King and Repatriation Commission - [2000] AATA 298

DECISION AND REASONS FOR DECISION [2000] AATA 298

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/1223

VETERANS' APPEALS DIVISION )

Re Keith James KING
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J D Campbell, Member

Date18 April 2000
PlaceSydney

Decision The Tribunal affirms the decisions under review, being – 1. that part of the decision of the Repatriation Commission ("the Respondent") dated 24 November 1995 that refused the claim of Keith James King ("the Applicant") in respect of osteoarthrosis right ankle, asthma, muscular cramps and gout; and 2. that part of the decision of the Respondent dated 4 October 1996 that assessed pension at one hundred percent of the General Rate with effect from 26 February 1996.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - special rate pension - whether unfit for work of eight hours or more per week - whether unable to work because of accepted disabilities alone - whether genuinely seeking work- whether war-caused incapacities substantial cause of inability to obtain remunerative work
Veterans' Entitlements Act (1986) (Cth)- ss 24 (1)(b), 24(2)(b), 28
Cavell and Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

18 April 2000 Mrs M T Lewis, Senior Member Dr J Campbell, Member

This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 4 October 1996 which determined that Keith James King ("the Applicant") was entitled to pension at 100 percent of the General Rate with effect from 26 February 1996. The Veterans' Review Board ("the VRB") affirmed that decision on 28 May 1998. The Applicant then lodged an application for review by this Tribunal on 31 August 1998. The Applicant is seeking to have pension paid at the Special Rate pursuant to s 24 of the Veterans' Entitlement Act 1986 ("the Act"). The application date in respect of this matter is 2 June 1995, being the date on which he claimed pension in respect of the conditions diagnosed as post traumatic stress disorder ("PTSD") and hypertension, which were later accepted as war-caused disabilities and pension was assessed at 100 percent of the General Rate.
This application for review also includes the review of a decision of the Respondent dated 24 November 1995 that refused the Applicant's claim for pension in respect of osteoarthrosis of the right ankle, asthma, muscular cramps and gout. The Applicant did not proceed with that part of his application for review, and therefore the Tribunal affirms that part of the decision of the Respondent dated 24 November 1995.
The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of the Applicant –

Report of Dr M Baz, occupational physician, dated 29 March 1999 (exhibit A);
Written statement of the Applicant dated 16 February 1999 (exhibit B).

The following documents were tendered on behalf of the Respondent –

Report of Dr M Burns, occupational physician, dated 5 May 1999 and referral letter from Respondent to Dr M Burns dated 4 May 1999 (exhibit 1).

