Hendy and Repatriation Commission - [2000] AATA 1046

DECISION AND REASONS FOR DECISION [2000] AATA 1046

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/813

VETERANS' APPEALS DIVISION       )
           Re      LESLIE ARTHUR HENDY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr P D Lynch, Member

Date28 November 2000
PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – incapacity from war-caused injury or disease – post traumatic stress disorder – bilateral sensorineural hearing loss – capability of undertaking remunerative work – intermediate or special rate

Veterans' Entitlements Act 1986 ss 15, 23, 24, 28
Guide to the Assessment of Rates of Veterans' Pensions, fifth edition (1998)

Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Starcevich v Repatriation Commission (1987) 14 ALD 160
Turnbull v Repatriation Commission, unreported 21 May 1997

REASONS FOR DECISION

Mr M J Sassella, Senior Member Dr P D Lynch, Member

APPLICATION

Mr Hendy ("the Applicant") applied for an increase in his Disability Pension on 7 July 1998 (T15) on the basis that his accepted conditions had worsened. His accepted conditions were post-traumatic stress disorder ("PTSD") and bilateral sensorineural hearing loss ("BSHL").
On 20 August 1998 the Repatriation Commission (" the Respondent") decided to increase Mr Hendy's rate of pension to 100 per cent of the general rate (T17).
On 3 September 1998 the Applicant lodged with the Veterans' Review Board ("VRB") an application for review of the Respondent's decision (T18). He wanted to be paid at the special rate under s 24 of the Veterans' Entitlements Act 1986 ("the Act"). The VRB decided that Mr Hendy's appropriate rate was 90 per cent of the general rate (T2, 11 February 1999).
On 1 April 1999 the VRB wrote to notify Mr Hendy as to its decision (T22).
On 31 May 1999 Mr Hendy lodged with the Tribunal an application for review (T1).
At the hearing the Applicant was represented by Mr Vincent of counsel and the Respondent was represented by Mr Modder, an advocate from the Department of Veterans' Affairs.
The documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were taken in as evidence (Exhibit TD1) along with the following material:
Exhibit No Description Date
TD2 A1 A2 A3 R1 R2 R3 R4 Additional documents provided by the Respondent Report of Dr Baz Applicant's Statement of Facts and Contentions Report of Dr Altman Report of Dr Walden Report of Dr Lennon Respondent's Statement of Facts and Contentions Report of Dr Hession Various 22 November 1999 13 December 1999 20 June 2000 8 October 1999 13 October 1999 20 December 1999 10 February 2000

LEGISLATION

Section 15 of the Act provides, as relevant:
"15 Application for increase in pension
(1)A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.
(2)Where there is in force in respect of the incapacity of a veteran a determination of a kind referred to in subsection 14(2) but a pension has not been granted to the veteran on the ground that the extent of the incapacity is insufficient to justify the grant of a pension under this Part, the veteran may make application, in accordance with subsection (3) of this section, for a pension on the ground that the incapacity of the veteran has increased since the grant of a pension in respect of the incapacity was refused or last refused.
(3)An application under subsection (1) or (2):
(a) shall be in writing and in accordance with a form approved by the Commission;
(b)shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and
(c)shall be made by forwarding to, or delivering at, an office of the Department in Australia the application and any evidence referred to in paragraph (b).
(4)Subsection (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination of the application.
…"
Section 23 provides, as relevant:
"23 Intermediate rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he of she is receiving; and
(aab)the veteran has not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d)section 24 or 25 does not apply to the veteran."
(2)Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
…
(b)in that case where paragraph (1) is inapplicable to the work which the veteran is undertaking or capable of undertaking – if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
…"
Section 24 provides, as relevant:
"24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran was free of that incapacity; and
(d)section 25 does not apply to the veteran.
…"
Section 28 provides:
"28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."

FACTS

Mr Hendy was born on 2 July 1944 in Rockhampton. He attended school until early in secondary schooling. He then worked for 18 months on a farm as a "cow cocky". He enlisted in the Royal Australian Navy ("RAN") on 28 July 1961. He served in the engineering department (Exhibit A1). He received an education in clerical procedures such as filing and tracking spare parts. He completed a diving course which was not productive because of a shoulder problem. He was discharged on 27 July 1970 (T15).
In the RAN he sailed to Vietnam on several occasions (T15).
After leaving the RAN he drove a truck for several years. He worked as a hotel employee for a number of years in different jobs. This hotel work followed on from some similar work he had done in the RAN. He worked in one hotel as assistant manager and cellarman for a few years followed by 9 ½ years as a cellarman at an RSL club, finishing in about 1986 or 1987. As assistant manager he did a great deal of clerical work and looked after the hotel in general. He prepared wages for some 15 staff members. He left in order to access his superannuation savings to use to pay for a house. At one stage he drove a concrete delivery truck for two years. He then drove a self-owned four-ton truck delivering alcohol for eight years (Exhibit A1).
He sold his truck, had a period of unemployment, and then gained a job for some months, on a day a week, as a driver of a smaller truck (Exhibit A1). He ceased work in August 1996.
ISSUES
Mr Hendy is receiving a disability pension at 100 per cent of general rate. To obtain a higher rate he needs to qualify for the intermediate rate (under s 23(1) of the Act) or the special rate (under s 24(1) of the Act). The issues involved in qualifying for either of these rates are as follows:

