Johnston and Repatriation Commission
[2004] AATA 361
•7 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 361
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/181
VETERAN' APPEALS DIVISION ) Re TERENCE JOHNSTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date7 April 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.........(Sgd) O Rinaudo........
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – application for special rate pensions – operational service – war-caused injuries alone did not prevent the applicant undertaking remunerative work – decision affirmed.
Veteran’s Entitlement Act 1986 (Commonwealth)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission 2000 FCA 238
Repatriation Commission v Hendy 2002 FFC 424
Hall v Repatriation Commission (1994) 33 ALD 454
Hornery v Repatriation (1998) 52 ALD 317
Hendy v Repatriation Commission [2002] FCA 602
Conway v Repatriation Commission [2003] FCA 704Fox v Repatriation Commission (1997) 45 ALD 317
REASONS FOR DECISION
7 April 2004 Mr O Rinaudo, Member 1. The applicant, Terence Lloyd Johnston, seeks review of a decision of the Veterans’ Review Board made on the 9 January 2001 which affirmed a decision of the Repatriation Commission dated 5 March 1999. That decision assessed Disability Pension under the Veterans’ Entitlement Act 1986 (The Act) at 100% of the general rate, with effect from the 9 November 1998.
2. The applicant was born on the 31 January 1945. The applicant served in the Australian Army from 16 September 1963 to the 27 May 1991, rendering operational service in Vietnam from the 3 November 1965 to the 18 April 1966 and eligible defensive service from 7 December 1972 to 25 July 1991. The applicant has the following accepted conditions:
§ Post Traumatic Stress Disorder;
§ Ischaemic Heart Disease;
§ Diabetes Mellitus;
§ Gun shot wound to right heel.
The applicant has the following conditions which are not accepted as war-caused:
§ Lumbar Spondylosis;
§ Pain in the foot joints;
§ Osteomyelitis C6 Vertebral Body;
§ Pain in feet joints.
3. The issue before the Tribunal is whether the applicant is entitled to Pension at the special rate pursuant to section 24 of the Act. At the hearing the applicant gave evidence as did Glenda Johnston, Dr Wright, Michelle Rowe, Mrs Terri Desses and Dr Trappett. In addition to the oral evidence the Tribunal had before it documentary evidence as follows: -
Exhibit 1 T documents
Exhibit 2 Statement of Terence Lloyd Johnston dated 22 March 2001
Exhibit 3 Supplementary statement of T Johnston
Exhibit 4 Supplementary statement of T Johnston dated 2 February 2002
Exhibit 5 Statement of Glenda Johnston dated 22 March 2001
Exhibit 6 Statement of Michelle Rowe dated 4 December 2002
Exhibit 7 Statement of Terri Desses dated 5 December 2002
Exhibit 8 Report of Dr Trappett with attachments dated 29 April 2002
Exhibit 9 Report of Dr Wright dated 20 May 2003
Exhibit 10 Applicant’s claim for Service Pension dated 8 March 1992
Exhibit 11 Report of Dr GN Askin dated 15 May 1992
Exhibit 12 Report of Dr GN Askin dated 7 July 1992
Exhibit 13 Report of Dr Larry Evans dated 2 March 2002
Exhibit 14 Medical record extract dated 1 May 1991
Exhibit 15 Medical record extract dated 26 June 1991
4. The applicant gave evidence that confirmed his statement and two supplementary statements at Exhibits 2, 3 and 4. The applicant said that he watches television during the day and plays computer games, Nintendo and PlayStation. He says that he can do this for about 4 hours per day but not at a straight stretch. He says that sometimes he has good concentration then he says it goes bad.