legislation

Section 24 of the Act provides, insofar as relevant –
(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 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 of 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 the 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 h as 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.
Section 28 provides –
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).
The key issue in these proceedings is whether the Applicant is unable to engage in remunerative work on the basis of his accepted disabilities alone. In determining that question the Tribunal has been asked to determine whether the Applicant is entitled to the benefit of the second limb of s 24(2), that being whether he genuinely sought work, and whether his war-caused incapacity is the substantial cause of his inability to engage in remunerative work. The other issue which the Tribunal must consider is whether the Applicant is unable to work for periods aggregating more than eight hours per week because of his war-caused disabilities alone.
evidence
The Applicant was born on 4 February 1945 and at the time of the hearing he was aged 54 years. He served in the Australian Army from 29 September 1965 to 22 September 1970, including four months' service in Vietnam. He has been married to his wife, Penelope, for thirty years and they have two children aged 20 years and 19 years respectively.
The Applicant and his wife, Penelope King, gave oral evidence at the hearing. Dr Burns, occupational physician, gave oral evidence, called by the Respondent.
The Applicant suffers from hypertension and post traumatic stress disorder ("PTSD") with substance abuse, which have been accepted as war-caused conditions. He also suffers from osteoarthrosis of the right ankle, asthma, muscular cramps and gout, which have not been accepted as due to war service. The evidence before the Tribunal will now be considered in respect of each of the Applicant's medical conditions and the effect they have on his ability to work.
Post Traumatic Stress Disorder with Substance Abuse
The Applicant said he has consulted Dr Johns, psychiatrist, on three or four occasions in respect of his PTSD, but he considered these consultations did not help him as the medication prescribed had a sedating effect. Thereafter he said he merely discussed any problems regarding his PTSD with his general practitioner, Dr Crocker. The Applicant understood that his doctor felt he was coping for the time being. Later in his evidence he said that the only psychological problems he raised with his doctor related to his memory and lack of concentration.
The Applicant said he thought his life in the military might have changed his personality. He said that when he came back from Vietnam he did not talk about his military experiences to anybody "because it was not the done thing". He said, "people didn't want to know that you'd been there. We were more or less classed as outcasts, so …. I just went on with my life".
The Applicant said he suffers from "just general inability … to live". He said communication with people is "virtually impossible"; it is confined to saying "hello" when he sees someone he knows in the street. He said he does not have a lot of friends and does not socialise. He said he first noticed that he was withdrawing from his friends and family about 20 years ago when he was in the car sales business and later when working at the golf club. He said he gets along with his family "occasionally". He told Dr Baz that he is irritable and upset. His history to Dr Danesi in 1995 (T26) was that he argued with his wife and children and he believed his children did not want to live with him as he was "too poor". Mrs King said their daughter left home at the age of fifteen years.
In response to a question from the Tribunal about whether his PTSD was a problem for him when he first received Service Pension in 1994, the Applicant said that it was "non-existent". He told his doctor that "I'm all right" but he considered that other people thought to the contrary. He could not recall whether he was suffering any psychiatric problems when he left work in April 1993.
The Applicant considered that currently his psychiatric condition may prevent him from working on one day, but it may not preclude him from working on the next. He said, "every day is another day, everything's different". He could not state precisely what exacerbated his psychiatric condition - "it could be anything", something as little as traffic noise, which would make him "go into a shell". The Applicant said he is not a violent person but if someone bumped into him in the street he would abuse the person verbally. This could happen on a weekly or daily basis depending on the circumstances. The Applicant said that when he was working he lost his temper occasionally with other workers and customers but he never became physically violent.
Mrs King considered the Applicant suffers from depression. She noted he suffered depression from the time she first met him a few weeks after his discharge from the Army, but more so now. She said he frequently becomes irritable and annoyed with other people who are not "doing the right thing". He loses his temper unreasonably but does not get "majorly (sic) violent".
The Applicant said he also suffers from lack of sleep. He sometimes breaks into night sweats, his sleep is interrupted eight to ten times a night to go to the toilet or to get a drink or simply walk around, and he said he never falls into a deep sleep.
The Applicant said he feels "low" and considers he is not "a very nice person" because of the way he has treated himself and his family. He feels he has become a burden to his family and as a result he has become a heavy drinker. Although previously he used to drink regularly, now he may drink only weekly or monthly depending on the situation. He considered that there was never any particular reason for him to start drinking, but if the opportunity arose he drank until he "had too much". He always drinks at home and buys alcohol probably on a weekly basis. He admitted his drinking is restricted by his financial circumstances.
