House and Defence Force Retirement and Death Benefits Authority
[2001] AATA 375
•8 May 2001
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2001] AATA 375
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1998/1359, Q1999/1399
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID RICHARD HOUSE Applicant
And
DEFENCE FORCE RETIREMENT & DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Mr K L Beddoe (Senior Member)
Dr KP Kennedy, OBE (Member)Date8 May 2001
PlaceBrisbane
Decision The Tribunal:
(a) affirms the decision under review in application number Q1998/1359; and
(b) varies the decision under review in application number Q1999/1399 so as to classify the applicant at 30% Class B.
(Sgd) K L Beddoe
Senior Member
Decision No: 375/2001
CATCHWORDS
VETERANS’ AFFAIRS – invalidity benefit - incapacity classification – whether alcoholic – whether incapacitated by alcoholism for employment – whether incapacitated by personality disorder for employment - appropriate employment
Defence Force Retirement and Death Benefits Act 1973 s 26, 30, 34
Defence Force Retirement and Death Benefits Authority v House, (1989) 91 ALR 286 p 289-90
REASONS FOR DECISION
8 May 2001 Mr K L Beddoe (Senior Member) Dr KP Kennedy, OBE (Member) 1. The respondent refused a request for review of the applicant’s incapacity classification under section 34 of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”). The applicant was notified of this refusal by letter dated 21 October 1996 but clearly should have been 21 October 1997. On review that decision was affirmed on 11 December 1998 and the applicant lodged an application for review in this Tribunal on 24 December 1998 (Q98/1359).
2. On 22 June 1999 the respondent decided to retain the applicant’s classification of incapacity at 40% Class B with effect from 22 June 1999. By a decision dated 13 December 1999 the respondent decided to confirm the decision of 22 June 1999. In doing so the respondent resolved:
(a) to determine that the relevant kinds of civil employment are:
driver,
mobile plant operator,
labourer,
storeperson,
mining and construction labourer, and
security officer; and
(b)that alcoholism and alcoholic liver disease constituted the applicant’s prescribed impairment.
By an application lodged in this Tribunal on 30 December 1999, the applicant sought review of the respondent’s decision (Q1999/1399).
3. Section 30 of the Act for classification of members as to incapacity, upon becoming entitled to invalidity benefit under section 26 of the Act. The requirement of section 30(1) is that the Authority shall determine the members’ percentage of incapacity in relation to civil employment and shall classify him according to the percentage of incapacity as follows:
Percentage of Incapacity Class
60% or more A
30% or more but less than 60% B
Less than 30% C
Sub-section 30(2) provides:
“(2) In determining, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a member of the scheme, the Authority shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the member;
(b)the kinds of civil employment which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c)the degree to which the physical or mental impairment of the member that is the cause of the invalidity or physical or mental incapacity by reason of which he has been retired has diminished the capacity of the member to undertake the kinds of civil employment referred to in paragraph (b);
(d)such other matters (if any) as are prescribed for the purposes of this subsection.”
Section 34(1) of the Act provides that the Authority may, from time to time, reclassify a member according to the percentage of incapacity in relation to civil employment if it is satisfied that the existing percentage of incapacity is such that it should be altered.
4. The factors to be taken into account in such a review are set out in section 34(1A) being generally in the same terms, as section 30(2) except paragraph (c) which reads:
“(c) the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b):”
Sub-section (1B) defines “prescribed physical or mental impairment in relation to a recipient member to mean:”
“(a)a physical or mental impairment of the recipient member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the recipient member was retired, whether or not that impairment has changed, for better or worse, since that retirement; or
(b)any other physical or mental impairment of the recipient member causally connected with a physical or mental impairment referred to in paragraph (a).”
5. In Defence Force Retirement and Death Benefits Authority v House, (1989) 91 ALR 286, the Federal Court said, referring to section 34(1A), at pages 289-90:
“….Sub-section (1A) requires consideration, not of employments the member has followed or would be likely to follow, but of the kinds of civil employment which a person with the skills, qualifications and experience identified in para (a) might reasonably undertake. The words “kinds”, “might” and “reasonably” all indicate that a narrow view is not to be taken. As was made clear by Davies J, when sitting as president of the tribunal in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 at 433-4, an individual is likely to have open to him a wide range of employment opportunities of various kinds. The sub-section does not narrowly scrutinise one example of the kinds of employment open in the particular circumstances. For example, if a man can operate a backhoe, it would be wrong to think of backhoe operation as the kind of employment open to him – it is rather a specific example of a kind of employment which includes the operation of post-hole diggers and a host of other pieces of equipment.
