Law and Repatriation Commission - [2000] AATA 546

DECISION AND REASONS FOR DECISION [2000] AATA 546

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1499

VETERANS' APPEALS DIVISION       )
           Re      Vivian Frank LAW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date5 July 2000
PlaceSydney

Decision      The decision under review, being the decision of the Repatriation Commission of 3 June 1998 which continued pension payable to Vivian Frank Law ("the Applicant") at 80 percent of the General Rate, is set aside, and in substitution therefor the Tribunal decides that the Applicant is entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate with effect on and from 19 March 1998.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – assessment- Veteran assessed at 80 percent of General Rate – whether entitled to Special Rate – whether ceased work because of war-caused conditions alone including PTSD – whether financial incentive to leave work because of redundancy

Veterans' Entitlements Act 1986 – ss 24, 28

Forbes v Repatriation Commission (2000) 171 ALR 131
Fry v Repatriation Commission (1997) 47 ALD 776

REASONS FOR DECISION

5 July 2000 Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 3 June 1998, that continued payment of pension to Vivian Frank Law ("the Applicant") at 80 percent of the General Rate. The Applicant sought review of that decision by the Veterans' Review Board, and the primary decision was affirmed. The Applicant then sought review by this Tribunal. All applications for review were made in time. The Applicant lodged an application for increase on 19 March 1998, and therefore that is the earliest date from which payment of pension can be made to the Applicant in respect of this application.
The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing. The following documents were tendered as evidence on behalf of the Applicant –

Statement of the Applicant, dated 15 December 1999 (exhibit A);
Medical report of Dr A Dinnen, consultant psychiatrist, dated 8 December 1999 (exhibit B);
Statement of P Kalaydjian, dated 6 December 1999 (exhibit C);
Request from Defence Support for severance benefits, dated 19 January 1998 (exhibit D);
Computerised records of the Applicant's sick leave between 27 May 1991 and 3 February 1998 (exhibit E).

The following documents were tendered as evidence on behalf of the Respondent –

Medical report of Dr R Lewin, psychiatrist, dated 27 January 2000 (exhibit 1);
Medical reports of Dr R McEwin, medical practitioner, dated 8 February 2000 and 23 February 2000 (exhibit 2);
Medical records from Dr J Thomas, Malabar Medical Centre (exhibit 3);
Employment Separation Certificate (exhibit 4);
Letter from Department of Defence to the Applicant dated 2 March 1998 (exhibit 5);
Election by Applicant for Voluntary Redundancy (exhibit 6).

The Applicant is seeking payment of pension at the Special Rate. Section 24 of the Veteran's Entitlements Act 1986 ("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
either:
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
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
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 or wages, or of earnings on his or her own account, by reason of that incapacity 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; or
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.
(2A) ….
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 Applicant was born on 31 January 1934, and at the application date he was aged 64 years. He had been employed by the Department of Defence as a storeman since he was discharged from the Regular Army in 1982 where he had served for the previous 30 years. His civil employment with the Department of Defence was terminated on 5 February 1998 having been paid in respect of a voluntary redundancy.
The Applicant suffers from post traumatic stress disorder (PTSD) and bilateral sensorineural hearing loss, which have been accepted as service-related disabilities. The Applicant has been in receipt of disability pension at 80 percent of the General Rate in respect of those conditions. He lodged an application for increase in disability pension on 19 March 1998, noting that his treating psychiatrist Dr Keshava, and his local medical officer Dr Thomas, both considered that because of his PTSD he was "totally and permanently incapacitated for work" (T3).
The Applicant has been attending Dr Keshava regularly every four to six weeks since January 1995. Dr Keshava noted in his report dated 12 March 1998 (T4) that the Applicant's PTSD had gradually deteriorated during the period since 1995 despite anti-depressive medication. Dr Keshava said –
He is losing his temper frequently and arguing with people for insignificant reasons. His blood pressure is unstable and his physical health was deteriorating. He was not fit to continue in his job and he took redundancy when it was offered to him.
In my opinion he is totally and permanently incapacitated and he is not fit for any employment….
The Applicant's oral evidence to the Tribunal was that for about a year before he left work, Dr Keshava had told him that he should cease work and his response was that he "would think about it". He said that he had received the same advice from his local doctor, and he provided the same response.
The Applicant stated that for some time his ability to perform his work accurately had deteriorated, that from time to time he was called to the office of his supervisor to be told that his work was not satisfactory and that his errors were proving to be very expensive to his employer. He said that he became upset and abusive when told about these problems, but when he thought about it he realised that he was not coping with his work. He explained that he was required to pack, address and despatch expensive serum to many places across the globe, and that if it did not reach its proper destination on time it could not be used. His errors had caused this to happen, apparently on a regular basis. He said that his supervisor had raised with him whether he might take a redundancy, and again the Applicant replied that he "would think about it". It was difficult to gain a clear understanding from the Applicant about the specific time line over which these various recommendations to cease work had been made to him. In any event, ultimately he came to the conclusion that he could not cope, and at about that time his employer raised with him the possibility that he could receive a redundancy.
Paul Kalaydjian, the Stores Supervisor at the Applicant's employment, provided a written statement dated 6 December 1999 (exhibit C) in which he said –
I was aware that Mr Law was becoming increasingly affected by stressful workplace circumstances, which in turn contributed to his deteriorating work performance. I believe his own commitment to doing his job well further contributed to the pressure he was feeling as a result of the increased number of errors in his work. As time progressed, I observed changes in his usual calm and friendly personality. He lost patience more frequently with his fellow workers and became much less able to contribute to duties requiring teamwork. This was perhaps the most noticeable change in his behaviour as he had always been helpful in the past, but he became increasingly irritable with other workers and tried to avoid dealing with them.
It was the Applicant's evidence that after the issue of a redundancy had been raised with him by his employer there appeared to be a considerable delay in finalising the matter. The Tribunal notes a document from Defence Corporate Support (exhibit D) to the "Paycell" of the Department of Defence dated 19 January 1998 stating –
1.        Could you please provide severance benefits for the personnel listed below:
          Mr V Law                   502-26817
          …..
2.        The proposed exit date is 5 February 1997 (sic)
3.        These members have previously received estimates with a proposed exit date of 29 Mar 97, however due to the procrastination of Navy program the redundancies have been delayed until this year.
4.        Your co-operation in satisfying this request so that members can receive financial advice prior to their exit from the APS is appreciated.
….

