Maxwell John Woodall and and Repatriation Commission - [2012] AATA 803

Division	VETERANS’ APPEALS DIVISION
File Number	2011/2470
Re	Maxwell John Woodall
APPLICANT
And	Repatriation Commission
RESPONDENT

DIRECTION

Tribunal

Mr John Handley, Senior Member

Dr Kerry Breen, Member

Date

20 November 2012

Place

Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the Reasons for Decision in this application by deleting the first line after the certification which reads Date(s) of hearing 22, 23 & 24 May 2011 and replacing it with Date(s) of hearing 22, 23 & 24 May 2012.

……[sgd]….……

Senior Member

[2012] AATA 803

Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/2470
Re	Maxwell John Woodall
APPLICANT
And	Repatriation Commission
RESPONDENT

Decision

Tribunal	Mr John Handley, Senior Member Dr Kerry Breen, Member
Date	16 November 2012
Place	Melbourne

The decision under review is affirmed.

............[sgd].......................................

Mr John Handley, Senior Member

VETERANS’ AFFAIRS – Veteran was receiving pension at 50 per cent of the general rate -VRB found generalized anxiety disorder and hypertension war caused and remitted the application for assessment of pension entitlement – applicant had been in full time employment and declared redundant – respondent decided an entitlement of temporary special rate and notified applicant it would revert to 100 per cent of the general rate at a future date – applicant advised to make claim for an increase in pension if he considered his service disabilities had not improved -that application was made – respondent not satisfied applicant was incapacitated by war caused injuries alone – decision made to pay pension at 100 per cent of general rate – that decision reviewed in this application – applicant made more than 70 job applications, all unsuccessful -whether those applications made within the assessment period – whether entitled to the benefit of s 24(2)(b) – incapacity not by war caused injuries alone – decision affirmed.

Legislation

Veterans' Entitlements Act 1986 ss 24(1)(c), (2)(b), 25

Cases

Willis v Repatriation Commission (2012) 202 FCR 323

Leane v Repatriation Commission (2004) 81 ALD 625

REASONS FOR DECISION

Mr John Handley, Senior Member
Dr Kerry Breen, Member

16 November 2012

Introduction

Mr Woodall, the applicant in this review, was a member of the Australian Army for 21 years between 1974 and 1995. He was engaged in operational service in Cambodia for 11 months between 1992 and 1993. When he was discharged from the regular Army he served as a member of the Army Reserve until December 2008.
The applicant has the accepted disabilities of generalised anxiety disorder (GAD) and hypertension (refer paragraph 5 below); sprain or strain of the left foot and ankle; displacement of intervertebral disc; tinea and sensorineural hearing loss and tinnitus. The conditions not accepted by the respondent are chondromalacia of the patella; alcohol dependence; gastro-oesophageal reflux disease and tobacco use disorder.
The parties agree that the displaced intervertebral disc is found at the L3/4 level. The applicant has also been diagnosed as suffering from lumbar spondylosis. The applicant contends that condition is a consequence of the traumatic (and accepted) L3/4 displacement. The respondent contends that lumbar spondylosis has never been the subject of a claim for acceptance and consequently a decision has not ever been made that is capable of review. This issue will be discussed later in these reasons.

The application

An argument advanced at the outset of the hearing by Counsel for the applicant was relatively unusual and the issues raised by it require elaboration.
On 4 November 2007 the applicant, who was then receiving pension at 50 per cent of the general rate, claimed acceptance of the conditions of GAD and hypertension. That application was refused by the respondent on 27 May 2009. The Veterans Review Board (VRB) decided to set aside that decision and found those conditions were war caused. It decided to remit the application to the respondent for assessment of pension entitlement (T3 p.1-16).
A delegate of the respondent decided on 4 September 2009 to assess pension for a limited past period at 100 per cent of the general rate and thereafter he would receive temporary payments of pension at the special rate, for a limited period into the future (s.25 of the Veterans’ Entitlements Act1986 (the Act)). At the expiration of that period, it was decided that pension would be paid at 100 per cent of the general rate. The applicant was notified that if his service disabilities had not improved, he should claim increased pension before the expiration of the temporary period of special rate payments.
The applicant made a claim later for increased pension. It was rejected and it was decided that he had an entitlement to pension at 100 per cent of the general rate. The VRB on review affirmed that decision. This application is a review of that decision.
The following chronology of relevant events will, hopefully, assist comprehending the events which gave rise to this application. It may also assist comprehending a submission made by Counsel for the applicant at the commencement of the hearing.

4 November 2007      The applicant claimed acceptance of GAD and hypertension. The claim was refused by the respondent on 20 March 2008.
27 May 2009              The VRB set aside the decision of the respondent. It decided GAD and hypertension were war caused and remitted the application to the respondent to assess pension entitlement (T3 p.1-16).
27 July 2009              The applicant completed a form (T4 p.17-25), the first 2 pages of which are missing from the T documents. It asks the applicant to complete a number of details concerning his disabilities and the effect of them on his lifestyle (the index to the T documents describes this form as a Lifestyle Questionnaire). He also completed an employment questionnaire (p63-70). A number of other documents were completed at or about the same time from the applicant’s general practitioner (p.28-38), an audiologist (p.26-27), his treating psychiatrist (p.39-50), a medical officer of the respondent, who reviewed the medical and other material and completed a GARP assessment (p.51-62) and a questionnaire completed by an officer of the former employer (p71-74). Some of the above documents were addressed to the delegate of the respondent who eventually made a decision on 4 September 2009 (see below). These documents were completed and forwarded to the respondent as a consequence of the remittal by the VRB.
26 August 2009          The applicant lodged an application in this Tribunal (2009/3991) to review the decision of the VRB made on 27 May 2009.
4 September 2009      A delegate of the respondent decided that pension is increased to 100 per cent of the general rate with effect from 5 November 2007 (being the day after he claimed acceptance of GAD and hypertension-refer paragraph 2) and thereafter the applicant be paid Temporary Special Rate with effect from 11 October 2008 (the day after the applicant ceased employment) until 17 August 2010 (Exhibit A10). The respondent’s delegate advised the applicant that after this period your pension will automatically be reduced to 100 per cent of the General Rate unless a later decision indicates otherwise. If you consider that your service related disabilities have not improved you should lodge an application for increased pension about 6 to 8 weeks before the end of your Temporary Special Rate period.
29 July 2010              The applicant claimed special rate pension pursuant to s.24 of the Act (T12 p.82-91). We assume that application was made in response to the advice given by the delegate on 4 September 2009.
10 September 2010     The applicant withdrew his application lodged on 26 August 2009.
22 November 2010     A delegate of the respondent decided the applicant did not have an entitlement to Temporary Special rate pension with effect from 16 December 2010 from which date he would be paid pension at 100 per cent of the general rate (T15 p. 131-136).
29 November 2010     The applicant applied to the VRB to review the decision of the respondent of 22 November 2010 (T17 p.138).
25 May 2011              The VRB decided to affirm the decision made on 22 November 2010 (T2 p.v-xiv). This is the decision under review in this application.
24 June 2011              The applicant lodged an application in this Tribunal to review the VRB decision made on 25 May 2011 (T2 p.iii).