Mr Hendy must have applied for an increase in rate under s 15 of the Act (s 23(1)(aa); s 24(1)(aa)). He has done this.
He must have been aged under 65 when he applied for the higher rate (s 23(1)(aab); s 24(1)(aab)). He was aged only 52.
His degree of incapacity from war-caused injury or disease, or both, is at least 70 per cent (s 23(1)(a); s 24(1)(a)). Mr Hendy's degree of incapacity is 100 per cent.
Certain sections of the Act preventing double payments are not to be applicable to Mr Hendy (s 23(1)(d); s 24(1)(d)). These pose no problem for Mr Hendy.
For intermediate rate the incapacity from war-caused injury or disease, or both, is to be, of itself alone, of a such a nature as to render Mr Hendy incapable of undertaking remunerative paid work other than on a part-time or intermittent basis (s 23(1)(b)).
For intermediate rate the veteran is to be, by reason of the incapacity from war-caused injury or disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking and is to be, by reason thereof, suffering a loss of salary or wages, or of earnings, that he would not be suffering if he were free from the incapacity (s 23(1)(c)).
For special rate the incapacity from war-caused injury or disease, or both, is to be, of itself alone, of a such a nature as to render Mr Hendy incapable of undertaking remunerative paid work for more than eight hours a week (s 24(1)(b)).
For special rate the veteran is to be, by reason of the incapacity from war-caused injury or disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking and is to be, by reason thereof, suffering a loss of salary or wages, or of earnings, that he would not be suffering if he were free from the incapacity (s 24(1)(c)).

Thus the issues that are outstanding are:

1. Are Mr Hendy's accepted disabilities of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for at least either eight or twenty (s 23(2)(b)) hours a week?
2. Do Mr Hendy's accepted disabilities alone prevent him from continuing to undertake remunerative work that he was undertaking causing a loss of income he would otherwise be receiving?

