Kennedy and Repatriation Commission
[2001] AATA 669
•26 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 669
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1568
VETERANS' APPEALS DIVISION )
Re LAURENCE JOHN KENNEDY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Ms N Bell, Member
Date26 July 2001
PlaceSydney
Decision The decision under review is set aside. In substitution for that decision the Tribunal decides that the Applicant qualifies for payment of Disability Pension at the special rate with effect from the first pension payday on or after 25 November 1998.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS –disability pension – special rate –post traumatic stress disorder – alcohol abuse – tinnitus –arthritis right hip and right knee – capacity to undertake remunerative work – operational service – whether accepted disabilities alone prevent applicant from working more than eight hours per week – deterioration of accepted conditions
Veterans' Entitlements Act 1986, ss 14(1), (3), (4), 19(3), (4), (5), (6), (9) "application day", "assessment period", "claim", 20(1), (3), 23(1), (3), 24(1), (2), 28, 24A(1), 120(4)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Waterson and Repatriation Commission (1991) 25 ALD 525
Repatriation Commission v Smith (1987) 74 ALR 537
REASONS FOR DECISION
26 July 2001 Mr M J Sassella, Senior Member Ms N Bell, Member
History of the application
On 25 February 1999 Laurence John Kennedy ("the Applicant") lodged an application with the Department of Veterans' Affairs ("the DVA") for an increased Disability Pension in respect of post traumatic stress disorder ("PTSD") and alcohol abuse, and hearing loss and tinnitus (T3). He further claimed that his already accepted conditions of arthritis right hip and right knee were deteriorating.
On 4 November 1999 the Repatriation Commission ("the Respondent") accepted the Applicant's claim for PTSD with alcohol abuse and bilateral tinnitus, effective from 25 November 1998 (T13). The claim for hearing loss was refused because a diagnosis of the condition could not be confirmed. Disability Pension was continued at 100% of the general rate.
On 16 December 1999 the Applicant lodged with the Veterans' Review Board ("VRB") an application for review of the Respondent's decision (T15).
On 18 January 2000 a delegate of the Respondent wrote to the Applicant notifying him that there were no sufficient grounds to conduct a review pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T17).
On 18 May 2000 the Respondent again wrote to the Applicant (T19). The Respondent noted the application for review from an RSL pension officer acting on behalf of the Applicant and again declined to conduct a s 31 review.
The decision under reviewOn 6 September 2000 the VRB affirmed the Respondent's decision of 4 November 1999 (T21). Pension was continued at 100% of the general rate. It was the Applicant's contention that his accepted disabilities prevented him from working for more than eight hours a week. The Applicant was made redundant at the National Australia Bank on 28 August 1998 and had not worked since. The VRB ultimately found that non-accepted disabilities such as arthritis in the hands, fracture to the right tibia and fibula, fracture to the right femur and a fractured jaw significantly contributed to the Applicant' inability to work. In order to qualify for the special rate Disability Pension a veteran must be prevented from working by accepted disabilities alone. The VRB found that this requirement was not met in the Applicant's case.
The Applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the Tribunal") on 10 October 2000 (T1).
Relevant legislationLegislation relevant to this application consists of certain sections of the Act: ss 14(1), (3), (4), ), 19(3), (4), (5), (6), (9) "application day", "assessment period", "claim", 20(1), (3), 23(1), (3), 24(1), (2), 24A(1), 28, 120(4):
"14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
…(3) A claim for a pension:
(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 claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…""19 Determination of claims and applications
…(3) The Commission shall determine a claim for a pension as follows:
(a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:(i) the incapacity of a veteran from war-caused injury or war-caused disease, or both; or
(ii) the death of a veteran that was war-caused;
(b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsection (5).(4) The Commission shall determine an application for a pension at an increased rate in accordance with subsection (5).
(5) Where paragraph (3) (b) applies in respect of a claim or subsection (4) applies in respect of an application, the Commission shall assess, in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable:
(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b) subject to subsection (6), the rate at which the pension is payable from the date of the determination;
and shall make a determination approving the payment of pension in accordance with that assessment.(6) Where the Commission has, pursuant to paragraph (5) (a), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable from the date of the determination shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.
…
(9) In this section:
application means an application made in accordance with section 15;
application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a) the day on which the claim or application was received at an office of the Department in Australia; or
(b) if subsection 20 (2) or 21 (2) applies to the person—the day on which the claim or application referred to in paragraph 20 (2) (a) or 21 (2) (a) was so received;
assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined;
claim means a claim made in accordance with section 14;
….""20 Date of operation of grant of claim for pension
(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…(3) Nothing in this section empowers the Commission to approve payment of a pension to a person from a date before the person became eligible to be granted the pension."
"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 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 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.
…(3) For the purpose of paragraph (1) (c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1) (b) 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:(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.
…""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 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
(d) section 25 does not apply to the veteran.(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.
…""24A Continuation of rates of certain pensions
(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.
…""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 incapacitated is capable 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).""120 Standard of proof
…(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…"
Hearing, appearances and documentary evidence
The Tribunal convened a hearing in this matter in Sydney on 13 July 2001. Mr Adam Halstead, a solicitor in the NSW Legal Aid Commission, represented the Applicant. Ms Susie Breuer, an advocate in DVA represented the Respondent.
The Tribunal had the benefit of a quantity of documentary evidence in its decision-making. Those documents were taken in as evidence and given exhibit numbers by the Tribunal as follows:
Exhibit TD1 – Section 37 Statement provided by DVA, 28 October 2000.
Exhibit A1 – Applicant's amended statement of facts and contentions, 2 April 2001.
Exhibit A2 – Report by Dr P L Harvey-Sutton, occupational physician, 29 January 2001.
Exhibit A3 – Statement by the Applicant, 22 February 2001.
Exhibit A4 – Report by Dr U Subhas, psychiatrist, 27 March 2001.