Mrs King said that previously the Applicant used to drink about four nights a week. She said now he usually drinks up to a bottle of scotch plus wine on Saturday nights. He also drinks when feeling pressured or when "anything has actually gone wrong" or if something is bothering him. Some days he does not drink at all. She first noticed his drinking problem when they owned the chicken shop.
The Applicant could not recall when he first discussed his drinking problem with Dr Crocker. The Tribunal directed his attention to conflicting responses he provided to the Respondent in the alcohol questionnaires in 1995 and 1996 respectively (T11, p87; T28, p133). He said he might not have been totally honest with his local doctor about his drinking in 1995 but by 1996 he was prepared to be more candid. Indeed, on his 1996 questionnaire he wrote that the 1995 questionnaire had been completed in the presence of his Local Medical Officer. He noted on the 1996 questionnaire that he had not been honest because he was in fear of a "pull through on my drinking habits". In 1995 he disclosed his heavy drinking to Dr Danesi (T26) and by 1996 he had also divulged his excessive drinking pattern to Dr Johns, psychiatrist (T25).
Dr Burns, occupational physician, examined the Applicant and provided a report dated 5 May 1999 (exhibit 1). He noted the Applicant's belief that depression was one of his main problems. The Applicant also advised Dr Burns that he has difficulty sleeping because of his asthma. Dr Burns reported the Applicant sleeps in a sitting position so he can breathe better. He also tends to relax more when he is sitting up. There was no history of nightmares or dreams, and the Applicant denied that he had any problems in Vietnam. He denied vivid memories of his service and made no reference to intrusive thoughts or flashbacks. The Applicant advised Dr Burns that he got on well with his wife and his son, but he had some difficulties with his 19 year old daughter who left home at the age of 14 years.
The Applicant's drinking history given to Dr Burns was that he began drinking beer as a teenager and increased his drinking during his overseas service because it was readily available. After his return to Australia his alcohol consumption remained fairly constant until he began work as a car salesman. Towards the late 1970s the Applicant's alcohol consumption increased and he began to drink spirits. Since then he has had a significant drinking problem. On a bad day the Applicant drinks almost a bottle of scotch. He tends to drink on a weekly rather than on a daily basis, and even then he drinks only a couple of beers or a beer and some wine on social occasions. Dr Burns understands that the Applicant is an occasional binge drinker rather than a constant drinker.
In his oral evidence Dr Burns opined that the Applicant suffered from mild to moderate psychological problems. He considered the Applicant did not display a lot of the classical symptoms of PTSD, for example, flashbacks and intrusive thoughts. He also noted the Applicant did not exhibit physical signs of anxiety such as tremor or sweating whilst giving his history. Nonetheless Dr Burns accepted the Applicant was suffering from PTSD. While he acknowledged the Applicant could be in denial about his psychiatric condition, he considered that he would still display the physical signs of anxiety if anxiety was a problem for him.
Dr Burns considered the opinions provided by Dr Johns and Dr Danesi "were at opposite ends of the spectrum" from his own and therefore he was unable to accept them. He noted that currently the Applicant is not taking any medication for his psychological problems, nor has he taken psychotrophic medication for the last two years.
Dr Baz, occupational physician, examined the Applicant on 18 March 1999 and she prepared a report dated 29 March 1999 (exhibit A). She obtained a history about the Applicant's PTSD which was reasonably consistent with that provided to Dr Burns and to the Tribunal.
Dr Baz opined that the Applicant's PTSD was a "significant disability". She considered that he was unable to work "predominantly" because of his PTSD that includes depression. She considered his symptoms would be noticeable to casual observers because of his argumentative nature and verbal aggression. Dr Baz understood that the Applicant's substance abuse has caused substantial interference with his employability, leading to his changing jobs and ultimately to his inability to find work. She noted that although the Applicant's alcohol consumption had caused significant interference with his functioning in the past it is now largely controlled.
Hypertension
The Applicant's evidence was that he has suffered hypertension for ten years. Dr Burns did not consider that the Applicant's hypertension presented any serious problem at present. The condition is controlled with medication and the Applicant does not appear to have any organ damage arising from his hypertension.
Right ankle fracture
The Applicant suffered a Potts fracture of the right ankle whilst training in the Army before the commencement of his service in Vietnam. It required internal fixation and he was in hospital for about 17 weeks. It did not occur during his operational service and it is not a war-caused disability.
Dr Burns noted in his report (exhibit 1) –
As he got older … the ankle has always bothered him. He states that he now has severe osteoarthritis in the ankle and it aches constantly. It is also very stiff. He can currently walk about 100 metres and has to stop due to a mixture of pain in his ankle and also shortness of breath. He states that hot showers help to relieve the pain in his ankle. Occasionally the ankle swells up. He is currently taking Brufen for his ankle problems.