It was submitted that the temporary payments of special rate pension, (paid between 11 October 2008 and 16 December 2010) was an allowance and the assessment period should be found as having commenced on 29 July 2009 when the applicant claimed special rate pension (pursuant to s.24 of the Act). It was also submitted that the application made on 29 July 2010 was not a new application but an application for continuation of the application initiated in 2009 when the respondent conceded, by the decision of 4 September 2009 that the applicant was seeking work. Mr Thompson said the applicant would give evidence that he had been genuinely seeking to engage in remunerative work because he made between 70-100 job applications from October 2008 until August 2009 (Transcript p3).
The above submission is, with respect, misconceived.
The respondent’s delegate did not concede that the applicant was seeking employment when he made the decision on 4 September 2009. There is nothing in the decision which indicates the delegate turned his mind to that issue. The substantial decision then made was to allow payment at the special rate, temporarily, for a limited period because, although satisfied the applicant was incapacitated at 4 September 2009, the delegate was not satisfied he would be incapacitated permanently. The delegate decided that if the applicant had treatment for twelve months he may continue in some form of employment. Optimistically, the delegate decided that once he returns to work he should be able to return to full time work (Exhibit A10 p.4).
The delegate also decided that the temporary payments at the special rate would end at a future date. That is, the applicant only had a temporary entitlement to payments for a limited (temporary) period, as s.25 of the Act contemplates. It was decided that those payments would end at a future nominated date and the applicant would thereafter be paid at 100 per cent of the general rate.
Accordingly the delegate notified the applicant that if he considered that his service related disabilities have not improved he should lodge an application for increased pension before the temporary special rate payments ended.
The respondent became satisfied that the applicant was not permanently incapacitated by his service injuries alone (which would have given an entitlement to payments under s.24) and decided on 22 November 2010 that payments should revert to 100 per cent of the general rate. The reasons for that finding are found at p135 of the T documents (being findings we will consider later in this decision).
That is the decision the applicant challenged at the VRB. When it affirmed the decision of 22 November 2010, he sought review in these proceedings. That decision of the VRB, made on 25 May 2011, is specifically pleaded in this application as the decision sought to be reviewed.
The practical effect of seeking a finding of the assessment period commencing in July 2009 would be to bolster the applicant’s case by the decision of the Full Federal Court in Leane v Repatriation Commission (2004) 81 ALD 625, where at [32] the Court found that if a veteran had genuinely been seeking to engage in remunerative work during an assessment period he could obtain the ameliorative benefit of s.24 (2) (b) of the Act.
An assessment period commences on the assessment day being the day that a claim is made on the Department of Veterans’ Affairs and concludes when a claim is determined. (refer s.19 (9) of the Act).
But a claim was not made in July 2009. The applicant then completed a lifestyle questionnaire to permit the respondent to assess his pension entitlement as a consequence of the remittal by the VRB in its decision of 27 May 2009. The decision made on 4 September 2009 was a consequence only of the remittal, not by any claim in July 2009.
For the above reasons, we are satisfied that the assessment period commenced on 29 July 2010. It was that claim which caused the respondent to make its decision (T15 p.131 and 133) on 22 November 2010 and in turn caused the applicant to seek review, initially by the VRB and subsequently in this Tribunal.

The evidence

The applicant

The applicant was born in 1957 and was 53 years of age at the date of claim (the assessment day). He is presently 55 years of age.
At the commencement of the hearing he adopted a statement prepared by his solicitors, which was received as Exhibit A1. The statement recorded that following his discharge from service in 1995 he

obtained salaried employment managing a fleet of rental forklifts for about 2 years. He was then unemployed for about 6 months and found employment with UCI Furniture, managing one of its warehouses in West Melbourne, until he was made redundant on 10 October 2008. He has not subsequently found work, although many job applications have been made;
was the only warehouse employee with UCI for many years and his work involved heavy lifting, liaison with customers and suppliers and supervising sub- contractors;
was frequently in conflict with the Victorian manager, Mr Chadband, and with the project manager and sales representatives. On occasions he lost his temper with customers and suppliers and was given warnings about his behaviour at annual performance reviews;
was having increasing difficulty coping with manual work because of back (and, to a lesser extent) ankle pain which exacerbated his anxiety disorder;
was made redundant on 10 October 2008, without notice, for the reason of relocation of dispatch functions from West Melbourne to a warehouse in Tullamarine (Exhibit A3);
did not believe the reason given to him for redundancy, rather he believes he was targeted ;
has made more than 70 job applications between 10 October 2008 and August 2009. He received 5 responses to his applications and was interviewed on 3 occasions. He disclosed his back injury (only when interviewed) and believed he did not present well in interviews because of his anxiety. He did not ever receive written reasons declining his applications. One potential employer, a furniture business in Epping, gave oral reasons for declining his application, which he did believe;
agreed he did drink alcohol to excess but on weekends only and it did not affect his work;
has been over weight for many years and the references by the VRB in its reasons to his obesity are irrelevant to his capacity to have been engaged in employment.

In evidence, the applicant said that UCI completed fit outs of commercial offices, mainly in the CBD of Melbourne and supplied furniture. It contracted with suppliers and whilst it preferred to have materials and furniture transported directly to site, inevitably there were delays obtaining access to office sites and materials were stored in the UCI warehouse in Spencer Street West Melbourne, where he worked.
The applicant was engaged by UCI as its warehouse manager. For many years he was the only employee in the warehouse. His employer had a turnover of approximately $20 million in his last year of work. He was always busy and although he was mainly responsible for liaison with customers and suppliers he was frequently engaged in heavy manual lifting. In 2007, two persons who were previously engaged as sub-contractor truck drivers, Lindsay Arnell and Michael Davies, were employed on a full time basis and were given responsibility for customer service. The applicant understood they were engaged and fulfilled that role because UCI was concerned about his conflict with and agitation towards customers and suppliers which he attributed to his anxiety disorder. Thereafter the applicant was engaged more frequently with heavy lifting and manual handling.
Unfortunately, the warehouse did not have shelving or storage bays for the materials and was described as an open warehouse (Transcript p.17). That caused inefficiencies, as the applicant described, because materials were stored where ever space could be found. Often materials had to be relocated within the warehouse, which the applicant said caused risk of damage and there was also an occupational risk to him of injury by repeated manual handling.
Additionally, the applicant said the employer did not provide any lifting equipment. The applicant said he had requested a pallet jack for the last five years of his employment. Unloading of delivery trucks and storage of materials and furniture was therefore undertaken manually, by him. A pallet jack was available at another UCI warehouse across the road however the applicant said it was quicker to manually unload a truck than to obtain the pallet jack, bring it to his warehouse and return it.
The applicant told us of his frustration with UCI management which he said was responsible for inefficiencies. He said he would frequently become angry because of persisting back pain which he said arose out of heavy lifting. He said he would yell and scream (Transcript p.19) because of pain which he described as spasms in his lower back and left leg and which caused him to visit an osteopath, sometimes up to three times per week, after work. He also had time off, estimated at two days every six or eight weeks, because of back pain.
The applicant said he was anxious about getting the job done properly and getting things squared up because the military was precision. And that’s what I was built on, you know. (Transcript p.21) (The applicant told us in cross examination of his extensive qualifications, including conferral of a number of Diplomas during service, which are also recognised by industry and of his practical experience in the Army in logistics and transport. Additionally he has prior experience in vehicle fleet management and transport supervision, including responsibility for a fleet of 190 vehicles in Cambodia (Transcript p.42-43).
A number of documents were received from the employer’s personnel file (Exhibit A2), one of which included a copy of a performance review conducted by Mr Chadband of the applicant in February 2008. The applicant said the performance reviews had been conducted in each of the previous 6 years of his employment. During that time, issues concerning management of the applicant’s anger and storage of stock in the warehouse were reviewed. On those occasions, the review concluded that the applicant needed to curb his anger and manage it. The applicant said he had tried to improve but frustration and worry just took it out of me (Transcript p.23).
The review of February 2008 recorded, against the criteria of Attitude, that his performance since last review, was improving. Against the criteria of Issues affecting performance, is the entry improvement of information from Project Management, which the applicant said was a reference to his preference of having sites ready to take delivery of product, rather than having materials and furniture stored in the warehouse and then delivered later (which was a source of his frustration) because that involved double handling and him having to carry heavy weights. Against this criteria is also recorded Pallet Jack – store. Look at loading!! which the applicant said was a reference to his complaint of the absence of mechanical handling equipment. That was a persisting complaint, by the applicant, of poor work practices in the warehouse.
The performance review recorded items being Initiatives for 2008- identify stock and label; cleaner store environment and OHS – committee. The applicant said these issues were relevant to the labelling of stock which identified the intended site for delivery and installation; appropriate shelving and racks for storing stock and painting lines on the floor to ensure adequate access is reserved to obtain stock and establishing an occupational health and safety committee because no such committee existed and the need for management to be aware of safety issues. The applicant said that management of UCI had never worked in a warehouse in their life and employees who did work in the warehouse were not invited to inform them of health and safety issues (Transcript p.26-27).

