McGuiness and Repatriation Commission - [2000] AATA 131

DECISION AND REASONS FOR DECISION [2000] AATA 131

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1486

VETERANS' APPEALS DIVISION )

Re KEITH JOHN McGUINESS
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Dr J D Campbell

Date22 February 2000
PlaceSydney

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines that: a)   The Applicant has a degree of incapacity of 90 percent from war caused injuries and/or diseases; and b)    Pension is to be paid at the rate of 90 percent of the general rate for the period 26 November 1995 until 26 April 1996; and c)   The Applicant is to be paid pension at the Special Rate effective 27 April 1996, or the day after he finished paid employment with Energy Australia, if the earlier nominated date is not the correct date of his termination.
  (Sgd) J D Campbell
  ..............................................
  Member
CATCHWORDS
Veteran – Service related disabilities – assessment – earnings related pension –beneficial aspects- work cessation – service pension
Veterans' Entitlement Act 1986, subsections 24(1), 24(2), 120(4)
Guide to the Assessment of Rates of Veterans' Pensions Fifth Edition

REASONS FOR DECISION

Dr J D Campbell, Member

Mr K. McGuiness ("the Applicant") in this matter seeks a review of the decision of the Veterans' Review Board dated 24 August 1998. The decision of the Veterans' Review Board set aside the decision of the Repatriation Commission ("the Respondent") made on 11 July 1996 in so far as it related to disability pension assessment and substituted therefore the decision that pension be assessed at 80 percent of the General Rate from and including 26 November 1995.
A hearing was held by the Tribunal on 11 November 1999, with the Applicant being represented by Mr M. Vincent of Counsel and the Respondent by Mr J. Sylvestre, an advocate from the Department of Veterans' Affairs. The Tribunal heard oral evidence from the Applicant.
The Tribunal had placed before it the following written material:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T22, pp1-68 T Documents
Statement of the Applicant dated 11/11/1999     Exhibit A1
Medical Report of Dr M. Baz dated 4/2/1999     Exhibit A2
Applicant's Amended Statement of Facts and Contentions dated 11/11/1999        Exhibit A3
Applicant's Statement of Facts and Contentions dated 9/3/1999       Exhibit A4
Applicant's Supplementary Statement of Facts and Contentions dated 8/11/1999 Exhibit A5
Medical Report of Dr R. McMurdo dated 31/5/1999     Exhibit R1
Report by Mr B. O'Keefe dated 18/10/1999       Exhibit R2

ISSUES

The Issues before the Tribunal are:
i)whether the Applicant's rate of pension has been properly assessed, with argument between the parties as to whether an appropriate rating has been made for the Applicant's post traumatic stress disorder in accordance with the Guide to the Assessment of Rates of Veterans' Pensions (Fifth Edition) ("GARP V"); and
ii)whether the Applicant is eligible for payment of an earnings related rate of pension.