The Applicant's exit date ultimately was 5 February 1998 (exhibit 6). This evidence supports the Applicant's oral evidence that his employer took a long time to finalise the redundancy, and significantly he also said that ultimately he had decided that he would "just go" regardless of whether the redundancy was finalised. In fact, however, the redundancy was finalised before he left, and he received an amount totalling approximately $31,000. He said that his annual gross income when he ceased work was $24,000 or $25,000. He now also receives superannuation payments of $440 gross per fortnight.

The Applicant said that after he ceased work he tried to obtain other stores work for the first five months, and made about six applications none of which were successful. However, his oral evidence was that he now does not think that he could undertake work as a storeman even for eight hours per week.
The Applicant said that his wife works four days a week. Although he does the vacuum cleaning at home from time to time, his wife still does most of the house cleaning and all the cooking. He sweeps up the leaves in their garden every three days for about half an hour, and tends to the pot plants two or three times a week for about half an hour. Apart from this he watches television. He is unable to concentrate on reading. He goes shopping with his wife about three times a week but not alone. He does not drive now, but goes for a drive with his wife occasionally. At the suggestion of Dr Keshava he plays golf about once a month at the Malabar RSL. He does not see the people with whom he plays golf at any other time, and resists his wife's suggestions that he attend the RSL club. He said that he drinks 4 or 5 stubbies of beer a day and a few whiskies. He starts drinking about 11 am after the family goes to work. When he was at work he used to drink during the lunch break, until his employer "clamped down on that".
The Applicant said that since ceasing work he still has trouble "with nerves". He cannot sleep at night, and has "aches and pains". He has no ambition to do anything. He has difficulty concentrating and remembering things. He gets upset every couple of days. He "sits at home mostly".
A medico-legal report was obtained on behalf of the Applicant from Dr Dinnen, psychiatrist (exhibit B). Dr Dinnen noted the following history –
… He said he had been working for the Department of Defence in their medical and dental stores at Randwick Barracks for about 15 years. He said he retired "through me health". He said he couldn't handle the job. There was too much pressure on him. He argued with workmates and bosses and "any little thing would upset me – there should be a letter (in the file) from the head lady".
The patient told me he had been upsetting all the people at work. He couldn't work long hours. He said he was packing serums which was a delicate job and "you have to be on the ball". He said that sometimes supplies were sent back and they received telegrams saying that they had not been packed properly and because of this he was "losing me confidence". He retired in February 1998.
The patient said since his retirement he has been "not too bad". He said he occupies himself by seeing his doctor, and "sticking around the house all the time". He was not sure what medication he was taking for his nervous condition. He had meant to bring the label with him to show me but he forgot it and had left it on the table.
The patient said that he had to have his son come with him because "I get lost in the crowd". He said he doesn't drive because he "couldn't handle it". He had had a few accidents years ago in Brisbane and rolled a car over twice. In any case he said he wouldn't get a license now because his nerves are too bad. He said he cannot concentrate on reading. He travels by public transport.
I asked the patient about his alcohol use. He said he drinks a fair bit, four or five schooners every second day. He said he has cut back on drinking because it affected the family. He was drinking five or six schooners every day until about a couple of years ago "when I started to get aggro with the family".
The patient told me he and his wife don't sleep together because "I wake up and scream out a bit". ….
Dr Dinnen opined that the Applicant was not capable of working more than 8 hours a week because of his psychiatric condition alone. He noted that the Applicant's psychiatric condition affected his motivation, his level of interests and general enthusiasm, all of which were "clearly deficient". Moreover, Dr Dinnen did not expect any significant improvement in the Applicant's condition.
The Respondent obtained medico-legal reports from Dr McEwin, occupational physician, dated 8 and 23 February 2000 (exhibit 2). In his report of 8 February Dr McEwin wrote –
The history was difficult to obtain. Mr Law says that he gets very stressed because of his post traumatic stress disorder. This occurred this morning because he had difficulty in finding my rooms at 2 Bligh Street, Sydney and thought he would be late. This caused him to get upset. He said he found it difficult to remember things when he was upset and he was unable to remember some facts which I would have expected him to retain, for instance the year he left the Army and went to the Department of Defence store at Randwick. As the interview progressed over about an hour he settled and was able to give rather more information. When he left he asked me if I had given him back some papers (which I had done). He asked me this in my consulting room twice and then as we walked down the passage towards the exit from my rooms he asked this again, getting the papers out of his pocket to make certain he had them. In these circumstances the history I was able to obtain was less than I would have liked to have done.
Dr McEwin also noted that the Applicant gave a better history to Dr Dinnen than he did to him. Dr McEwin noted that the Applicant did not tell him, but he did tell Dr Dinnen, that he retired because his health was such that he could not handle the job, and that he argued with his work colleagues. Dr McEwin noted that the Applicant also suffers from hypertension, gout, neck pain, lumbar spondylosis with right sciatica, and supraspinatus tendonitis in each shoulder. Dr McEwin delayed providing an opinion on the Applicant's fitness for work until he received the report from Dr Lewin, psychiatrist, in respect of the Applicant's PTSD. However, he said –
It is my view that he left his employment for various reasons, one of which was his age. He worked until the age of 62 and in my view he does not qualify for the Intermediate Rate or the Special Rate as the reason for him leaving work may have been partly due to his post traumatic stress disorder but was also due to degenerative changes he has in the shoulders, the lumbar spine and the cervical spine.
On 23 February 2000, having seen the report of Dr Lewin, Dr McEwin noted that Dr Lewin did not think that the Applicant's PTSD was the cause of his leaving his job. He noted that Dr Lewin disagreed with Dr Keshava, and preferred the opinion of Dr Lewin. He did not state the basis of his disagreement with Dr Keshava. He noted Dr Lewin's opinion, apparently with approval, that the Applicant would be fit to work in a similar capacity to the job from which he retired.
Dr Lewin, psychiatrist, provided a report dated 27 January 2000 (exhibit 1) at the request of the Respondent. He noted the reports of Dr Keshava and Dr Thomas, the latter stating that the Applicant had become progressively depressed and withdrawn and that he had been advised to retire on medical grounds. He also noted that the Applicant had taken a voluntary redundancy package. At the time he wrote his report he had seen Dr Dinnen's report. The Tribunal assumes, therefore, that Dr Lewin was aware of the history taken by Dr Dinnen and Dr Keshava about the difficulties experienced by the Applicant with his work before he retired. However the only history recorded by Dr Lewin in his report regarding the Applicant leaving work was –
He noted that he took the redundancy because he wanted to finish work and because there was an offer of a substantial redundancy payout. He told me that he had "had enough". Mr Law noted that the redundancy payout has been used for living expenses.
At the present time he receives his service pension and a small supplementary pension. His wife is working on a full time basis and his two sons contribute to the family finances. He has been living off his savings. He does not have any superannuation. Mr Law told me "I live from day to day".