THE APPLICANT'S ACCEPTED CONDITIONS

As noted earlier, accepted conditions are PTSD and BSHL. There is also medical evidence of alcohol dependence and major depression. A legal issue that arose in the arguments was whether Mr Hendy's alcohol dependence and depression could be taken into account in assessing the impact on Mr Hendy of the accepted disability of PTSD or whether they cannot be taken into account unless accepted as distinct disabilities. This issue will also be canvassed below.
Considerable attention was devoted to Mr Hendy's knee condition, a non-accepted disability for disability pension purposes, in oral evidence. The extent and relevance of this condition will also be discussed further. Mr Hendy also has an asbestosis condition that is not war-caused.
APPLICANT'S EVIDENCE
In evidence Mr Hendy confirmed the work history set out above. Much of Mr Hendy's evidence concerned his alcohol abuse. He said that when he was driving a truck making deliveries of alcohol or concrete he would drink in the cabin of the truck. Some days he would drink six or seven cans or stubbies of beer. He was twice fined for going through red lights. He would finish between 4.00 pm and 7.00 pm and would drink more alcohol between stops as the day wore on. He had one accident while driving his own truck. He was once charged with driving under the influence of alcohol. He lost his licence for a month once during his employment in hotels.
Mr Hendy told the Tribunal that he gave up truck driving because he could not handle it any more. He was forgetting drop off points. He was going through red lights. He was asked about his problem with his knees and whether this had caused him to give up truck driving. Mr Hendy said "no". That was a purely physical problem. Mr Hendy sold his truck and associated business in July 1995 and went on a holiday for something up to three months. In later cross-examination it was suggested that Mr Hendy had reported to the Department of Veterans' Affairs on 18 September 1996 that he ceased working in 1996 because of ankle and knee pain. This was in fact so, as T11 at folio 38 shows.
He then worked driving a truck as an employee for six or so months. He delivered garden soil, sleepers and similar goods. He was capable of doing the heavy work involved. His knee was not a problem. He worked often on Saturday, Sunday, or both days.
Mr Hendy saw Dr Altman, who gave evidence for the Tribunal, from about when he stopped truck driving.
Mr Hendy told the Tribunal that he did not drink before joining the RAN. He had worked on a farm at that time. He began drinking in the RAN. On the HMAS Sydney he drank in the engineer's office. On the HMAS Duchess he was leading hand on evaporators and looked after spare gear.
At the time of the hearing Mr Hendy was in hospital for PTSD and had previously been hospitalised for PTSD and alcohol dependence. His knees were no longer a problem. He had an operation two years ago for a torn cartilage and the knees were "good" at the hearing.
Mr Modder asked Mr Hendy about his RAN drinking history. Mr Hendy played football in the navy once a week. After a game he would spend four or five hours drinking. There was not much drinking during the week when the players would be training. His drinking increased after he started going to Vietnam.
In Vietnam Mr Hendy dropped scare charges from boats into the harbour. He said he had received no training in this work. He was unable to say how many exploded. Mr Hendy did not know at the Tribunal whether the ships he served on in Vietnam were under fire. He saw no firing at the time.
More generally, in his nine years in the navy Mr Hendy was promoted several times and was an acting leading mechanic by the end of his service. Three decorations were conferred on him.
Mr Modder established that Mr Hendy is colourblind and suggested a possible connection between that and his driving through red lights.
Mr Modder obtained from Mr Hendy agreement that his attitude to people of Asian extraction is very negative and this was also a reason for giving up working.
Mr Hendy considers that he could bend or lift, as was required in some of his previous jobs. He has not, however, been searching for work. Mr Hendy did not consider that he could work as much as eight hours a week.
In addition to this oral evidence, there was significant documentary evidence about Mr Hendy's disabilities and their effect on his fitness for work in the Tribunal exhibits.
In T3, Mr Hendy's local medical officer reported to the Department of Veterans' Affairs ("DVA") in relation to Mr Hendy's permanent incapacity. In that report dated 7 March 1996, Dr D McLean identified Mr Hendy's left and right knees as damaged and said this was a permanent condition. He said that Mr Hendy's "major problem is knees. Will need to see specialist re arthroscopy".
In T4, Mr Hendy's claim for a DVA Invalidity Service Pension dated 11 April 1996, Mr Hendy identified BSHL, breathing (asbestos), joints and anxiety as his illnesses and injuries. His joints had troubled him for the last 10 years. In T6 Dr Graham Altman, a psychiatrist, wrote on 15 July 1996, "He stated that if he were to return to work 'my joints wouldn't let me for a start and I've got no incentive to go back.'" In T11, a DVA work ability report dated 18 September 1996, completed by Dr S Green, Mr Hendy's doctor, cited pain in Mr Hendy's left and right knees and left shoulder as a musculo-skeletal deformity. He thought Mr Hendy could work for two hours a day four days a week. In T13 Dr Green says on 18 December 1996 that Mr Hendy had to cease work as a self-employed truck driver because of problems with his knees and ankle. He continued to work in alternative light duties. He was advised by psychiatrist, Dr Altman, to cease work altogether on the basis of PTSD, alcoholism and major depression. Dr Green wrote that these factors would prevent Mr Hendy from obtaining remunerative work in the foreseeable future. Dr Green was of the opinion that Mr Hendy was unfit for work on the psychiatric basis alone.
In T15, Mr Hendy's application for an increased Disability Pension rate, dated 2 July 1998, Mr Hendy wrote that his left knee had been operated on in September 1997 and that Dr Wui K Chung had given him a clearance as fit for duties. Dr Wui K Chung's report was said to be attached but was not in fact available.
Dr Altman in T14 on 4 August 1997 said that he was aware that Mr Hendy had some non-war-related physical complaints but he emphasised that in his opinion PTSD and its associated disorders (ie major depression and alcohol dependence) alone made totally and permanently unfit to work. Even if Mr Hendy were to make a full recovery in terms of his physical problems, his war-related psychiatric disorders would still incapacitate him in terms of work and he would still be totally and permanently unfit to work.

The Respondent, in its primary decision (T17, 20 August 1998) wrote:
"The evidence indicates, therefore, that you steadily scaled down hours of work from July 1995, eventually ceasing work in July 1996. Although your psychiatric state was a significant factor in this process, your knee & ankle conditions contributed, in no small way. It is evident, therefore, that you did not cease work because of your accepted disabilities alone.
I have noted your contention that you are now 'fit for work' following left knee surgery in September 1997. Your orthopaedic disablement, however, was not limited to the left knee and there is no evidence to indicate that difficulties with the right knee and the ankles have resolved. Moreover, at the age of 54, length of time out of the workforce would be a significant factor in your employability. Thus, although your post traumatic stress disorder remains a key factor in your inability to work, it is not the only factor. I find, therefore, that neither the Intermediate Rate nor the Special Rate are payable."