Exhibit A5 – Statement by the Applicant, 3 July 2001.
Exhibit A6 – Statement by Cheryl Dianne Gray, 3 July 2001.
Exhibit R1 – Respondent's statement of facts and contentions, 8 July 2001.
Exhibit R2 – Report by Dr J Chen, consultant in occupational medicine, 6 February 2001.
Exhibit R3 – Report by Associate Professor Richard P Mattick, psychologist, 9 February 2001.
Exhibit R4 – Report by Colin Bass, psychologist, 29 March 2001.
Exhibit R5 – Transcript of VRB hearing, 6 September 2000.
Exhibit R6 – Clinical notes supplied by Dr A Ruello.
Exhibit R7 – Letter from Associate Professor Richard P Mattick, 11 July 2000.
Background
The Applicant was born on 12 October 1948. He rendered operational service in Vietnam from 1 October 1969 to 26 August 1970 (T2).
The following information comes from the report of Dr Chen of 6 February 2001 (Exhibit R2).
The Applicant left school after his third year of secondary school at the age of 15. He joined the Australian Army in 1969 and rendered operational service in Vietnam. The Applicant came under direct gunfire during his service, being in the infantry corps. He left the army on a voluntary discharge in May 1971. The Applicant was at this time still recovering from injury to the right leg he suffered after getting into a fight in a bar. He fell over and fractured the right tibia and fibula. This was later complicated by a fall at home.
In August 1971 the Applicant was involved in a car accident, breaking his right femur and his jaw (Exhibit R4). In 1979 he underwent a hip replacement operation.
The Applicant did not work between 1971 and 1974 as he was undergoing treatment and rehabilitation in respect of his right leg. He worked as a sheet metalworker between 1974 and 1979. Then, after two years of further treatment, this time in respect of his right hip, he was employed by the National Bank as a computer operator. He often took leave, both paid and unpaid, during his bank employment due to pain in his right hip and due to being "hungover." He worked there until he was made redundant in 1998.
Documentary medical and other evidenceOn 8 February 1999 Dr Ong, the Applicant's treating doctor, completed a medical report associated with the Applicant's claim for a Service Pension on the basis of permanent incapacity (T4). He noted that, because of the Applicant's various disabilities he would be suitable only for light/semi-skilled work. He was unable to walk long distances or stand or sit for prolonged periods. The Applicant had constant pain in the hips and knee.
On 31 March 1999 Dr Subhas, consultant psychiatrist, reported on the Applicant (T7). The Applicant stated that he had been dreaming a lot about Vietnam. He was a forward scout for nine months and was involved in armed combat on occasions. The Applicant stopped drinking in clubs because he tended to get violent when he was drunk. He was very suspicious and remained hypervigilant. Dr Subhas stated that the Applicant was "a loner and he has no social life." Dr Subhas further noted the Applicant's various medical conditions. Dr Subhas diagnosed PTSD and alcohol dependence and recommended a PTSD program so that the Applicant could learn to control his drinking.
On 16 June 1999 an audiology report on the Applicant found that he was affected by continuous tinnitus "which interferes with his understanding of speech, especially when competing with background sounds" (T8). This problem "seems to be more of a problem that one would expect for his level of hearing…"
On 4 November 1999 an "above general rate audit report" concerning the Applicant was completed for the Respondent (T12). It was found that the Applicant could work for eight hours or more a week. "…his [PTSD] does not appear to affect him in such a manner as would account for the recent cessation of employment. Indications are that this condition was much worse previously – whilst the veteran continued to work full time."
On 12 April 2000 Dr Subhas completed another report of the Applicant (T19, folio 54). He reported that the Applicant was still affected by incidents in Vietnam and that he tends to binge drink. He further noted that the Applicant was very angry that he had to give up work and that he was having difficulties with his application for an increase in his pension. It was Dr Subhas's opinion that the Applicant's condition was deteriorating. He prescribed the Applicant Luvox 100mg, to be taken nightly. He concluded: "It is very unlikely that he will be able to stay in employment for long. Mr Kennedy should be considered for a TPI pension because of the above mentioned problems."
On 1 September 2000 Dr Subhas submitted another report to the VRB on behalf of the Applicant (T21, folio 62). He reiterated his previous findings in relation to the Applicant's physical and psychological problems. He again noted the Applicant's drinking habits and the fact that his social life was negligible. Dr Subhas also noted hypervigilance whilst visiting public spaces with him and that the Applicant finds it difficult to talk about his Vietnam experiences. The Applicant is aware of his physical deterioration and is fearful of his condition. Dr Subhas concluded:
"I have seen Mr Kennedy on four occasions this year and I must say that it would be very difficult for this man to go back into any sort of employment because of the chronicity of his physical and psychological problems. In my opinion Mr Kennedy should be considered for the Special Rate of Pension because of the above mentioned problems."
On 29 January 2001 Dr Harvey-Sutton, consultant occupational physician, reported on the Applicant (Exhibit A2). She also took a detailed history from the Applicant concerning his employment and medical details. The Applicant's poor sleeping and heavy drinking habits were noted. The Applicant has little problem with minor domestic duties but has difficulty mowing the lawn and washing the car as he finds it painful to bend over. Dr Harvey-Sutton arrived at the following lifestyle assessment concerning the Applicant:
· Personal relationships 4 points
· Mobility 3 points
· Recreational and community activities 4 points
· Domestic activities 5 points
· Employment activities 5 points
The following impairment ratings in accordance with the Guide to the Assessment of the Rates of Pensions (5th Edition) ("GARP") were suggested by Dr Harvey-Sutton:
· PTSD with alcohol dependence 32 points
· Fractured right tibia and fibula with
post traumatic arthritis right knee and
fractured neck right femur 20 points· Tinnitus 5 points
· Combine value total 49 points
Dr Harvey-Sutton concluded:
"I am of the opinion that Mr Kennedy's accepted disabilities affect his ability to undertake remunerative work…
"…However, even if he did not have the non-accepted disabilities, I consider that his accepted disabilities alone would prevent him from working more than 8 hours per week."