The Tribunal notes that the main focus of Dr Lewin's report was the Applicant's Army history and psychiatric symptoms, and after much consideration he concluded that the diagnosis of PTSD was the "best fit". Greater emphasis was placed on the diagnosis than on the effect of the PTSD on the Applicant's work capacity. Dr Lewin noted, however, that –
He told me that he was ready to retire, that the financial offer was made and that he'd had enough.
Dr Lewin was "reluctant" to consider the Applicant's PTSD as permanent, and thought that there was "a reasonable likelihood" of a response to treatment, both in respect of the Applicant's significant drinking problem and his depressive symptoms. Dr Lewin said –
I note that Mr Law has had some degree of deterioration in his symptoms over the last several years but that he has coped with significant symptoms over many years before this. It appears most likely that his decision to retire was based largely on the opportunity which became available when voluntary redundancy was offered. In my opinion he would be fit to work in a similar capacity at this time should such an opportunity arise.
Finally you asked whether complaints regarding loss of self confidence, difficulty concentrating, argumentativeness etc, could be related to his psychiatric condition. I think that this is most likely.
In my opinion his decision to cease work was not substantially based upon the psychiatric condition although this is a factor which played some part. The essential reason in ceasing work were much more practical reasons as described above. In my opinion he was fit to work at least most of the time in the months prior to cessation of work although there was some limitation.