5. In cross-examination Mr Johnston confirmed that he had served in the Australian Army for 27 years and 8 months. He acknowledged that it was noted that he had been discharged primarily because of his neck condition. Mr Johnston said that the Army was his life. He said that he could have left after 20 years with a voluntary discharge, however, he preferred to remain in the Army. Mr Johnston confirmed that he last worked on the 16 October 1989. He said that between then and the discharge he had a combination of sick leave, annual leave and hospitalisation. He said that upon discharge he was too sick to do resettlement training. He said that because of the injury to his heel he was not regarded as fit everywhere.
6. Mr Johnston said that originally he was an infantry soldier, then a storeman, then a quartermaster and then a regimental quartermaster. He said that he used to drive which he quite liked doing. Mr Johnston confirmed in his statement at Exhibit 2 that he was discharged from the Army because of his back, not his neck, and confirmed at point 8 of his statement that he believed that his post traumatic stress disorder (PTSD) contributed to his discharge. Mr Johnston acknowledged that there was no reference to his mental condition in his medical history questionnaire at Exhibit 14. Mr Johnston said that in his own mind there was nothing wrong with him. Mr Johnston confirmed the comments at point 2 of his statement at Exhibit 4 that the CES would not put him on their books. He confirmed his statement that:
“2. Shortly after my discharge, I went to the local CES Office to register. They told me that as I was in receipt of a pension they could not put me onto their books, but I was welcome to come back and look at the board. I looked at the board on this occasion, however there were no suitable jobs there for me.
3. I also frequently looked in the papers for suitable positions.”
7. Mr Johnston also acknowledged that the comment at point 5 of that statement referring to Dr Evans had been in 1998 which was a period of some 6 years after ceasing employment.
8. Mrs Glenda Johnston gave evidence. She confirmed her statement at Exhibit 5. Mrs Johnston noted that Mr Johnston had been upset about being thrown out of the Army. She said that he went to Centrelink to look for work. However, she said that his state of mind was not very good. She said he was depressed about everything. Mrs Johnston said that she had lived with the applicant since 1967. She said that he had developed moods over that period of time. She said that he loved his job and he loved being with other soldiers. She said that he never complained about his time in the Army. She said that he did not want to leave the army.
9. Mrs Johnston said that apart from his family, the army was the biggest thing in Mr Johnston’s life. She said that he had no civilian friends. All his friends were ex-army. She said that he could not cope with civilians in the workforce. She said that after a couple of days they would ask him to leave.
10. Mrs Johnston said under cross-examination that no one had offered Mr Johnston a desk job that he could do. She said that if he was offered a job back in the Army he would be able to cope back in 1991 but not now. She said that he is now on his computer all the time. She acknowledged that if he could do a job at his own time and pace he would be able to do it.
11. Dr Wright gave evidence. He confirmed that he was the applicant’s treating Doctor and had provided reports at Exhibit 8 in 2000 and 2001 and at Exhibit 9 in 2003. Dr Wright confirmed that the applicant was always hard to get facts out of. He said that this was the nature of his illness. He said that he continued to treat Mr Johnston and continues to hold the views expressed in his reports. He said that Mr Johnston had problems with his memory and concentration. He said he becomes upset very easily.
12. Dr Wright, under cross-examination, said that he first treated Mr Johnston in 2000. He said that he could not think of a hypothetical job that Mr Johnston could do. He said that even when at home Mr Johnston has a high level of stress. He said that practically speaking Mr Johnston was one of the most severely handicapped persons with this condition that he had ever met. He said that he can play games on the computer where there is no pressure.
13. Ms Michelle Rowe gave evidence and confirmed the comments made in her statement at Exhibit 6. She said that she left home at 19 but stated she visited regularly. She said she could recall on one occasion when her husband Craig and her were having a water fight whilst cleaning the car. She said that her father, the applicant, had come out and “went crazy”. She said that her mother had to come out and tell him to stop. Mrs Rowe said that the applicant would not talk about Vietnam. She said that she would avoid him like the plague, because he was so moody.