LEGISLATION

The relevant legislation in this matter is the Veterans' Entitlements Act 1986, ("the Act"), and in particular subsections 24(1), 24(2) and 120(4).
BACKGROUND
The Applicant has the following disabilities which have been determined to be war-caused:
(i)Hypertension; and
(ii)Post Traumatic Stress Disorder; and
(iii)Irritable Bowel Syndrome; and
(iv)Gastro-Oesophageal Reflux with Ulcerative Oesophagitis; and
(v)Pruritis Ani; and
(vi)Bilateral Sensorineural Hearing Loss with Tinnitus; and
(vii)Solar Skin Damage.
The Applicant forwarded a claim for disability pension which was received by the Department of Veterans' Affairs on 23 August 1995. The conditions of post traumatic stress disorder, solar skin damage and bilateral sensorineural hearing loss were accepted by the Repatriation Commission as war-caused disabilities. On 13 January 1996, the Applicant was notified by the Department of the accepted disabilities, together with advice that a pension at 30 percent of the General Rate, effective 23 May 1995 was to be paid (T5).
The Applicant made a further application for increased disability pension which was received by the Department on 26 February 1996 (T3). The Repatriation Commission determined that the disabilities of irritable bowel syndrome, gastro-oesophageal reflux with ulcerative oesophagitis, pruritis ani and hypertension were accepted as war-caused and on 11 July 1996 advised the Applicant that his pension was to be increased to 60 percent of the General Rate effective 26 November 1996 (T12).
The Applicant sought review of this decision by the Veterans' Review Board on 29 August 1996. In a decision dated 24 August 1998, the Veterans' Review Board set aside the decision of the Repatriation Commission dated 11 July 1996 in so far as it related to pension assessment and substituted therefore a decision that pension be increased at 80 per cent of the General Rate from and including 26 November 1995 (T2).
EVIDENCE OF THE APPLICANT
The Applicant detailed to the Tribunal that he was born on 14 February 1950, enlisted in the Navy in 1965 and trained as a musician for 18 months after three months recruit training. Further the Applicant told the Tribunal that at the age of 16 years and ten months he was posted to the HMAS Sydney and in 1967 he had three trips to Vietnam, after which he was posted to HMAS Albatross as a leading musician. The Applicant stated that in 1971 his father died, and because his mother was on her own with his three younger brothers, he left the Navy. Shortly after he joined the Air Force as a musician as it was nearer to his home, and he remained there until 1980.
The Applicant told the Tribunal that upon discharge from the Air Force he "flitted from job to job like a butterfly in Sydney", but in 1983 he secured a labouring job with the local Council at Muswellbrook, where he remained until late 1985. In 1986, with help from a friend, the Applicant attained a job as a field officer with Shortland Electricity. In this job, he worked independently, with his main tasks being meter reading and collecting money for unpaid electricity bills. For the first five years, during which time he was based at Muswellbrook, he was allowed to set his own pace. The Applicant stated that in 1991 his area of operation was doubled, there was more pressure and he was travelling 3000 kilometres per week. Further, it was stated by the Applicant that management changes occurred which resulted in supervision being centralised in Newcastle and "things started to go haywire", with a loss of routine and an absence of effective communication, with a resultant "random allocation of jobs and no back up".
The Applicant informed the Tribunal that he "started to get stressed out; that he tried to talk to them and they did not care", that he sought help from a chaplain as to how to best deal with the situation and that he met a fellow in Coffs Harbour and was referred to a psychiatrist in Newcastle. The Applicant told the Tribunal that matters were becoming too difficult and he was getting no support. He was called to Newcastle where he met with an Industrial Relations Officer for his employer organisation. The Applicant said this meeting was heated, and despite his desire to stay on he saw a general practitioner at Muswellbrook who, although not his local medical officer, wrote a letter to his employer supporting his retirement from his current job. In the Applicant's view he had not discussed such an issue with him. The Applicant further stated that his employer suggested he leave work on medical grounds, and that he was terminated on these grounds on 26 April 1996, receiving a lump sum superannuation payment.
The Applicant told the Tribunal that during this later period of employment with his employer (renamed Energy Australia) he felt different from other people, and that his response to work changed. With his supervisor in Newcastle, he was sneaking afternoons off work and drinking. Further, after one period of three to four days off work there was the suggestion of the initiation of a disciplinary process, because of his poor work performance.
The Tribunal was told by the Applicant that after being medically terminated from his employment on 26 April 1996, he did nothing and went to Sydney for two months, after which he approached the CES at Mayfield seeking work opportunities. The Applicant further informed the Tribunal that he used his lump sum payout to purchase a block of land in the Great Lake Shire upon which he built a house, and where he now resides. The Applicant stated that he has limited social contact with people (namely three - a local man and his wife on a weekly basis, and another man in Tea Gardens on a monthly basis); that he shops once a month at Raymond Terrace, ensuring that he is early to avoid crowds; that in the non-summer months he plays a social game of golf every six months; that he has numerous hyperkeratoses on his face, head, neck and limbs and that he sees his general practitioner at Karuah, "who dabs some stuff on them rather than burn them off", and who has suggested that he be referred to a dermatologist. Finally the Applicant told the Tribunal that he was in receipt of a service pension (granted 25 April 1996) and that his day was spent going for a walk to the water, watching television and drinking eight to nine stubbies of beer a day.
MEDICAL EVIDENCE
A final impairment report was undertaken by Dr A. Cizek, a departmental medical officer, and this forms the basis for the Repatriation Commission's notification to the Applicant of its determination on 11 July 1996 (T12). In summary, Dr Cizek's assessment is as follows:
           GARP Reference    Impairment Rating
Hypertension Hypertension        Table 2.1.1    0 points.
Emotional and Behavioural Disorders Post Traumatic Stress Disorders Table 4.1.1    10 points.
Gastrointestinal Impairment Irritable Bowel Syndrome Gastro-Oesophageal Reflux With Ulcerative Oesophagitis Pruritus Ani      Table 6.1.2 Table 6.1.4      24points.
Hearing Impairment and Tinnitus Bilateral Sensorineural Hearing Loss With Tinnitus Part 1 of Chapter 7     0 points.
Skin Disorders Solar Skin Damage       Table 11.1.1 5 points.