In Exhibit TD2 at folios 6-7 there is an alcohol questionnaire completed by Mr Hendy on 21 February 1996. He said the following about his alcohol consumption.
He began to consume alcohol on a regular basis, once a week, in 1961 as he was encouraged to do by the navy and by peer pressure. He drank three schooners of beer at a time. In 1967, after returning to Sydney from South Vietnam on the HMAS Sydney, his drinking increased "due to feeling of guilt as of not being able to help the poor bloody army soldiers". In February 1996 he was consuming beer, spirits or wine daily to the extent of "10 to 12 schooners. 3 nips. 2 to 3 glasses of wine."
DR ALTMAN'S EVIDENCE
Dr Altman has been the Applicant's treating psychiatrist since 29 May 1995. At that time the Applicant was working part-time. His later notes (July 1996) say that Mr Hendy stopped work in July 1995 except for a day each week. Dr Altman in his oral evidence referred to the report he wrote dated 15 July 1996 (T6) as evidence that Mr Hendy was not coping psychiatrically. His PTSD prevented him from returning to work. Dr Altman had diagnosed a severe chronic PTSD, a major depresion and alcohol dependence as Mr Hendy's psychiatric conditions.
Dr Altman had seen Mr Hendy monthly and Mr Hendy had been an in-patient at a clinic under Dr Altman's supervision for about a month on five occasions between October 1996 and mid-2000. Dr Altman considered that Mr Hendy had entered hospital when his support arrangements fell down. His marriage ended. He then lived on a farm and lost that accommodation.
Dr Altman rejected Dr Walden's view that the Applicant was not suffering from PTSD. Dr Altman thought Mr Hendy's a very clear, very obvious case of PTSD. He considered that Mr Hendy had seen his life as in danger when he was working low in the HMAS Sydney in the engineer's office.
Mr Modder cross-examined Dr Altman. Dr Altman denied that he always pressed for a special rate disability pension for any veteran suffering from PTSD. Dr Altman had recorded Mr Hendy's last job as truck driving in July 1995. Dr Altman gave evidence that the Applicant's condition had improved since 1995. He was more stable. He was drinking in 1995. He was not coping with work. His depression had been controlled since then by medications. He was more settled at the time of the hearing but he still had PTSD and it could flare again at any time with minimal stress. He is unlikely to recover after having PTSD for 30 years. So far as the Applicant's ability to work was concerned, any regular job would cause him stress and affect his PTSD. All he could do is minimal work in his own time from time to time as he felt up to it. Meeting deadlines and set standards would not be possible for him.
Dr Altman saw Mr Hendy's alcohol consumption as a part of his PTSD condition. In his report dated 4 August 1997 (T14) Dr Altman described Mr Hendy's condition as PTSD "with an associated Major Depression and Alcohol Dependence". In the same report he stressed that Mr Hendy's war-related PTSD and its associated disorders alone make him totally and permanently unfit for work.
"…
…even if he were to make a full recovery in terms of his physical problems, his war-caused psychiatric disorders would still incapacitate him in terms of work and he would still be totally and permanently unfit for work.
…" (T14, p46)

OTHER MEDICAL EVIDENCE

Dr M Baz

Dr M Baz provided a report dated 22 November 1999 (Exhibit A1). Relevant matters from that report follow in so far as they are not repetitive of other evidence. Mr Hendy had surgery to his left knee about two years before she saw him. He described no current left knee problems. He had no difficulty walking. As regards his drinking, Dr Baz recorded that Mr Hendy dealt with his irritability by drinking more heavily.
She regarded Mr Hendy as significantly disabled by his psychiatric disability. She considered that depression and alcohol abuse were part of the symptomatology for which Mr Hendy originally claimed pension. They were accepted by the Respondent as associated with his PTSD. Mr Hendy has used alcohol to self-medicate over the years, using it to cope with stress, tension and irritability. She considered that Mr Hendy's clinical presentation and the content of Dr Altman's reports were consistent with depression and alcohol dependence being part of the PTSD.
In assessing Mr Hendy's work fitness Dr Baz noted no significant clinical abnormality in either knee or ankles or any other major joints. She considered that Mr Hendy could have difficulty with heavier types of work, especially those involving loading and unloading heavy goods. This could aggravate the knee symptoms. Mr Hendy would be physically capable of lighter truck driving such as courier work in a car or light truck. Neither his knee disability, nor his obesity, nor his generally reduced fitness would preclude Mr Hendy from such work. However, Dr Baz said that Mr Hendy's depression, irritability, high level alcohol consumption and memory difficulty would impact on his work as a driver or in any other capacity. Mr Hendy's alcohol consumption was "sufficiently severe to cause him to be unfit to hold a commercial vehicle driver's licence, and would cause him to be unfit for work as a courier or light van driver." Dr Baz concluded that Mr Hendy was unfit for work of eight or more hours duration weekly in his usual work or work to which he is suited through skills or experience. Mr Hendy's psychiatric disability was the sole cause of his unfitness for work.
Dr M Walden
Dr Maxine Walden, a psychiatrist reported on Mr Hendy in Exhibit R1 dated 8 October 1999. In the history Mr Hendy offered he explained how his service on the HMAS drove him to drink more heavily. This was in 1968 or 1969 when Mr Hendy would drink around 12 cans of beer a night. Mr Hendy considered that he drank more because he worked in the bowels of the ship in the engineer's office. When the ship was anchored in Vung Tau Harbour depth charges were exploded to keep enemy divers away. The sound of the depth charges exploding scared Mr Hendy. He did not like never knowing what was going on or what was about to happen. Dr Walden noted that he did not come under direct fire and there was no clearly traumatic incident. He described the hold that alcohol had over him. He has failed in attempts to give it up and he has about 18 beers a day. He has experienced blackouts. Dr Walden concluded that Mr Hendy satisfied the criteria for alcohol dependence but she queried whether he really suffered from PTSD. His symptoms are better explained by a diagnosis of alcohol abuse. Dr Walden considered Mr Hendy's alcohol dependence to be of sufficient severity to render Mr Hendy unfit for work for more than eight hours a week.

