Mills and Repatriation Commission - [2000] AATA 510

DECISION AND REASONS FOR DECISION [2000] AATA 510

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/324

VETERANS' APPEALS DIVISION          )
           Re      Laurence Leslie MILLS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date23 June 2000
PlaceSydney

Decision The Tribunal – 1. sets aside the decision under review, being the decision of the Repatriation Commission ("the Respondent") dated 15 May 1997 that assessed pension payable to Laurence Leslie Mills ("the Applicant") at 80 percent of the general rate with effect from 17 February 1997; and 2. in substitution therefor the Tribunal decides that the Respondent is liable to pay pension to the Applicant at 90 percent of the general rate with effect from 17 February 1997 until and including 2 June 1997, and at the Special (Totally and Permanently Incapacitated) Rate on and from 3 June 1997. ............................................. M T Lewis Presiding Member

CATCHWORDS
VETERANS' AFFAIRS – assessment – whether general rate assessment is less than 70 percent - whether psychiatric condition suffered by Applicant is generalised anxiety disorder – whether generalised anxiety disorder prevents Applicant from continuing to work – whether unfit for work of 8 or more hours per week - whether entitled to Special Rate pension

Veterans' Entitlement Act 1986 ss 24, 28

Hall v Repatriation Commission (1994) 33 ALD 454

REASONS FOR DECISION

23 June 2000 Mrs M T Lewis, Senior Member Dr P D Lynch, Member

This is a review of a decision of the Repatriation Commission ("the Respondent") dated 15 May 1997 that increased the disability pension of Laurence Leslie Mills ("the Applicant') to 80 percent of the General Rate, with effect from 17 February 1997. The Veterans' Review Board ("the VRB") subsequently affirmed that decision on 19 January 1998. All applications for review have been in time, and therefore the earliest date from which the Tribunal's decision is effective is 17 February 1997, being the date he lodged his application for increase in pension.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing. Oral evidence was also given by Dr Altman, called by the Applicant, and by Dr Lewin and Dr McEwin, called by the Respondent. Dr McEwin gave his evidence by telephone.
The following documentary evidence was tendered on behalf of the Applicant:

Statement of Neville Madden dated 28 November 1998 (exhibit A);
Statement of employment provided by the Applicant, dated 8 January 1999 (exhibit B);
Medical certificate from Dr Colin Gunter, general practitioner, dated 21 December 1998 (exhibit C);
Report of Dr Graham Altman, consultant psychiatrist, dated 18 January 1999, with Emotional and Behavioural Medical Impairment Worksheet (exhibit D);
Report from Dr David Moore, dated 13 January 1999 (exhibit E); and
Statement of Barbara Mills dated 30 July 1999 (exhibit F).

The following documentary evidence was tendered on behalf of the Respondent:

Reports of Dr Robert Lewin, consultant psychiatrist, dated 26 October 1998 and 26 July 1999 (exhibit 1);
Report of Dr Roderick McEwin, occupational physician, dated 19 October 1998 (exhibit 2).

issues

It was the Applicant's case that he is entitled to pension at 100 percent of the General Rate from 17 February 1997 and at the Special Rate from 3 June 1997. He was in receipt of pension at 60 percent of the General Rate at the time he lodged the application for increase. His accepted disabilities are sensori neural deafness, vitiligo, and generalised anxiety disorder.
It was the Respondent's case that the decision made by the delegate of the Respondent on 19 January 1998 was incorrect and assessment should be less than 70 percent. It is also the Respondent's case that the Applicant suffers from some psychiatric condition or personality vulnerability which is separate from his generalised anxiety disorder, or from post traumatic stress disorder ("PTSD") for which liability to pay pension has been refused, and that it is his non-war-caused psychiatric condition that prevents him from working.
the legislation
Section 24 of the Veterans' Entitlements Act 1986 ("the Act"), insofar as is relevant, provides –

(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and.…….

(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) …
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) …

For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Section 28 of the Act provides –
In determining, for the purposes of paragraph 23(1)(b) or 24 (1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is capable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professionalskills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

