Miller and Repatriation Commission
[2006] AATA 841
•4 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 841
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/877
VETERANS’ APPEALS DIVISION ) Re KEVIN FREDERICK MILLER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date4 October 2006
PlaceMelbourne
Decision The decision under review is affirmed. ..............................................
Senior Member
VETERANS’ AFFAIRS – application for special rate – myocardial infarct – return to work – offer of redundancy accepted – whether war-caused injuries alone prevent undertaking remunerative work – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) s 24
Flentjar v Repatriation Commission (1997) 26 AAR 93
Cavell v Repatriation Commission (1988) 9 AAR 534
REASONS FOR DECISION
4 October 2006 Mr John Handley, Senior Member 1. Mr Miller, (the Applicant), is presently 58 years of age and in receipt of disability pension at 100 per cent of the general rate. He applied for pension payable at the special rate. The hearing of the application commenced in Warrnambool and was adjourned part-heard for conclusion in Melbourne. The Respondent concedes that the Applicant is incapacitated and incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The issue to be determined by this review is whether the war-caused injuries “alone” prevent the Applicant from undertaking remunerative work.
2. The Applicant was born in Coleraine in Western Victoria. He initially was employed after leaving school at the age of 15 with the Post Master General’s Department as a Junior Postal Officer and an exchange worker. He later qualified as a telephone linesman. He volunteered to join the Army and served between 1968 and 1971. He served in Vietnam in the 110 Signal Squadron between 25 June 1970 and 23 June 1971.
3. After discharge from the Army, he returned to work with the PMG and later Telstra its successor. He was engaged as a linesman and a cable joiner until 1996 when he then suffered a myocardial infarct. He returned to work and was allocated light duties. In July 1997 the Applicant accepted a redundancy package from the employer. At or about that time his marriage commenced to deteriorate and he separated in 2001. The Applicant later remarried.
4. But for an attempt at self employment in a trailer repair business (where three jobs only were obtained) and work for three or four days as a rouseabout in a shearing shed, the Applicant has not worked since 1997. The assessment period for the purposes of this application commenced when the claim was made on 8 September 2003.
5. The disabilities accepted by the Respondent as war-caused are:
Ischaemic Heart Disease;
Generalised Anxiety Disorder;
Atherosclerotic Peripheral Vascular Disease Affecting Both Legs;
Tinea;
Bilateral Sensorineural Hearing Loss;
Bilateral Tinnitus;
Hypertension;
Non-Melanotic Malignant Neoplasm of the Skin;
Chronic Solar Skin Damage;
Insomnia;
Multiple Myeloma; andRenal Failure.
6. The conditions of eczema, chronic bronchitis and emphysema have been rejected. It was learnt at the hearing that the accepted condition of renal failure has recently deteriorated to the extent that the Applicant now requires regular dialysis.
7. A remarkable feature of this application was the shift in emphasis in the Applicant’s case between the first day of hearing in Warrnambool and the resumption in Melbourne.
8. When the matter commenced in Warrnambool the Applicant asserted that his incapacity from 1997 was by reason of the infarct which occurred in 1996. The Applicant pointed to ischaemic heart disease having been accepted by the Respondent and asserted that that condition gave rise to the infarct.
9. When the matter resumed in Melbourne the Applicant did not persist with the contention that the infarct was responsible for his incapacity. Rather it was then contended that the generalised anxiety disorder was responsible for incapacity. Whilst the infarct was not abandoned as a cause of incapacity, it was advanced as having a minimal role only.
10. Perhaps even more remarkably was upon the application resuming in Melbourne, evidence was not heard from the Applicant nor was any evidence heard from two psychiatrists and a psychologist who had previously treated him. The case for the Applicant as was advanced on the resumed hearing proceeded upon medical reports being tendered and upon oral submissions of the Applicant’s counsel.
the applicant’s evidence
11. The work with the PMG and later with Telstra involved the Applicant installing new telephone cables, identifying and joining cables, installing telephones, finding faults and “troubleshooting”. In September 1996 he suffered a “heart attack” and was off work for about six weeks. He returned to work on light duties as determined by his doctors and also worked reduced hours. The Applicant said that initially he was able to cope physically with the work but the “heart attack” affected his “outlook on life”. He said he was in fear of having another attack, he became irritable, was in conflict with his wife and sought some psychiatric treatment. He said that he then was “unable to cope”. An approach was made to Telstra management to enquire whether a redundancy package was available. He was then informed that no such packages were available. In the following year, Telstra did decide to reduce its workforce and offered redundancy opportunities to its employees. The Applicant took advantage of that offer and voluntarily elected to become redundant at July 1997.