It should also be observed that the primary question posed by para (b) is not what an employer might do, nor even what the particular member might do, but what a hypothetical person with the relevant skills, qualifications and experience “might reasonably undertake”. Substituted expressions may tend to lose the peculiar force of the statutory language, which does not at all suggest that the absence of a particular licence, or the need of a particular refresher course, would constitute a barrier. People constantly undertake employments which require some degree of new learning or the obtaining of a new certificate or licence; to do so involves a small increment upon their existing skills, qualifications and experience. The statutory test is not whether the postulated person already has everything that is requisite, but whether a person with his skills, qualifications and experience might reasonably undertake the kind of employment in question. The extent to which in some way he might have to prepare himself bears on whether he might reasonably undertake the employment, which is the ultimate question under the paragraph, but the fact that he must do so does not debar him. It is a question of degree.
One thing which is abundantly clear is that para (b) does not restrict a member to the employments in which he is now engaged in his impaired state. That would be to mock the statutory purpose, which is to find an objective criterion for the assessment of the extent of the impairment. The criterion is a broad one which relates to categories of employment and not to particular occupations. It is concerned with the range of occupations open to the person described, so that the effect of the disability may be measured against the opportunities that might have been open. As Brennan J said in Re Bos and Defence Force Retirement and Death Benefits Authority (1977) 20 ALR 663 at 666 in an often-cited passage:
“If there be no incapacity of the relevant kind, a person’s talents – his education, training, skills, physical strength, personality or other attributes – open to him a range of employment opportunities. The range may cover opportunities for engaging in various kinds of employment, for earning various levels of remuneration and for deriving tangible and other benefits. These are the opportunities which are appropriate to the individual – his own range of employment opportunities estimated by reference to the talents which, but for the incapacity, he would have had. When he suffers an incapacity, some of these opportunities are denied to him. He suffers an incapacity in relation to civil employment. A comparison between the lost opportunities and whole range of the individual’s employment opportunities provides the measure of his percentage incapacity.”
Paragraph (a) contains no verb. It follows that no tense (past, present or future) is expressed within the paragraph itself, and that resort must be had to the context to determine the time as at which the skills, qualifications and experience referred to must be assessed in respect of the recipient member. Plainly enough, para (b) is looking to the time as at which the authority is making the assessment, and para (c) is looking back to previous time over which the impairment “has diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b)”. That means, of course, that the capacity to undertake kinds of employment must itself be considered as at past times before it was diminished, since otherwise its diminishment cannot sensibly be assessed. You have to know what a man could do once if you are to consider the extent to which an impairment has diminished his capacity to do it. It follows that para (a) cannot be applied on a basis which excludes a pre-impairment capacity simply because a relevant skill has been lost over the period the illness prevented its use, or because a relevant qualification has lapsed or relevant experience has become dated during the same period. These things are an inevitable part of the process of diminishment of capacity through illness, and it is the result of that process which the sub-section is designed to measure. Nevertheless, if new skills, qualifications and experience have been acquired, they must be taken into account.
As Sheppard J (with whom Sweeney J agreed) said in Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 160: “…the definition is s 34(1B) takes one back to the physical or mental impairment that was the cause of the original invalidity or physical or mental incapacity by reason of which the member was retired. It follows that the Authority is always obliged to look at the current capacity of a member and reach a conclusion on the degree to which the original physical or mental impairment which caused his incapacity has diminished his capacity for civil employment.”
6. At the hearing and resumed hearing the applicant represented himself and Mr Dube` appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents in each application. Oral evidence was given by the applicant, Dr Stevenson (Consultant Physician), Dr Reddan (Consultant Psychiatrist), Dr Crompton (Consultant Psychiatrist) and Dr Ding (Consultant Psychiatrist).
7. We make the following findings of fact. The applicant was born on 29 March 1950, enlisted in the Australian Army on 1 October 1968 and was discharged on 29 May 1975. During his Army service he was employed as a rifleman and as a driver. The applicant says he was discharged from the Army because of alcoholism. He has also attributed the discharge to racist attitudes of his commanding officer and to drunkenness. During his Army service he served in South Vietnam and attributes his heavy drinking to his service in Vietnam.