The applicant said he participated, as the warehouse manager, in an operations meeting each month with Mr Chadband and other UCI managers. He agreed that there were occasions when he was riled and he regarded the attitude of some of the managers as high falutin. He regarded some of the work practices instigated by the managers as (them) doing stupid things as in ordering wrong stuff. The delivery of product by suppliers prior to installation at sites continued to irritate him (Transcript p.34).
Later, in re-examination, in terms of his anger management, the applicant said the military was straight down the line whereas the other place was a – well, I shouldn't say it – but it was a mess. He said that he was able to cope in 1997 when he started because he was then looking for work and he wanted to work… I put up with anything (in) the first few years, and then I made my statement and whatever. I got more vocal as the years went on. When asked why he became more vocal the applicant said Just through frustration and nothing happening with suggestions or, you know, stuff like that. (Transcript p.61).
This issue was pursued in re-examination. In the context of reports in his personnel file from superior officers in the Army Reserve, especially in his ability to impart knowledge and experience to other persons, it was suggested to the applicant that must have taken some patience to interact with people. The applicant said Yes, very much so. But I had the knowledge. The knowledge is the biggest factor you can, (have) I believe. I had the knowledge of the military, and in the military you were an identity whereas in civilian street you weren't. You are just another one in the corner. (Transcript p. 62).
On 10 October 2008 the applicant was called into a conference room in the Spencer Street warehouse and was told by Mr Chadband that he was to be dismissed from employment, effective immediately. A letter given to him on that occasion (Exhibit R3) records that the UCI business was being restructured, the position of warehouse manager at the Spencer Street site was no longer required and his position had been declared redundant.
The applicant said he had not been given any warning that his employment would be terminated. He said that Lindsay Arnell and Michael Davies were eventually given responsibility for the work that he had been undertaking and he therefore disputed that the position of warehouse manager was no longer required. The applicant said that he had been pushed out, he did not accept that his position had become redundant and he regarded that reference in the letter of 10 October 2008 as not being truthful (Transcript p.32).
The letter also records that following the review of the UCI business it was decided to move the despatch function to our Tullamarine warehouse. The applicant disputed that reference as an explanation for his dismissal from employment because UCI continued to operate in the Spencer Street warehouse for the following 18 months and then moved to another warehouse operated by them nearby. Additionally, he said that UCI did not commence to operate at a warehouse at Tullamarine until 2011, that is, three years after his employment was terminated. Indeed it was the applicant's belief that the premises occupied at Tullamarine from 2011 were not owned or leased by UCI at the time of his dismissal.
Whilst he was employed at UCI the applicant said he did not ever look for work elsewhere. He thought his employment was safe as houses. He and other employees had enjoyed a share of profits distributed by UCI in previous years and he expected, having regard to the UCI trading profit in the 2007 and his expectation of profits in 2008 that the profit share would have been even greater. The applicant said he intended to remain employed at UCI until he retired at either the age of 60 or 65.
After his dismissal from UCI the applicant said he applied to more than 70 jobs until August 2009. He applied to advertised positions that he saw in newspapers, on the Internet and on the seek.com website. The positions were essentially logistics in nature in warehouses, fleet controlling of vehicles and in transport. He only applied to positions which were advertised. He received five responses (by letter) and was given three interviews. One interview was at a furniture warehouse in Epping where a warehouse was shown to him by the owners and the applicant had the impression that they were seeking a younger person.
In the letter to the applicant from UCI notifying him of the termination of his employment, he was advised that arrangements had been made for him to be assisted by Steve Taitoko of Outplacement Support Services who has extensive experience with outplacement and his business specialises in the logistics recruitment area. The applicant said he consulted with that organisation which did not arrange any job interview for him over a period of 3 1/2 months (Transcript p.63).
The applicant said he ceased applying for work in August 2009 because the respondent then granted to him temporary payment of special rate pension. He said he had then lost confidence in being able to obtain work. He said I was expecting to go from temporary TPI to full TPI. That was why – because I never got any better. That's the way I was looking at it (Transcript p.35).
The applicant's confidence was also affected about two months after he ceased employment with UCI because he was then medically discharged from the Army Reserve. Although he had passed various physical training expectations he was obese and was regarded as being at risk because of hypertension.
The applicant agreed that shortly after he enlisted in 1974 he commenced to drink alcohol by peer pressure and by his engagement in sporting teams. He agreed that he did previously drink heavily but had considerably reduced his consumption by 1995 when he was discharged from the regular Army. He said he was never warned or disciplined nor had alcohol ever been detected in his bloodstream during service. He was responsible for maintaining a large convoy of vehicles and his consumption of alcohol never affected his service.
At the date of hearing the applicant said that he had considerably reduced his alcohol consumption. He had been prescribed Campral medication which he said takes away the urge to drink. The effect of his reduction in alcohol consumption has turned (his) life around.
He disputed an entry in a medico legal report of Dr Rose, a psychiatrist, who examined him on behalf of the respondent and who recorded that he was drinking five or six beers a day at November 2011 (Exhibit R6 p.7). The applicant said that he might have four or five drinks on an occasion of attending a hotel. He objected to a similar reference by Dr Rose to his consumption of four or five beers in a session (Exhibit R6 p.3) if that was understood as occurring daily. The applicant said he drinks alcohol once every three or four weeks, and then only if he attends a hotel for a meal (Transcript p.36). He does not drink daily (Transcript p.38) or alone or at home.
After his discharge from the Regular Army, the applicant was a member of the Army Reserve for 13 years. He was principally involved in recruiting. Initially, he served for about 50 days per year but in the last two or three years before he was discharged in 2008 he was serving between 150 and 180 days per year. He received a salary for his work in the Army Reserve. It was undertaken at the Simpson Barracks in Watsonia, at night, during the week and on weekends. He also served during periods of annual leave from UCI.
Between 2 January 2008 and 3 February 2008 the applicant was in charge of infantry mobile vehicle training, in his capacity as a qualified driving and testing instructor and officer during an exercise then known as Rolling Thunder. It required him to work every weekday night between 4.30 and 10 PM and each weekend day between 8 AM and 5 PM. That is, the applicant fulfilled his UCI employment during each weekday in this period and then completed his Rolling Thunder work at night. Accordingly, during that period he was working an aggregate of between 75 and 80 hours each week.
The Rolling Thunder exercise involved 104 personnel from 22 units across Australia. The applicant was the subject of a Minute completed by Major Durston on 25 February 2008 which recorded considerable praise of his communication and training skills. There is a specific reference by Major Durston to the applicant training him in a particular task. He recorded that he experienced his tact and faith, when he was able to guide me through a challenging task that proved he could impart knowledge beyond anything the more junior members could demonstrate, regardless of the formal qualifications they possessed. Major Durston concluded the Minute by recording that he supported the applicant being retained as a Warrant Officer in order that his capacity for instructional tasks and his willingness to be available to impart his vast experience and knowledge can only help ensure the viability of driver training within the Division. (Exhibit R2 p. 434-435).
The service records generally contain glowing references from the applicant’s superiors, especially with respect to his capacity to engage with persons under his command as an instructor and communicator. For example, on 11 April 2007, Major Singh recorded a Minute recording that the applicant demonstrates an outstanding attitude and shows dedication to his service within the GRes and the recruiting of new personnel into the GRes. In conclusion WO2 Woodall is a valuable member of the HQ4 Bde. His knowledge and experience are important vital (sic) to the Brigades recruiting capability and he is strongly recommended for retention (Exhibit R2 p.699). On 15 November 2007 - before the Rolling Thunder exercise - it is recorded, in a Soldier Performance Appraisal Report (Exhibit R2, p.310), that he is intelligent, positive, responsible and a reliable member of the cell. His interpersonal skills are very good and he contributes to the high morale within the brigade recruiting cell. That assessment is found at the conclusion of the Appraisal Report, which contains an appraisal of many different skills, all of which were given very high ratings.
The service records indicate that from 2007 the applicant was notified that he was being considered for medical discharge from the Army Reserve. Concern had been expressed by medical personnel that the applicant was obese and he was instructed to lose weight. His classification was downgraded because of it, in 2005, and he was advised that he was at risk of further downgrade unless he achieved a BMI below 33 (Exhibit R2 p.295). The applicant did lose weight but it then became apparent, by reference to some of the memoranda in the personnel file, that his hypertension was of considerable concern.
On 11 March 2008 it was decided that the applicant had not sustained any significant weight loss; he was regarded as being at significant risk of coronary artery disease by reason of poorly controlled hypertension and had a strongly positive family history of heart disease. It was also noted that the applicant has complained of low back pain which was regarded as being exacerbated by his morbid obesity. (Exhibit R2 p. 418-419).
On 1 October 2008 Brigade Major Wallis accepted findings of a medical employment classification review board (MECRB), which had been instructed to conduct a medical risk assessment of the applicant. He supported a finding that the applicant be terminated from service (Exhibit R2 p.371-372). A medical employment classification certificate was issued on 21 October 2008 recording the applicant was medically unfit in the long term (Exhibit R2 p.370).
In anticipation of the MECRB meeting, the applicant had completed a statement on 16 September 2008 (Exhibit R2 p.388) that he was doubtful that his medical condition would improve to permit him to become medically fit for deployment. He did acknowledge that his back injury was gradually getting worse and that this restricts my ability to exercise to the extent required to become medically fit for deployment however I believe that my age and in my current position there is no immediate requirement for operational deployment and this is unlikely to change in the near future. The Minutes of the MECRB meeting on 21 October 2008 recorded the above comments (Exhibit R2 page 379). (Major Singh recorded on 11 April 2007 that there was no immediate requirement for WO2 Woodall to be operationally deployed and he is unlikely to do so in the future. (Exhibit R2 p.698).
On 31 October 2008 Colonel RJ Marsh decided to terminate the applicant’s service on the basis of the finding of being medically unfit (Exhibit R2 p.371-372).
The applicant resisted suggestions put to him in cross-examination that his service was effectively ended because he had failed to lose weight and a fitness test (a BFA) expose(s) the member and the ADF to grave outcomes (Exhibit R2 p. 336).
The applicant said that by reason of his age (being more than 40 years) and his back injury he was not required to run but only to complete a 2 1/2 km walk in less than 45 minutes, which he said he achieved, without difficulty. He was also able to complete 10 push-ups and five sit ups as the BFA required for a person of his age. He said You see, they were shit scared of me falling over on a run that they had implemented. That's what it was… they were covering their behind…(Transcript p. 51).
The applicant was examined extensively concerning the ending of his employment with UCI. He reaffirmed that he was targeted for redundancy despite the contents of a letter completed by Mr Chadband (Exhibit R1) which recorded that he was not targeted for termination. That letter records that the applicant's position as warehouse manager had become redundant because of the changed nature and volume of work and the location of warehouses operated by UCI had gradually consolidated and the sites where Max used to work was no longer used for logistics or warehousing. The applicant said that the warehouse where he worked was not closed until 18 months after he left and in those circumstances he could have remained as the warehouse manager. He said I was not made redundant. I was moved on. (Transcript page 53-54)
The applicant agreed that he had said in evidence that the warehouse he managed was inefficient and there were communication difficulties between him and project managers. He disputed the suggestion put to him that UCI needed to be restructured to create efficiency. He said that at weekly meetings which had been convened for many years the inefficiencies within the warehouse had been raised by him and nothing had been implemented.
The applicant acknowledged the contents of the statement completed by Mr Arnell (Exhibit A7) that after he ceased employment his duties were absorbed by others and about three or four employees shared Max’s previous responsibilities. Nonetheless the applicant reaffirmed, whilst disputing that there was an immediate restructure, Well, 18 months it took them to move over the road. That's why – that's what I'm saying. The warehouse was still operational for 18 months once I was terminated. (Transcript page 54-55).
The applicant said that he had a good relationship with Mr Chadband. He said the company targeted me. Not Steve Chadband. The applicant agreed that that Mr Chadband was the state manager however he had other people with him. He's got a – he had a person above him at the same location …..And another bloke that came in and dismissed me. (Transcript p.56). The other person present was an external consultant engaged by the owner of UCI who the applicant said sat with a smile on his face (Transcript p.74) whilst it was Mr Chadband who notified him that he was being made redundant.
He agreed that his discussions previously with Mr Chadband (as evident from the performance assessment reports) indicated that he had accepted suggestions for improvement. When it was suggested those discussions, as recorded, might indicate they were positive, he said he regarded Mr Chadband as being a good bloke, but a soft manager. That's the way he acted. Nothing fazed him too much (Transcript p.58).
In concluding cross-examination, the applicant agreed that he perceived that potential employers to whom he had applied preferred to engage younger persons. The only occasion however – and he only received five responses to his applications and then only three interviews –where he was told that a younger person was preferred was the furniture warehouse in Epping. Additionally he thought that his qualifications –based on his military experience and training – may not have been preferred by some potential employers, he acknowledged that some potential employers may prefer a person with experience arising out of military training. (Transcript page 52-53).
The applicant agreed that he does have extensive qualifications in supervisory jobs and management of warehouses, admin, transport fleets, et cetera and if he could find employment in those types of industries without having to undertake lifting he would be quite comfortable (Transcript page 59), although in re-examination he said that he would have difficulty with prolonged sitting and standing. Additionally, he has difficulties interacting with persons and he is unable to travel on public transport. (Transcript p. 61). He said if he had difficulties interacting with other persons in a new workplace his ability to cope would be dependent on its structure and whether managers listened (Transcript page 62).