The Applicant's evidence to the Tribunal confirmed that history. He said his ankle is swollen about ninety percent of the time. He admitted that his ankle condition impacts on his ability to obtain work. He recalled telling Dr Crocker in September 1995 that his ankle pain was exacerbated by prolonged standing or walking. The Applicant said he has suffered this pain for about fifteen to twenty years.

Mrs King considered the Applicant's ankle condition restricted his mobility. He is unable to walk long distances easily and he only walks where it is absolutely necessary. She said he has pain and swelling in his ankle even when sitting for long periods.
Dr Baz obtained the following history in respect of the Applicant's right ankle condition –
There is variable swelling. It limits him to walking about 200 metres at a time. He has much more difficulty on rough or uneven ground as minor mis-step causes a distressing ache. He could not climb a high ladder. Prolonged standing aggravates the pain. It aches at night particularly if he has stood or walked for 20 minutes.

Asthma

The Applicant said he has suffered from asthma for almost twenty years. Currently, his asthma is under control with the use of inhalers. However, for about a month each winter he has to use a nebuliser at three hour intervals when he has bronchitis and pneumonia. He admitted, however, that his asthma causes him to become short of breath on any physical activity. He agreed that asthma and cramps were "probably" reasons he left work in April 1993.

Mrs King considered that the Applicant finds it difficult to perform any physical activity because of his asthma, but nonetheless he copes with physical activity by using his medication and stopping to take breath from time to time. She said that medication prevents his asthma from disturbing his sleep although she considers nonetheless that he is not a "good sleeper".
Dr Burns reported the following history with respect to the Applicant's asthmatic condition –
This condition was initially diagnosed in 1979. At the time Mr King reported that he felt as if he had the 'flu and couldn't breathe. Following the diagnosis he was commenced on a Ventolin puffer, which he used irregularly. In the early 1980's his asthma was quite severe and he was hospitalised. He was commenced on steroids at that time. He has been on and off Prednisone up until the last 12 months. He reports that his asthma is not seasonal. He used the following puffers twice a day: Intal, Atrovent, Flixotide and Serevent. He also uses a Ventolin puffer as required.
Functionally he reports a shortness of breath on any physical activity. He can walk approximately 100 metres at a slow pace before developing shortness of breath. After about six steps he develops quite severe shortness of breath. He also develops shortness of breath on showering and dressing if he has to bend over for any length of time.
In his oral evidence Dr Burns noted the Applicant's lung function was only 40 percent of that expected of a person of his age, height, sex and race according to the spirometry results obtained by him on examination. If he were required to walk faster than at a strolling pace he would suffer shortness of breath. He would also have difficulty with prolonged lifting but he could do small amounts of lifting for a short period. Dr Burns opined that the Applicant's asthma was moderately severe and more severe than his ankle condition.
With respect to the Applicant's asthmatic condition, Dr Baz reported the following –
He becomes breathless with exertion, such as walking up a flight of stairs. His tolerance varies. He is always short of breath with activity such as mowing the lawn, and also with showering and dressing.
He has a constant wheeze. He does not cough. He has had chest pain which his doctor attributes to brufen, and has recently prescribed pepcidine.
…
He uses multiple inhalers for control. …