It was Dr Harvey-Sutton's opinion that the Applicant could not successfully be employed because of his accepted disabilities alone, and that this situation was further complicated by his other non-accepted conditions.
On 6 February 2001 Dr Chen, consultant in occupational medicine, reported on the Applicant at the request of the Respondent (Exhibit R2). She took a detailed service and employment history from him. She noted that his alcohol intake was about six schooners of beer five days a week, in addition to two or three glasses of wine three to four times per week. On the weekends he consumes about 12 schooners of beer a day. It was Dr Chen's opinion that the Applicant's accepted disabilities alone would prevent him from working as a sheet metal worker, but they would not prevent him from working as a computer operator for 20 or more hours per week. The Applicant's bilateral tinnitus does not prevent him from working in employment for which he is qualified. Dr Chen did not comment on the effect of PTSD since this lay outside her area of expertise.
On 9 February 2001 Professor Mattick, a psychologist, reported on the Applicant (Exhibit R3). It should be noted that the Applicant does not accept this report as a medical report and some of the factual material in it is disputed. Professor Mattick took a detailed health, employment and personal history from the Applicant. He noted some discrepancies between earlier documentary evidence and the evidence that was given to him by the Applicant. Specifically, the Applicant denied being affected by "nerves" and insisted that it was pain that affected him the most. The Applicant also denied leaving work at times because of differences with colleagues and stated that it was pain that caused him to leave work early on occasions. The Applicant also denied that "Vietnam is always on his mind", as had been recorded in the report of Dr Subhas of 31 March 1999 (T7). Instead, he said that he might dream of Vietnam every few nights.
Professor Mattick asked the Applicant about the report of Dr Subhas of 12 April 2000 (T20) where the Applicant said that he felt guilty about events in Vietnam and that he avoids places where there might be Vietnamese people. The Applicant denied both these statements and further said that he was not moody and irritable because of his war service, but rather because of the DVA application process. It was Professor Mattick's conclusion that the Applicant was not prevented from working 20 hours or more a week by his PTSD and alcohol abuse. The reason he was not working was described as the pain in his right hip and right leg.
On 22 February 2001 the Applicant signed a statement in support of his application (Exhibit A3). He said that he had intended to leave his position with the National Bank in 1996/97 because of the pain from his leg and hip injuries. He further said that he was very fearful when told by the Bank that he would have to work day shifts because this meant he would have to deal with public transport and crowds. The Applicant stated that during the last two years of his employment he was drinking more and finding it very difficult to cope. He also took many days off on sick leave during this period because of his war-caused conditions and drinking. He cannot look for employment because of his accepted conditions and he is still drinking heavily. Currently the Applicant spends his time largely at home and watching television. He goes to the shops with his wife about once a month.
On 29 March 2001 Mr Colin Bass, a psychologist, reported on the Applicant at the request of the Respondent (Exhibit R4). A medical and employment history was taken. Mr Bass provided a detailed assessment of the employment opportunities that he thought were available to the Applicant. These included a range of clerical positions, postal sorting, welding and working as a storeperson. In Mr Bass's view, the Applicant's accepted disabilities do not prevent him from finding employment.
Findings on material questions of fact with reference to the evidence and other material in support of the findingsThe Tribunal formally makes the following uncontroversial findings:
The Applicant is aged 52 having been born on 12 October 1948 (T3).
The Applicant served in the Army between 1969 and 1971, rendering operational service in Vietnam from 1 October 1969 to 26 August 1970 (T2 and Exhibit R2).
The date of effect of any decision in the Applicant's favour will be 25 November 1998 (s 20(1), (3) of the Act; Exhibits A1 and R1).
The standard of proof in an assessment issue such as this requires that the decision-maker must decide the matter to its reasonable satisfaction (s 120(4) of the Act). This means that the Tribunal must find itself satisfied on the balance of probabilities in relation to the requirements that must be established if the Applicant is to succeed in his application (Repatriation Commission v Smith (1987) 74 ALR 537, 547). In these reasons any finding made by the Tribunal is to be taken to be a finding to the level of the Tribunal's reasonable satisfaction.
The Applicant lodged a valid claim on 25 February 1999 (T3, s 14(3) of the Act).
The Tribunal will consider the Applicant's entitlement, if any, to payment at the special rate in the first instance as, if he succeeds on that issue, there is no need then to consider intermediate rate.
Requirements for payment of Disability Pension at special rateSection 24 of the Act applies. It imposes the following requirements:
The veteran must have made a claim under s 14 of the Act (s 24(1)(aa) of the Act).
The veteran must have been under 65 years of age when the claim was made (s 24(1)(aab) of the Act).
The veteran's degree of incapacity as determined under s 21A of the Act must be at least 70% (s 24(1)(a)(i) of the Act).
The veteran must have an incapacity from a war-caused injury or a war-caused disease, or both (s 24(1)(b) of the Act).
That incapacity must be of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours a week (s 24(1)(b) and s 28 of the Act).
That incapacity must, alone, prevent the veteran from continuing to undertake remunerative work that the veteran was undertaking (s 24(1)(c) of the Act).
The veteran must, by reason of the veteran's prevention from continuing to undertake remunerative work, be suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if he or she were free of that incapacity (s 24(1)(c) of the Act).
The veteran must not be in receipt of a temporary payment at the special rate (s 24(1)(d) of the Act).
Section 24(2) of the Act may become relevant in this analysis. If so, that provision will be addressed below.