12. Thereafter, the Applicant sought employment by checking for job vacancies in local newspapers and attending a job agency in Portland. He also applied at local transport companies. He did work as a rouseabout in a shearing shed for three days but knew that that work would be confined to that duration only. In 1999 or 2000, he commenced a partnership with his former wife in a trailer repair business which was registered in the business name of “Towjoe”. Approximately $10,000 was spent by him on purchase of tools and a generator. The business operated for about 12 months but three jobs only were obtained. Thereafter the business ceased to trade.
13. Prior to the hearing the Applicant’s representative lodged a statement from an intended witness (who was not called), Mr Davidson. He was formerly employed by Telstra but is now self-employed in the telecommunications industry. The statement recorded that there were many opportunities in the telecommunications industry for employment of persons with prior experience.
medical evidence – infarct
14. The medical records and reports lodged prior to the hearing indicate that on 22 September 1996, the Applicant was admitted to the Portland District Hospital where a diagnosis was then made of an inferior myocardial infarction. Dr Taylor reported that within 30 minutes of admission following administration of medication there was an “excellent result”. The ST segments demonstrated by an ECG confirmed that the Applicant’s heart was then performing normally (refer notes of Dr Taylor, Exhibit 2). Three days later, Dr Taylor referred the Applicant to Dr Jelinek at St Vincent’s Hospital for consideration of angiography. Dr Jelinek reported on 29 October 1996 that the left coronary artery and branches were “entirely free of disease” but the right coronary artery “had a 90% 3mm long stenosis . . . certainly the culprit lesion”. Dr Jelinek reported that if there had been an admission to a private practice, angioplasty would have been undertaken but because the Applicant was being treated under the public system, that procedure should only be undertaken if there were symptoms of angina or a threatened infarction. The Applicant was returned to the care of Dr Taylor (Exhibit 2, page 8).
15. It appears from the notes of Dr Taylor and Dr Hitchman, his general practitioner in Portland, that the coronary care was largely the responsibility of Dr Taylor. This is because between 22 September 1996 and 20 January 1997 the notes of Dr Hitchman do not record any attendance whereas there were multiple attendances upon Dr Taylor.
16. On 4 November 1996, Dr Taylor has recorded, in his clinical notes that the Applicant was then “consulting DVA re retirement” however the notes do not record that the Applicant was intending to cease employment because of the infarct. On the same date, Dr Taylor wrote to Dr Hitchman confirming that the Applicant had not suffered cardiac damage, his condition was stable and it was thought that the Applicant would be fit to return to full duties in approximately six weeks. It was noted that the Applicant was reluctant to return to his former employment which was thought to be stressful. On 28 November 1996, Dr Taylor wrote to the Rehabilitation and Case Manager of Telstra confirming (subject to whether the Applicant suffered from angina) it was likely that there should be no long term restrictions upon undertaking physical work but it did appear that lengthy periods of travel within the employment was causing the Applicant some stress. On 16 December 1996, Dr Taylor reported to Dr Hitchman that the Applicant was managing work “without problems”, was walking for two or three hours most days, had not been limited by angina but was required to rest from time to time because of claudication in his right leg.
17. By 17 March 1997 when Dr Taylor again wrote to Dr Hitchman, the Applicant, having undertaken femoral angioplasty, was “able to walk as far and as fast as he wishes”. There was no history of any angina and chest pain at night was thought to be the result of indigestion rather than angina.
18. In May 1997, the Applicant consulted with Dr Hitchman on two occasions where employment was discussed. Dr Hitchman noted on 9 May 1997 that early retirement was “planned” and the Applicant had sought a certificate. On 19 May 1997, Dr Hitchman recorded that the Applicant “can’t work – doesn’t like work – walks up water tower without angina or claudication”.
19. On 16 September 1997, Dr Taylor reported to Dr Hitchman that the Applicant was “doing well”, was “enjoying retirement and having the time to go fishing and read the paper”. The Applicant was encouraged to walk greater distances, his heart was normal, his chest was clear there was no complaint of angina and angioplasty was discounted.