Diabetes and Gout

Dr Burns confirmed that both these conditions are controlled by medication. Dr Burns noted that neither the gout nor diabetes constituted any functional disability for the Applicant at the present time.
Employment History and Capacity, and its Relationship with the Applicant's Medical Conditions
After his discharge from the Army, the Applicant obtained employment as a clerk/salesman in a used car business. He worked in several car yards from 1969 until 1979. He said he left the car sales business because he had a drinking problem and experienced personality conflicts with management.
In 1979 the Applicant started up his own fresh poultry business which primarily involved retailing fresh poultry and cooked chicken. The work required him to stand all day and he worked very long hours. At the end of the day his ankle was sore and tired. He dealt with the pain by drinking a "couple of real strong scotches". Nevertheless he was normally able to work the next day and remain standing for the whole day. It was at about this time he developed asthma. He said his asthmatic condition did not interfere with his work in the chicken shop.
Mrs King helped the Applicant in the chicken shop. She said that his drinking problem coupled with the way in which he treated customers affected their business to the point where it "was no longer a viable business". She said that his health was also deteriorating at that time. They stayed in the chicken business until 1985. The Applicant said at that time he was having problems with his wife and children and he gave up the business because of his drinking and family problems. He did not sell the business because he found it to be unsaleable. Ultimately, he and his family moved to Byron Bay.
The Applicant said that when he moved to Byron Bay in 1985 he registered for employment and applied for Unemployment Benefit. He applied for various jobs including bar work, kitchen-hand work, waiting, sales and clerical work. He worked as a kitchen hand at the golf club for about five to six years on a casual basis, on weekends and evenings. His shifts usually started at 5.30 or 6 am and finished about 10 or 11 pm, or later on busy nights. He was required to stand all day doing this work. He said that at no time did he stop work or stay away from work because of his ankle condition. The only time his asthma affected his ability to work was when the kitchen became hot on a hot night, necessitating his use of a Ventolin inhaler. He said his asthma never stopped him from working and no other conditions other than PTSD ever prevented him from working at the golf club.
Mrs King worked at the golf club as a waitress at the same time as the Applicant worked there. During this time she noted the Applicant worked well but sometimes he would become irritable at work because he felt that other workers, including her, were getting more shifts than he was.
The Applicant ceased working at the golf club along with all the other employees because the new lessee retrenched all existing staff at the time. He said he encountered personality problems whilst working at the golf club and considered this interfered with his work at times. He considered that he was able to remain in that employment for five or six years because his employer was a friend and as such, he was treated with lenience.
The Applicant said he continued looking for work after he left the golf club and he obtained employment in about four different cafes doing similar work. He said he got on well with some of the people with whom he worked, but he also experienced personality problems; he found it difficult taking orders from people younger than himself.
Mrs King said the Applicant had two other jobs at two different cafes after ceasing work at the golf club. However when he then tried to get other jobs he found it progressively harder to seek work every time he was rejected. She understood the Applicant "thought" he was trying to obtain work because he would mention he wanted a job in conversations he had with various people.
The Applicant said he could not recall his consultation with Dr Crocker in 1993. At that time Dr Crocker examined the Applicant in respect of his claim for service pension and noted that he had last worked as a kitchen hand and left because of redundancy. He also noted that the Applicant "wants to work but physical conditions precluded physical work" (T4, p65). Dr Crocker also stated –
Not suited for work requiring physical output. OK mentally. Asthma aggravated by many occupational environments.

The Applicant was at that time in receipt of Unemployment Benefit. Dr Crocker made no reference to any psychiatric disability suffered by the Applicant.