Dr W P Lennon

Dr W P Lennon, an orthopaedic surgeon, in a report dated 13 October 1999 (Exhibit R2) found that there was evidence of only very minor medial compartmental osteoarthritis of the left knee. There were no reports of investigations into Mr Hendy's other knee or ankles. He considered that Mr Hendy ceased work because of PTSD. The extent to which alcohol abuse contributed to his cessation of work was regarded as crucial and should be assessed by Dr Altman.

Dr G Hession

Dr G Hession, a physician, wrote a report on 10 February 2000 (Exhibit R4). Dr Hession found little or nothing wrong about Mr Hendy's knees. Dr Hession found that the Applicant could work for more than eight hours a week and possibly more than 20 hours a week. This would be light work. He could physically drive trucks or do courier work but he should not because of his dependence on alcohol. Light storeman duties should be within his capacity. Mr Hendy's age, lack of experience in other work and his absence from the workforce for four to five years would also affect his capacity to work.
APPLICANT'S FINAL SUBMISSIONS
Mr Vincent stressed that the accepted disability of PTSD was not an issue before the Tribunal. The only question is as to the rating it attracts. Dr Altman had accorded PTSD an impairment rating under the Guide to the Assessment of Rates of Veterans' Pensions, fifth edition ("GARP") of at least 45 points (T6, T12, T14). (It was increased to 52 points in Dr Altman's report of 20 June 2000 – Exhibit A3.) Dr Walden (Exhibit R1) had not given it a rating because she considered there to be no stressor present. Her only assistance, Mr Vincent said, was that she considered Mr Hendy unfit for work for more than eight hours a week because of his alcohol dependence. Dr Hession (Exhibit R4) opted for a rating of 23. The Respondent assessed PTSD at 45 points in Exhibit TD2. Dr Baz had assessed PTSD at 43 points.
Mr Vincent argued that the rating of 45 points should remain undisturbed. Dr Walden was alone in arguing that there is no PTSD condition present and the Respondent's decision to accept PTSD as a disability has not been challenged by any party before the Tribunal. Mr Vincent suggested that the view of the treating psychiatrist should be accorded major weight. Mr Vincent could also have suggested that there is a heavy preponderance of medical opinion to the effect that Mr Hendy should be assessed at or about 45 points in relation to his PTSD.
As regards Mr Hendy's major depression and alcohol dependence, Mr Vincent argued that these should properly be reflected in the rating accorded Mr Hendy for his PTSD. There was no requirement that they be separate accepted disabilities in order to be assessed. Mr Vincent referred for support to the introduction to chapter four of GARP. Chapter 4 deals with emotional and behavioural effects of accepted conditions. In the introduction (at p89) the following appears:
"This chapter is only to be applied to assess the emotional and behavioural consequences of accepted psychiatric conditions.
Only one final rating is to be determined using this chapter for any psychiatric condition or combination of psychiatric conditions.
The emotional and behavioural effects of other accepted non-psychiatric conditions are incorporated in the impairment ratings throughout the Guide…Where the emotional and behavioural effects of other accepted conditions are such that they warrant a separate psychiatric diagnosis, that psychiatric condition may only be assessed under [chapter four] if the condition has been accepted as war-caused or defence-caused.
…
Substance abuse
Substance abuse is to be assessed using Chapter 4 of GARP. (For purposes of this chapter 'substance abuse' includes 'substance dependence'.) Chapter 4 is also to be used if substance abuse has been diagnosed under a different, but still psychiatric, diagnostic label.
If substance abuse is an accepted condition in its own right, it is to be assessed by applying Tables 4.1 to 4.8.
If substance abuse is not an accepted condition in its own right but the veteran has an accepted psychiatric condition and substance abuse is a clinical feature of that condition, then substance abuse is to be assessed as part of the accepted psychiatric condition (by applying Tables 4.1 to 4.8) only if the substance abuse was present and part of the veteran's psychiatric condition when it was originally accepted.
If substance abuse is a clinical feature of the veteran's accepted psychiatric condition during the assessment period but was not present and part of that condition when it was originally accepted, then substance abuse can only be assessed if it is claimed and accepted as war-caused or defence-caused.
…"
Mr Vincent told the Tribunal that Mr Hendy's alcohol abuse was longstanding. It was part of his psychiatric condition at the time that was accepted (16 October 1996, Exhibit TD2).
Mr Vincent argued that Mr Hendy's knee problems were no part of his decision to give up work. Mr Vincent tracked the medical opinions on Mr Hendy's knees. These included the Applicant's prejudicial remarks to Dr Altman in T6 referred to earlier to the effect that he could not return to work because of his joints. There was Dr Green's message to DVA dated 22 July 1996 (T7) in which he refers only to Mr Hendy's severe PTSD, depression and alcohol dependence. Dr Green, on 18 September 1996 (T11) and on 18 December 1996 (T13), did refer to Mr Hendy ceasing work because of problems with his knees and ankle. However, after giving up the work referred to in those documents, ie the work he did for himself delivering alcohol in a truck for a number of years, he returned to work on a one day a week basis, again delivering goods in a truck.
Mr Vincent pressed the Tribunal to accept that Mr Hendy qualifies for the special rate under s 24 of the Act.
RESPONDENT'S FINAL SUBMISSIONS
Mr Modder said that the substantial cause of the Applicant's inability to work is the non-accepted disability of alcohol dependence, not PTSD as suggested by Dr Altman. The Respondent relies on the report by Dr Walden dated 8 October 1999 (Exhibit R1).
The Respondent further argues that the Applicant does not qualify under s 24(1)(b) of the Act which requires that the Applicant's incapacity to undertake remunerative work is to be due to accepted disabilities alone. Again the Respondent relies on Dr Walden's report.
As regards Mr Hendy's alcohol consumption Mr Modder argued that he was drinking alcohol well before he first went to Vietnam. While in the RAN he was promoted and decorated. There appears to have been no alcohol problem in those years.
After leaving the RAN Mr Hendy had a succession of responsible jobs, some for very lengthy periods. These were often in the liquor industry itself. He seems to have performed well in his employment.
Mr Hendy's orthopaedic problems seem to have arisen in the 1990s. Given the type of heavy work he was doing by then that is not surprising.
Mr Hendy fails s 24(1)(b) of the Act. For Mr Hendy to qualify for special rate under s 24 his PTSD must, of itself alone, render him incapable of undertaking remunerative work for at least eight hours a week. Mr Hendy gave up work for a variety of reasons. On the evidence he gave up because of the effects of his alcohol dependence, his knee and ankle problems, and his distaste for delivering alcohol to Asian restaurant proprietors. His PTSD must be the only cause preventing Mr Hendy from doing remunerative work. Mr Modder referred to the earlier evidence where knee problems were stressed.
Mr Modder referred to the decision of the Federal Court (Merkel J) in Turnbull v Repatriation Commission (unreported, 21 May 1997) as supporting that part of the Respondent's case suggesting that Mr Hendy also does not qualify under s 24(1)(c) of the Act for special rate.
TRIBUNAL'S FINDINGS IN RELATION TO THE ISSUES