8. It seems that reason for discharge was amended to “medically unfit” after intervention of the Defence Force Ombudsman.
9. Since leaving the Army the applicant has worked in various occupations all of which he describes in terms which suggest they are occupations below his potential and unrealised intellectual capacity. Suffice it to say he has been able to maintain employment and has been continuously employed in his present employment for more than ten years although the actual employer has changed during that time.
10. We are satisfied that the applicant has a long and continuing history of substance abuse because of excessive consumption of alcohol. Clearly, in our view, this must have had an effect of his capacity as an employee but not to such an extent as to make him unemployable. The substance abuse seems to be controlled in that it mainly takes place on weekends when he is not required to be at his place of employment. There is a history of domestic violence, motor vehicle accidents and drink driving but none of these matters reflect on his capacity as an employee not required to drive in the course of employment and not required to engage the public in the course of employment.
11. We found the applicant’s evidence to be argumentative and to some extent fanciful. It is likely that he has exaggerated some aspects of the evidence but whether this was deliberate or because of personality traits we are unable to say.
12. In the result we are satisfied, on the basis of the applicant’s own evidence, that he is able to maintain remunerative employment while that is his inclination and he controls his substance abuse for this purpose. That is made clear to us by the applicant’s own evidence that he dislikes his employer but he maintains his employment albeit that he resents not having received promotion in that employment. That employment is as a storeman mainly engaged on picking duties but also with packing duties from time to time. The applicant said in cross-examination by Mr Dube` that he thought drinking more alcohol would lead to a higher pension paid by the respondent. He said, in effect, that he deliberately increased his drinking. Because he thought this could lead to a higher pension payment.
13. The evidence shows variations in the week by week abuse of alcohol which seem to be attributable to the applicant’s motivation at the time. We have been left with a clear impression that the abuse is controlled in a loose way by the applicant. In particular we are satisfied that the abuse is controlled so that there is no undue adverse influence on the applicant’s employment performance.
14. We have noted the evidence about quantities of alcohol purchased and consumed but have been unable to make any findings in this regard because the applicant’s wife is also alcoholic and, on the material, maintains a regular drinking pattern throughout the week. As to how much she consumes by comparison with the applicant is a matter which is unanswered on the evidence of the applicant. The applicant asserts that she now drinks less than in the past. Whether the consequence is that the applicant now drinks more is uncertain.
The Medical Evidence
15. Document T26/109-117 (Q1998/1359) is a copy of a report by Dr Stevenson, Consultant Physician, dated 18 April 1995 and addressed to Comsuper as representative of the respondent. Dr Stevenson sets out a history which is consistent with our understanding of the applicant’s history. He notes the control exercised by the applicant in relation to alcohol consumption and concluded that the applicant was moderately incapacitated for relevant employment. Dr Stevenson recommended review in two years.
16. Dr Stevenson made a further report dated 3 May 1999 (T21/94-102 – Q99/1399). In effect Dr Stevenson found no change from 1995. He said it appeared possible the applicant is one of “those fortunate individuals who was able to imbibe heroic quantities of alcohol over many years without suffering hepatic consequence”. He noted a possibility that the applicant was now consuming less alcohol than had been the case in 1975 when he manifested hepatic enlargement in 1975.
17. Dr Stevenson found little change from 1995 with the applicant remaining moderately incapacitated for the relevant employment. He opined that blood tests arranged by Dr Reddan showed results within normal limits and contradicting suggestion of chronic alcoholism.
18. In oral evidence Dr Stevenson confirmed his opinion that there was and is a moderate incapacity for employment. That opinion appears in more detail in Document T40/141-143 (Q99/1399). In that report Dr Stevenson made an assessment of incapacity for various fields of employment based on the applicant’s subjective history and an alternative objective assessment taking into account the following:
1. Mr House has in the years past been quite jaundiced from alcoholic excess but of recent years, his liver function has both clinically and on testing proved pristine, indicating that he is probably now much too pessimistic about his intake.