Mrs King explained that when she had a telephone discussion with an officer from the Department of Veterans Affairs on 1 April 1993 (T7), she did not comment on her husband's psychological problems because she felt "it was none of their business". She agreed the Applicant gave up his work in April 1993 because of cramps and asthma.
The Applicant said that over time he reached a stage where he "wasn't doing anything". He was told that there were no jobs suitable for him. He said he continued applying for similar work in Byron Bay until about 18 months ago. The last time he worked was about 18 months to 2 years ago. He has been on service pension since 1993. In his claim for service pension the Applicant noted he had last worked in August 1992. He said he applied for service pension because at the time he was unemployed and suffering from asthma, gout and drinking problems. The Applicant said he has not been actively seeking work since 1996. He said he was worried he would lose his pension if he obtained employment so he did not bother applying. However at another point in his evidence, he said that he approached some people for work but he was unsuccessful. The Applicant agreed that there is high unemployment in Byron Bay. He also agreed his age might be a factor that precludes him from gaining employment.
The Applicant said if he was offered work in a shop he would try his best to do it. He explained that by the end of the day his ankle would be swollen, he would have to relieve it by putting it in cold water, elevating it and taking medication. The medication does not always stop the swelling and aching but he said, "it's something that over the years I've learned to live with in some respects". Dr Burns considered that the Applicant's ankle condition would not prevent him from working, although it would limit the kind of work that he could undertake. He said that any job that required the Applicant to stand or walk for prolonged periods would be "much more difficult" for the Applicant to do.
Mrs King considered that the Applicant's cramps and asthma conditions, coupled with his psychological problems, now prevent him from obtaining work. She considered that at present the Applicant's asthma and ankle conditions are more severe than his psychiatric condition in that they affect his ability to work in a physical capacity, whilst his depression and irritability affect his sense of self-worth. She considered his psychological state to be worse now than it was when he first gave up his job in the coffee shop.
The Applicant did not disclose to Dr Burns any other reasons for leaving work other than the fact that there was a high unemployment rate in Byron Bay. In respect of leaving the chicken shop, Dr Burns understood this was because of financial constraints faced by the Applicant at the time.
Dr Burns opined that the most significant factors affecting the Applicant's ability to work were his PTSD and his breathing problems. However, he qualified this statement by concluding that neither condition on its own would have forced the Applicant out of the workforce completely if suitable work had been available. He did state however that the Applicant would be unlikely to be able to undertake heavy manual work such as kitchen hand duties because of his lung condition. Dr Burns opined that at present, the Applicant's PTSD with substance abuse was not sufficient on its own to cause his absence from the workforce. In Dr Burns' opinion, the Applicant was not incapable of performing work for periods aggregating more than 8 hours per week.
Dr Baz opined that whilst the Applicant's fitness for work is now limited by osteoarthrosis of the right ankle and asthma, PTSD is a significant disability and the main cause of his unemployability. She noted the Applicant's ankle condition was not severe enough to preclude him from continuing to operate the "poultry business" which she later erroneously interpreted as a poultry farm, especially if he was self-employed. Dr Baz reported the Applicant had been unable to continue in his chosen occupations because of the effects of substance abuse. She opined that he would have difficulty in maintaining any employment "because of irritability and tendency to argue, social withdrawal and his depression".
submissions
Applicant
Relying upon the conclusions of Dr Baz, it was submitted the Applicant was unfit for work of eight hours or more per week because of his accepted disabilities.
It was submitted the Applicant suffers from moderate to severe PTSD and the manner of his giving evidence was a clear illustration that he is in a psychological state of denial about his condition. It was submitted his perception of his behaviour and his perceived ability to operate in the workforce is quite different from the reality, the latter being reflected in Mrs King's evidence. It was submitted Mrs King's evidence should be regarded as candid in revealing the severity of the Applicant's PTSD condition.