The Lifestyle Rating assessed according to the level of veteran's medical impairment was three. The assessor concluded that this converted to a continuation of impairment rating of 35 points and a lifestyle rating of three gives a pension assessment of 60 percent of the General Rate.

In its decision dated 24 August 1998 (T2), the Veterans' Review Board, relying upon the impairment assessment (T17) and report by Dr J. Miller, a consultant psychiatrist (T18), notes on the veteran's invalidity by the State Superannuation Board (T19), the report of Dr J. Rogers dated 1 April 1996 (T20) and the report of Dr S. Law, a consultant psychiatrist, dated 1 February 1997 (T21), found the veteran to have an impairment rating of 44 points and a lifestyle rating of four – equating to a 80 percent degree of incapacity and hence a pension of 80 percent of the General Rate. The significant variances in the Veterans' Review Board assessment related to the post traumatic stress disorder (increase to 30 points); the gastro intestinal impairment (reduction to 15 points); and the hearing impairment and tinnitus (increase to two points).
The Tribunal in reviewing the medical documentation referred to in the Veterans' Review Board Decision notes that:
i)Dr Rogers, who examined the Applicant on 22 February 1996, reported on 1 April 1996 that the Applicant:
"…was suffering from stress and had supporting documentation from a psychiatrist saying that he suffers from a mild post traumatic stress disorder …
… Consequently I was happy to support his retirement from his current job.
…" (T20)
ii)Dr Miller, Consultant Psychiatrist, in a report dated 8 April 1998 in stated:
"…
He continues to suffer significant symptoms resulting from this (PTSD) and is leading a rather isolated existence but has adjusted to this by accommodating himself in a quiet place and in engaging in sole activities which do not cause him too much anxiety.
…" (T18)
iii)The Superannuation Board Report dated 28 April 1996 states:
"The above member (the Applicant) is physically or mentally incapable of carrying out their normal duties as a field officer and accordingly was medically retired.
…" (T19, p63)
iv)Medical Report of Dr S.K. Law, a Consultant Psychiatrist dated 1 February 1997:
"…
Conclusion – Mr McGuiness has been suffering from post-traumatic stress disorder, as a result of his previous adverse experiences during the war service.
I would give him a GARP rating of 45 …" (T21, p67)