20. On 17 March 1998, Dr Taylor noted that the Applicant then had mild angina on exertion when mowing his lawns or when “walking fast”. Dr Taylor noted that the Applicant was “active with physical tasks quite a lot of the day” and angioplasty was again discounted. On 21 September 1998, Dr Taylor reported that the Applicant did not suffer any angina “on quite severe exertion”.
21. By 1999 it would appear that the Applicant’s health had commenced to deteriorate. On 24 March 1999 he consulted with Dr Cailes, a thoracic physician in Geelong, who reported increasing breathlessness (dyspnoea) on exertion “over recent years” which the Applicant thought was deteriorating slowly. Dr Taylor reported on 13 April 1999 that the Applicant gave a history of central chest pain when undertaking heavy lifting. Dr Cailes reported on 20 April 1999 that tests undertaken by the Applicant indicated that the breathlessness was more likely associated with asthma.
22. In a number of reports subsequently written by Dr Taylor to Dr Hitchman on 12 October 1999, 28 November 2000, 14 December 2000, 17 September 2001 and 4 and 13 March 2003, there is either an absence of any complaints of angina, or a finding that angina has not been present or chest pain appeared to be related to indigestion. Both Dr Taylor and Dr Waddy, a cardiologist in Adelaide, continued to report that angioplasty was not warranted.
23. It would appear from the above evidence that there was no reason physically why the applicant was incapable of undertaking employment. Indeed Dr Taylor not only referred the Applicant back to work on lighter duties, he reported to the Telstra Rehabilitation Case Manager that it was expected that the Applicant could eventually return to pre-infarct work subject to lengthy periods of driving in the course of his employment. In December 1996 a rehabilitation officer and a physiotherapist both from the Portland District Hospital reported to Dr Taylor that the Applicant had completed a six week rehabilitation outpatient program which involved a combination of medical, social, educational and vocational advice and monitoring of physical activity. It was reported that the Applicant “completed the program without any problems. Now exercises daily. Has returned to work and shown improvement in general fitness”.
24. On 16 September 1998, Dr Hitchman completed a questionnaire at the request of the Respondent. One of the questions asks “how do Mr Miller’s service or war-caused disabilities of themselves alone reduce his ability to work”. The answer given was “very little”. He reported that the Applicant “should be able to perform light manual and clerical work full time if job available”. He also reported that the Applicant had “no desire to work at present”. He also reported that the Applicant had “no desire for retraining. Mr Miller is content with the freedom his life presents at present. Age probably pre-dates retraining” (refer T‑documents, pages 26 and 27). That opinion was expressed approximately 15 months after the Applicant accepted a redundancy package. Approximately eight months prior to retirement, Dr Taylor reported to Dr Hitchman on 4 November 1996 that despite the Applicant then considering retirement, his heart was then “basically normal” and there was no need to retire.
medical evidence – anxiety/depression/stress
25. As indicated earlier the emphasis of this application shifted remarkably between the first and second day of hearing. When the matter resumed the Applicant no longer relied on the cardiac history as the cause of his incapacity but rather relied on the comments of two psychiatrists and a psychologist. I must again emphasise that reliance was made upon the comments within the reports of those practitioners because they were not called to give any evidence and the Applicant himself was not recalled to give evidence with respect to him attending those practitioners.
26. Even more remarkably, and hopefully this will emerge from the following discussion, it would appear that the Applicant had been attending the psychiatrists and the psychologist either without the knowledge of his other practitioners or they chose (as evident from their reports and clinical notes) to focus only on the physical symptoms. The files of Dr Hitchman and Dr Taylor do not contain any reports from the psychologist or the psychiatrists nor is there any reference in their files to the Applicant having treatment from those practitioners except for a single reference by Dr Hitchman on 29 January 1998 of referral of the Applicant “to Mr Bill Radley for counselling (cannot cope with retirement ?)”. Dr Hitchman did record in the DVA questionnaire of 16 September 1998 that he had received a report from a psychologist (I assume it to be Mr Radley) but that report was not attached to the documents lodged by the Respondent. Dr Hitchman recorded “psychological – see psychologist’s report – hard to evaluate true state of affairs now compensation in the offing”. Additionally despite the comments of Dr Hitchman of 29 January 1998, he also recorded in the questionnaire of September 1998 that the Applicant was “content with the freedom his life presents at present”. That comment would suggest, if accurate, that between January 1998 and September 1998 the Applicant’s ability to cope with retirement was deteriorating.