Issue 1 - Are Mr Hendy's accepted disabilities of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for at least either eight or twenty (s 23(2)(b)) hours a week?

A decision maker must refer to s 28 of the Act for a statutory methodology in addressing this issue. The first step is to consider what are Mr Hendy's vocational, trade and professional skills, qualifications and experience. The Tribunal notes that Mr Hendy has no certified qualifications. His RAN experience exposed him to clerical and record keeping skills. Since his RAN experience he has worked as a cellarman and assistant manager in the hotel industry and as a truck driver.
The Tribunal finds that Mr Hendy's relevant vocational, trade and professional skills, qualifications and experience are in clerical work, administration, labouring and driving.
Next, the decision-maker must consider the types of remunerative work a person with such skills, qualifications and experience might do. Dr Baz in Exhibit A1 is helpful. She refers to loading and unloading of alcohol supplies, presumably in association with truck driving. This could also be relevant in relation to some administrative and labouring work. Dr Baz thought Mr Hendy could perform courier work.
Dr Hession in Exhibit R4 saw Mr Hendy as capable of doing "light work". Truck driving or courier duties would be physically possible. He would be suitable for cellarman duties and for light storeman duties.
The Tribunal accepts Dr Baz's and Dr Hession's opinions in this regard.
Finally, the decision-maker must consider the degree to which the Applicant's physical or mental impairment resulting from the injury or disease, or both, has reduced the Applicant's capacity to undertake the kinds of remunerative work referred to in the previous step. Dr Baz in Exhibit A1 considered that Mr Hendy could not perform the more laborious work involved in truck driving or anything else because of his orthopaedic knee weakness. He could not, however, perform any of the more appropriate jobs, in her view, because of his depression, irritability and alcohol consumption. The irritability and difficulty with memory associated, on the evidence, with his PTSD would impact on his efficiency and productivity as a driver or in any other capacity.
Dr Hession said that Mr Hendy should not engage in truck driving or courier duties because of his alcohol dependence. He did not regard Mr Hendy as able to do cellarman duties because of his arthritic knees. Dr Hession considered him physically and psychologically capable of doing light storeman's duties even with his disabilities.
The Tribunal is inclined to accept Dr Baz's opinion. If Mr Hendy were to engage in work as a light duties storeman it is likely that his irritability and other PTSD-related behaviours would make it virtually impossible for him to do the job successfully. At the very least there would be potential for misunderstandings as to what light duties were Mr Hendy's to perform.
It is necessary, however, to decide whether the accepted disability of PTSD can be taken to include as an effect Mr Hendy's alcohol dependence. Because his alcohol dependence is crucial to the decision that he could not on the date of effect undertake some relevant kinds of remunerative work, if it cannot be taken into consideration as an incidence of his PTSD, Mr Hendy will not qualify for special rate under s 24 of the Act.
The Tribunal finds that it is legally possible for alcohol dependence as a non-accepted disability to be included in the impairment rating assessed in respect of a condition such as PTSD provided it was a clinical feature of Mr Hendy's PTSD when it was accepted as a war-caused disability on 16 October 1996. The Tribunal refers to the introduction to chapter four of GARP at pages 89-90 in support of that proposition. The relevant extracts were quoted earlier at paragraph 53.
Was Mr Hendy's alcohol or substance abuse a clinical feature of his PTSD? The Tribunal looked for assistance on this to the medical evidence. In Dr Altman's most recent report (Exhibit A3, 20 June 2000) he quotes a number of factors that convince him that Mr Hendy has PTSD. Amongst these he writes:
"3. He avoids many thoughts associated with his war experiences – 'I just go and have a drink (of alcohol)'.
…"

Later he lists ways in which Mr Hendy's Vietnam experience affected him. These include:
"1. 'I drank heavily.'
…
10. 'Drinking.'"