DR M. BAZ

In a report dated 4 February 1999 (Exhibit A2), Dr Baz, a Consultant Occupational Physician, details a clinical history of each of the Applicant's accepted disabilities, and further reviews the medical reports of Drs Thursby (T9, 10, 11), Miller (T18), Law (T21) and the local medical officer (T8), which showed blood pressure readings of 140/95 (23 February 1996) 170/120 (10 April 1995) and 125/80 (7 May 1996). As a consequence of this and clinical examination Dr Baz made the following assessment:
GARP Table Impairment Rating
Hypertension Post Traumatic Stress Disorder Subjective Distress Manifest Distress Functional Effects Occupation Domestic Situation Social Interaction Leisure Activities Current Therapy Irritable Bowel Syndrome Gastric Oesophagael Reflux Ulcerative Oesophagitis Pruritis Ani Solar Skin Damage Tinnitus and Sensorineural Hearing Loss Lifestyle Relationships Personal Relationships Community and Recreational Activities Mobility Domestic Activity Employment 2.1.1 4 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 6 6 6 11.1 7.1 22.1 22.2 22.3 22.4 22.5 2 points 39 points 10 10 5 8 6 5 3 3 NIL 5 NIL 2 2 5 5 4 4 2 5

As a result Dr Baz found there to be an impairment rating of 44, a lifestyle rating of five and a pension of 90 per cent of the general rate.

In further opinion on the Applicant's work fitness, Dr Baz concluded that:
"In my opinion Mr McGuiness is unfit for work of 8 or more hours duration weekly, and that this is due solely to his war caused conditions.
In my opinion there are no non-accepted conditions which have significantly impinged on his capacity to engage or obtain employment and that, in the absence of his accepted disabilities, he would be able to continue in the workforce.
…"

DR R. McMURDO

Dr McMurdo, a consultant psychiatrist, examined the Applicant on 26 May 1999, and consequent to an examination of the T documents and in a report dated 31 May 1999 expressed the following opinions:
"…
It is possible that his gastrointestinal difficulties are aggravated by an increase in his anxiety level.
Using GARP V, it is my opinion that his level of impairment – emotional and behavioural – is 36.
I allocated the following specific levels:
subjective distress - 10 …
manifest distress - 6 …
functional effects - nil …
occupation - 8 …
domestic situation - 6 …
social interaction - 6 …
leisure activities - 1 …
current therapy - 3 …
It is my opinion that the veteran is not fit for any type of employment at this point in time, and I doubt if that situation will change. It is more probable than not that this is due to the residual effects of the posttraumatic [sic] stress disorder, and so is due to his war caused disabilities." (Exhibit R1)

OTHER EVIDENCE

In a report dated 18 October 1999, Mr O'Keefe stated:
"…
As you will see, while I was able to find evidence of a potential general threat to HMAS Sydney in the waters of Vung Tau, I could not identify any actual enemy activity which endangered the vessel and its crew.
…" (Exhibit R2)

SUBMISSIONS

The Applicant submitted that reliance should be placed upon the report of Dr Baz's assessment of combined impairment, with the exception that the impairment for the skin disorder should be five points as opposed to two on the criterion in Table 11.1 of GARP V:
"visible skin disorder…on a part of the body other than face or hands,…as would cause them to curtail sporting or recreational activities." (Exhibit A4)

Further it was the Applicant's contention that a lifestyle rating of five was the correct assessment and as such the pension rate was at least 80 percent of the General Rate.