Lindsay Arnell

Mr Arnell has been employed by UCI on a full-time basis as its chain supply and logistics manager from July 2007. He was previously engaged by UCI as a subcontractor. He provided a statement dated 16 September 2011 and received as Exhibit A7.
In his statement, Mr Arnell recorded that whilst engaged as a sub-contractor, he was also the owner/driver of a truck which then completed deliveries for UCI. He would also assist the applicant to unload trucks and complete other manual tasks in the warehouse. When the applicant was absent from work he would be given the role as warehouse manager.
Mr Arnell was aware that the applicant suffered a back injury and he recalled the applicant frequently complaining of back pain. He described his back pain as chronic and was aware that the applicant frequently had treatment for it. He recalled the applicant was a jolly person but was often short tempered and irritable, was prone to outbursts and he also observed him in dispute with members of staff. He thought the applicant was frustrated by back pain.
Mr Arnell understood that the applicant was made redundant by UCI in about October 2008. About 12 months later the Spencer Street warehouse was closed and its operations were relocated to another warehouse on the other side of Spencer Street. A few years later UCI moved all its operations to a new warehouse in Tullamarine.
In evidence Mr Arnell said that it was obvious to him that the applicant suffered considerable discomfort especially in later years of his employment. Towards the end of his employment the applicant was frustrated, on a few occasions each week, which he thought was associated with the way the warehouse was operated. He was also frustrated with members of staff, including the sales representatives, who got his goat up, which they do to all of us at times. (Transcript p86,88)
In his statement, Mr Arnell recorded that one of the duties of the applicant was to liaise with customers and suppliers. He thought, based on his observations of the applicant in the workplace, that he was underperforming. In evidence he said that the responsibility of the warehouse manager was to liaise with customers and ensure supplies were delivered. He said it was perceived by other employees that the applicant was not performing to 100 per cent of his capacity in that function. He said he had not ever heard from management that the applicant was underperforming.

In evidence Mr Arnell said that the Spencer Street warehouse where the applicant worked closed about 12-18 months after the applicant ceased (Transcript p87) and all of its operations were moved across the road to the other UCI warehouse which then operated with reduced staff for about 3 years until all of its operations moved to a new warehouse in Tullamarine. He said the work that had been undertaken by the applicant was shared between 3 or 4 other employees at the other Spencer Street warehouse.
After the applicant ceased employment, Mr Arnell said that UCI was affected by the global financial crisis and it went through a period of general belt tightening. He said we went from good times to very lean times. Their staff levels are much lower than what they were, like, I presume, a lot of other places. He thought part of the strategy of ceasing to operate at the Spencer Street warehouse where the applicant was engaged was to reduce costs. He said when the applicant was employed they were very busy but later it became rather quiet (Transcript p88).
In cross-examination Mr Arnell said that the applicant was perceived as a good worker and very well liked. He said he was shocked to learn that the applicant had lost his job and the decision to terminate his employment had come as a surprise. He said other employees were shocked. (Transcript page 89-90). He said he had not ever heard any other reason for ending the applicant's employment other than by redundancy.
Mr Arnell became aware of the contents of the letter given to the applicant which recorded that the reason for redundancy was the result of a restructure of our business (Exhibit A3). Mr Arnell said that he was pretty sure that he had not heard nor had he been informed that it was intended to shut down the warehouse in Spencer Street at the time the applicant was declared redundant. He was not then aware that UCI was intending to be restructured. (Transcript page 96-97).