A number of the requirements for the Applicant to be paid at the special rate are uncontroversial. The Tribunal notes that the Applicant has made a valid claim, that he is aged under 65 and that his degree of incapacity under s 21A of the Act is 100%. Section 24(1)(aa), (aab) and (a) are therefore satisfied. The Applicant has a number of incapacities that have been accepted as war-caused. These are PTSD with alcohol abuse, bilateral tinnitus, fractured right tibia and fibula with post-traumatic arthritis right knee and fractured neck femur (un-united) with post-traumatic arthritis of the right hip. The Applicant has several disabilities not accepted as war-caused. Foremost amongst these in argument before the Tribunal was the condition of osteoarthritis in both hands and in his fingers. The first part of s 24(1)(b) and (c) is satisfied. The Applicant is not in receipt of a temporary rate payment under s 25 of the Act.
The disputed issues are set out in requirements 5, 6 and 7, above.
The veteran's capacity to undertake remunerative work for periods aggregating more than eight hours a weekSection 28 limits the Tribunal to considering only the following matters:
The vocational, trade and professional skills, qualifications and experience of the veteran.
The kinds of remunerative work a person with those skills, qualifications and experience might reasonably undertake.
The degree to which the veteran's physical or mental impairment as a result of the veteran's injury or disease, or both, has reduced his capacity to undertake those kinds of remunerative work.
The evidence available as to the veteran's trade or professional skills, qualifications and experience suggests the following result. The Tribunal finds that the Applicant's trade or professional skills are in light welding, which he did from 1973 to 1979, and as a computer operator, which he did from 1982 to 1998 (Exhibit R4). The psychologist, Mr Bass (Exhibit R4), suggests that the Applicant's skills include light welding and clerical aptitude. He completed a sheet metal apprenticeship through Bankstown TAFE. He completed a six-month computer operator course with IBM before joining the National Bank as a computer operator in 1982. The Tribunal therefore finds that the Applicant possesses qualifications in sheet metalwork and computer operations.
The Applicant's experience is in the sheet metal and computer operator fields. However, he also has experience, albeit limited, as a plumber (three years) and cabinet maker (six months). He served in the Army for nearly three years. This may be a form of relevant experience in some occupations. The Tribunal finds that the Applicant's experience is in these five areas.
There is expert evidence as to work that the Applicant could perform. Mr Bass (Exhibit R4) sees the Applicant as suitable for work as a betting agency counter clerk, accounts clerk, warehouse clerk, general clerk, sales clerk, postal sorting officer, welder (bench) and as a storeperson.
Mr Bass proceeded to say that the Applicant's accepted disabilities do not render him incapable of undertaking paid employment for eight hours or more a week. He suggests that the Applicant could work for 20 hours a week. He identified the offer of a redundancy package as the substantial reason for the Applicant's cessation of work in the National Australia Bank. He noted that the Applicant had not actively sought re-employment since leaving the bank. He said that, while the Applicant's disabilities would be obvious to an employer, they would not prevent him from obtaining employment.
Dr Harvey-Sutton (Exhibit R2) provides opinions that cast some doubt on Mr Bass's assessment. She considers that the Applicant's PTSD renders his "customer service relation" skills minimal to poor. She notes that his work at the National Bank apparently required no customer service skills. She assessed his capacity to do "process work, either of a manufacturing nature or computer/keyboard nature" as limited by his right hip condition. He could not stand to perform his work because of a shortened right leg. He could not sit for long periods because of his right hip condition.
If Dr Harvey-Sutton is correct, this would cast doubt on Mr Bass's suggestions in respect of the Applicant's capacity to work as a betting agency counter clerk, accounts clerk, warehouse clerk, general clerk or sales clerk. All of these occupations would require interpersonal skills and tend to be sedentary. Work as a postal sorting officer might require less in the way of interpersonal skills than clerical and public contact work. However, from cases it has handled in relation to the Safety, Rehabilitation and Compensation Act 1988, the Tribunal is aware that postal sorting is fairly demanding physically. It requires standing, sitting, twisting and bending. Mr Kennedy's short leg/hip problems would seem to make him unsuitable for this work. Dr Chen observed that the Applicant "appeared slightly unsteady without [his] walking stick, due to the right leg shortening. His balance in standing in slightly unsteady, due to leg length discrepancy and pain." In the Tribunal's view this would make Mr Kennedy an unlikely candidate for success working as a mail sorter. The suggestion that the Applicant could work as a welder (bench) would seem to be problematic for postural reasons. This issue is further discussed below in the context of the medical evidence. The suggestion that the Applicant could work as a storeperson may also be presuming too much. Such a job would require considerable mobility. The Applicant's hip and short leg problem may well serve to make this very difficult for him.
Dr Chen (Exhibit R2) noted that the Applicant reported problems when he has to lean over a table. In her assessment she said that the Applicant's accepted disabilities of PTSD and right knee osteoarthritis would render him incapable of undertaking remunerative work for eight or more hours a week in the area of sheet metalwork. This is because of "limitations in right hip mobility and pain in the right hip and knee, associated with prolonged standing and walking". She went on to say that his restricted ability to squat and engage in heavy manual lifting further restricts his capacity to work as a sheet metalworker. The Tribunal notes at this point, too, that the Applicant himself told the VRB that he could no longer do sheet metalwork. He said, "Well, I can't even shape real well. I've lost all sort of grip in my hand" (Exhibit R5, page 11). He told the Tribunal that another problem with work as a welder would be the inherent danger in entrusting him to work with a naked flame. This appears to be a grip problem also.
Dr Chen, however, supports the idea that Mr Kennedy could be a computer operator. She says, "his right hip and knee conditions would not prevent him from working as a computer operator. Therefore, given his skills, qualifications and experience, his accepted disabilities of right hip and knee post-traumatic arthritis would not prevent him from undertaking remunerative work as a computer operator, for twenty hours or more during the assessment period, ie from 25 November 1998 until the present. He could probably work for about five to six hours five days weekly, restricting typing to thirty minutes per day for the [assessment period]." It should be noted, however, that Dr Chen expressly declines to include reference to the PTSD condition in her assessment.