The Applicant, in reliance on the reports of Drs Baz and McMurdo, argued that he was entitled to a special rate pension in that all the parameters of section 24(1) of the Act were satisfied, without even considering the beneficial subsections within subsection 24(2).
The Respondent, on the other hand, contended that the lifestyle rating of the Applicant should be four, and that Dr McMurdo's assessment of the post traumatic stress disorder at 36 impairment points should be preferred.
CONSIDERATION AND FINDINGS
The Tribunal, in noting in this matter that pursuant to section 120(4) of the Act, the standard of proof applicable is that of the balance of probabilities, makes an initial observation that the medical history, the diagnoses established and in general terms the relative assessments given by Drs Baz and McMurdo are relatively consistent. The Tribunal further notes that while the Applicant may have related particular accounts of his wartime experiences on trips to and from Vung Tau aboard the HMAS Sydney (Dr S K Law – T21) that appear inconsistent with the report of Mr O'Keefe (Exhibit R2), it should be remembered that the Repatriation Commission has accepted post-traumatic stress disorder as a war-caused disability. Further the Tribunal notes that there is agreement between the three psychiatrists that this condition existed, continues to exist and continues to require therapy.
The Tribunal, after careful analysis of the Applicant's evidence, and his many statements recorded by the attending medical practitioners, concludes that the Applicant is an honest and reliable witness. Further after consideration of the Applicant's evidence, the medical reports and his employment history the Tribunal makes the following findings of fact:
i)The Applicant suffered from post-traumatic stress disorder during the latter years of his employment with Energy Australia (Employment details as provided by Applicant and the report of Dr Miller – Consultant Psychiatrist (T4)); and
ii)the Applicant, as a result of his medical impairments, and primarily his post traumatic stress disorder, had his employment finalised on grounds of medical invalidity (Report of Dr Rogers (T20) Report of State Superannuation Scheme (T19)). Further there were no non-accepted medical conditions nominated in any report at this time - the time of medical invalidity being 26 April 1996; and
iii)the Applicant has satisfied the statutory requirements that entitle him to the payment of a service pension, presumably an invalidity service pension, as age would be a difficulty for a normal service pension. Further the Tribunal notes that one of the criteria for an invalidity service pension is an 85 per cent permanent incapacity for work; and
iv)the Applicant, despite his employment finalisation on grounds of medical invalidity did seek to find work at the Mayfield CES, after spending a few months in Sydney; and
v)the Applicant is unfit for work of eight hours or more duration per week and such unfitness for work is due solely to his war-caused and accepted medical disabilities (Dr Baz (Exhibit A2), Dr McMurdo (Exhibit R1)); and
vi)the Applicant remains in therapy for his post-traumatic stress disorder (Dr Miller and continued medication); and
vii)the Applicant has no non-accepted conditions which have significantly impinged on his capacity to engage or obtain employment (Dr Baz (Exhibit A2)).