Steven Chadband

Mr Chadband is the general manager of the UCI in Victoria. He is the author of the letter given to the applicant notifying him of redundancy in October 2008 (Exhibit A3). He said the decision to end the employment of the applicant had made him very sad and he regarded the applicant as a very nice person, very good person (Transcript page 131)
Mr Chadband said that UCI planned in 2008 to restructure its business with attention particularly to its logistics and warehousing function. It created a plan to relocate, in stages, over a period of 3 or 4 years, from 4 operating sites to one site. Mr Chadband said he was involved in the planning of the restructure and was also involved in the decision to eliminate the position of warehouse manager which would involve ending the employment of the applicant.
The position of warehouse manager was eliminated because it was forecast that there would be a reduction in business which therefore meant that there would be a reduction in the volume of stock being received, stored and dispatched. Additionally, the applicant was mainly involved in the loading and unloading of the large truck which was used for our large jobs (Transcript page 130) which had reduced. He said consideration was given to whether the applicant could undertake another role within UCI without being made redundant but no role could be found for him, despite being aware of the applicant's qualifications and practical experience in warehousing and logistics. (Later he said that he could not recall whether he had given consideration to finding another role for the applicant with UCI. (Transcript p.131).
At October 2008, UCI operated at two sites at 700 Spencer Street (upstairs and downstairs), across the road at 40 Stawell Street and a dedicated site in Tullamarine which received and despatched product for the National Australia Bank (NAB) which was a client of UCI.
Mr Chadband said that the warehouse at 700 Spencer Street shutdown in the middle of 2009. The warehousing that was carried out at that site was transferred across the road to 40 Stawell Street. In March or April 2009 another person was made redundant and at about that time there were 2 other resignations. By the middle of 2009, Mr Chadband said that the number of employees of UCI had reduced from 6 to 2 persons. The staff levels have remained at that level. (Transcript p.121-123).
In cross-examination Mr Chadband agreed that in 2007 UCI increased its workforce by employing 2 persons (Mr Arnell and Mr Davies) who remained employed after the applicant ceased. He agreed that the applicant had been a long term employee whereas Mr Arnell and Mr Davies had previously performed subcontracting roles only. He said it was decided to terminate the applicant because the first part of the restructuring plan involved eliminating the position of warehouse manager, being the position that the applicant held. Mr Chadband explained that in 2007 he was employed as the UCI supply chain manager. When he was promoted to general manager, Mr Arnell was engaged to undertake some of the role that he had previously undertaken in coordinating and scheduling suppliers.
Mr Chadband agreed that the applicant had on occasions raised a number of issues with him about control of workflow and had also expressed his irritation and frustration with having to store and shift product in the warehouse. He became aware that Mr Arnell had said in evidence that he had perceived that the applicant had been underperforming with respect to his customer liaison responsibilities, however Mr Chadband said that he did not hold that view and most customer liaison was undertaken by the sales team and project managers. He said the applicant did not need to know when customer’s premises were ready to receive stock because most of the project coordination was undertaken by project managers. He also agreed that there were disputes from time to time between the applicant and the project manager.
Mr Chadband denied that the applicant was made redundant because of his back injury and his temper. He said UCI was influenced in its decision to terminate the employment of the applicant because the position he held as warehouse manager was eliminated as part of the restructuring program. Subsequent to the ending of the applicant's employment, the responsibilities that he previously had undertaken were shared amongst other employees. Additionally the aspect of the global financial crisis after 2008 had caused a reduction in the volume of work at UCI. Mr Chadband denied the suggestion that was put to him that it was in the interests of the employer to have a person undertaking a warehousing role without a back injury. He said there was no longer any need for a warehouse manager because the volume of work had reduced and because there had been a restructure of its supply procedures.
Mr Chadband denied a suggestion put to him in cross-examination that Mr Arnell, as opposed to the applicant, was a more attractive employee to UCI because he is much quieter, doesn't explode, deals well with customers and has no problem with his back. He said the applicant and Mr Arnell performed different roles and were regarded as having equal value to UCI. (Transcript page 129).
We sought clarification of the contents of the redundancy letter which recorded that the decision to restructure the UCI business (and end the employment of the applicant) resulted from a review of the future needs of the business where it has been decided to move the dispatch function to our Tullamarine warehouse (because it was learnt during the evidence of Mr Chadband that UCI did not move into the Tullamarine warehouse that he referred to in the redundancy letter until the beginning of 2011).
Mr Chadband agreed that in October 2008 UCI did not have a Tullamarine warehouse other than the warehouse that was used to service the NAB only. He agreed that the first stage of the restructure involved moving the warehousing operations from 700 Spencer Street into 40 Stawell Street. In October 2008 UCI did not have a lease of another warehouse in Tullamarine. He said we were looking for one but we didn't have one lined up. We were looking for a lease. We didn't go ahead with that lease because of the GFC, so we restaged and restructured the business as we continue to do (Transcript page 133).
He agreed that in 2008 a decision was made to move the dispatch function but a Tullamarine warehouse did not then exist and was not obtained until 2011. In the interim, the volume of business had reduced and it was decided to restructure a little bit slower.