the applicants evidence

The Applicant was born on 28 July 1940 and was aged 56 years at the application date and 59 years at the date of the hearing. The Applicant was in the Australian Army for nine years and has had operational service in Vietnam.
The Applicant has been married for 33 years and currently lives at home with his wife. He described their relationship as "happy at times", and at other times he said he would "just wander off somewhere or do my own thing". He has two brothers, but keeps in contact with only one of them. The Applicant has two children aged 25 and 30, who live in Sydney. He has no contact with his children and chooses to let his wife 'deal' with them. He said that "if they do something wrong, such as talking back to their mother or not doing as they are told, I'll explode". He said he gets "fairly angry" with them and this causes friction between him and his wife.
The Applicant and his wife moved from Sydney, where they had lived for about 26 years, to the North Coast in 1997. He said he has retained two or three Army friends from the time they lived in Sydney. He has never had other friends. His normal social activities whilst he lived in Sydney included going to barbecues and clubs. He was a member of the RSL but did not attend regularly.
He worked for Bradshaws for about 25 years as a field service mechanic for earth moving equipment after leaving the Army. He said that he made some friends through his work but he did not socialise with them. Since he has lived in Old Bar he has not sought out friendship or company, but has developed a friendship with a few retirees. He visits one of them about twice a week for coffee, and stays about half an hour, and the other for about 10 to 15 minutes. He sometimes goes fishing with one of these friends. The last time he went was three months before the hearing, but "if the Blackfish are running" they might go once or twice a week. Otherwise, his activities are mainly limited to reading, watching television and listening to the radio. He and his wife sometimes go to the Bowling Club, where he has three or four schooners. He avoids public places and spends most of his time alone at home. He avoids people except for his close friends, who constitute about four or five couples. He has not been more socially active in the past.
He does not play any sport, but sometimes watches sport on television. He did not play much sport in the Army. He and his wife used to go to the Leichhardt Oval to see the Balmain Tigers play, but he stopped because he felt uncomfortable in crowds.
The Applicant attends meetings at the RSL Sub-branch in Old Bar monthly. About 10 to 15 people attend. He is coping with their company and attributed this to the fact that they are ex-servicemen. He sees one or two other than at the meetings. He is also rostered to sell raffle tickets on Saturday outside a Newsagency every four to six weeks. This does not involve crowds or having lengthy conversations with people.
The Applicant said that there are no physical limitations on his ability to walk but he does not go for walks as he prefers not to stop to talk to people. In cross examination the Applicant was taken to his Lifestyle Questionnaire (T37) where he said he gets disorientated and breathless whilst walking. He said he gets breathless after walking for 10 to 15 minutes. He said he was experiencing these symptoms at work but they did not interfere with his work. The cause of this has not been investigated. The Applicant also noted in his Lifestyle Questionnaire that his physical activities were limited because he cannot kneel or lift very high. He said this is "probably muscular".
The Applicant has a car that he uses to go into town. The closet town, Taree, is about 15 to 20 minutes drive. He goes to Taree once or twice per fortnight. He said he accompanies his wife when she goes to shopping centres. He said he gets a "boxed in feeling" when there are too many people around him, and this makes him feel "tight in the stomach".
The Applicant said he feels comfortable driving in Old Bar (population 2,500). His wife drove him to Sydney because he finds driving in traffic too stressful. He would not have considered travelling to Sydney by train or 'plane because "you're boxed in. You can't get out, go anywhere". He also noted that there would be too many people using either mode of transport. He said that he has flown twice and did not enjoy it. It was "a very long time ago" that he travelled by train or long distance bus.
The Applicant does not undertake many domestic duties, apart from vacuuming the floor or carrying the washing out. He does not want to do more, and his wife does not raise this question with him. He said he has "possibly" done more in the past. He admitted that he could probably do more domestic chores if his wife "forced him to". He used to be a bit of a handyman when he was working, and did more around the house. He has a "low maintenance" garden. He mows the lawn, but does not "rush" to do it. He said if he could afford it, he would pay somebody to do it. He hires someone to do maintenance around the house and said he "had not really been much of a handyman ".
The Applicant has been consulting Dr Altman, psychiatrist, for four to five years, about once every 6 weeks and prior to this he was seeing Dr Herron at Concord. He could not remember why he changed psychiatrists. He travels to Sydney to see Dr Altman, which makes him frightened. He said he has a fear of being closed in and he sometimes feels "closed in" at home. He has a fear of heights and a fear of being at the Tribunal. The presence of strangers makes him feel nervous. In relation to being in the hearing room with others he said "they're far away from me so I can get out the door".
The Applicant attributes his sleeping disorder to his PTSD. He takes a tablet to go to sleep and is able to sleep for about 4 to 5 hours. He said his wife tells him that he wakes screaming, thrashing and sweating, but he is not aware of this. He has nightmares once or twice a week. He said these problems began in 1971 - the year he was discharged from the Army. He said losing work and moving to Old Bar have been significant changes for him. He considered that his condition has stayed the same since he began seeing Dr Altman.
The Applicant began taking psychotropic medication when he was consulting Dr Herron and he continues to take medication even though it makes him sleepy.
When the Applicant worked as a fitter welder he mostly worked by himself doing field service. He had a service vehicle and would travel to various places by himself. He was earning about $400 per week. He felt good about his work as he felt he was achieving something. He held this job for over 20 years. He would sometimes have a drink with the people with whom he worked, but he was not interested in them.
Prior to the termination of his employment the company was doing some restructuring which required employees to become multi-skilled. The Applicant considered that this put more pressure on him to do extra work and longer hours, from 6 in the morning till 9 or 10 o'clock at night. Prior to this he worked a 40 hour week, and his hours were flexible. He said the longer hours were the main problem for him. He said there was more pressure to get the jobs done quicker, and after a while he "cracked". He explained that he "had a go at the manager" and "threatened to put him on the floor". A few weeks before this incident the previous manager, with whom he had got on well, had left and one of his peers became the manager. The Applicant did not apply for the job as manager as he believed it was too much responsibility. However he did not trust the person who became manager. He used to see the previous manager every day to get his jobs, but the manager did not interfere in what he did. He said the new manager was overbearing and wanted things done his way. The new manager accused him of not doing the job properly - of servicing a machine in which a part had come loose. He said that he told the new manager "if you don't want me doing it, get someone else". He told the manager he would not service another machine because "I'm not trustworthy any more, so go and do it yourself". Being accused of not doing a job properly made him "angry and uptight". It was then that he threatened the manager. He understood that other people also had become angry with the new manager.
After he threatened the manager he took all his personal tools from the vehicle into the workshop, and took a week's leave. He had had a company vehicle and the owner told him if he was not going to do the job he could not have the vehicle. After that conversation he believed he was on "limited time". Prior to this incident he had got on 'okay' with the owner. He expected that the owner would give him the 'benefit of the doubt' over the incident, and he felt 'let down' when this was not the case.
During his week's leave he stayed at home. When he returned to work he had a certificate from Dr Altman saying he suffered from PTSD and was "totally and permanently unfit for work" (T23, p87). This was the first time his employer became aware of his condition. He said that his wife drove him to work that day and explained what was wrong with him to his employer. The Applicant then went to collect his tools. He did not want to stop work but knew his job was 'finished'. He said he would have liked to continue with the work but did not think another company would employ him because of the medication he was taking.
When the Applicant ceased work in early June 1997 he was living in Rydalmere. After he ceased work he put the house on the market. About four or five months after his retirement he moved to Old Bar, to get out of the city. He said he never discussed retirement plans with his wife, and thought he would stay in the city. The Applicant said he has not looked for work since moving to Old Bar.
The Applicant confirmed that the drinking history contained in Dr Altman's report is correct. He drinks three to four cans or stubbies per night, and he would double that quantity if they have visitors at weekends, which does not happen very often. This pattern of drinking began in about 1962 or 1963. He started drinking when he was aged about 19 years.
The Applicant had two trips to Vietnam. He remembered incidents that happened there but gave no details of these incidents despite being given opportunities to expand on his evidence.
In 1991 the Applicant developed hearing problems and had surgery to remove a tumour in his middle ear. When questioned about this period he did not think his mental state was any worse around that time. However, in relation to Dr Herron's report in 1993, he agreed he behaved in the manner described in Dr Herron's report after his ear surgery. In February 1999 he had a malignant neoplasm of the rectum diagnosed, for which he is receiving medical treatment; he has also has some skin cancers removed. He agreed that he worries about those things.
The Applicant agreed that he gets angry on a fairly regular basis and with little provocation. He agreed with the description his wife gave in 1993 of "temper tantrums" and "rages". His description of his present behaviour is consistent with the 1993 description given to Dr Herron.
The Applicant agreed that his wife often speaks on his behalf. She had to persuade him to attend the hearing. He agreed that he gets frustrated when dealing with people. He avoids Vietnamese people because he cannot identify whether they come from the North or the South. He asked a rhetorical question – "Why did we bother going there"?
The Applicant sometimes has flashbacks about being on board the ship to Vietnam. He was not very forthcoming about their content but he said –
Well, I'm down below trying to sleep and they're throwing stun grenades over the side …well you're sleeping below the water line and you're a non-swimmer … another occurrence was going ashore and a land rover and there were four or five of us.