2. Mr House’s continuing ability to hold employment does in no way suggest a person rendered incapable by alcoholism.
3. Mr House’s good neurological status, his excellent ability to argue a complex legal case based on his compensation entitlements, his knowledge of minutiae of litigation, his forensic skills and his pertinacity in argument, in no way suggest a person rendered incapable by alcoholism.
19. The objective assessment produced substantially lower percentages of incapacity (at 10%) but Dr Stevenson thought a rounded out assessment at 30% was appropriate as a compromise. We accept Dr Stevenson’s evidence.
20. Dr Reddan is a consultant psychiatrist who examined the applicant in 1997 and has provided medico-legal reports dated 22 June 1997 and 17 July 1999 (Exhibit 4) and 8 May 2000 (Exhibit 5). Dr Reddan doubted that the applicant was correctly diagnosed as an alcoholic. She also considered earlier diagnoses of cirrhosis of the liver and organic personality disorder as inappropriate. Dr Reddan found a personality disorder but no other psychiatric disorder. She noted a limited incapacity for certain types of work due to alcohol abuse and the personality disorder. These are set out in her report of 8 May 2000 (Exhibit 5).
21. In her oral evidence Dr Reddan confirmed her earlier views. She gave detailed evidence about the applicant’s intellectual capacity so as to satisfy us that Mr House does not suffer any significant reduction in functioning because of alcohol abuse, at least when he is not intoxicated. Nor did she find any significant common sequelae of long term alcohol abuse.
22. Dr Reddan described the relationship between the applicant’s personality disorder and alcohol consumption as very complicated.
23. Dr Reddan said there was more than one view in psychiatric circles between diagnosing a personality disorder and maladaptive personality traits in the presence of alcohol abuse. She expressed the opinion that people continue to abuse alcohol because they have got a personality disorder apparently because they go hand in hand.
24. As to whether the applicant was suffering Post Traumatic Stress Disorder (“PTSD”), Dr Reddan said that some of the factors which would lead to a diagnosis of PTSD were present but the applicant’s mental state examination is not consistent with a person with PTSD. She was dismissive of the applicant being diagnosed with PTSD.
25. We have no reason to not accept Dr Reddan’s evidence but we need to consider that evidence by contrasting it with the evidence of Dr Crompton in particular.
26. Exhibit H is a report by Dr Crompton, Consultant Psychiatrist, dated 29 August 2000 and addressed to the Department of Veterans’ Affairs. It is likely that this report forms the basis for a determination by the Repatriation Commission that the condition of PTSD is an accepted war-caused disability.
27. Dr Crompton diagnosed chronic PTSD with co-morbid conditions of alcohol abuse and social anxiety with temporal relationship to the applicant’s military service. We assume that the military service in mind is the applicant’s service during 1970 and 1971 in South Vietnam. The conflict here is with the findings of Dr Reddan on the one hand and the diagnosis of PTSD by Dr Crompton on the other hand. Issues as to differing standards of proof are not relevant in relation to diagnosis.
28. Dr Crompton was called to give evidence by the respondent. He is the director of the Veterans’ program at Toowong Private Hospital. The applicant firstly participated in an alcohol management program and then participated in the PTSD program run by the Toowong Private Hospital.
29. The applicant’s assessment protocol was apparently conducted by a psychologist whose findings formed the basis for Dr Crompton’s report. The assessment established that the applicant does not suffer “flash-backs” or “dreams” typical of PTSD sufferers. Dr Crompton said this was explained by the applicant’s excessive use of alcohol. The applicant did report unwanted memories once or twice a week causing moderate distress and he becomes emotionally upset if reminded of traumatic events in South Vietnam.
30. We have discounted the answers to the assessment protocol by the applicant because we are not satisfied that those answers represent reasonably objective answers. The applicant impressed us as a person who will provide information only on a basis of his perception of his entitlements under the relevant legislation.
31. It follows, in our view, that the diagnosis based on the assessment protocol is unreliable.
32. Dr Ding is a specialist psychiatrist who made reports dated 21 April 1999 (T20 Q1999/1399), 9 May 1999 (T22 Q1999/1399) and 10 November 2000 (Exhibit 8). He also gave oral evidence. Dr Ding was unable to detect any evidence of psychiatric illness apart from alcoholism on his initial examination. He thought it likely there was slight deterioration of cognitive functioning, but this was not obvious in the course of the interview. In particular Dr Ding found no evidence of Post Traumatic Stress Disorder. He thought the applicant was capable of performing his duties as a storeman including driving duties and operating equipment. He doubted the applicant was capable of working as a sub-contractor in mining and construction or as a foreman or as a powder monkey.