27. The only other references I can find in the file of Dr Taylor to the Applicant suffering stress or anxiety is the comment that he made to the Telstra Rehabilitation Case Manager of November 1998 that driving long distances would cause “unnecessary stress” and a further comment made in a report of 28 November 2000 of a doctor in Adelaide notifying the Applicant’s complaint of chest pain was thought to be “due to stress”.
28. Another remarkable feature of the psychiatric evidence, particularly when close analysis of the documents is undertaken, is the absence of any notation by either Dr Hitchman or Dr Taylor to emotional type symptoms. For example, in a questionnaire completed by Dr Hitchman at the request of the Respondent on 17 July 1998 (T‑documents, pages 9 and 10), Dr Hitchman recorded that he did not observe any “features of psychiatric condition”, that the Applicant had “no problems” coping with everyday situations or with domestic or interpersonal relationships and the Applicant “seems normal well adjusted member of society”. When asked specifically to comment upon whether the generalised anxiety disorder or insomnia affected the Applicant’s capacity for work, Dr Hitchman recorded “has no desire to work”.
29. In 1997 and 1998, the Applicant was attending Mr Radley a psychologist of Warrnambool and consulted with Dr Haughton, a psychiatrist in Ballarat, at the request of the Respondent.
30. Mr Radley reported to the Applicant’s solicitors on 7 June 2006 that he did not have his file arising out of his treatment of the Applicant between 1997 and 1999 but did have cards which prompted his memory of the Applicant and his treatment.
31. In the letter of 7 June 2006, Mr Radley reported that he saw no evidence that stress then suffered by the Applicant arose out of employment and psychological testing that he conducted indicated the Applicant to be “experiencing an extremely high level of concern about his physical health, a high level of anxiousness and a high level of anxiety related disorders. He was also significantly depressed with features of irritability and anger . . . was experiencing significant mood instability and difficulties in relationships with a number of people in his life”. He also obtained a history that the Applicant was in fact bored and frustrated with a “semi retired lifestyle and was fearful of a recurrence of heart problems”. He noted that the Applicant had been referred to Dr Haughton. He last consulted with the Applicant in 1999 and recalled that the Applicant “remained quite resistant to both acknowledging his psychological problems and making significant changes in his life during the period in which I provided him with psychological treatment”.
32. In a report of 20 May 1998 addressed to the Respondent, Dr Haughton reported that he consulted with the Applicant on 15 May 1998. He noted that the Applicant ceased work in July 1997 because “he couldn’t do the work he used to be able to do with Telstra. He said he would get angry when he had a lot of wires to join up”.
33. Although the condition of generalised anxiety disorder was accepted by the Respondent in May 1997, Dr Haughton reported that in his opinion the anxiety state and depression suffered by the Applicant did have a connection with his Vietnam service. He obtained a history of the Applicant exhibiting symptoms suggestive of PTSD being flashbacks and nightmares. He concluded that at the age of 50 years the Applicant’s capacity for work was seriously in doubt having regard to his coronary artery disease and peripheral vascular disease but in addition to “his chronic anxiety reaction with depression gives him impaired concentration and lack of interest. He took early retirement when he could not cope with his special job of cable joining, became angry and frustrated. This was a job he had done competently for many years”.
34. It would appear that in 2000 or 2001, the Applicant came under the treatment of Mr Jarasious and Dr Van der Veer of Portland. They apparently were alert to the Applicant’s emotional health and referred him to Dr Van der Linden, a psychiatrist in Geelong. The file of Dr Van der Linden contained a number of letters between those three doctors all with reference to the Applicant’s emotional state and the treatment by Dr Van der Linden.
35. In a report by Dr Van der Linden of 3 June 2002 (Exhibit D and T6), he reported that he first consulted with the Applicant on 26 July 2001 at the referral of Mr Jarasious. Unlike the history given to Dr Haughton, Dr Van der Linden reported that the Applicant “coped well, was a good worker and was reasonably well respected” in his employment with Telstra. He said that “all this came to a screaming halt following his myocardial infarction”. He noted that the Applicant experienced road rage, temper tantrum and was verbally abusive. He was argumentative at work, described symptoms of a chronic anxiety state and tension. He worried about his finances, his children and “almost anything which happened in his life”. He suffered insomnia, frustration and a wish to avoid persons. He also suffered impaired concentration and memory and had consumed anti-depressant medication for two and a half years (it is not recorded who prescribed that medication). He also noted that the Applicant heavily consumed alcohol. He concluded that the Applicant suffered from generalised anxiety disorder since his service in Vietnam and that it required treatment.