As regards Mr Kennedy's physical capacity, Dr Chen observed that despite his shortened leg he can walk up to one kilometre and he was able to sit in Dr Chen's rooms for 80 minutes.
Professor Mattick (Exhibit R3) considers that the Applicant's PTSD with alcohol abuse would not prevent him from working. Professor Mattick wrote:
"He said that he worked [at the National Bank] on a rotating shift and this was particularly helpful to him as it reduced his need to travel by public transport. He travelled by taxi paid for by the [bank] for shift workers, allowing him to keep pain to a tolerable level. He said that he eventually ceased work because of right leg and hip pain, his excessive drinking to deal with the pain and arthritis in his hands. He has decided not to return to work because he suffers pain if he travels by public transport. He denied that he was affected by [PTSD] to the extent that it stopped him from working. He said pain rather than emotional disturbance affected his ability to return to work. … I do not believe that Mr Kennedy's [PTSD] and alcohol abuse would prevent him from undertaking remunerative work of 20 hours or more per week. His reason for not working appears to be because of pain in his right hip and right leg. I doubt that his accepted psychiatric condition would have prevented him from working during the assessment period … . It is certainly not the case that any [PTSD] or alcohol abuse either solely or substantially was the cause of any unfitness for work. It is apparent that Mr Kennedy ceased working because he could no longer travel by taxi to the [bank] because the rotating shifts he had enjoyed ceased. Because pain increased he had difficulty travelling to work and decided eventually not to work. He also has arthritis in his hands. He also drank heavily."
Professor Mattick's assessment as regards the lack of importance of Mr Kennedy's psychiatric condition on his capacity to undertake work for which he has skills, etc may serve to support the views of Mr Bass. However, it is essential to look at Dr Subhas's comments, especially as Dr Subhas is the Applicant's treating psychiatrist. Dr Subhas's first report (T7) has nothing of relevance to say about the issues in question here. His second report (T20, folio 54) records the Applicant as stating that he was very angry that he had to give up his work because of his PTSD and his physical problems. Dr Subhas says that it is very unlikely that Mr Kennedy will be able to stay in employment for long. He recommends him for an earnings related pension. This is not a very helpful report. In a third report (T21, folios 62-63) dated 1 September 2000 Dr Subhas describes the Applicant as having no social life. He is physically restricted. He has been isolating himself. He cannot handle crowds. He says, "it would be very difficult for this man to go back into any sort of employment because of the chronicity of his physical and psychological problems. In my opinion he should be considered for the Special Rate of Pension because of the above mentioned problems."
Dr Subhas's most pertinent report is Exhibit A4, dated 27 March 2001. He says in that report:
"I must say am [sic] surprised that he had been able to stay in employment with the National Bank for nearly 17 years. Mr Kennedy does find it difficult to sit or stand up for long periods because of his physical problems. He tend [sic] to get very restless when he is sitting in a particular position and he has to keep moving and this is something I have always noticed the times he has consulted me.
"…Mr Kennedy is still displaying symptoms of a chronic [PTSD]. He has continued abusing alcohol and he can consume anything from 8-15 cans at a time. He tends to get very cranky and irritable with people and on a few occasions in the past he has got into fights. Because of the post-traumatic arthritis of the right knee and right hip he is in a lot of pain and he seems to use alcohol to help relieve the pain.
"…Because of the above mentioned conditions he would find it extremely difficult to stay in employment for long.
"He has no social life, he is a loner and he does find it difficult to relate to civilians as most of his friends are Vietnam Veterans'. …
"In my opinion Mr Kennedy would find it extremely difficult to stay in employment because of the chronic [PTSD] and his Alcoholism."
The Applicant's statement dated 22 February 2001 (Exhibit A3) is of assistance. Salient facts from that statement are:
That Mr Kennedy was a lead computer operator when he left the bank.
He indicated an intention to leave the bank in late 1996, early 1997. He wanted to leave because his hip and leg injuries were becoming intolerable and he was in pain performing his duties. He was also becoming stressed on a daily basis and could not understand the cause.
At his manager's suggestion he stayed on for another period in order to qualify for a voluntary redundancy. He says he had to take the redundancy. He had no alternative. Life was incredibly difficult.
He took a great deal of sick leave in his final years with the bank.
He avoids stairs altogether because of his hip injury and he cannot cope with crowds. He is very isolated because of his conditions.
He cannot find or look for other work because he cannot cope with working as a result of his conditions – his hip, right leg and PTSD. He drinks very heavily to deal with his pain and distress. "I usually drink a couple of cartons of beer, about five litres of white wine, some port and spirits each week."
Now he stays home. He does not go out much. He reads a book from time to time. He watches some television. He lies down to relieve his hip pain. He goes with his wife about once a month to the shops. He also goes to see the doctor.
Cheryl Gray, the Applicant's partner, provided a statement (Exhibit A6) in which she talks about the Applicant's drinking habit and his lifestyle. Central aspects of this statement are:
She has known Mr Kennedy since the early 1970s. She has lived with him for 10 years.
The Applicant has a long history through all of that time of drinking, getting drunk, getting into fights and absences from work because of alcohol and pain.
He drinks beer, spirits, wine, port, whatever is available. Ms Gray has even had to hide the cooking sherry.
The Applicant had to leave work because of the drinking and his pain.
The Applicant can barely get out of bed each day. He is in a lot of pain. He could not cope with the stress of working or trying to find work. "His life is very miserable and he gets stressed very easily as a result of his problems from Vietnam. Larry doesn't really enjoy doing very much at all and only rarely watches the TV."
She says that the Applicant uses alcohol to minimise his pain and deal with his stress.