14. Mrs Desses gave evidence that confirmed the matters set out in her statement at Exhibit 7. She said that she lived at home until she was 18. She said that she came back and lived at home between the ages of 25 and 35. She said that on most days she would come home from work, have dinner with her mother and then go to her room. She said that she would do this to avoid her father who was always very moody.
15. Dr Trappett gave evidence by telephone. He confirmed the comments set out in his statement at Exhibit 8. He said that he first saw Mr Johnston in his practice in October 1992 and had been seeing him for 11 years. He said that over that time he had not treated Mr Johnston very often for his neck problem. He said that he didn’t think that his neck would cause him very much trouble as a computer operator. Under cross-examination Dr Trappett said that Mr Johnston was not the sort of patient who you could make do things. He said that he had wanted him to see a psychiatrist for some time.
LEGISLATIVE FRAMEWORK
16. Section 24 of The Act is the relevant provision and states as follows:
“24 Special rate of pension
(1) This section applies to a veteran if:
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
SUBMISSIONS
17. The applicant submitted that the applicant satisfied section 24 (1)(a) and (b) which was not in contention. The applicant’s counsel submitted that the real issue was whether the applicant satisfied section 24 (1)(c). In this regard the applicant’s counsel said that the applicant was not incapacitated because of his neck injury. The applicant referred the Tribunal to the decision of Flentjar v Repatriation Commission (1997) 48 ALD 1 which set out the test to be applied by the Tribunal.
18. The applicant’s counsel then submitted that it was necessary to consider the provisions of section 24 (2) and in particular 24 (2)(b) in this regard. The applicant’s counsel submitted that the applicant could have chosen a voluntary discharge but did not. Applicant’s counsel said that the applicant could have worked as a clerk but needed to be a soldier first and foremost, but the applicant found that he could not do that. It was submitted that the applicant walked into a civilian world that he couldn’t come to grips with. In respect of 24 (1)(c) the applicants counsel submitted that the work the applicant was undertaking was as a clerk/quartermaster. Counsel acknowledged that this was a broad term in a broad field.
19. Secondly, the applicant’s counsel submitted that the applicant’s post traumatic stress disorder alone prevents the applicant from undertaking work. The applicant’s counsel submitted that a hypothetical job simply did not exist. He said that it was not an option because any demands at work would cause problems. The applicant’s counsel submitted that the applicants post traumatic stress disorder was the only factor stopping him from working. He said that the applicant hadn’t worked since 1998 although officially he had not worked since 1991 when he was discharged. He said that the applicant intended to get work and that he did look for work. The question then for the Tribunal was what held the applicant back.
20. The Tribunal was referred to the decisions of Forbes v Repatriation Commission (2000) FCA 238 and Repatriation Commission v Hendy 2002 FFC 424 and confirmed that this issue was one for the Tribunal to determine as a finding of fact. The applicant’s counsel stated that the question open for determination was whether the applicant’s PTSD was a significant or operative factor is his not obtaining employment.
21. The applicant’s counsel also referred the Tribunal to the comments of Spender J in the decision of Hall v Repatriation Commission (1994) 33 ALD 454 and referred the Tribunal to the comments of Dr Wright in his report of 20 May 2003 at Exhibit 9. Dr Wright said,
“Given that it is my understanding that he has not worked since 1991 I suspect that PTSD was a very large factor in this. Given his current clinical state and the fact that he and other described this having been so for the last 10 years…”.
… You asked as to whether his PTSD prevents him looking for work after leaving the services, I think this is very much the case, as the level of anxiety that he exhibits and most likely exhibited after leaving the service would certainly have made it almost impossible for him to look for work. This is something however he might have found very hard to admit. Veterans’ are often very ashamed of their PTSD symptomatology and sometimes seek other explanations.”
22. The applicant’s counsel questioned whether this assumption was backed up by evidence. He said that the Tribunal should look at the evidence of the children which showed that the applicant could not cope in the civilian world.