Medical evidence

Dr Albert Kaplan

Dr Kaplan is a consultant psychiatrist who examined the applicant at the request of his solicitors on 29 August 2011. He prepared a report of 30 August 2011 (Exhibit A8) and concluded that the applicant suffered from GAD which alone prevents him from undertaking remunerative work the periods aggregating more than 8 hours per week and, indeed, he probably has no capacity for work as a result of this psychiatric condition (page 10).
Shortly prior to the commencement of Dr Kaplan giving evidence in this review, he became aware of a report of Dr Norman Rose, who examined the applicant at the request of the respondent. In his report (Exhibit R6) Dr Rose concluded that the applicant did not have any psychiatric condition preventing him from undertaking remunerative work for more than 8 hours per week. (Dr Rose was overseas during the hearing and attempts to have him give evidence by telephone were unsuccessful).
In evidence Dr Kaplan said that his diagnosis and conclusions concerning the capacity of the applicant were reached following the history that he obtained, his difficulty coping with stress, his intense irritability and volatility – and the affect that would have on him in a workplace and the likelihood of it leading him into conflict with employers. In those circumstances he thought it was most unlikely that he would be capable of performing within a workplace or working with other people. Although he was aware that the applicant had been away from the workforce for some years he thought that period of absence would also cause difficulty in him returning to work (Transcript p.104)
In cross-examination it was learnt that Dr Kaplan had not obtained a history from the applicant of his service in the Army Reserve. Accordingly he was not aware that the applicant had been a member of the Army Reserve since 1995, that he initially was serving for 50 days per year but at the end of service was serving between 150/180 days per year (including after work and on weekends), had been an instructor, was engaged in the Rolling Thunder program between January and February 2008 and had been the subject of many favourable reports by his superiors. Additionally he was not aware that the applicant had been discharged from the Army Reserve in December 2008.
In his report (page 10) Dr Kaplan recorded that the applicant had become socially withdrawn after he returned from Cambodia and before he was made redundant by UCI. When it was suggested to him that the references from his superiors in the Army Reserve indicated that he was in fact not socially withdrawn but rather he had outstanding interpersonal skills Dr Kaplan said that in that environment he’s skilled at what he does and he clearly feels comfortable there. Having regard to the referees reports, Dr Kaplan said that it would appear that the applicant had been capable of undertaking work that he had previously undertaken in the Army Reserve (Transcript p.109)
Dr Kaplan was of the opinion that the applicant, having become redundant at the age of 51, having applied for about 70 jobs and receiving 5 responses and 3 interviews only would suffer a loss of confidence and self-esteem which would aggravate his existing anxiety disorder. Indeed he thought that a person in a similar situation to the applicant, without any psychiatric condition, could suffer a loss of confidence, which would be a normal reaction (Transcript p.110).
During the examination of Dr Kaplan, he gave consideration to the applicant within a military environment, as a civilian and as an employee in civilian employment. Despite the absence of a history from the applicant of his service as a member of the Army Reserve, having regard to what he learnt during the hearing, Dr Kaplan said that the whole of the applicant's adult life from about the age of 17 had revolved around the Army. He thought it was a very important part of his life and he was not surprised that he had been keen to remain in the Army Reserve. He thought that it fulfilled some sort of need within him …..there was something about Army life and being part of the Army that was a very important part of his life and again, certainly important in terms of his – presumably, his self-esteem and the general structure of his life (Transcript p.110-111).
Dr Kaplan was reluctant to speculate, given the absence of a history, about how it was that the applicant apparently performed well in the Army Reserve but was unemployable in a civilian environment. He thought that the Army probably provided the applicant with a degree of security, either structural or disciplinary, which would account for his preference to remain a member of the Reserve. He also thought that the applicant probably coped better as a member of the Reserve because it was fulfilling and his work as an instructor was beneficial. He said that the respect given to him by those he was instructing and by those who were his superiors was important to his self-esteem and self-image. (Transcript page 110-110).
In the period leading up to October 2008 when the applicant lost his civilian job, Dr Kaplan thought that his symptoms were intensifying because he was becoming increasingly volatile and his anxiety was intensifying. The impact on him by losing his position with the Army Reserve would have been devastating. He said the Army provided him with a degree of protection with regard to his anxiety and losing that position would have increased his level of anxiety (Transcript p.113). He also thought that his membership of the Army Reserve allowed him to operate in a protected environment. Additionally Dr Kaplan assumed the applicant endured a sense of ….chaos. He thought the applicant had a sense of being out of control and the Army provided that external control that he needed to prevent that feeling of chaos which, he speculated, may be feared and felt by the applicant. (Transcript page 114).
In answer to some questions from us, Dr Kaplan said that the prior consumption by the applicant of alcohol would have acted as a form of self-medication. When he learnt that the applicant had been prescribed Campral and (on the evidence heard) his alcohol consumption had subsequently reduced, he thought in the absence of use of alcohol the applicant’s anxiety would intensify, although he did qualify that answer by adding that opinion was speculation (Transcript p.114).

Dr Clayton Thomas

The applicant was examined on a medico legal basis by Dr Clayton Thomas, a consultant in rehabilitation and pain management and who is also a Fellow of the Faculty of Rehabilitation Medicine in the Royal Australian College of Physicians. He provided two reports at the request of the applicant's solicitors (dated 18 October 2011 and 31 January 2012 received as Exhibits A4 and A5, respectively) following a consultation with and examination of the applicant on 7 October 2011.
Dr Thomas obtained a history from the applicant of left hip pain during his consultation. Radiology arranged by him indicated the presence of mild osteoarthritic changes in the left hip. He said it is his practice when examining persons with back injuries to examine their hips because on occasions, osteoarthritic changes are present and might be responsible for back pain. It was his opinion that the extent of degenerative change was consistent with the applicant's age. He did not regard the applicant’s left hip as causing any significant disability.
A focus of his report were comments made by Dr Geoffrey Markov who assessed the applicant at the request of the respondent and who in a report of 7 December 2011 (Exhibit R4) concluded that the applicant suffered chronic low back pain because of an L3-4 disc prolapse and lumbar spondylosis.
The reports of Dr Thomas and Dr Markov indicate that they both had access to the same radiology history as found in the clinical file of Dr Karna (Exhibit R7), the applicant’s general practitioner.
Dr Thomas said that it was his opinion that the applicant did not have two separate and distinct conditions affecting his back.
He said if a person has a specific injury in a lumbar disc, it would not be his practice to report that spondylosis is present in it if he was satisfied that pain was not arising from any other level. Only if the radiology showed gross degenerative changes at other levels outside L3-4 would he have concluded (and reported) that lumbar spondylosis was also present and capable of separate diagnosis. Dr Thomas noted that a CT report of the applicant's lumbar spine of 29 October 2008 recorded the presence of a mild diffuse disc bulge at L3/4, L4/5 and L5/S1, with mild degenerative disc disease that was not causing symptoms. He referred to those levels of the applicant's lumbar spine as asymptomatic spondylosis.
Dr Thomas interpreted the CT reports as indicating that the other disc levels were not very bad at all and without evidence, by the radiology, of progressive degeneration. He therefore concluded that the applicant suffered an injury at the L3/4 level only and did not suffer from lumbar spondylosis. (Transcript p.77-78).
In his opinion, there was nothing to indicate that the applicant was suffering pain at any level other at the L3-4. (Transcript p.80-81). He interpreted the report of Dr Markov, in addition to being satisfied that the applicant was having pain at the L3-4 level, to have concluded, by his diagnosis of lumbar spondylosis, to be referring to the whole of the applicant’s spine. It was his opinion that having regard to his findings on examination and the contents of the radiology reports that there was no warrant in that finding.
In his report of Dr Thomas concluded that from the point of view of his physical state the applicant was capable of working up to 20 hours per week. He recorded that he would defer to psychiatrists as to whether his anxiety and depressive conditions were also affecting his capacity to engage in employment.
In evidence Dr Thomas said that he disagreed with an opinion expressed by Dr Markov that the applicant was capable of working more than 20 hours per week. He did however agree that if the applicant was able to obtain employment where he was not required to undertake lifting and bending and twisting but engage in supervisory type duties that he was capable of working.
In re-examination Dr Thomas said his opinion of the applicant's ability to work, as expressed in his report and in evidence was confined only to his physical abilities. (Transcript p.84). He said he did not record in his report the impact of the applicant’s psychiatric illness on his capacity to work and his preference was to defer that opinion to a psychiatrist because this is a DVA case. He said he was influenced by his experience in Victorian Workcover applications where he is asked to express the capacity of a person to work without consideration to psychiatric illness and which he said he regarded as really unfair. He said I do that because I have to do it, say, Yes they have work capacity, even though I know the person will never go back to work again, because I have to strip away that (Transcript page 83). It was also his opinion that the exacerbation of the applicant’s back pain from physical work was contributing to his anxiety. (Transcript page 84).

Dr Geoffrey Markov

Dr Markov examined the applicant at the request of the respondent on 24 November 2011. He provided a report of 7 December 2011 and received as Exhibit R4.