He also experiences nightmares but does not recall the content. He said he gets depressed and suicidal about once per week. These feelings last a day or so.
evidence of neville madden

The Tribunal was provided with a written statement by Neville Madden (exhibit A), with whom the Applicant served in the Army for four years. Mr Madden had been the Applicant's immediate superior for a time. He noted that the Applicant had been good at his job, willing to help others, and he got on well with all members of the unit. He noted that in 1969 they were both posted to 32 Small Ship Squadron, Royal Australian Engineers, and at that time the Applicant was promoted to Sergeant. They then served on different ships of the Squadron, and Mr Madden did not see the Applicant again until after his return from Vietnam in December 1970. Mr Madden said –
After his return from Vietnam I found Laurie to be a different person to that which I had served with previously. He was now moody, indifferent in his attitude towards the Army, subject to outbreaks of anger for no apparent reason and was un-sociable towards his fellow soldiers and friends. He was not the same soldier and person that I had known previously.

Mr Madden also said that he has kept in touch with the Applicant and his wife since they left the Army and has stayed with them on many occasions. He noted that the Applicant's attitudes have not improved and that his physical and mental health seem to have deteriorated.
medical evidence

Dr Altman, psychiatrist, provided a report dated 18 January 1999 (exhibit D) for the purpose of these proceedings, in which he noted he has been treating the Applicant since 27 October 1994. Dr Altman identified in this report the stressors that the Applicant experienced in Vietnam and the symptoms from which he suffers that led Dr Altman to the diagnosis of PTSD.
Dr Altman said that at least 90 percent of his practice was treating war veterans, and most of his practice was seeing veterans with PTSD. He said he sees a lot of Vietnam veterans. He said that his initial assessment of veterans is used for the purpose of lodging a claim for disability pension.
The Tribunal notes that much of Dr Altman's oral evidence was not useful because of his habit of making generalisations about veterans whom he treats rather than focusing on the Applicant's condition specifically. Dr Altman said that he was not active in encouraging the Applicant to cease work, and it is not his normal practice to do so.
Dr Altman noted that in May 1997, as a result of the Applicant's psychiatric disorder alone, he became "totally and permanently unfit to work". When seen on 27 May 1997 Dr Altman noted that the Applicant found it very difficult to drive his truck through traffic, he "nodded off" a few times while driving, he had no tolerance (when driving or in other circumstances), he felt stressed, he had threatened "to put the workshop manager on the deck", and he feared that if he stayed working he "will end up decking someone or worse". At this point in his evidence he generalised again about his patients and said –
They walk into your room, they've just had enough, and at that stage I put them in for a TPI. I do not encourage people to go on to TPI, I try to encourage them to work as long as possible….
Dr Altman opined that the Applicant was totally and permanently unfit to work because of his war-caused PTSD. He noted that –
When I initially assessed Mr Mills in 1994 I stated that in my opinion as a result of his Vietnam experience he was suffering from a Generalized Anxiety Disorder and that his Vietnam war experience had caused such features as restlessness, easy fatigueability (sic), sweating excessively, trouble swallowing, he had an exaggerated startle reaction and it had caused irritability. However in the subsequent months that I got to know Mr Mills it became increasingly clear to be (sic) that Mr Mills in fact suffers from a severe chronic Post-traumatic Stress Disorder as a result of his Vietnam experience and not from a Generalized Anxiety Disorder. I have outlined in this report the 12 points which are indicative of a war-related chronic Post-traumatic Stress disorder.