23. Finally the applicant referred to the loss of salary etc. and whether there was some other reason the applicant could not obtain employment. In this case the applicant had ceased to work whilst in the Army but had intended to get back to work in the civilian workforce.
24. The respondent’s advocate submitted that this was a clear cut and simple case. The respondent’s advocate further submitted that the applicant’s neck condition, which was a non-accepted condition, forced the applicant out of the Army.
25. The respondent’s advocate submitted that this had caused resentment with the applicant who considered that he had been placed on the “scrapheap”. The respondent’s advocate submitted that in 1992 the applicant was unemployable due to his neck condition. He said that since then the applicant has not looked for work. The respondent’s advocate submitted that the comments of Dr Wright were “pure speculation” and distinguished the decision of Hall v Repatriation Commission(1994) 33 ALD 454 on the basis of it’s unusual circumstances. The respondent’s advocate referred the Tribunal to the decision of Hornery v Repatriation Commission (1998) 52 ALD 317.
26. In summary the respondent’s advocate said that the provisions of section 24 (2)(b) were not met when considering the provisions of 24 (1)(c) therefore the respondent was not entitled to the Pension at the higher rate.
DISCUSSION AND DECISION
27. In submissions the respondent conceded that the applicant would meet the alone test in section 24 (1)(c) of the Act if, and only if, the Tribunal found that the applicant had been genuinely seeking to engage in remunerative work pursuant to the provisions of section 24 (2)(b) of the Act.
28. To receive special rate of Pension pursuant to section 24 of the Act the applicant must comply with section 24 (1)(aa) which the applicant has complied with in this case. In addition, pursuant to section 24 (1)(aab) the Veteran must not have turned 65 when the claim or application was made. Again the applicant complies with this provision as the applicant had not turned 65 when the claim was made. Next, the applicant must satisfy section 24 (1)(a)(i) of the Act in that the applicant must be receiving a Pension at the rate of at least 70%.
29. In this case the applicant satisfies that provision as the applicant is receiving a Pension at 100% of the general rate.
30. The applicant must also satisfy the provisions section 24 (1)(b). The applicant must be totally and permanently incapacitated due to war caused injury alone which renders the Veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. This is admitted and accepted by the respondent in their amended statement of facts and contentions.
31. Next the applicant must satisfy the provisions of section 24 (1)(c) in that the Veteran, by reason of the war caused incapacity alone, must be prevented from continuing to undertake remunerative work that the Veteran was undertaking, and is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free from the incapacity. When considering this section it is also necessary to consider section 24 (2)(a). That section states that for the purposes of paragraph (1)(c), the applicant shall not be taken to be suffering a loss of wages or salary if the Veteran ceased to engage in remunerative work for reasons other than the incapacity from war caused injury, or the Veteran is incapacitated or prevented from engaging in remunerative work for some other reason.
32. The evidence in this case is that the applicant ceased work with the Army due to his non-accepted neck conditions. There is no evidence that would satisfy the Tribunal that the applicant was discharged from the Army as medically unfit because of his war caused injuries alone.
33. Accordingly it is necessary for the Tribunal to consider section 24 (2)(b) of the Act. To satisfy this provision the applicant must satisfy the Tribunal that he has been genuinely seeking to engage in remunerative work and that the incapacity is the substantial cause of his or her inability to obtain remunerative work.
34. In this case the evidence shows that Mr Johnston ceased employment sometime in 1998 although he was officially unemployed when he was discharged from the Army in 1991. He says in his statement that he intended to continue to work and that shortly after discharge he went to the CES office to register for employment. He says that Centrelink would not put him on their books because he was already in receipt of a Pension from the Army.
35. In his statement at Exhibit 4, he says:
“4. A very short time after I commenced looking for work, I became so depressed that I really just couldn’t function and just could not attempt to look for work. At this time, my local general practitioner, Dr Trappett, had told me that I had depression. However, he stated that he could not provide me with medication for this as it would interfere with my other health complaints.”