36. The report of Dr Van der Linden necessarily recorded his attendances upon the Applicant prior to 3 June 2002. His clinical notes, which were received on 28 October 2004 by the Respondent, record the last consultation being 7 September 2004. It is not known whether the Applicant has attended Dr Van der Linden since that date.
37. The clinical notes record that in August 2002, the Applicant remarried and was attempting to obtain residency for his wife. The clinical notes refer to the Applicant having conflict surrounding the care of his mother, intending to move to Mt Gambier in South Australia and travel to the United States later in 2003. At a consultation in October 2003, Dr Van der Linden has recorded that the Applicant suffered from agitation and road rage and irritability “often more when under stress”. He was otherwise noted to be “bright and cheerful”. Later in 2004, it is recorded that the Applicant had returned from the United States but was unwell and had recently been diagnosed with multiple myeloma. He was also having haemodialysis on three occasions each week. He was noted to be “bright and cheerful” at consultation on 3 August 2004 and was “able to laugh and joke” at the last consultation of 7 September 2004. The Applicant was described as being “happy” and “bright and cheerful”.
38. In a letter to Mr J Tas in Portland, Dr Van der Linden reported on 6 August 2004 that at the consultation of 3 August, despite being recently diagnosed with renal failure and multiple myeloma, the Applicant presented as “bright and cheerful and able to joke”. His main complaint had been poor sleep and low energy but there was no evidence of depression or anxiety.
conclusion and reasons for decision
39. The Applicant conceded at the conclusion of the first day of hearing in Warrnambool that he could not satisfy the provisions of s 24 (2) of the Veterans’ Entitlements Act 1986 (“the Act”). That concession in my view is properly made. The Applicant could not establish that he had genuinely been seeking to engage in remunerative work. Accordingly the Applicant’s case was put entirely upon satisfaction of s 24 (1) (c) of the Act, that is, his war-caused injuries “alone” prevented him from continuing to undertake remunerative work.
40. Whilst the focus of the Applicant’s case shifted between the first day of hearing at Warrnambool and the second day of hearing in Melbourne, that concession remained.
41. I agree with the comments made by the Applicant’s counsel at the commencement of the second day of hearing that the Applicant could no longer persist with his war-caused coronary illness alone preventing him from undertaking remunerative work. The evidence of Dr Hitchman and Dr Taylor clearly demonstrate, in so far as the coronary illness is concerned, that the Applicant made a good recovery from the infarct and but for a period of lighter duties there was no reason why the Applicant could not have continued to work. Indeed the Applicant did return to work very shortly after the infarct and left the employment in July 1997 when a redundancy package became available. He was then 51 years of age. In my view it does not matter whether the redundancy was sought by the Applicant or initiated by the employer. He ceased work in July 1997 because he was no longer an employee of Telstra. He did not cease employment because of his coronary illness.
42. In the present application, the assessment period commences on 8 September 2003 and ends when this claim is determined. The Applicant last worked in July 1997. That is, he had been out of the workforce effectively for six years before the claim was made. That feature is particularly important because the provisions of s 19, particularly sub-section (9) of the Act, compel a determination as to entitlement to pension at the commencement of the assessment period being the day the claim was made. It is not the date from which the Applicant ceased to be employed.
43. It was submitted that the anxiety and depression suffered by the Applicant had its origin in service, and this is clearly so because the Respondent has accepted generalised anxiety disorder as war-caused. It was also submitted that an irrational belief held by the Applicant of incapacity by reason of the infarct was responsible both for the premature ending of the employment and a fear of further illness or injury. It was submitted that these circumstances in combination caused the commencement of an incapacity in July 1997. More precisely, it was submitted that the Applicant focussed on his coronary illness by reason of his generalised anxiety disorder, it being an accepted disability, and that focus or pre-occupation with illness prevented the Applicant from being employed by Telstra or elsewhere.