33. After considering Dr Crompton’s report Dr Ding reported in a letter dated 10 November 2000 (Exhibit 8) as follows:
“I could not support a diagnosis of PTSD. I noted Dr Crompton’s documentation of the CAPS II scale and scoring to support the diagnosis. I could not comment on his findings, except that a clinical diagnosis must be firmly based on clinical examination.
A rating scale, particularly one which is a self-reported questionnaire, could only be utilised as supporting evidence. Unless I have missed a large component of Mr House’s symptoms, which I very much doubt, I am not able to confirm the diagnosis of PTSD.”
34. In oral evidence Dr Ding said that while he had previously not been in favour of a finding of personality disorder, on further consideration, he now favoured a finding of personality disorder with a co-existing alcohol dependence. He maintained his opinion that the applicant does not suffer PTSD on the basis that there was a lack of relevant symptoms for such a diagnosis. Dr Ding reported likely loss of cognitive functioning.
35. Dr Ding’s finding is consistent with the much earlier opinion of Dr Slaughter. In a report dated 16 September 1992 (T12/74-5 Q1998/1359) Dr Slaughter concluded:
“Mr House has a long history of alcohol abuse and low self esteem. I would consider that his personality disorder to be the primary problem and his alcoholic difficulties as secondary to this.”
36. Two reports by Dr Murphy (psychiatrist) made in 1989 (Exhibit 7) diagnosed personality disorder with alcohol abuse, a pattern of behaviour said to be present before the applicant saw service in South Vietnam. Dr Murphy opined that when the applicant is depressed he is anxious and has distressing thoughts, but those thoughts are secondary to the mood and when his morbid mood improves these thoughts lose their distressfulness.
37. Documents T16/81 (Q1999/1399) is a report addressed to the respondent by Dr Hargreaves (Psychiatrist) who has been treating the applicant. The report is dated 31 March 1999. Dr Hargreaves assessed the applicant as follows:
“Regarding the nature and the extent to which the condition would restrict his capacity to do mental and physical activities, I believe that there are quite significant restrictions as a result of his condition. He is habitually dysphoric and disinterested in life, appearing to enjoy and be motivating by nothing except for his weekend binge drinking, he is subject to irritable outbursts and harbours longstanding feelings of anger towards the army over perceived mistreatment. His chronic depression would have a significantly negative effect on his work place ambitions and motivation whilst at work and it is possible that the level of drinking may result in absences from work although to date he informs me that he attends work regularly. While I have not detected any obvious memory deficits, it is likely that in the longer term this will occur because of the high levels of alcohol intake. Regarding punctuality, he has always attended his appointments on time and has not forgotten dates for appointments. He tells me that he turns up for work on time and reliably. His interpersonal relationships are virtually non-existent and he describes little incentive to improve this. He is anti-authoritarian in attitude and habitually suspicious and distrustful of others. He has at times used physical aggression against his stepson. He has a low libido and poor sexual performance which creates additional marital strain. He feels that as a result of his alcoholism and associated reduced mental functioning, especially intellectual and memory, that he would be unable to do any other kind of work than what he is doing now. He is also prone to altercations at work and is easily provoked. He works as a storeman, taking orders for screws, and packaging them. This is a permanent position and he has been with the present company for nine years.”
38. Exhibit 2 is a report dated 21 January 1992 by Maureen Field Clinical Neuropsychologist. The report is addressed to the applicant’s then solicitors and addresses the applicant’s capacity for work. It concludes that while not under the influence of alcohol the applicant has capacity to do semi-skilled and unskilled work albeit his unreliable and unselective memory. The memory loss makes the applicant’s capacity for employment in heavy manual work unlikely because of loss of cognitive planning and organising capacities. He was not suitable for driving work or for working machinery. That viewpoint conflicts with the expressed view of the applicant’s employer in document T38/145 (Q1998/1359).