He also noted that the diagnosis of generalised anxiety disorder is made only if other anxiety disorders are not present.

The following evidence was given by Dr Altman in answer to questions from the Tribunal –
Q.       … do you think that Mr Mills is now suffering from a different condition from the condition for which you saw him in 1994?
A.        I think it's most likely he's got the same condition, but that it wasn't apparent to me when I assessed him in 1994.
Q.       Do you think that he has ever had a condition that you would now diagnose as generalised anxiety state, that is different from this condition that you are now describing as PTSD?
A.        I think it's unlikely.
Q.       How unlikely?
A.        Very unlikely. I think that he's had PTSD all the way through. When I say all the way through, since Vietnam,
In his oral evidence Dr Altman noted that the Applicant was "not an easy historian" and most of his answers were monosyllabic.
Dr Altman noted that in 1995 he considered the Applicant's PTSD to be moderate in severity when he assessed 30 points using GARP IV. In May 1997 he assessed that the Applicant's condition was moderately severe and again using GARP IV he assessed at the next level, being 45 impairment points. He noted that at that stage the Applicant was still in employment. On his last assessment in 1998 and using GARP V, Dr Altman considered that the Applicant's condition had become worse and he assessed 50 impairment points, which nevertheless he considered to be not much worse than the previous assessment under the old GARP.
Dr Altman made no diagnosis of personality disorder, and in respect of Dr Lewin's reference to personality disorder, Dr Altman said that whether or not the Applicant had a diagnosable personality disorder nonetheless he had PTSD. Dr Altman also noted that Dr Lewin did not identify the type of personality disorder from which it was thought the Applicant suffered, and there was no indication about the basis for his diagnosis.
Dr Lewin, psychiatrist, provided reports dated 26 October 1998 and 26 July 1999 (exhibit 1) on behalf of the Respondent, having interviewed the Applicant on one occasion. The Applicant's wife also attended the interview and advised Dr Lewin that the Applicant had taken a double dose of his medication prior to the consultation. Dr Lewin found him slumped in the chair in the waiting room, apparently dozing. From Dr Lewin's description of the interview with the Applicant it appears that the Applicant, in his characteristic manner, did not volunteer anxiety symptoms. While he spoke of chronic feelings of distress and anguish and could not see the point in "going on", Dr Lewin considered that the Applicant did not describe active suicidal intent. Mrs Mills provided a history to Dr Lewin that on the one hand the Applicant was cranky and irritable, and on the other hand he was unable to look after himself and cope with ordinary demands. She believed he needed a full-time carer. Dr Lewin indicated that part of the Applicant's difficulties arose from his wife's attitude to his psychiatric condition.
Dr Lewin noted that Mrs Mills informed him that the Applicant drank 6 to 8 cans of beer per day, supplemented with 4 large glasses of port. However, in a written statement dated 30 July 1999 (exhibit F) Mrs Mills said that this is not what she told Dr Lewin, and that she had given him the same information about the Applicant's drinking that she gave to Dr McEwin and Dr Altman, that is, that his usual consumption is 3 to 4 beers per day, and about once a month when they have visitors the Applicant drinks 6 to 8 beers and "a couple of large ports". Dr Lewin said that Mrs Mills "played down the significance of his drinking". He also noted the inconsistency of the drinking history from Mrs Mills and that which was recorded by Dr Altman. He considered that some of the Applicant's bodily symptoms of anxiety and intermittent symptoms which may have been phobic avoidance could have been attributed to alcohol withdrawal.
Dr Lewin considered that the Applicant gave a sequential and logical account of his history and there was no demonstrated impairment of long term memory, and that there was no evidence of any organic memory impairment. He noted that when he relayed that observation to Mrs Mills she became very agitated and distressed, and remonstrated with him that his conclusions were definitely incorrect. Dr Lewin opined that the complaints made by Mrs Mills about the degree of the Applicant's disability "were very clearly out of step with the degree of mild psychiatric symptomatology that I elicited". Dr Lewin also opined –
It appears to me that a significant part of Mr Mills' current complaints are unrelated to his Anxiety Disorder. There appears to be an underlying condition and I suspect that he also has a range of wishes and desires regarding his retirement which are motivating factors, unrelated to illness.

Dr Lewin considered that the two surgical procedures to which the Applicant has been subjected recently were likely to have had "a significant effect upon the level of anxiety symptoms in the recent past". It is not clear what part of the Applicant's history led him to that conclusion.