submissions

The Applicant sought to rely on the ameliorating provisions of s 24(2)(b) of the Act, but counsel for the Applicant also submitted that the evidence would allow the Applicant to succeed on s24(1)(c) alone.
The Respondent's case was that, relying on the report of Dr Lewin, the Applicant was able to work more than 20 hours per week and therefore did not meet the provisions of either s 23 or s24(1)(b). It was submitted that the Applicant could have worked for the additional 11 months until his anticipated retirement at age 65 years.
It was submitted for the Respondent that because of their severity the Applicant's numerous non-service-related physical conditions must be seen in their entirety in relation to his decision to retire; all his physical problems were considerations in his decision to leave work. Additionally, it was submitted for the Respondent that there was a clear financial advantage to the Applicant in leaving work when he did. He received the redundancy payment which exceeded the amount he would have earned had he remained until aged 65 years and he also received a superannuation pension. He was financially better off by retiring rather than continuing in his employment. It was submitted that this had to be a factor in the Applicant's decision to leave work when he did and therefore he was precluded from meeting the requirements of s 24(1)(c) of the Act. It was submitted that the decision of the Federal Court in Forbes v Repatriation Commission (2000) 171 ALR 131 was authority in support of the Respondent's case.
In this regard it was submitted in reply for the Applicant that these sort of matters turn on their own facts, and that he relied on the test in Fry v Repatriation Commission (1997) 47 ALD 776.
consideration of evidence and findings of fact
The Tribunal finds that the Applicant was a genuine and honest witness who gave his evidence to the best of his ability. However, it was not easy to obtain a comprehensive view of his position without considering it in the context of the history he provided to the respective doctors over a number of years. Indeed, taking into account all the evidence, the Tribunal finds that the Applicant was a poor historian.
In respect of the test in s 24(1)(b), the Tribunal finds on the evidence of Dr Keshava, Dr Thomas and Dr Dinnen that because of the Applicant's PTSD, he is unable to work for eight or more hours per week. Indeed, the Tribunal is of the view that the Applicant is unable to undertake any work because of his PTSD. It is quite unrealistic to expect that the Applicant is capable of work as a storeman when he has a demonstrated inability to concentrate sufficiently to ensure that he does not make mistakes. Moreover, it is quite unrealistic to expect that he can continue to work in an environment where he is regularly having disagreements with his peers and his supervisors. The fact that the Applicant did not actively seek a less stressful job in the Department of Defence does not go against his case. The Tribunal is reasonably satisfied that by the time he was not coping with his work the effect of his condition was such that his irritability and lack of concentration would have precluded satisfactory performance in any other stores work that might have been available had he sought it.
The Tribunal notes from the clinical records of Dr Thomas's practice (exhibit 3) that the Applicant was regularly consulting his doctor in respect of a range of his physical problems. However, from his sick leave records (exhibit E) there are but a few specific references to any of these physical conditions as reasons for his taking sick leave. On the other hand there is regular reference to sick leave for "war service related" conditions, particularly from 1995 onwards. While the Respondent's representative in cross-examination ascertained that the Applicant has had considerable problems with some of his physical conditions, there was nothing in the Applicant's evidence to support the submission made on behalf of the Respondent that the Applicant's physical conditions were part of the reason why he decided to leave work. The Tribunal is reasonably satisfied that the Applicant's physical health problems, while serious and disabling from time to time, were not implicated in his decision to retire. The deterioration in his shoulder condition and subsequent surgery was after the application date, and does not become a factor to be taken into account by the Tribunal.
The Tribunal is not persuaded by the opinion of Dr Lewin about the Applicant's ability to continue to work or that he ceased work for a range of reasons only one of which was his PTSD. While at the time of his interview Dr Lewin had access to the history obtained by Dr Keshava and Dr Dinnen, there is no indication from his report that he attempted to verify or clarify any of that history. On the other hand, the history he recorded about the Applicant's decision to retire is glib and very limited. Having noted the way in which the Applicant gave his evidence at the hearing and the difficulties recorded by Dr McEwin in obtaining a reliable history, the Tribunal concludes that Dr Lewin had similar difficulties and also apparently failed to take account of the history obtained by others insofar as he made no reference to it. Likewise, the Tribunal is not persuaded by Dr McEwin's opinion, which relied essentially on Dr Lewin's report. Although Dr McEwin preferred Dr Lewin's opinion to that of Dr Keshava he made no attempt to establish the basis for that preference.