36. There is no other evidence before the tribunal that subsequent to this visit to the Centrelink office that the applicant sought work of any kind. In so far as his work history is concerned, Mr Johnston says that before joining the army he worked as a labourer. After leaving school he worked for a while in the Timber Mill. He says he then worked for the Council making number plates and also in irrigation water supplies. He said that after joining the Army he was first an Infantry Soldier and then served as a Military Police Officer for some time. He then became a Company Quartermaster and subsequently Regimental Quartermaster, he then became a Quartermaster’s Adviser. He said that all of these jobs were office type work which involved him writing reports and doing similar office type roles. He says that he was put into these positions due to his gunshot wound to the heel.
37. In his statement at Exhibit 4 Mr Johnston goes on to say that
“6. I was so depressed that I was just unable to look for work other than the couple of attempts which I made.
7. When I went to Dr Evans he told me that I was in a very bad way and gave me the impression that it was futile for me to even attempt to seek work in the state that I was in. Therefore, I did not recommence job seeking activities on the basis of this medical advice.”
38. In considering whether the applicant has been genuinely seeking work, in accordance with the provisions of the Act, the Tribunal had regard to the decision of Hendy v Repatriation Commission [2002] FCA 602. Madgwick J noted that (at 51):
“s24(2)(b) is an ameliorating provision specifically included in the Act to deal with a Veteran who does not come within the provisions of s24(1). To come within s24(2)(b) the applicant must be under the age of 65 and have been genuinely engaged in seeing remunerative work, and the war-caused incapacity must be the substantial cause of the inability to obtain remunerative work. The Tribunal, having found that the applicant did not satisfy 24(1)(c), did not consider whether the applicant could meet the provisions of 24(2)(b), which, if applicable, would have deemed him to have been prevented by reason of his incapacity from continuing to undertake remunerative work that he had been undertaking.”
39. In the decision of Hall (Supra), Spender J made the following comments (at 461):
“It seems to me that the question of whether a Veteran has been “genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be seeking to so seek continue to so seek” has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many Veterans are permanently incapacitated by war caused injury or disease for any form of remunerative work, and the requirement that such person’s should be genuinely seeking work seems to involve something of a charade.”
40. His Honour also observed that evidence which shows that a Veteran who may not be able to seek employment, but indicated a willingness to accept work if any could be found, would be enough to satisfy the “genuinely seeking” requirement of section 24 (2)(d).
41. These decisions were considered by Justice Dowsett in Conway v Repatriation Commission [2003] FCA 704 where his Honour said (at 8):
“8. …As I understand par 24(2)(b), there must be an inquiry as to whether or not the relevant applicant has been genuinely seeking to engage in remunerative work in the past, that is prior to his becoming incapacitated for the purposes of s 24. Then it is necessary to enquire whether or not he would be continuing to seek to engage in remunerative work had he not been incapacitated, and whether the incapacity is the substantial cause of his inability to obtain remunerative work. The "genuinely seeking" test relates to the work history of the applicant rather than to efforts which he might make after he becomes incapacitated. Although the construction of the section is not an easy matter, this appears to have been the view taken by the Tribunal in Re Hornery and Repatriation Commission (1998) 52 ALD 317 at 331. I consider it to be correct.
9. If this is so, then the observations made by Spender and Madgwick JJ mean only that a realistic approach must be taken to the efforts made by any particular applicant to find employment. There can be no objection to such a proposition, but it is of little assistance for present purposes. I do not consider that to assert that the Tribunal failed to take a realistic approach to the application of par 24(2)(b) raises a question of law.”
42. In so far as the medical evidence is concerned, in June 1991 Lieutenant Colonel Millar (Exhibit 15) reported that “the condition that caused retirement was chronic osteomyelitis of cervical spine.” And noted further “this man has been left with a considerable disability of cervical spine movements (less than 50% of full range of movement).”