Dr Lewin noted that although "a number of my colleagues" suggested a diagnosis of PTSD, he did not diagnose this condition and considered it to be "most unlikely". He also considered the "substantial reason" why the Applicant was not working was his decision to retire and move to the North Coast. In his oral evidence, however, he commented "that seemed to be between the lines here", indicating that it was no more than an inference.
In cross-examination he admitted to some difficulty in getting information from the Applicant at the time of the consultation. He said that for some of the consultation the Applicant left the room because he was distressed. He noted that the Applicant was "aggitated and distressed" at a number of stages during the examination, and that he had taken some medication that may have impacted upon his presentation. It is surprising to the Tribunal that if Dr Lewin considered that the Applicant's medication might have impacted upon his presentation he did not request a further attendance when the Applicant was not over-medicated. In his oral evidence he said he had not checked what medication the Applicant had taken prior to his consultation. However Dr Lewin also said the Applicant "had used medication to control anxiety. He wasn't sedated in the examination". It is not clear how Dr Lewin could be sure about this when he had not questioned the Applicant about his medication. This surely calls into question the findings of Dr Lewin which were based on this consultation alone.
In cross-examination it became apparent that Dr Lewin had not obtained any history from the Applicant about the discharge of stun grenades. Dr Lewin was told of the evidence provided by the Applicant about his reaction to the stun grenades and the history take by Dr McEwin and Dr Altman. However he said –
I would regard the history about stun grenades as fairly unimportant because, in my experience of many seamen, they often report that experience……But my judgment is that that sort of experience would not be the sort of stressor which would, in any circumstance, give rise to post-traumatic stress disorder. That is my opinion.
Dr Lewin considered that the history was suggestive of a "personality disturbance". He did not define the type of personality disturbance present. In cross-examination Dr Lewin denied that he had made a diagnosis of personality disturbance - he was merely "describing what I saw". He also said in cross-examination that he had insufficient information to diagnose personality disorder. He added that while it was a "likely diagnosis", there was insufficient information to make a diagnosis. In his report of 26 July 1999 (exhibit 1) Dr Lewin said that he considered there appeared to be a "Personality Vulnerability and difficulties in the marital relationship". Although initially Dr Lewin had considered the Applicant's symptoms to be mild, in his report of 26 July 1999, and without further examination, he referred to symptoms "of mild or at most moderate severity" which he said would not have warranted the diagnosis of any severe psychiatric illness. He also questioned whether, because Dr Altman had reported a more severe degree of impairment, the Applicant is worse because of his treatment.
In his oral evidence Dr Lewin said he considered the Applicant probably had an anxiety disorder, and that significant aspects of his current behaviour were related to his personality difficulties. He noted that personality factors are enduring traits that describe lifelong functioning, but he could not say for how long the Applicant had had these. However, he considered that it was more likely a personality disorder because of "the clinical presentation and the pattern of the history". When pressed on this question Dr Lewin said that the way the Applicant behaved in his medical examination caused him to come to that conclusion. He was blaming others for his predicament and he repeated statements that others were idiots. He made "dramatic statements about suicide" and he had an "entitled" attitude. Other factors included: his aggressive behaviour, his derogatory statements about others, and his tendency to project blame on others for his failings.
Dr Lewin accepted that the Applicant had a war-caused anxiety disorder. He gave a GARP V rating of the Applicant's anxiety disorder of 10 impairment points.
Dr McEwin, occupational physician, provided a report dated 19 October 1998 (exhibit 2) at the request of the Respondent. Dr McEwin took a history from the Applicant consistent with the evidence the Applicant gave to the Tribunal. Dr McEwin opined that the Applicant was fit for any work suitable for a man of his age (59 years) on a physical basis (except where full hearing is required), but he is limited by his emotional disorder. Dr McEwin was somewhat diffident in providing an opinion in respect of the Applicant's psychiatric fitness for work because Dr McEwin did not have psychiatric qualifications, but he said "I incline to the view that from a common sense point of view Mr Mills is probably unemployable". But Dr McEwin added –
If he were fortunate enough to find an employer who understood the reasons for his behaviour and was willing to accept his behavioural pattern, then he would be employable in his own field of fitting and turning or engine maintenance. By his work experience he would seem to be very well qualified in these fields.
Dr McEwin added that, taking into account the nature of the employment market at present, the Applicant is permanently unemployable, the major reason for this being his anxiety and depression. He considered that the Applicant's age was a negative factor in the present employment market. He noted a strong probability of lack of harmony and arguments with fellow employees and management resulting from the Applicant's "altered behaviour", and that this was sufficiently serious to be likely to put his job in jeopardy.
Dr McEwin opined that the Applicant "is permanently unemployable and able to work less than 20 hours a week". In his oral evidence he said that unless the Applicant had an employer who would accept his behaviour and a job where he could work on his own, he did not consider that he would work for eight hours a week. He clarified that it was more probable than not that the Applicant could not work more than eight hours a week in the present labour market.
Dr McEwin also provided an assessment using GARP V. He assessed an impairment rating for emotional behavioural disorders at 35 points, hearing impairment and tinnitus at 10 points, and vitiligo at 5 points. In cross-examination he said that from his examination the Applicant's psychiatric condition was "relatively severe". Dr McEwin also assessed the Applicant's overall lifestyle rating at 4.
In common with all the other doctors who have examined the Applicant, Dr McEwin also had some difficulty obtaining a history from the Applicant.
Dr Gunter was the Applicant's local medical officer when he lived in Sydney. Dr Gunter provided a report dated 21 December 1998 (exhibit C). He noted that on 27 May 1997 he certified the Applicant unfit to continue at work on the basis of his PTSD, that diagnosis having been established by that time by his psychiatrists Dr Herron and Dr Altman. Dr Gunter noted that the Applicant was –
… forgetting important details relating to his work, losing tools, getting violently frustrated in traffic and was unable to accept authority…. I do not believe that he will return to work and as such is totally and permanently disabled.
The Applicant's current local medical officer is Dr Moore, who provided a report dated 13 January 1999 (exhibit E). Dr Moore had observed "over the last months" that –
He is prone to be uncooperative.
He underestimates his degree of morbidity.
He is defiant of authority and belligerent in thoughts expressed. He lacks insight. His social skills have declined sufficiently that he is unemployable.
He has difficulty following a theme in conversation and needs guidance from his wife at times.
It appears his ability to concentrate is less than average. His wife states that this is much worse than it used to be.
He is unlikely to be fit enough for retraining because of these features in his behaviour and mental abilities.
He has been on treatment for some years and has not improved and I do not foresee any improvement.
I believe he is totally and permanently disabled from working in his usual field of employment.