In his report he concluded that the applicant suffered both a lumbar disc prolapse and lumbar spondylosis and he was not prevented from undertaking work for more than 20 hours per week. He declined to make any comment with respect to the anxiety disorder suffered by the applicant or to the extent it affected his capacity to undertake remunerative work.
In evidence Dr Markov said that lumbar spondylosis in a person's spine could be present with or without a disc prolapse. He agreed that the applicant did have a prolapse at the L3-4 level. It was his opinion that the lumbar spondylosis was present at 8 May 1999 as evident by a CT report of that date showing facet joint hypertrophy at L4-5 and L5-S1.
Having regard to his opinion of lumbar spondylosis at multiple levels, he said it was impossible to know where the applicant’s symptoms of lower back pain emanated. He said that it was possible that the pain could emanate from multiple levels. His examination of the applicant’s neurological system did not detect objective neurological signs of either sensory disturbance or muscle weakness. He speculated that the lower back symptoms may have their origin in a compressed nerve root (Transcript p. 138-140). Later when he was asked to explain the presence of back pain and its origin he said I think he has symptoms of nerve root compression, but no neurological sign (Transcript p.142).
When he was asked to express an opinion about the applicant's capacity to work, having regard to his back injury, Dr Markov said that only those kinds of work which involved strenuous heavy lifting would affect him (He expressed a similar opinion later in cross examination; Transcript p.141, 144). He said it was impossible to apportion the effect on the applicant from the L3-4 disc prolapse and the lumbar spondylosis. It was his belief that both of those conditions contribute to his symptoms and his impairment (Transcript p.143).
Dr Markov said that lumbar spondylosis can cause a lumbosacral nerve root compression, similar to a rupture or herniation of a disc and both conditions are capable of producing similar symptoms. He distinguished both conditions by explaining that an intervertebral disc prolapse is more likely to occur suddenly by trauma whereas lumbar spondylosis is degenerative in nature and unrelated to specific injury or event. That is, the latter condition occurs by a gradual degenerative process. He said that most acute disc prolapses resolve completely within a matter of weeks or months. He had every reason to believe that that occurred in Mr Woodall's case. He based that opinion on his belief that the applicant returned to the Army (after the prolapse in 1994) and although not in a combat role he had no particular limitations required… He was aware that the applicant remained a member of the Army Reserve until 2008 and he presumed that there were fitness requirements there, as well, that needed him to be, you know, in reasonably good physical shape and not unduly compromised by pain. He added that whilst he can't say for sure that he was completely free of pain after the injury – after he recovered from the injury, I believe he was largely free of pain for quite some time (Transcript p.144-145).
Dr Markov said he did not rule out the possibility that the episodes of exacerbation of back pain arose from the L3-4 disc prolapse. Equally he did not rule out the possibility that those exacerbations have their origin in the lumbar spondylosis, being a complication of the disc prolapse or even from idiopathic degenerative changes. He acknowledged that he was uncertain of the frequency of the exacerbations in the years after the injury compared to the frequency of exacerbations in the last few years. He said he did not take that history. When pressed on this issue Dr Markov said that the description of pain radiating from the applicant’s back into his left leg was consistent with impingement at L3-4. Without dismissing the possibility that the referred pain could also come from the lumbar spondylosis, he was satisfied that it was more likely than not that the impingement and its consequent pain had its origin at L3-4 (Transcript p.148-150) and the exacerbations of pain commenced after the injury to L3-4 in 1994 (Transcript p.153).
Dr Markov said that if he is aware (for example from a referring general practitioner) that a patient has been prescribed antidepressant medication for anxiety and depression, he may explore but only to a very limited extent whether there is a connection between pain and the anxiety. He thought that patients would find it unduly intrusive and improper for a rheumatologist to be asking them too much detail about things that they might consider irrelevant. Dr Markov was aware that evidence had been heard from another medico legal witness in these proceedings (Dr Thomas) who was of the opinion that anxiety and depression can change the threshold at which pain intervenes. Dr Markov said I've heard that theory as well. I'm not persuaded by the quality of evidence, necessarily. He found it difficult to understand why there can be such a disparity in the function and disability that occurs from, what seem to be the same conditions in two different patients. So whether there is a pain threshold, or not, my experience tells me that anxiety can make pain be felt to a greater extent, than otherwise; that's how I would phrase it (Transcript p. 147-148).

Medical reports

A number of medical reports were received into evidence from doctors who were not called. Their reports do provide a history of symptoms on presentation and therefore, duration and severity.
Dr Norbert Pomorin is a psychiatrist to whom the applicant was referred by Dr Karna on 2 July 2008. In a report of 11 August 2008 (T2 page XX1) Dr Pomorin recorded he obtained a history of the applicant’s service in Cambodia and subsequent symptoms. He diagnosed GAD and alcohol abuse disorder. In a report of 17 August 2009 (T7 p. 39-40) he advised a delegate of DVA that he regarded the applicant as incapacitated by reason of GAD and the applicant would benefit from psychotherapy and medication which may improve his capacity to work. He reported that the inability to undertake employment had been affected by GAD and his aggressive outbursts at work. He also reported that the limitation upon his capacity for work may not be permanent. In a report of 22 February 2011 (T20 p143-144) Dr Pomorin confirmed that he had been treating the applicant to 2 years for GAD and alcohol abuse. His emphasis had been on treatment of the latter condition. He reported that the applicant had reduced his alcohol consumption to the extent that he no longer abused it and he abstained from drinking for 2-3 weeks at a time. However, the reduction in alcohol consumption had not limited the effect of GAD. He did not regard alcohol consumption as having any influence on the applicant's incapacity for employment. He reported that the loss of capacity for work was by GAD and he regarded it as the sole factor. In a report to the applicant’s solicitors on 14 March 2012 (Exhibit A9) Dr Pomorin annexed a copy of a recent blood test which recorded the Gamma Glutamyl Transferase (GGT) levels found at a liver function test, and which he regarded as a sensitive barometer reflecting an individuals’ alcohol consumption were within normal range. Dr Pomorin concluded if he was markedly alcohol dependent to the extent that he was unable to work one would expect that his liver function test values would be outside the normal range. Not as seen here.
Dr Norman Rose is a consultant psychiatrist to whom the applicant was referred by the respondent in December 2008. In a report of 9 December 2008 (T2 page XXV111) he disagreed with an opinion that had been reported by Dr Pomorin and was not satisfied that the applicant suffered from PTSD, GAD or adjustment disorder. He thought the applicant was suffering from alcohol dependence rather than alcohol abuse. In a report of 22 November 2011 (Exhibit R6), Dr Rose again reported an assessment of the applicant at the referral of the respondent. He reported that the applicant had been prescribed Campral by Dr Pomorin but had stopped taking it in 2010. He reported that the applicant had admitted to currently drinking 4 or 5 beers in a session but he claimed that his degree of alcohol consumption was normal……(p.3). At page 5 he reported the applicant now drinks 4 to 6 beers at a sitting and at page 7 he reported he is now drinking 5 or 6 beers a day. He concluded that he remained satisfied that the applicant was suffering from alcohol dependence, that he was not suffering GAD, an anxiety disorder or adjustment disorder. He was not satisfied that there was any condition which prevented the applicant from undertaking remunerative employment for more than 8 or 20 hours per week (p.7)
Dr Nigel Strauss is a psychiatrist who assessed the applicant at the request of the respondent on 24 March 2010. In a report of the same date (T2 page XXXV11) he concluded that he agreed with an opinion expressed by Dr Pomorin that the applicant did suffer from GAD. He thought the applicant may be able to work less than 8 hours in a simple non-demanding job which allows him a good deal of time alone but I doubt whether this man could work 8 to 20 hours a week (T2 page XL111). He thought the applicant suffered alcohol dependency, having obtained a history that at his worst he was drinking heavily 4 or 5 times a week but now that he is on medication he has cut back and he drinks less infrequently (sic). (Page XL).
Dr Timothy Entwisle is a psychiatrist to whom the applicant was referred by his solicitors. In a report of 9 August 2010 (T2 page XLV11) Dr Entwisle concluded that the applicant suffers GAD and chronic alcohol abuse disorder. It was his opinion that a combination of those conditions and binge drinking rendered the applicant incapable of working. He reported (p.7) that despite receiving treatment from his Doctor with Campral, Mr Woodall continues to binge drink once a month but reports a diminution in his overall level of alcohol consumption He concluded (p.8) that the applicant continues to struggle with alcohol abuse. He remains anxious, intemperate, inclined to fly off the handle and does not cope well with stress. His last employment ended because of these symptoms and tendencies. His incapacity relates to his Generalised Anxiety Disorder which is closely linked to his alcohol abuse.