The Applicant gave oral evidence at the hearing. The salient points made were as follows. The hip condition causes constant problems. After sleeping for four hours he develops a constant pain in his buttocks. The pain travels to his right knee. He has a burning pain where he has right side scar tissue. He develops throbbing pains if he sleeps on his left side. He develops knee problems if he walks. He experiences spasms from his hip, left side, if he walks any distance. He drinks to help with the pain. He takes up to eight Panamax tablets a day and drinks to self-medicate as well. He sleeps about four hours a night.
The Applicant had given up sheet metalwork because of posture difficulties. His hip replacement impeded him in adopting required postures. He was rehabilitated into office work and that led to his bank job.
During a period in the bank the Applicant had been placed on day shift. He travelled to and from work by rail. There was standing room only and he experienced agony. He found night shift more congenial than day shift. At night there were only three people on deck. In daytime there were 18 or 19. If he were to be offered his old job back again he would have difficulty accepting it because of pain and travel stress. He would last a week. He would drink more. The doctors have told the Applicant there is little more they can do to help reduce his pain.
The Applicant's redundancy eventuated because the bank moved its computer capacity to Melbourne. The Applicant was adamant, however, that he could not have continued because of his right knee pain.
The Applicant's alcohol consumption had increased over the last 18 months at work because of increased pain. He was averaging up to 12 schooners of beer a day. Today he has about six schooners, a couple of wines and a Tia Maria each day. He began drinking in 1969 and drank heavily in Vietnam and when first back home in Australia. He was convicted twice for driving under the influence of alcohol. One blood alcohol reading had been 0.255. He eased off drinking after two years in the bank. It was as low as six drinks a day. It rose again in 1991 after his hip replacement. It fell again only to rise in the last 18 months in the bank.
The Applicant believes that his last pain-free day was in 1969.
The Applicant was promoted over the years in the bank from being a trainee to a lead computer operator. His duties including training younger staff.
A particular issue is the Applicant's osteoarthritis in his hands and fingers. The Respondent argues that his non-accepted hand condition affects his ability to work. The Applicant denied this. He said that he could do keyboard work for up to 30 minutes with a break to follow. A somewhat similar pattern could ensue for the rest of the day. The Tribunal detected, however, that the Applicant was unwilling to be helpful in working out the acceptable pattern for a full day of keyboard work. This could be explained by the fact that the Applicant has not tried himself out on keyboard work since leaving the bank.
Dr Chen (Exhibit R2) recorded as part of the Applicant's history:
"Mr Kennedy added that about eighteen months prior to his redundancy, he was about to quit his job as a computer operator due to osteoarthritic pain in both hands. He stated that by then, his hands would ache after typing for more than thirty minutes. He was apparently advised by personnel at work not to resign, as they were obviously aware of the impending redundancy. … He stated that he had unbearable pains in the hands after typing for more than thirty minutes and was unable to type any further for the rest of the day."
Professor Mattick (Exhibit R3) recorded that the Applicant was impaired in, or unable to, stand, walk, sit, lift, push, pull, climb stairs, maintain balance, crouch, crawl or feel sensation in the left side of his face. He lacks stamina. However, he denied any impairment to reaching, handling or fingering.
In the VRB transcript (Exhibit R5) the Applicant is quoted as saying, "I was finding it hard to work just typing along after ten to fifteen minutes just typing on the keyboards my hands started getting pains because of my fingers starting to bend and …… the arthritis" (page 4).
As regards the Applicant's views, he was wary of the jobs recommended by Mr Bass (see paragraph 38 above). He claimed to have no experience in clerical, and apparently betting agency, work. He could not be a bench welder for reasons already covered (see paragraph 40).
Weighing the above evidence, the Tribunal is inclined to accept that the assessment by Mr Bass captures pretty much all the work for which the Applicant might be suited. The Tribunal registered the Applicant's viewpoint that he could not do any of the suggested jobs. The problems for the Applicant vary depending on the job, but mainly because of difficulty bending, lack of manual dexterity and lack of tolerance for sitting or standing for lengthy periods, he felt he could perform none of the jobs. The Tribunal considers that Dr Harvey-Sutton is probably correct in saying that the Applicant's PTSD would probably prevent him from doing customer relations work (see paragraph 41 above).
The arguments against that proposition are Dr Chen's analysis (see paragraph 43 above) suggesting that the Applicant could return to being a computer operator and Professor Mattick's view that the Applicant's PTSD would not prevent him from working. These analyses in one case (Dr Chen) eschew any discussion of the impact of the Applicant's PTSD and alcohol abuse on his ability to work and, in the other case (Professor Mattick), are inconsistent with the assessment by Dr Subhas, a psychiatrist who has seen the Applicant over an extended period.
The Respondent's representative also presented several arguments as to why the Applicant fails under s 24(1)(b). Ms Breuer considered that the Applicant very probably could not perform sheet metalwork and would not be able to engage in customer relations work. However, she argued that he could do computer work. He could do this for at least eight hours a week. He had been able to work for a considerable time for the National Bank although he said that he was in pain at the time. His evidence suggested that the major change in his work requirements in his final period at the bank was his working on day shift. This resulted in him travelling between Campbelltown and Sydney Central twice a day by rail, the conditions in the train causing him problems with his orthopaedic symptoms. He could do computer work at or near home where he could adjust posture. The Applicant can also drive over short distances. He could therefore drive to and from work if it was close to home. Dr Harvey-Sutton gave some support to these propositions. Dr Chen thought that the Applicant could work five or six hours a day. Mr Bass and Professor Mattick said that the Applicant could work 20 hours a week.
The Applicant had given evidence that he could not do data input work as a computer operator because of spelling difficulties, but Mr Bass considered that the Applicant was capable of doing input work.
The Tribunal has taken account also of the Applicant's evidence but tends to regard the expert evidence more highly as it is more independent. On balance the Tribunal is reasonably satisfied that the Applicant's physical or mental impairments resulting from the Applicant's injuries and disease have reduced his capacity to undertake the kinds of remunerative work identified by Mr Bass. The Tribunal goes further and finds that his capacity has been reduced to the extent that he can work for no period of time in a week.