applicant's submissions

In relation to General Rate issues, it was noted that the Applicant accepts the existing assessment for hearing loss and vitiligo. However he contests the assessment of his psychiatric disability and all aspects of the lifestyle assessment
It was submitted for the Applicant that on the oral evidence and medical reports of Dr Altman and clinical notes of Dr Herron, his psychiatric condition should now be diagnosed as PTSD rather than generalised anxiety disorder. The advocate for the Applicant made no reference to the jurisdictional issues underpinning this submission.
In respect of the assessment of the Applicant's psychiatric disability, it was submitted that the opinion of Dr Altman should be preferred to that of Dr Lewin as he is a specialist in the diagnosis and treatment of PTSD, especially amongst war veterans. It was submitted that although Dr Altman at times is somewhat enthusiastic in his support of his patient's claims, as a treating psychiatrist he developed a better understanding of the nature of the Applicant's condition. The increase from 30 impairment points in January 1995, to 45 points in May 1997, and to 50 points in January 1999 was a consequence of changes in the method of assessment between GARP IV and GARP V and of Dr Altman's better understanding of the extent of the Applicant's impairment. Overall, it was submitted that Dr Altman's final assessment of 50 impairment points should be preferred.
The Applicant's representative urged the Tribunal to give little if any weight to Dr Lewin's conclusions, because Dr Lewin admitted that he had very limited practical experience in the diagnosis and treatment of PTSD. It was submitted that his opinion that the Applicant suffered from some type of personality disorder was simply a "red herring", the purpose of which was to direct attention away from his accepted disabilities.
With respect to lifestyle ratings, it was contended that the appropriate rating for personal relations should be 5 or 6. It was submitted that apart from his wife and a small number of Army friends, the Applicant excludes others from his life in a conscious and deliberate manner. Furthermore, he has no contact with his children and other members of his extended family apart from one brother, nor does he wish to. Despite working at Bradshaws for 25 years, he had no interest in social contact with his work colleagues, nor did he develop any significant friendships. The Applicant admitted to physical violence towards his wife.