It is clear that the Respondent's concern, at least in part, is the fact that the Applicant ceased work only 11 months before he turned 65 years of age. Although there is no evidence on this issue, there is apparently an assumption by the Respondent that the Applicant would have retired at the age of 65. Whether or not that was the case, the evidence before the Tribunal is that he did not, and could not, continue to work beyond the time when he ceased. On his own evidence, which the Tribunal accepts, the Applicant reached the stage while waiting over a protracted period while the redundancy issue was clarified by his employer, and that he would leave whether or not he received the redundancy payment. On his evidence, the Applicant received the advice from his local doctor and Dr Keshava that he should leave work, but rather than accepting that advice immediately it appears that for quite some time he "decided to think about it". Particularly because of the nature of his PTSD, his inability to continue to work did not present as a stark and unequivocal event. It was insidious and that meant that he was able to continue to attend work, making errors in that work and having significant conflict with his peers and supervisors in the process, while he waited for a decision about the redundancy.
The Tribunal notes, too, that on the Applicant's evidence it was his employer who initiated the idea of a redundancy payment. It would be an unusual person who would reject such an offer in the circumstances. There is no doubt that the Applicant has been financially advantaged by the redundancy payment. However the Tribunal does not consider on the evidence that the Applicant was motivated to leave work, at least in part, because of the redundancy payment he would receive. He wanted to leave work because he could not cope with it as a result of his PTSD, and the Tribunal finds that there was no other factor that contributed to his decision. But for the Applicant's PTSD he would not have sought the redundancy, and would not have been prevented from continuing to undertake his remunerative work, thereby suffering as a consequence, a loss of salary or wages that he would not have been suffering if he was free of his PTSD.
The Tribunal has considered the decision of Nicholson J in Forbes to which the Tribunal was referred by the Respondent. The Tribunal notes that matter related to the issue of non-accepted disabilities from which Mr Forbes suffered in addition to his war-caused disabilities. The Tribunal had found that pain and disability from non-accepted disabilities also contributed to Mr Forbes' loss of earnings even though his war-caused disabilities had a more substantial effect in preventing him from engaging in remunerative work. His Honour rejected the submission for the appellant that in order for the non-accepted disabilities to be taken into account in s 24(1)(c) they had to be conditions "by themselves" that prevented the person from continuing to undertake the remunerative work that he was undertaking.
The Tribunal would distinguish Forbes from the case now before the Tribunal in that in this matter the Tribunal has found that while the Applicant's non-service-related conditions were serious they were not implicated in preventing him from working. Although the Respondent's representative referred the Tribunal to Forbes as authority for the Respondent's case regarding the redundancy payment, the facts in Forbes have nothing to do with that issue. The Tribunal accepts the submission of Counsel for the Applicant that its decision in this matter turns on the facts.
The Tribunal concludes that the Applicant meets the requirements of s24(1)(c) without needing to have recourse to the ameliorating provisions of s24(2)(b). However, in the alternative, the Tribunal also notes that the Applicant had not reached the age of 65 years at the application date, he was genuinely seeking to engage in remunerative work for some months after he lodged his application for increase, and but for his PTSD he would have continued to seek remunerative work, and that his PTSD was the substantial cause of his inability to obtain remunerative work. Therefore the Applicant also meets the provisions of s24(2)(b) as they apply to s24(1)(c).
The Applicant is already assessed at 80 percent of the General Rate and therefore he meets the requirements of s 24(1)(a) of the Act.
The decision under review is therefore set aside and in substitution the Tribunal decides that the Applicant is entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate pursuant to s24 of the Act, with effect from 19 March 1998.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  29 June 2000
Date of Decision  5 July 2000
Counsel for the Applicant        N. Dawson
Solicitor for the Applicant         R L Whyburn & Associates
Counsel for the Respondent    N/A
Solicitor for the Respondent    S.Modder, Dept.of Veterans' Affairs