This finding involves rejecting the submissions of the Respondent. The Tribunal rejects these largely because they are based on a reading of the evidence that the Tribunal has difficulty accepting. The Tribunal has already noted that Dr Chen and Professor Mattick provide views that have been discounted because of their dealing with the Applicant's PTSD. The Tribunal considers that Ms Breuer tended to quote Dr Harvey-Sutton somewhat out of context in finding support for the proposition that the Applicant could work. Dr Harvey-Sutton wrote:
"As far as working 8 hours or more is concerned, this amounts to 1 ½ to 2 hours per day, and could be performed in 2 shifts.
"He may be able to work for say 1 ½ hours per day, with a half-hour break – for example in a position requiring daily data entry where there are small amounts of data entry to be performed.
"However, I note1. He was employed in 1982, under a NADOW scheme and at a time when government organisations and large businesses positively employed people with disabilities. However, I do not believe that he would be employed now after his second hip replacement [an accepted disability – Tribunal] and obvious shortened right leg – either he walks on his forefoot or he walks with an obvious waddling gait.
2. Because of his [PTSD], which is manifest namely obvious distress and preoccupation with the symptoms as evident to casual observers and even persons unfamiliar with a veteran, I do not believe he would be employable.
3. Furthermore I would note that he has never been self-employed but has always been employed by a business."
The Tribunal notes that Dr Harvey-Sutton concludes that the Applicant is unemployable for reasons associated with his accepted disabilities.
That disposes of the inquiry under s 28 of the Act.
This has implications for s 24(1)(b) of the Act. The only issue left unattended in relation to s 24(1)(b) is whether the accepted disabilities alone constitute such an incapacity as renders the Applicant unable to work. The Tribunal is reasonably satisfied from surveying the evidence in its entirety that the accepted disabilities alone do have that effect and that s 24(1)(b) of the Act is satisfied. The PTSD debars the Applicant from work involving customer relations. The hip and knee problems debar the Applicant from clerical and mail sorting work, and from sheet metalwork.
That incapacity must, alone, prevent the veteran from continuing to undertake remunerative work that the veteran was undertaking (s 24(1)(c) of the Act)
AND
The veteran must, by reason of the veteran's prevention from continuing to undertake remunerative work, be suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if he or she were free of that incapacity (s 24(1)(c) of the Act)..The difference between s 24(1)(b) and s 24(1)(c) of the Act is, as R Creyke and P Sutherland say in their book, Veterans' Entitlements Law (2000, Federation Press), "Section 24(1)(b) states that it must be the injury or disease of itself alone which prevents the veteran working. By contrast in s 24(1)(c), the focus of the inquiry is whether there are other matters which have also contributed to the veteran's inability to work. If other contributors are identified, eligibility is denied" (page 205).
In Mr Kennedy's case there are several possible "other contributors". There is the evidence concerning the osteoarthritis in his hands and fingers, a non-accepted disability. There is the fact that he left work because he had become redundant. There could be labour market problems. He applied to an employment agency to find work after he left the bank but that led nowhere.
The full Federal Court has laid down the approach to be taken in this analysis in Flentjar v Repatriation Commission (1997) 48 ALD 1, 4-5, where it said:
"…
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?"
The Tribunal, based on the earlier evidence as to the Applicant's experience finds that the relevant remunerative work that the Applicant was undertaking was computer operator work and, possibly, sheet metalwork. He has substantial experience in both.
The Tribunal finds that the Applicant by reason of war-caused injury or war-caused disease, or both, is prevented from continuing to undertake that work. In relation to sheet metalwork the Tribunal has already relied largely on the opinion of Drs Chen and Harvey-Sutton to find that the Applicant can no longer perform that work. This is largely because of postural limitations stemming from his war-caused disabilities but also because of his war-caused PTSD. However, the Applicant himself raised an additional problem, namely grip problems when wielding a welding torch, which may be attributable to a non-war-caused disability, osteoarthritis of the hands. The whole question of osteoarthritis of the hands is considered below (see paragraphs 79-85).
In relation to computer operator work the Tribunal has accepted the evidence of Drs Subhas and Harvey-Sutton to the effect that he can no longer perform such work partly because of posture but also because of his PTSD. The postural and PTSD problems stem from war-caused disabilities.
The Tribunal notes too that the Applicant is limited by his accepted disabilities in his capacity to travel by public transport and, to a degree, by car. Re Waterson and Repatriation Commission (1991) 25 ALD 525 is authority for the proposition that a war-caused inability to travel to do remunerative work can justify a finding that a veteran is prevented from continuing to undertake that work.
The Tribunal has already found that the Applicant cannot be expected to engage in self-employment from home. The above reasoning applies equally here.
The most difficult element for the Applicant is the third question in Flentjar (supra), the "alone" test. As mentioned above, factors additional to the accepted disabilities that may be preventing the Applicant from remunerative work are the osteoarthritis of his hands, his cessation of work through redundancy and an inability to continue work because of the labour market. These will be considered in turn.
The Applicant's evidence on oath before the Tribunal was that he would be limited in keyboard work because of the osteoarthritis of his hands to working for about 30 minutes with a break to follow. The sense of this was that he could probably work for 30 minutes, break for 10 minutes, resume for something less than 30 minutes, break for 10 minutes, resume again for below 30 minutes, break, and so on. The Respondent's representative put to the Tribunal the collected opinions on the osteoarthritis of the hands. Dr Chen took a history of the Applicant saying that "about eighteen months prior to becoming redundant, he was about to quit, as both hands were extremely painful and this was exacerbated by typing. He stated that he had unbearable pains in the hands after typing for more than thirty minutes and was unable to type any further for the rest of the day."