It was submitted that a rating of 5 should be given for mobility. The Applicant's incapacity to walk was due to his wish to avoid others and not any physical limitations. He drives only in the immediate vicinity of Old Bar where there is little traffic but he requires his wife to drive anywhere else. He is fearful of travelling by train, 'plane and bus because of his fear of feeling "closed in".
With respect to community and recreational activities, it was submitted that a rating of 4 should be given. It was submitted that despite the monthly meetings he attend at the RSL sub-branch, his rostered responsibility for the sub-branch raffle and occasional fishing trips, the Applicant prefers his own company and engages in solitary activities. He has given up attending football matches to avoid crowds.
It was submitted that the Applicant should have a rating for 5 for domestic and employment activities. It was highlighted that he has lost all interest and enthusiasm for domestic tasks. In the past the Applicant used to be a handyman, but now he only does simple tasks if he is in the right mood. Furthermore, he is now unable to work. It was submitted that the Respondent's submission on employment provided a totally false view of the reasons why the Applicant ceased work and is now unable to work, viz it was false to assert that the Applicant's physical health was not good at the time, that his desire to relocate to the North Coast contributed to his ceasing work, and that he was beyond the usual retiring age.
The Applicant submitted that he should have an impairment rating of 50 for generalised anxiety disorder, 10 for hearing loss, and 5 for vitiligo, giving a combined impairment rating of 55. Additionally, in respect of lifestyle assessment, it was submitted that on the abovementioned evidence, based on his oral evidence, his average lifestyle rating is 5.
Regarding Special Rate, it was submitted that s24(1)(a) of the Act is met. In relation to s24(1)(b), it was submitted the Applicant relies on the oral evidence and medical reports of Dr Altman and Dr McEwin. With respect to s24(1)(c), it was argued that but for his war-caused diseases, the Applicant would have continued in remunerative employment with Bradshaw after 2 June 1997. Dr McEwin's opinion is that the Applicant is well qualified for employment in fitting and turning or in engine maintenance and that his general health, excluding his accepted psychiatric disability is reasonably good.
In relation to s24(2)(a)(i), it was contended that the Applicant lost his job at Bradshaw solely because of conflict with his manager which was a consequence of his accepted psychiatric disability. It was submitted that Dr Lewin's assertion that the Applicant's decision to retire and move to the North Coast was the substantial reason why he was unemployed should be disregarded. The Applicant's ceasing work had nothing to do with his later decision to move to Old Bar. With respect to s24(2)(a)(i), the Applicant relies on the report and oral evidence of Dr McEwin.
It was submitted that the Applicant is entitled to enjoy the ameliorating provisions of s24(2)(b). The Tribunal was referred to the decision of Hall v Repatriation Commission (1994) 33 ALD 454, where Spender J concluded the "genuinely seeking" provision of s24(2)(b) is satisfied if there is a genuine wish to work and a willingness to do so even where the veteran has made no serious attempt to find work, which on the Applicant's evidence was the case. It was submitted that, in any case, the Applicant satisfied s24(1)(a) to (c) and (2)(a), without reference to s24(2)(b).
respondent's submissions
The Respondent submitted that the Applicant's pension should not be increased beyond 80 percent of the General Rate. Furthermore, the Respondent submitted that the Applicant does not meet the 70 per cent threshold for the Special Rate.
It was submitted that if Dr Altman insists that the diagnosis is PTSD and not Generalised Anxiety Disorder, then the assessment for the latter should be nil. It was highlighted that the Statements of Principles for both conditions are entirely different, they have separate diagnostic criteria, aetiologies and different factors applicable to each. Furthermore PTSD is a rejected disability, so that to assess incapacity from PTSD, the Tribunal in effect is being asked to review a decision on entitlement. If the Applicant believes his appropriate diagnosis is PTSD, it was submitted that he should pursue his claim to that effect which would then be considered under the separate diagnostic criteria and Statement of Principles for that disorder. It was submitted that the issue of assessment has become confused by Dr Altman introducing a new diagnosis at this stage and thus his impairment ratings must be treated with caution. It was submitted that the Respondent is prejudiced if the Tribunal proceeded to assess PTSD without the Respondent having the opportunity to address a claim in respect of that condition.
The Respondent submits that the correct diagnosis is that of Generalised Anxiety Disorder and relies on Dr Lewin's opinion and the original diagnosis of Dr Altman in making that submission. If the Applicant no longer suffers from generalised anxiety disorder as Dr Altman's evidence would suggest, then the Applicant no longer suffers from any war-caused psychiatric disability.
The Respondent acknowledged that many of Dr Altman's patients are veterans. However, it was submitted that his "enthusiasm" has blunted his professional objectivity to the point where he has become an advocate for veterans' claims. In contrast, it was submitted that Dr Lewin has given his opinion as an impartial forensic psychiatrist where no personal or professional relationship existed and it should be preferred to the evidence of Dr Altman. He carefully considered the stressor, the nature and quality of the clinical symptoms, the history of the clinical course of his condition, his presentation, personality and behaviour and a number of issues where the history seemed to change over time.
The Respondent submitted that the ratings for impairment and lifestyle for generalised anxiety disorder, hearing loss, and vitiligo should be 30, 10 and 5 points respectively, providing a combined impairment rating of 40 points. The lifestyle rating is no higher than 4 points, converting to an assessment of 80 percent of the general rate. Having noted that Dr Lewin awarded an impairment rating of 10 points for generalised anxiety disorder, it was submitted that the Respondents acceptance of 30 points is generous.
In relation to personal relations, there was no convincing evidence that the Applicant was unable to mix and develop social ties, and there was no evidence to indicate that his war service was the reason for his inability to make and maintain social and community ties. It was noted that the Applicant has demonstrated that he is able to participate in community activities by attending regular meetings at the Old Bar RSL and selling raffle tickets.
With respect to mobility, it was submitted that the Applicant is still able to drive and is physically capable of walking if he wishes to do so. In relation to community and recreational activities, it was noted that the Applicant is an avid reader, a recreational fisherman which he undertakes with a friend, and with his regular activities at the RSL sub-branch he is no doubt living a life very similar to most retirees at Old Bar.
In relation to domestic activities, it was contended that the Applicant has no need to undertake the number and range of domestic chores he previously undertook around his house. The Applicant is clearly able to do whatever work he wishes to do around the house, and if he does not do so, it is because he chooses not to; there is no physical or psychological reason as to why he cannot assist his wife, or perform home maintenance.
Regarding employment, it was submitted that once the Applicant left work in 1997, they subsequently moved to Old Bar. No attempts were made by him to seek work and this was the reason why the Applicant was not working now. Other factors which contributed to some degree to his decision to leave the workforce included his age, physical health and desire to relocate to the North Coast as well as the symptoms of his accepted psychiatric disability. Additionally, the Applicant also experienced problems with his manager at the time he left work.
It was submitted that the Applicant has a continuing capacity to engage in remunerative work. In making that submission, the Respondent relies on the opinion of Dr Lewin who is clearly of the view that the Applicant retains the capacity to work for more than 20 hours per week. As a matter of choice the Applicant has adopted a retirement lifestyle in an area of high unemployment and in any event he has not demonstrated any efforts to continue to engage in remunerative work.
In the alternative, it was submitted that if the Applicant is incapable of undertaking remunerative work for reason of his psychiatric disability, then such incapacity includes PTSD, a condition that is not service-related. It was highlighted that Dr McEwin's assessment of work capacity was predicated on the existence of PTSD and not generalised anxiety disorder.
It was submitted that the Applicant is not entitled to the benefit of the ameliorating provisions of s24(2)(b) as there was no evidence to suggest that he was genuinely seeking to continue working.
consideration of evidence and finding of fact
The Tribunal finds that the Applicant was somewhat reticent to provide any detail in answering questions put to him at the hearing, and at times he was monosyllabic. This is consistent with the evidence of the doctors, who found it hard to obtain a history from the Applicant. The Tribunal did not consider that the Applicant was being uncooperative or evasive, but rather this reflected the difficulty that he has in relating to people. The Tribunal also finds, from the evidence of the Applicant, and noting other evidence before the Tribunal, that the Applicant has a tendency to understate his problems. There was no evidence to cause the Tribunal to conclude that the Applicant's memory was impaired; rather, the prime problem is his reticence to provide much information. The Tribunal finds that the Applicant was a genuine and truthful witness.
Does the Applicant suffer from a war-caused psychiatric condition?
It is relevant to note the history of the acceptance of generalised anxiety disorder as war-caused. In response to a claim lodged by the Applicant the Respondent diagnosed "anxiety/depression" and refused his claim on 27 July 1994. On appeal to the VRB the diagnosis was changed to "generalised anxiety disorder" and the VRB determined on 24 May 1995 that that condition was war-caused. As the effective date of the VRB decision was 28 July 1993, it must be assumed that the claim was lodged on 28 October 1993, and so the determination did not need to be made in accordance with Statements of Principles. In the reasons for decision the VRB said:
Regarding the claim for anxiety/depression, the Board noted that the two psychiatrists were of the opinion that Mr Mills suffers from a psychiatric condition and that the circumstances during his operational service contributed to the development of that condition. Dr Herron diagnoses the condition as post traumatic stress disorder. Dr Altman diagnoses the condition as generalised anxiety disorder.
From the psychiatric evidence available to it, the Board concluded that the more appropriate description of the condition was generalised anxiety disorder and determined to vary the decision under review accordingly so as to describe the claimed condition in those terms.