At page 4 of this report he writes:
"He usually drinks approximately twelve to fifteen schooners of beers per day. Prior to going to Vietnam he drank alcohol on an approximately weekly basis and approximately four or five beers on each of these occasions. During his Vietnam stay he did not drink any alcohol (as he was on board ship). After his return from Vietnam he started drinking alcohol excessively and to a large extent he has continued to drink the above amount of alcohol. In my opinion Mr Hendy's Alcohol Dependence was a clinical feature of his Post-traumatic Stress Disorder at the date his Post-traumatic Stress Disorder was accepted (on October 16, 1996). In my opinion his Alcohol Dependence is associated with his war-caused chronic Post-traumatic Stress Disorder."

Dr Baz in Exhibit A1 wrote on 22 November 1999:
"…
Mr Hendy gives a clear history of alcohol consumption related to his experience of stress, tension and irritability. I consider he has clearly used alcohol to self medicate over many years. In my opinion this is, on the basis of the information available, part of a more generalised disorder which is related to his service and the stressful nature of his experiences during service.
…"

The Tribunal would have preferred Dr Altman to explain more fully how Mr Hendy's alcohol dependence is a clinical feature of his PTSD. Dr Baz attempted to do that. However, Dr Baz is a physician and not a psychiatrist. Dr Altman was invited to say more about the matter when giving oral evidence but he did not take the question any further than how it is addressed in his report. However, on balance, the Tribunal is satisfied that Mr Hendy's alcohol dependence is, and was on 16 October 1996, a clinical feature of his PTSD. It has, therefore, the Tribunal finds, been properly taken into account in assessing impairment ratings and in applying the test in s 24(1)(b) of the Act.
Another obstacle to Mr Hendy's claim for special rate is whether he has a non-accepted disability of arthritis of the knee which incapacitates him for remunerative employment. The Tribunal has noted with interest the comments, especially in the earlier documents, which suggest that Mr Hendy has a disabling knee, and possibly ankle, condition. This evidence was discussed above in paragraphs 29 and 30.
The Tribunal is, however, impressed by the fact that since Mr Hendy had surgery on his knee it seems not to trouble him at all. The Tribunal is most impressed by the report of Dr Lennon, an orthopaedic surgeon, who provided a report (Exhibit R2) for the Respondent. He saw Mr Hendy on 13 October 1999 and reported:
"…
…He was ambulant without a limp. He did not appear to be in great distress or discomfort.
Examination of the left knee revealed a full active and passive range of knee motion without discomfort. There was no evident instability, antero-posterior or collateral. There were evident puncture marks of the arthroscopy antero-laterally and antero-medially. There was slight retropatellar crepitus with evident 'clicking'. There was no discomfort or patellofemoral compression.
Examination of the right knee revealed a full active and passive range of knee motion without discomfort. There was mild retropatellar crepitus. There was no evident instability.
Examination of ankles, right and left, revealed no evident clinical abnormality, a full active and passive range of ankle motion without discomfort.
…
Clinically and radiologically there is evidence of only very minor medial compartmental osteoarthritis of the left knee, (there were no X-Rays of his right knee available for perusal and no X-Rays of his ankles available for perusal).
…
It would appear from the available supplied reports and from the clinical examination that the cessation of work was due to his accepted disability post traumatic stress disorder.
…"

The Tribunal considers Dr Lennon an appropriately qualified specialist who has fully argued his conclusions as regards the contribution of Mr Hendy's orthopaedic disabilities to his cessation of work. The Tribunal, on that basis, finds that Mr Hendy's orthopaedic conditions are not a reason for his incapacity to undertake remunerative employment.
The Tribunal therefore answers the question posed as issue 1 in the affirmative and finds that Mr Hendy satisfies s 24(2)(b) of the Act in that his accepted disabilities alone prevent him from undertaking any remunerative work for eight or more hours a week. However, the requirements in s 24 are cumulative. It is necessary to consider the requirements in s 24(1)(c) of the Act.
Issue 2 - Do Mr Hendy's accepted disabilities alone prevent him from continuing to undertake remunerative work that he was undertaking causing a loss of income he would otherwise be receiving?

In Flentjar v Repatriation Commission (1997) 48 ALD 1 the full Federal Court endorsed an approach to s 24(1)(c) that was set out by Branson J for the court in that decision. Branson J said (at 4-5):
"…
In my view the issues before the tribunal in this case were as follows:
1. What was the relevant 'remunerative work that the veteran was undertaking' within the meaning of s 24(1)(c) of the Act?
2.       Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.       If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.       If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?"
..".