Dr Harvey-Sutton recorded the Applicant as describing "pains in his hands particularly on prolonged keyboard work and indicated a swelling of some of his joints in his right hand, consistent with age-related osteoarthritis".
The Applicant told the VRB that he developed pains in his hands after 15 minutes of typing by the end of his time in the bank.
Ms Breuer for the Respondent referred to the clinical notes from Dr A Ruello, the Applicant's treating doctor (Exhibit R6). On 13 January 1993 Dr Ruello noted pain in hand and fingers. He prescribed medication. On 4 October 1995 he noted osteoarthritis in fingers and again prescribed for it.
The Tribunal must accept that the Applicant's presentation as regards the role of his osteoarthritis of the hands in preventing him from working has been inconsistent. He appears to have emphasised the fingers as a cause of his inability to work in his dealings with Dr Chen and the VRB. Dr Ruello's notes, however, continue through to at least May 2000 and, with the exception of the references in 1993 and 1995, no mention is made of hand pain. There is a great deal of material relating to hip, knee and other medical problems. The Tribunal observes that the Applicant worked on at the bank for five years after the first mention of hand pain.
The Tribunal considers that it should give particular weight to the version of the Applicant's medical history to be divined from the notes of his treating doctor. These sessions with a doctor find the Applicant least influenced by medico-legal concerns and the overall picture presented is the most complete. It may be that the Applicant's hand pain fluctuates, or that it is constant but overwhelmed by the intensity of the other pain he experiences. It may be that the Applicant thought that there might be some advantage for him in emphasising the hand pain at a certain point in the overall time frame. However, the fact remains that, on the documentary evidence, the Applicant has reported hand pain only rarely and at times when he was able to continue working. The Tribunal finds that the Applicant's osteoarthritis of the hand does not contribute materially to any inability he has to continue remunerative work.
The Tribunal finds also that the Applicant's redundancy is not relevant to his continuing inability to undertake remunerative work. The Tribunal notes that the relevant time frame in which it has to consider this question is the assessment period, ie from 25 February 1999, the date when he lodged his claim, until the date of the Tribunal's decision (ss 19(3), (4), (5), (6), (9) and 24A of the Act). The Applicant argued that it was the pain stemming from his accepted disabilities that made him decide to resign or retire from the bank and that he was convinced to work on, despite his pain, in order to qualify for a redundancy package. Essentially he argued that his accepted conditions would have prompted him to resign in any event had he not been offered the advantage of the redundancy. By the time of the assessment period, the redundancy had receded somewhat into the background.
The Applicant's evidence was that he lodged an application for employment with an employment agency at about the time he was made redundant. He heard no more from the agency. This could carry an implication that he is unable to work because of his age (now 52) and/or because of the state of the labour market. In evidence the Applicant said that no one had told him he was too old to find work. He said that his body had told him this and that he was a 50 year old walking around in a 60 or 70 year old body. It is unclear what the employment agency did with the Applicant's application or why there was no follow-up. However, for the reasons given below in paragraphs 89 and 91 of these reasons, the Tribunal considers that the Applicant, had he not the war-caused disabilities, would be likely to have continued working.
The issues involved here anticipate the findings required in relation to the next issue to do with loss of income. The Tribunal will find in that context that the Applicant has lost income because of his inability to continue remunerative work which is a war-caused inability. At this point the Tribunal finds itself reasonably satisfied that the Applicant, with his skills and experience, would likely have found work after his redundancy but for his accepted disabilities.
The Tribunal is reasonably satisfied that the Applicant's age and the general labour market would not have been insurmountable hurdles to any attempts the Applicant may have made to find work after he became redundant. The Tribunal draws some support for this finding from Mr Bass's report where he says, "Mr Kennedy's accepted disabilities would be obvious to a prospective employer, however, these accepted disabilities would not prevent him from obtaining employment. … Mr Kennedy would be regarded as a sensible candidate by most Personnel Managers and other employers of staff were he to apply for positions such as those given … as examples of appropriate employment" (Exhibit R4). It may seem inconsistent of the Tribunal to rely on Mr Bass at this point in its reasons when it has not accepted Mr Bass's earlier assessment of the Applicant's current employability. However, as a matter of logic, if Mr Bass sees Mr Kennedy as a reasonable employment prospect with his disabilities, Mr Kennedy would be a stronger candidate without those disabilities. The Tribunal's view is that, absent the disabilities, it regards Mr Bass's assessment as convincing.
In relation to the fourth question in Flentjar (supra), the Tribunal finds itself reasonably satisfied that the Applicant, by reason of being prevented from continuing to undertake his appropriate work, is suffering a loss of salary or wages that he would not be suffering if he were free of the accepted disabilities.
The Tribunal finds, again with some support from Mr Bass, that the Applicant would probably have looked for and found work similar to that he had done for the National Australia Bank when he was made redundant in 1998 if he did not have his accepted disabilities. The Applicant has computer skills which are in general demand. He had a stable work history. The indications are that he would have wanted to continue working and that he had marketable skills.
These findings carry the consequence that the Applicant is not disqualified from special rate under s 24(2)(a)(i) or (ii) of the Act. The Tribunal makes no findings under s 24(2)(b) because the Applicant does not need to resort to that provision in order to qualify for special rate.
ConclusionThe Tribunal has found that the Applicant merits payment of his Disability Pension at the special rate. This means that the decision under review is set aside.
The date of effect of the decision is 25 November 1998 (s 20(1) of the Act; Exhibit A1; Exhibit R1).
DecisionThe decision under review is set aside. In substitution for that decision the Tribunal decides that the Applicant qualifies for payment of Disability Pension at the special rate with effect from the first pension payday on or after 25 November 1998.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Ms N Bell, Member.
Signed: .....................................................................................
AssociateDate of Hearing 13 July 2001
Date of Decision 26 July 2001
Solicitor for the Applicant Mr A HalsteadAdvocate for the Respondent Ms S Breuer
0
0
0