidence to indicate the effect of these factors, that they acted as causes of the Applicant's inability to continue remunerative work. In any event, the Applicant's handyman work after 1993 is more infrequent than can be explained by "the nature of the work". These findings carry the consequence that the Applicant is not disqualified from the special rate of pension under subsections 24(2)(a)(i) or (ii) of the Act.
There was some controversy in this application as to the date of the Applicant's last paid work. As stated previously, the Applicant conceded that, given that disability pension had commenced to be paid by the Respondent from 26 September 1996, a fact agreed to by the Respondent, entitlement to disability pension at the rate claimed commences on 26 September 1996. The Tribunal considers that, in the absence of any other evidence of the precise date of the Applicant's last employment and given the random nature of his employment after 1993, it is appropriate to adopt 26 September as the date of the Applicant's entitlement to the payment of pension at the special rate.
decision
The Tribunal sets aside the decision under review and in substitution therefor decides that the appropriate impairment rating of the Applicant's post-traumatic stress disorder and hypertension is 45 and that the Applicant qualifies for payment of disability pension at the special rate with effect from the first pension payday on or after 26 September 1996.

I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Member
[Signed]:       Rachael Quinn           .....................................................................................
  Associate
Date/s of Hearing  27 August 2001
Date of Decision  16 November 2001
Counsel for the Applicant        Mr N Dawson
Solicitor for the Respondent    Ms P Hook