Conclusion and reasons for decision

In its statement of facts and contentions, the respondent submitted that the applicant does not satisfy the alone test under s.24(1)(c) of the Act because he ceased to engage in remunerative work for reasons other than incapacity from his war caused injuries.
In our view, all of those reasons do not have merit, other than the issue surrounding the circumstances of ceasing work with UCI, which we will discuss later.
At the outset, whilst we note the applicant has a number of conditions not accepted as war caused, namely, chondromalcia of the patella, gastro oesophageal reflux disease and tobacco use disorder, nothing was heard in this review about those conditions, although there are scant references to the knee condition in the Army personnel records. We are not satisfied that they contribute to incapacity. Alcohol dependence is also rejected as war caused. It is separately considered below.
We are not satisfied that the applicant suffers any incapacity by reason of his alcohol consumption. We think nothing turns on any finding of whether he suffered alcohol dependence or alcohol abuse. It is clear to us that the applicant did, many years ago, drink considerable quantities of alcohol. Progressively, his consumption reduced. He was not ever affected by alcohol when working. After he was referred to Dr Pomorin the applicant did consume Campral medication. We are satisfied on the evidence of the applicant and the history recorded by Dr Strauss, that as a result of that medication his alcohol consumption has considerably reduced and he now drinks only when he attends a hotel and then every 3 or 4 weeks. The history recorded by Dr Rose is difficult to understand and the opinion of Dr Entwisle of binge drinking is inconsistent with the quantity of alcohol estimated by the applicant and who we are satisfied is a witness of truth. In fact it would appear that the applicant, subsequent to the termination of his employment, is drinking lesser quantities of alcohol that he was when employed.
We are not satisfied that the applicant is incapacitated by reason of obesity. The personnel records received into evidence from the Army Reserve document the applicant’s weight for many years, during which time he was employed with UCI. Although officials within the Army Reserve held a view about his capacity to remain a serving member, because of his weight and his BMI, there is nothing from the evidence heard or read elsewhere which would satisfy us that it had any bearing at all on his employment with UCI nor are we satisfied that it would have any bearing on employment elsewhere. It seems to us that the Army has a protocol concerning the fitness of its members and its decision to medically discharge him had regard to fitness requirements of serving members. Those requirements cannot reasonably or in fairness be translated into the requirements of employers in civilian employment.
The involuntary discharge of the applicant as a member of the Army Reserve was in many respects unfortunate. One of the reports lodged in support of medical discharge was of the applicant being unable to complete a fitness requirement of running, because of obesity, however the applicant had been exempted from running because of knowledge by the Army of his back injury. He was permitted to satisfy the fitness requirements by walking having regard to his age and hypertension of which the Army was also aware. The applicant was also regarded as a person who would not be required for operational deployment. There were many reports within the personnel file written by officers who held him in very high esteem. It was apparent to us that the applicant was a dedicated member and had much to offer the Army Reserve.
At or about the time the applicant learnt that he was declared redundant by UCI, he was being considered, and knew, that he was about to be medically discharged from the Army Reserve. It might be thought, although there is no evidence on this issue, that his GAD would have been affected. In the absence of any evidence that at about that time the applicant was incapacitated by reason of any worsening or aggravation of his GAD we are not prepared to make that finding. Put another way, we remain satisfied that the accepted GAD, by operational service, which had no bearing on his capacity to work with UCI had not progressed or changed to level which would have caused incapacity. In concluding this part we dismiss the findings of Dr Rose that the applicant did not suffer GAD. That condition has been accepted as war caused and the diagnosis of it is consistent with the opinions held by Doctors Kaplan, Pomorin, Entwisle and Strauss.
It was contended that the applicant suffered lumbar spondylosis. We do not make that finding. We are satisfied that lumbar spondylosis is a degenerative disease and can be properly diagnosed only if the extent of the degeneration is gross and those changes can be found to produce pain (paragraph 100 above). We think the evidence of Dr Thomas is to be preferred. We thought the evidence of Dr Markov did not assist us, some of his opinions were based on an assumed history (which was incorrect) and his concession that it was more likely than not that the referred pain into the applicant’s left leg had its origin in the L3/4 prolapse is inconsistent with pain from lumbar spondylosis and therefore, the presence of it.
The applicant was in full-time employment until October 2008. During that time he suffered a number of conditions which were either accepted as war caused or which were later found to be war caused (GAD and hypertension). We are not satisfied that the applicant has suffered a loss of salary or wages or earnings subsequent to the termination of his employment with UCI by reason of his war caused disabilities alone. Having heard the evidence from Mr Chadband it would appear that the applicant did cease employment because of redundancy and we make that finding.
The applicant was of the belief that he was dismissed from employment – he said he was targeted – because of the frequency of his complaints about management practices and failing to act on his requests or recommendations for improvements in those practices. His requests for mechanical lifting devices and proper and orderly storage facilities and routine were in our view well founded and were based entirely on the expertise we are satisfied he possessed having regard to his history in warehousing in the Army. We think it is not unreasonable for the applicant to have concluded that having regard to the persistence of his complaints, that the employer had decided that it no longer wished to employ him. We also think that it is not unreasonable for the applicant to have concluded that the reasons stated in the written notification of redundancy of no longer requiring a warehouse manager at Spencer Street and relocation to Tullamarine to be unsupported by events within UCI subsequent to the ending of his employment.
However it was learnt at the hearing from the evidence of Mr Chadband and to a lesser extent by Mr Arnell, that UCI did suffer a considerable reduction in its work after October 2008 by the effects of the global financial crisis. Indeed Mr Chadband said that it was known before October 2008 that there would be a reduction in its work. Consequently, management of UCI decided to reduce its costs by a plan to eventually operate from one location only. It initially decided to cease using Spencer Street as a warehouse and relocate its warehousing operations across the road into Stawell Street and have existing employees take on greater responsibility. In those circumstances there was, on the evidence of Mr Chadband, no need for a warehouse manager. It also appears that it was intended to relocate to Tullamarine but that did not occur until about 3 years later. The decision to move to Tullamarine did not then occur, although intended at October 2008, again because of the effects of the global financial crisis. The evidence of Mr Chadband was of a reduction in the number of employees at UCI from 6 persons to 2 persons which also satisfied its needs to reduce costs. That UCI was able to operate with such a considerable reduction in its employees is an indicator to us of the reduction in the quantity of its work. None of that information was known before Mr Chadband gave his evidence. It could not be discerned from the contents of any documents or reports exchanged between the parties before the hearing commenced.
Mr Chadband gave evidence concerning his attitude toward the applicant and nothing could be discerned which would indicate that he was regarded other than as a valuable employee. Indeed the applicant gave evidence that he did not regard Mr Chadband negatively and thought that the decision to terminate his employment was made by other persons in management.
In the recent Federal Court decision of Willis v Repatriation Commission (2012) 202 FCR 323, Bromberg J distilled a number of previous Federal Court decisions concerning the interpretation of the alone test within s.24 (1) (c) of the Act. At paragraphs 23 and 24 His Honour decided as follows:
23. The question raised by the “alone test” is not whether, on its own, the war-caused incapacity prevents the veteran's continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.
24. Another way of re-stating that proposition, which more closely focuses upon the language of s, 24 (1) (c), is that the alone test requires that the war caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war caused incapacity “alone”.

It follows that the applicant ceased employment in October 2008 because he was then made redundant by his employer. We are not satisfied that his redundancy was a consequence of his war caused and accepted disabilities. Whilst it is true that the applicant did valiantly seek employment elsewhere, before the commencement of the assessment period, nothing points to incapacity by his war caused and accepted disabilities. Put another way, but for him having been made redundant by UCI, we are satisfied that he would have continued in that employment. The applicant was not given a reason or an explanation why he was not engaged by the persons to whom he applied for employment. The majority did not respond to his applications. The applicant did volunteer his back injury at interview and he suspected one potential employer did not engage him because a younger person was preferred. In the absence of evidence, we cannot find in the circumstances that he suffered a loss of salary or wages or earnings, by unemployment subsequent to becoming redundant, by his war caused injuries alone. We think the redundancy is a reason, but not the reason for his incapacity. We suggest his age, time out of the workforce and the state of the labour market are also factors which can be reasonably attributable to his inability to gain employment.
We are satisfied that the applicant was genuinely seeking to engage in remunerative work after October 2008 but ceased (he said in August 2009) when he was notified he would be paid temporary special rate (refer paragraph 40 earlier). He received that notification on 4 September 2009. The assessment period commenced on 29 July 2010. He did not seek work after the commencement of the assessment period. He cannot obtain the ameliorative benefit of s.24(2)(b) of the Act.

Decision

The decision under review is affirmed.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member and Dr Kerry Breen, Member.

.........[sgd].............................................

Associate

Dated 16 November 2012

Date(s) of hearing	22, 23 & 24 May 2011
Counsel for the Applicant	Mr Chris Thomson
Solicitors for the Applicant	Ms Jessica Ransley, Williams Winter Solicitors
Advocate for the Respondent	Mr Ken Rudge, Department of Veterans' Affairs