It was conceded that the Applicant's asthmatic condition affects his lifestyle. However it was submitted that his asthma never prevented him from working. If the Applicant was in a job where he could stop and take his medication, it was contended that he would still be able to work. It was submitted that the Applicant's PTSD was severe enough to prevent him from working, and in relation to s 24(1)(c) of the Act, the Applicant's asthma and ankle conditions played no role in his unemployment.
With respect to s 24(2)(b) of the Act, it was submitted the Applicant attempted to continue to seek work and there was no evidence before the Tribunal to suggest that he was not employed because of his asthma and ankle condition. Although the Tribunal is required to apply the tests in s 24 as at the date of application, it was submitted that there is no absolute time limit in the application of s 24(2)(b). Consequently, the Tribunal can find that prior to the date of application the Applicant was genuinely seeking work.
Respondent
With respect to s 24(1)(b), the Respondent relies on the opinion of Dr Burns that the Applicant's war caused incapacities alone did not render him incapable of working more than eight hours per week.
The Respondent submitted that in respect of ss 24(1)(c) and (2)(b), there is not one substantial cause but rather a number of causes of equal weight that together render the Applicant unable to obtain remunerative work. It was submitted the war-caused disabilities were equally offset by the effects of the asthma and ankle condition. The Respondent relied on the statement made by Mrs King (T7), that gave some weight to the Applicant's cramps, asthma, and inability to stand for long periods, as reasons why he could not work in 1993, whilst no weight was given to his psychiatric condition at that time.
Notwithstanding the possibility that the Applicant is in denial about his PTSD condition, the Respondent submitted the effects of the non-accepted disabilities play a significant role in the context of s 28 of the Act in relation to the type of work the Applicant had been undertaking in the past. It was submitted that the Applicant's accepted disabilities did not constitute a "substantial cause" for the purposes of s 24(2)(b) and so he could not be afforded the benefit of the ameliorating provisions of s 24(2).
The Respondent relied on the decision of the Federal Court in Cavell v Repatriation Commission (1988) 9 AAR 534 and submitted that the Tribunal is required to determine whether the veteran's loss of remunerative work is attributable to service-related incapacity or to some other factor. In this case, it was submitted the Applicant's war-caused disabilities were not the only factors preventing him from continuing to undertake remunerative work.
consideration of evidence and findings of fact
The Applicant's war-caused disabilities are PTSD with alcohol abuse, and hypertension. His hypertension is controlled on medication. The Tribunal finds on all the evidence before it that the Applicant suffers from mild to moderate PTSD. The Tribunal notes the evidence of Dr Baz that the Applicant's PTSD is moderate to severe, but considers that the other evidence before the Tribunal does not support that conclusion. At the present time and during the review period, that is, from the date of his claim on 2 June 1995, the Applicant's alcohol abuse has been reasonably controlled although he "binge" drinks from time to time.
Applying s 28 of the Act, the Tribunal finds that the kind of remunerative work which the Applicant might undertake includes used car sales, shop sales, kitchen hand and work as a waiter. The Tribunal also finds that all these types of work are jobs the Applicant would have real difficulty undertaking even on a part-time basis for more than eight hours a week, because of his ankle condition and asthma.
The Tribunal gives more weight to Dr Burns' evidence than to Dr Baz's report and consequently favours the opinion of Dr Burns that the Applicant's psychiatric condition and alcohol abuse alone was not sufficient to prevent him from working more than eight hours per week. Dr Burns' perception and reporting of the Applicant's history is much more consistent with the view obtained by the Tribunal on the evidence of the Applicant and that of Mrs King, than the history and opinion of Dr Baz. Indeed, Dr Baz appeared not to be aware the Applicant had operated a chicken shop. In her report, she referred on a number of occasions to a "poultry business". She noted he was restricted in walking over rough or uneven ground because of his lower limb problem and that he had this problem when operating the "poultry business". She then said –
… most farm work requires walking to inspect the property and livestock and this generally involves negotiating some degree of uneven ground as well as prolonged standing. It is likely that the ankle condition at this time would limit his ability to operate a poultry business…