43. In April of 2002 Dr Trappett (Exhibit 8) reported that he had first seen Mr Johnston in October of 1992. Dr Trappett says that Mr Johnston presented with neck pain relating to his cervical spine. Mr Trappett referred Mr Johnston to an orthopaedic surgeon. He says that Mr Johnston was referred to a Dr Chris Staples, a Neurologist, in April of 1995 for assessment of his neck and upper limb pain. He says that Dr Staples prescribed Amitriptyline and opined that “while Amitriptyline is an anti depressant this does not indicate any evidence that depression was present at that time.”
44. Dr Trappett says there is evidence in the notes made by a locum in his practice in August of 1995 that – “depression” Endep (Amitriptyline) Authority 4-6 per day.” Dr Trappett notes that Dr Larry Evans reported in February of 1998 that Mr Johnston was suffering from “quite severe post traumatic stress disorder” and “he is very depressed”. Dr Evans suggested that Mr Johnston be medicated with Aurorix. Dr Trappett notes through 1998 mainly referred to Mr Johnston’s Diabetes, Ischaemic Heart Disease, Hypertension and Hyperlipidaemia. In 1999 Dr Trappett referred Mr Johnston to Dr James Wright, Psychiatrist.
45. Dr Trappett then went on to note that (at Exhibit 8):
“In answer to your final question I am of the opinion that for as long as I have know Mr. Johnston he has been incapable of working 8 or more hours per week. In other words his incapacity dates back to at least 1992.
What I cannot state is how much of this disability is War Service related.
His neck condition alone would be a major impediment.
Sadly Mr. Johnson has an alcohol problem which must have a detrimental influence on his Diabetes. It’s hard to know where War related problems end and a patients own responsibility to himself take over…”
46. Dr Wright’s report in 2002 confirmed that Mr Johnston was indeed suffering from “quite severe post traumatic stress disorder.” Dr Wright made the following observations:
“As you know he has also had significant medical problems. He is diabetic, hypertensive, has high cholesterol and in 1992 suffered a myocardial infarct. He has also had some bad neck problems, I am not sure what this is but it sounds like some form of osteoporosis. He does not smoke but he tends to binge drink on occasions. He says that this makes him feel better but the next day, not surprisingly, he feels more depressed.
His personal history is fairly unremarkable. He didn’t do very well at school and hence ended up going into the Army at the age of 18, because of lack of aptitude for anything else. He remained in the Army over the years. He tended to develop a somewhat of a stiff upper lip attitude towards his problems and it was only his wife’s distress, at his distress, that prompted him to seek some help. He says the Aurorix 1200mgs has been of some help, certainly he says the family say he is a little bit calmer on this dose.”
47. On 19 January 2001 Dr Wright confirmed that Mr Johnston was continuing to struggle with post traumatic stress disorder. In his report of 23 August 2000 (T4 folio 38), Dr Wright had made the following opinion:
“My assessment of him is that he suffers from very severe Post Traumatic Stress Disorder. He has all the typical symptoms and meets all the DSM IV criteria fully. I believe it would be quite impossible for him to engage in employment at this present time and in the future. His condition would certainly prevent him from working at all let alone more than eight hours a week. I see this inability to work as being related to his PTSD in its own right quite apart from any physical problems he might have. Even if he was physically healthy he would be unable to work given the severity of his PTSD.
48. In May 2003 Dr Wright wrote to the Solicitors for the applicant and opined as follows (Exhibit 9):
“You ask as to whether his PTSD could have prevented him working more than 8 hours a week from the time he left the services. Given that it is my understanding that he has not worked since 1991 I suspect that PTSD was a very large factor in this. Given his current clinical state and the fact that he and other describe this having been so for the last 10 years, I believe, that if he has had symptoms at this current level of intensity, and there is reason to believe this is the case, he would certainly not have been able to work more than 8 hours a week since leaving the service.”