The Tribunal, in noting the Applicant's disabilities that have been determined to be war-caused, makes the following assessment of those disabilities in accordance with GARP V:
i)Hypertension – Application of Table 2.1.1. The Applicant while having recorded elevated blood pressure in 1995 and in February 1996 was normotensive in May 1996 and is on no long-term therapy for his hypertension. The Tribunal finds a nil Impairment Rating.
ii)Emotional and Behavioural – Post-Traumatic Stress Disorder
Subjective Distress – Table 4.1. The medical evidence is that the Applicant has very frequent symptoms causing moderate distress and the Applicant has difficulty extracting himself from this (Drs McMurdo and Baz). Accordingly the Tribunal finds an Impairment Rating of ten.
Manifest Distress – Table 4.2. The medical evidence is there was some apparent distress during consultation and he was preoccupied with speaking constantly about the effects of his anxiety on the quality of life (Dr McMurdo). The Tribunal also noted his preoccupation with his anxieties as he explained the change in employment circumstances and the various mechanisms used by the Applicant to cope with the circumstances. Further there was obvious outbursts of anger with his employers, coupled with an increasing drinking habit, all of which led to poor work performance and assessment by his employers for disciplinary considerations. It is the Tribunal's finding that the appropriate Impairment Rating is ten, as it was obvious that his symptoms were evident to observers and persons relatively unfamiliar with the Applicant.
Functional Effects – Table 4.3. From the history and medical reports, there is no evidence of relevant factors noted and accordingly there is minimal or no interference with most aspects of living. The Tribunal finds an impairment rating of nil.
Occupation – Table 4.4. The Tribunal finds that upon the psychiatric evidence of Dr McMurdo and the medical evidence of Dr Baz of the Applicant's accepted psychiatric condition, that the Applicant cannot work and as such finds an impairment rating of eight.
Domestic Situation – Table 4.5. The Tribunal, in consideration of both the reports of Dr McMurdo and Dr Baz that the Applicant's ability to maintain usual relationships with other family members is deteriorating, finds an impairment rating of six.
Social Interaction – Table 4.6. The Tribunal, having listened to the Applicant's description of his very limited social interaction with other people, and having read the reports of Drs McMurdo and Baz finds that the Applicant has engaged in conduct which amounts to a general social withdrawal, and finds an impairment rating of six.
Leisure Activities – Table 4.7. On the evidence available to the Tribunal it would appear that the Applicant's leisure activities involve fishing and an occasional game of golf in the cooler seasons, while he admits to spending a lot of his day in watching television. Accordingly, the Tribunal finds that there is some reduction in his leisure activities and further finds that for this activity he has an impairment rate of two.
Current Therapy – Table 4.8. On the evidence available to the Tribunal, the Applicant is still receiving some therapy from his attending psychiatrist, Dr Miller, and receives some medication to assist with sleeping. It is the Tribunal's finding that the Applicant has an impairment rating of three for this area.
In summary it is the Tribunal's finding that the Applicant has an impairment rating for his post-traumatic stress disorder of 40 points.
iii)Gastro Intestinal Impairment
Irritable Bowel Syndrome – Table 6.1.3. The Applicant nominates faecal incontinence associated with occasional soiling, particularly when he is anxious or stressed. He takes no regular medication. The Tribunal finds an impairment rating of five.
Gastro Oesphageal Reflux with ulcerative oesphagitis – Table 6.1.4. The Tribunal in relying on the reports of Dr Thursby (T9, 10, 11) finds that the Applicant has an impairment rating of five, because the reflux is with frequent minor symptoms and he is on prophytactic treatment with Zotan.
Pruritis ani - Table 6.1.9. The Tribunal finds that the Applicant has mild to moderate pruritis ani with a further finding of nil points for an impairment rating.
iv)Bilateral Sensorineural Hearing Loss with Tinnitus
The most recent audiogram available to the Tribunal is that of 20 December 1995 (T6, P28) which demonstrates an accepted percentage hearing loss of 0.7 and an accepted hearing impairment rating of nil. The Applicant also complains of mild tinnitus, which is not present every day and under Table 7.1.11 the Tribunal finds that there is an impairment rating of two.
v)Skin Disorders
The evidence relating to skin disorders nominates new lesions appearing on both arms for which he received cryotherapy and/or excision on three occasions in the year prior to 7 May 1996 (T8, P33). Further the Applicant states that he does not play golf in the summer months. The Tribunal finds on the evidence given by Dr Taranto that the Applicant has an impairment rating of five.
In summary the Tribunal finds that the Applicant has the following impairment ratings:
Hypertension  Table 2.1.1  Nil
Post Traumatic Stress Disorder    Table 4  40
Irritable Bowel Syndrome              Table 6.1.3  5
Gastro-Oesphageal Reflux           Table 6.1.4  5
with Ulcerative Oesphagitis
Pruritus Ani  Table 6.1.9  Nil
Sensori Neural Hearing Loss        Table 7.1  Nil
Tinnitus  Table 7.1.11  2
Solar Skin Damage  Table 11.1  5
With a combined impairment rating of:     50
LIFESTYLE
In considering the particular lifestyle effect tables the Tribunal would make the following observations and findings:
i)Personal Relationships – The Applicant gave evidence to the effect that he is relating only to a few people and on limited occasions only. The Tribunal finds a rating of five under table 22.1.
ii)Mobility – The evidence from the Applicant indicates that he is able to walk and drive a car to shop and to Karuah. Any restriction on transport use appears to be a desire to avoid crowds or temptation of alcohol. The Applicant is able to drive and play golf. In conclusion the Tribunal concludes that the Applicant has a lack of confidence, and a moderate agoraphobia which has restrained his mobility. The Tribunal finds a rating of three under table 22.2.
iii)Recreational and Community Activities – The evidence from the Applicant is that he continues to watch television, fish and play golf as well as venture in the local club at Karuah. Any restriction on his golf activity was associated with further solar damage to his skin. The Tribunal finds a rating of three under table 23.3
iv)Domestic Activities – The evidence from the Applicant would indicate that he is able to carry out accustomed tasks, but concentration and effects of his stress disorder impair his ability. The Tribunal finds a rating of two under table 22.4.
v)Employment Activities – The Tribunal has already found that the Applicant is unable to work and as a consequence finds a rating of five under table 22.5.
As a consequence of the assessments in paragraph 29, the Tribunal concludes that the Applicant has a lifestyle rating of four. As a consequence of a lifestyle rating of four and an impairment rating of 50, the Tribunal finds that the Applicant has an incapacity of 90 percent.
In relation to the Applicant's claim for a special rate of pension, the Tribunal notes that if this claim is successful, the effective date for payment to commence would be the day after which the Applicant finished his full time employment, namely 27 April 1996. In further preliminary issues the Tribunal again notes that the Applicant is in receipt of a service pension, again commencing around the operative date for a special rate payment. As indicated earlier by the Tribunal, if the Applicant is in receipt of an invalidity service pension, then one of the criteria to be satisfied is an 85 percent incapacity for work.
The Tribunal has already found that the Applicant is under 65 years of age, has made a claim under section 15 for an increase in the rate of pension he is receiving and has a degree of incapacity from war-caused disease and for injury of at least 70 percent (90 percent determined by the Tribunal). Further the Tribunal has found that the Applicant's incapacity from war-caused injury and/or disease is of such a nature as, of itself alone, to render the Applicant incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The Tribunal in arriving at this latter finding relied upon the psychiatric opinion of Dr McMurdo and the specialist medical report of an occupational physician, Dr Baz. Further the Tribunal relied upon the fact that the Applicant's separation from his previous and/or last employment was on medical invalidity grounds relating to his accepted disability of post-traumatic stress disorder. Finally the decision to accept a remote locality residence was a decision taken by the Applicant in an attempt to respond to and cope with his accepted psychiatric disability, with even this decision being reached after a few months residing in Sydney and an attempt to secure employment through the Mayfield CES. Further the Tribunal would wish to emphasise that both Drs McMurdo and Baz concluded that there were no other factors other than his war caused disabilities which caused his medical retirement from Energy Australia and his continued inability to work. Finally the Tribunal finds that the Applicant by reason of incapacity from war-caused disease and/or injury alone has been prevented from undertaking remunerative work and by reason thereof has suffered a loss of salary or wages or earnings that he would not have suffered if he were free of his war-caused incapacity. As a consequence of these findings, the Tribunal further finds that subsections 24(1)(aa), (aab), (a) (i), (b) and (c) with section 24 (1) of the Act have been satisfied and accordingly the Applicant is entitled to a special rate of pension.
The Tribunal, in a point of further clarification notes that the Veterans' Review Board decision considered the Applicant's application under the ameliorating provisions of section 24 (2). This Tribunal has already found that the Applicant ceased work on medical invalidity grounds – the medical cause being the war-caused post-traumatic stress disorder and that other reasons of the Veterans' Review Board are seen by consultant medical opinion as arising from and being part of the consequences of his war-caused disability. It is upon such considered opinion that this Tribunal has relied in making its findings.
DETERMINATION
The Tribunal sets aside the decision under review and in substitution therefor determines that:
a)The Applicant has a degree of incapacity of 90 percent from war caused injuries and/or diseases; and
b)Pension is to be paid at the rate of 90 percent of the general rate for the period 26 November 1995 until 26 April 1996; and
c)The Applicant is to be paid pension at the Special Rate effective 27 April 1996, or the day after he finished paid employment with Energy Australia, if the earlier nominated date is not the correct date of his termination.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  11 November 1999
Date of Decision  22 February 2000
Counsel for the Applicant        M Vincent
Advocate for the Respondent John Sylvestre