39. Exhibit 3 is a report also dated 21 January 1992 by Helen Coles, Occupational Therapist and addressed to the applicant’s then solicitors. Ms Coles found limitations in capacity to undertake some forms of work because of alcoholism and injury to the applicant’s left arm. There would be a difficulty in obtaining employment on disclosure of alcohol abuse but there was clearly a capacity to undertake work subject to some limitations.
Consideration
40. There is a long history of disputation about the applicant’s capacity for employment. Much of that history depends upon an acceptance that the applicant’s prescribed physical or mental impairment was Alcoholism and Alcoholic Liver Disease. With the passage of time and the benefit of hindsight, we are left in a difficult position because we doubt that is a correct diagnosis of the applicant’s medical condition at the time of discharge from the Army and thereafter.
41. It seems to us to be the case that the applicant’s abuse of alcohol is a controlled abuse reflecting personality disorder rather than addiction. On the material before us he seems to be in control of his situation at all times, except when intoxicated, and he reaches that state because that is something that he sets out to achieve rather than because he is unable to control an addiction for alcohol. It is more likely, in our view that the applicant has an aggravated but endogenous personality disorder.
42. However we were not asked to change the prescribed physical or mental impairment by the respondent and we have decided that it is now too late in the day to do so. The history of the payment of pension to the applicant denies that there is not a prescribed physical or mental impairment.
43. The applicant made detailed submissions to the Tribunal which analysed earlier decisions from his point of view. We are, of course, bound by previous decisions of the Federal Court in relation to questions of law. In particular we are bound to follow the Judgment in House cited above in paragraph 5.
44. We have to consider the applicant’s current capacity for civil employment at the time of the respondent’s determination but taking into account the continuing circumstances. There is no reason to and we do not limit the scope of that civil employment. Nor do we consider the applicant in the context of his present employment.
45. We have come to the view that the applicant’s relevant medical condition, which is determined by the extent of his abuse of alcohol from time to time, has remained on a plateau in so far as the incapacity for work results from alcohol abuse.
46. The prescribed physical or mental impairment in this case is Alcoholism and Alcoholic Liver Disease. As we have already noted we have doubts, with the benefit of hindsight, that those conditions are a correct diagnosis of the applicant’s present condition. There is deliberate alcohol abuse but in a controlled way so as to mitigate against a finding of alcoholism. However we accept that the applicant’s controlled binge drinking can be accepted as alcoholism and that abuse of alcohol had its genesis in the applicant’s war service.
47. We have decided that the applicant does not suffer from PTSD and in any event there is no basis for including PTSD as a prescribed physical or mental impairment.
48. We have to consider whether the alcohol abuse or alcoholism results in incapacity for the range of civil employment for which the applicant had skills, qualifications and experience. The respondent has determined a range of positions and it is not appropriate to try and limit that range of skills. The test is objective and not a subjective test of how the applicant is performing in his current employment. We are satisfied that the respondents determination as to relevant kinds of employment set out in para 2 above is appropriate and reasonable in the circumstances. We accept that there has been a loss of cognitive functioning but we do not accept that there has been a loss of physical capacity due to alcohol abuse. Nor do we accept that the applicant has lost skills such as driving a motor vehicle or operating plant. That the applicant may not be trusted by a current employer to perform some function does not determine the question.
49. We have given weight to the medical opinions of Dr Stevenson, Dr Reddan and Dr Ding who, in our view, have assessed the applicant consistently with our observation of the applicant in the hearing. In conducting his own case before us the applicant sometimes became confused but he was alive to the issues and dealt with those issues in such a way as to satisfy us that there has been only a limited loss of cognitive functioning.
50. The respondent assessed incapacity at 40%. We have come to the conclusion, on the basis of the evidence of Dr Stevenson in particular and also Dr Reddan and Dr Ding that a more reasonable classification of incapacity would be 30%. In the circumstances we will vary the Authority’s determination of 22 June 1999. The variation will still maintain the applicant as Class B.
51. It follows in our view that the Authority was correct, in 1998, when it confirmed the earlier decision to refuse a request for review.
52. In the result the Tribunal will:
(a)affirm the decision under review in application number Q1998/1359; and
(b)varies the decision under review in application number Q1999/1399 so as to classify the applicant at 30% Class B.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member) and Dr KP Kennedy, OBE (Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 15-16 May 2000, 5 December 2000
Date of Decision 8 May 2001
For the Applicant In Person
For the Respondent Mr Dube`
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