49. As far as the orthopaedic injuries are concerned, Mr Johnston was treated by Dr Geoffrey N Asken who on the 13 March 1991 performed an operation on Mr Johnston's spine. Further surgery occurred on the 25 March 1991. In his report of 15 May 1992 (Exhibit 11) Dr Askin records:
“I reviewed him on 18th July. At this time he had no neck pain or arm pain and had a solid fusion both anteriorly and posteriorly. I then instructed him to return the following month for a review of his ESR, however, interestingly enough I have not seen the patient since that date.”
50. On the 7 July 1992 Dr Askin reported (Exhibit 12) that:
“In summary, the surgery has achieved what it set out to do and that is to restabalise his unstable C5 to T2 segment. However he continues to have pain and no doubt an element of a chronic pain syndrome related to having pain for so long and essentially do very little in terms of physical activity. His whole life seems centred around his pain and he is totally inactive.
I really don’t think he is fit for any work apart from a very sedentary occupation. Any prolonged posture of his neck, particularly flexion is likely to aggravate his pain. However I do not think he is particularly motivated to do anything else.”
Based on the totality of the evidence before it the Tribunal finds that when the applicant was discharged from the Army a range of factors affected his capacity to seek employment. These ranged from his neck and back problems, his depression, the length of time that he had spent in the Army and his perceived dislike of the civilian workforce, the effects of his post traumatic stress disorder and his foot condition. He had spent almost 28 years in the Army. The last two years were spent in a very unwell condition.
51. The evidence shows that at least until 1995 the applicant’s major diagnosed conditions related to his neck and back. He had an operation for this in 1991, although pain persisted. It was not until 1995 when a note was made about his depression and not until 1998 when Dr Evans diagnosed PTSD for the first time.
52. There is no doubt, in the Tribunals view, that Mr Johnston was suffering from PTSD well before the diagnosis. However it is not possible for the Tribunal to draw any conclusions with respect to the applicant’s capacity to work as a result of such PTSD. The only evidence available to the Tribunal is in respect of his neck and back conditions.
53. In the circumstances the Tribunal cannot be satisfied that the applicant was genuinely seeking work. In any event, even if that were the case, the issue would then be whether the applicant, because of his accepted conditions, were the substantial cause of his not obtaining work. In this regard the comments of Kiefel J in the decision of Fox v Repatriation Commission (1997) 45 ALD 317 (at 319-320) are helpful:
“The words “the substantial cause” require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative fact of which, more than any other, explains it. That something might be ‘a substantial cause’ has regard to the situation where there may be a number of factors operating which are of sufficient cause or significance to quality as ‘substantial’… The definite article in section 24 (2) of the 1986 Act… requires a stronger and more direct cause or connection between the incapacity and the inability to obtain remunerative work.”
54. The only evidence which the Tribunal has in this regard is Dr Wright’s report in 2003 that Dr Wright considered that PTSD was a very large factor in the applicant not having worked since 1991. He goes on to say “I believe, that if he has had symptoms at this current level of intensity, and there is reason to believe this is the case, he would certainly not have been able to work more than 8 hours a week since leaving the service.”
55. He goes on to say in the last paragraph of that report that he believes Mr Johnston’s PTSD would have prevented him from looking for work after leaving the service. This assessment is purely speculative on Dr Wright’s part. Although the Tribunal acknowledges the expertise of Dr Wright, it is not supported by the evidence particularly the report of Dr Trappett who was treating Mr Johnston in 1992.
56. Accordingly, the Tribunal is satisfied that Mr Johnston was not genuinely seeking work in accordance with the provisions of the Act and accordingly the provisions of section 24 (1)(c) are not met.
57. The Tribunal therefore affirms the decision under review.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sam Appleton
Associate
Date/s of Hearing 10th October 2003
Date of Decision 7 April 2004
Counsel for the Applicant Anthony Harding
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Helen Bruce, Departmental Advocate
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