44. In Flentjar v Repatriation Commission (1997) 26 AAR 93, Branson J, being a Member of a Full Federal Court, conveniently summarised the enquiry that needs to be made when s 24 (1) (c) is under review namely:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
45. In answer to question one above, the remunerative work being undertaken by the Applicant was his employment as a linesman with Telstra.
46. With respect to question two above, I am not satisfied that the war-caused injuries or diseases prevented the Applicant from undertaking that work. Accordingly that question must be answered in the negative.
47. The Applicant suffered an inferior myocardial infarct where the ST waves on his ECG showed normal rhythm within 30 minutes of admission to hospital after the administration of medication. Angioplasty was discounted and he returned to work within six weeks. Whilst he returned on light duties only, it was confidently expected by his treating doctors that he would eventually regain full capacity. He worked until the following July in 1997 and ceased work because of redundancy. He did not cease work because of his coronary illness. At that time, and at all relevant times subsequently, there is no evidence which points to incapacity by reason of his previous infarct or by the ischaemic heart disease which is the relevant accepted disability.
48. I accept that from late 1996 or early 1997, that is after the infarct and before the ending of employment, the Applicant did seek counselling by Mr Radley, a psychologist in Warrnambool. I accept also that he subsequently sought treatment from Dr Van der Linden over many years and in the interim he also attended Dr Haughton at the request of the Respondent. I accept that the Applicant does suffer from an anxiety state, however described, which has been accepted by the Respondent as war-caused. I also accept that the Applicant was anxious subsequent to the infarct because of the fear of either further infarct or some other coronary catastrophe. That perhaps is not unexpected. Suffering an infarct can be an overwhelmingly shocking experience. It would appear that despite the assurances, indeed reassurances, by his medical practitioners, the Applicant continued to hold a fear of further infarct. That fear is clearly evident from the notes of Dr Taylor and from the notes of Mr Radley, Dr Haughton and Dr Van der Linden. Some of the comments by Dr Hitchman are probably disingenuous.
49. It would appear, when the file of Dr Van der Linden is analysed, that the Applicant has enjoyed an improvement in his emotional health in recent years and it would appear that a number of events in his life contribute to that fortunate state.
50. Previous unhappiness in his marriage, which may have also contributed to his anxiety state, has been reversed by remarriage and it would also appear from the file of Dr Van der Linden that the Applicant enjoys an improved relationship with the children of his former marriage. It appears also from the documents lodged in these proceedings that the Applicant does enjoy some social activities including fishing and boating and playing music. It appears also that he is attempting to have a restricted pilot’s licence issued to him, presumably so that he can resume flying. The notes of Dr Van der Linden record since the consultation of 23 August 2002 that the Applicant has appeared to be bright and cheerful on examination. Those observations have also been the subject of comments by Dr Van der Linden to Mr Das, Mr Jarasious and Dr Van der Veer. The Applicant was also noted to be able to “joke around”.
51. The Applicant ceased work after he was made redundant. The employer no longer employed him. On the evidence of Dr Taylor, there was no reason why the Applicant could not work. But it emerged that the Applicant had an emotional injury, which his Counsel submitted was the cause of incapacity. I disagree.
52. I do not discount the clinical findings of Dr’s Van der Linden, Haughton or Mr Radley. But I do not find that the symptoms as manifested to and reported by the doctors caused incapacity.
53. The Applicant was a relatively young man, both at the time he ceased employment and at the commencement of the assessment period. But in the interim, six years had elapsed. The word “alone” as it appears in s 24 of the Act is not to be interpreted as if ceasing to work was the “sole, unique or absolute” consequence of war-caused injury (refer Cavell v Repatriation Commission (1988) 9 AAR 534 at 539). But in a practical sense, the incapacity of the veteran is explained by and attributable to his choice not to work. He enjoyed the financial benefit of a redundancy payment and the recreational and leisure opportunities available on ceasing work. The most recent psychiatric evidence – Dr Van der Linden’s notes of 6 August 2004 – record the Applicant, then, not to be depressed or anxious. That was 12 months after the assessment period commenced.
54. The Applicant’s war-caused injuries “alone” have not prevented him from continuing to undertake remunerative work.
55. The decision under review will be affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member
Signed: .....................................................................................
Personal AssistantDates of Hearing 27 April and 22 June 2006
Date of Decision 4 October 2006
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Mr P Liefman
Solicitor for the Respondent Mr R Douglass
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