Dr Baz later concluded the Applicant's right ankle condition and asthma would limit the type of work he could undertake and in particular it would limit his ability to work as a "poultry farmer" and in car sales. The Tribunal finds that Dr Baz did not have an accurate understanding of the work the Applicant had been performing, and this undermined the weight that could be given to her report. She also considered his drinking was the cause of changing his job (presumably when he ceased his chicken shop business) and being unable to find work. There is no other evidence to support that perception held by Dr Baz and the Tribunal finds that it is not accurate.

The Tribunal finds the Applicant's asthma and ankle conditions together play a very significant role in his inability to do the kind of work for which he is experienced and qualified. There is an abundance of contemporaneous documentary evidence to support this finding. At T7 a file note refers to a telephone call from an officer of the Respondent to Mrs King which clearly identifies that the Applicant gave up work due to cramps and asthma, and he could not stand for long periods. At that stage (1993) he had not seen a psychiatrist. The Tribunal finds the oral evidence of Mrs King, that this was no business of the Respondent, somewhat shallow.
On the basis of that evidence and after discussions with the Commonwealth Medical Officer the Respondent paid the Applicant a Service Pension on the grounds of permanent impairment. He was then only 48 years of age. In 1995 Dr Crocker, the Applicant's local medical officer, reported the Applicant suffered right ankle pain after prolonged standing or walking, that his right ankle was always slightly swollen and tender, and that walking and weight bearing exacerbated pain after ten minutes (T13). Apparently at the same medical examination (T13, p96), Dr Crocker considered the Applicant suffered from a generalised underlying depression that made it difficult for him to cope with his current family and financial worries. Dr Crocker noted that he was referring the Applicant at that stage to see Dr Danesi, a psychiatrist. If indeed the Applicant's PTSD had a significant role in his inability to work in 1993 it is unlikely that it was not obvious to Dr Crocker, even if he was not told of it directly. That is not to say the condition did not exist at that time. Clearly it had affected the Applicant's functioning for many years. However that is not the issue; the issue is whether his condition precluded him from working.
The Applicant's evidence was that he might not have been honest when he completed the alcohol questionnaire in 1995 (T11). In that document he stated he consumed alcohol less than once per week, that he had two or three glasses of beer or table wine, and that his alcohol consumption had not changed significantly since he began to consume alcohol on a regular basis in 1964/65. The Tribunal finds these obviously were not truthful statements. There was no indication in the Applicant's oral evidence that he was untruthful, but on the other hand the Tribunal did not find that his evidence assisted him greatly. Either he was exhibiting the psychological defence mechanism of denial regarding his psychiatric condition, as submitted by his Counsel, or he was not truthful. If the Applicant was truthful in the evidence he gave, then his ankle problem and asthma are very significant factors that have interfered with his ability to work, at least equal in importance to his war-caused psychiatric condition and alcohol abuse, which together prevent him from working.

The Tribunal notes the Applicant has not reached the age of 65 years and that he seeks to rely on the ameliorating provisions of s 24(2)(b). Section 24(2)(b) provides that if the Applicant has not been engaged in remunerative work and satisfies the Respondent, or the Tribunal in the shoes of the Respondent, that he has been genuinely seeking to engage in remunerative work, and that he would be continuing to seek to engage in remunerative work but for his war-caused incapacity, and if that incapacity is the substantial cause of his inability to obtain remunerative work, then the Tribunal is required to treat him as having been prevented by his war-caused incapacity from continuing to undertake remunerative work that he was undertaking.
Taking into account the effects of the Applicant's non-accepted medical conditions, in particular his asthma, right ankle condition and cramps, and the significant affect they have on his inability to work, and noting the high level of unemployment in the geographical area in which he now lives, the Tribunal finds that these are a substantial cause of his inability to obtain remunerative work. They are at least equal in value in contributing to his inability to obtain remunerative work, to the effects of his PTSD and substance abuse. Consequently, the Tribunal is not satisfied that his war-caused incapacities are the substantial cause of his inability to obtain remunerative work.
The Tribunal leaves open the issue of whether the Applicant has been genuinely looking for work both before and at the application date, that is up to June 1995. Indeed, on the evidence of his wife, his psychiatric problem would appear to have had a significant affect on his failure to seek employment because he became very despondent when employment was refused. However, that situation may well have developed only after the application date, and within the last two years. The Tribunal has not determined whether the Applicant was genuinely seeking work because of the Tribunal's finding that in any event the Applicant does not satisfy the other requirements of s 24(2)(b). That is, assuming at this stage that the Applicant has been genuinely seeking to engage in remunerative work, his war-caused disabilities do not constitute the substantial cause of his inability to obtain work.
The Applicant does not meet the requirements of s 24(1)(b) or s 24(1)(c) of the Act, and therefore he is not entitled to receive payment of pension at the Special Rate. The Tribunal affirms the decision under review.

I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Dr J Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  24 June 1999
Date of Decision  18 April 2000
Counsel for the Applicant        N/A
Solicitor for the Applicant         N.Dawson, R L Whyburn & Associates
Counsel for the Respondent    N/A
Solicitor for the Respondent    Richard Wallis, Department of Veterans' Affairs