In the present case the remunerative work that Mr Hendy was undertaking at the time he ceased work in 1995 was delivery of alcohol by truck. He later worked part-time delivering by truck railway sleepers and other garden goods. Clearly, at least one relevant type of remunerative work appropriate in Mr Hendy's case is truck driving and delivery. However, he also worked for an extended period as a cellarman and assistant manager in a hotel, nevertheless he seems not to have done that work since about 1987. There could also be arguments that his RAN work, which ceased in 1970, and that his farming work, which ceased in 1960, could relevantly be taken into account. The full Federal Court by a majority in Starcevich v Repatriation Commission (1987) 14 ALD 160 favoured an interpretation of s 24(1)(c) that permits the inclusion of remunerative work done by the veteran at a number of different points in his or her life.

At the same time, the Federal Court (Burchett J sitting alone) in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 said that the task of the Tribunal is:
"…
…to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a distinction which should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."

Adopting the Cavell approach, the Tribunal considers that it should consider Mr Hendy's position under s 24(1)(c) by reference to his former work in hotel administration and management and in truck driving and goods delivery.
Turning now to whether the veteran is prevented by his war-caused disabilities from continuing to undertake that work, the Tribunal again relies on the assessments by Doctors Altman, Baz and Hession, in the main.
As regards Mr Hendy's truck work his accepted condition of PTSD with associated major depression and alcohol dependence prevent him from returning to such work. This is in part because his difficulty, attributable to his PTSD, in getting on with people would make it unlikely that he could keep customers. However, and more importantly, it is because of his alcohol dependence. He is regarded by Drs Baz and Hession as not fit to drive because of his alcohol dependence. The Tribunal agrees with the medical experts on this point.
As regards the hotel administrative and cellar work, the Tribunal also considers that Mr Hendy's PTSD with its manifestations of irritability and proneness to isolation would prevent him from returning to that type of remunerative employment.
The Tribunal, therefore concludes, on the second question from the Flentjar case (supra), that Mr Hendy's accepted conditions prevent him from continuing to undertake relevant remunerative work.
As regards the third question in the Flentjar case (supra), whether the accepted conditions are the only factors preventing the veteran from continuing to undertake that work, the Tribunal again refers to the passage quoted earlier from Cavell v Repatriation Commission (supra). In making a common sense, practical decision as to whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well, the Tribunal again relies on the medical evidence before it.
Dr Baz's report was interesting in this regard. While she recorded that no clinical abnormality was noted in either knee, ankles or the other major joints, she considered Mr Hendy may have difficulty with heavier types of work, especially those involving loading and unloading alcohol supplies or heavy goods. These activities could aggravate his knee symptoms. Mr Hendy's knee problems are not accepted disabilities.
Dr Lennon, the orthopaedic surgeon who prepared a report for the Respondent, did not say very much about the occupational implications of Mr Hendy's conditions. However, despite finding no substantial restriction in Mr Hendy's knee and ankle conditions, he diagnosed a "very minor medial compartmental osteoarthritis of the left knee". This may provide some consistency in interpreting Dr Baz's opinion in that it seems that Mr Hendy has a minor osteoarthritic knee condition following the arthroscopy of several years ago. This is the condition that might be aggravated by heavy work.
Dr Hession in his report considered that Mr Hendy could not perform cellarman duties because of the arthritis in his knees.
Dr Hession also suggested that Mr Hendy would find it difficult to move into light storeman work which would be within his capacity. This was because of lack of experience, age and absence from the workforce for four to five years. The Tribunal recognises that the types of work relevant here do not include work for which Mr Hendy is inexperienced. However, the Tribunal agrees with Dr Hession that labour market factors would operate to restrict Mr Hendy's potential for employment as a truck driver making deliveries or as an assistant manager or cellarman in the hotel industry. He had not done the latter work for about nine years at the time he made the claim under consideration in this application. He is less inhibited on this basis from finding truck driving work, but his problems there relate more to his non-accepted disabilities and their effect on his capacity to do that work.
The Tribunal has therefore concluded that the answer to question three from Flentjar (supra) is no. The accepted disabilities are not the only factors preventing the Applicant from continuing to undertake the relevant remunerative work.
As the requirements identified in Flentjar (supra) are cumulative, and the third requirement is not satisfied on the evidence, it is unnecessary to consider the fourth question in the Flentjar case (supra), ie whether Mr Hendy has sustained a loss of income because of his inability to undertake relevant remunerative work.
CONCLUSION
The Tribunal has concluded that Mr Hendy does not qualify for payment of his Disability Pension at the special rate. This is because s 24(1)(c) of the Act has not been satisfied.
The Tribunal has also concluded that Mr Hendy does not qualify for payment at the intermediate rate under s 23 of the Act. Although the other requirements of s 23 are met, s 23(1)(c) has not been satisfied. It is in the same terms as s 24(1)(c).
DECISION
The Tribunal affirms the decision under review.

I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr P D Lynch, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  21 June 2000
Date of Decision  28 November 2000
Counsel for the Applicant  Mr M Vincent
Representative for the Respondent        Mr S Modder