The Tribunal is not further assisted by the VRB's reasons in that matter.

The VRB reference to Dr Herron appears to relate to clinical notes of Dr Herron which were before the VRB. Dr Herron's almost illegible clinical notes are at pages 26 to 30 of the s37 documents. It would appear that Dr Herron saw the Applicant on four occasions in 1994, that he found it difficult to obtain much information from the Applicant, and that he relied significantly on information provided by the Applicant's wife. However, by August 1994 the Applicant spoke with Dr Herron about some of his experiences in Vietnam, and Dr Herron then noted significant compliance with the diagnostic manual DSM-III-R for PTSD, and diagnosed "PTSD resulting from his experiences resulting from service in Vietnam". Dotted throughout these clinical notes of Dr Herron were references to the Applicant's depression, suicidal thoughts, anxiety, anger, mood swings, sleeping problems and memory impairment.
Dr Altman's report dated 16 January 1995 (T9) was also before the VRB. In his oral evidence Dr Altman said that he saw the Applicant and his wife about four times in relation to that assessment. He noted that the Applicant –
wasn't involved directly in action. …. However, he did find his service in Vietnam very stressful ….

Dr Altman noted that the Applicant's wife stated that his Vietnam experience affected him in the following ways -

1.        "When he got back from Vietnam – on December 24, 1970 – he broke down and cried and that was the first time I had seen him cry",
2.        "He was very aggressive and very short-tempered and moody" – this behaviour has continued and has increased after the diagnosis of the tumour in his ear in 1991.
3.        "He has no memory – he has blotted out things of what has happened".
4.        "It was better to leave him in his own environment – to ignore him – I had to handle all the teenage problems – he couldn't talk to his children – he still can't talk to his son".
5.        "He got more violent – he would physically hurt me".
6.        "He doesn't really want to participate in life – you have to push him to do something – he is not co-operative – he is hostile at everybody".
7.        His wife stated that prior to going to Vietnam he was "very caring – he used to look after me and for the last 24 years I've had to look after him – you would never know what would trigger him off into a tantrum".
On further questioning it became evident that he did not have the typical features of a Post-traumatic Stress Disorder. However, he presented with the clinical features of a Generalized Anxiety Disorder – in general since Vietnam he has been more anxious and according to his wife "more of a negative person". In addition he has had a history of suffering from a number of symptoms indicative of a Generalized Anxiety Disorder since Vietnam – he presents with a long history of restlessness, easy fatigability, sweating excessively, trouble swallowing, he has an exaggerated startle response and irritability.
In addition he presented with some depressive symptoms such as low energy, low libido, reduced confidence and motivation, he would make big issues out of relatively minor issues and he was not mixing as well as he used to.
….

In that report Dr Altman assessed the Applicant's generalised anxiety disorder, presumably using GARP IV which was current at that time, at 30 impairment points.
Dr Altman provided a further report dated 29 May 1997 (T21, p81) in the form of a progress report to Dr Gunter, the Applicant's general medical practitioner in Sydney, in which he noted that the Applicant was treated by another psychiatrist until he came to see Dr Altman again in November 1996. Presumably, therefore, Dr Altman's report of 16 January 1995 was in effect a medico-legal report. Dr Altman wrote in his report of 29 May 1997 –
He has the following features indicative of a chronic Post-traumatic Stress Disorder:
1.        In terms of nightmares he stated 'I probably have them but I can't remember them". His wife stated that "once or twice a week he sweats excessively in his sleep – he is wet – I have to change his mattress protector and pillow protector and pyjamas – it is usually worse if he has been aggravated".
2.        He has recurrent intrusive distressing thoughts about his Vietnam experience – "every now and then I get them – two to three times a week".
3.        He suffers from flashbacks "rarely – about once a month".
4.        He avoids the thoughts associated with his Vietnam experience – "I try and push them away – try and obliterate it and think of something else".
5.        He avoids some situations associated with his war experience. His wife stated that for example he avoids talking about his war experience. His wife stated – "he won't talk about it".
6.        He becomes distressed on exposure to some reminders of his war experience. He stated that for example when talking about his war experience "I get uptight".
7.        He is much more of a loner.
8.        He has difficulty showing affection towards his loved ones.
9.        His concentration is poor.
10.      He is generally far more irritable and at times he has been physically aggressive (the last time was towards his wife approximately two months ago).
11.      He has an exaggerated startle reaction.
12.      He is generally hypervigilant. He stated that for example when sitting in a room he will tend to sit with his "back to the wall so I can keep an eye on the doors and the windows". In addition his wife stated that " we have deadlocks, chains on the doors and locks on the windows and unless I kick up a fuss we don't have any windows open at night".
It is apparent that at the time the Applicant's generalised anxiety disorder was accepted by the VRB there was some dispute about the diagnosis. The diagnosis of generalised anxiety disorder was preferred to the alternative of PTSD, the diagnosis of generalised anxiety disorder was made by Dr Altman after only a few consultations, and since that time Dr Altman has reconsidered the diagnosis and now considers that the preferable diagnosis is PTSD. On a careful consideration of the evidence the Tribunal notes that the Applicant's psychiatric symptoms have not changed throughout this period, and indeed they have existed in much the same form since the Applicant's Vietnam service. The Tribunal is reasonably satisfied that the Applicant suffers from only one psychiatric condition and that condition, previously diagnosed as generalised anxiety disorder, has already been accepted as being war-caused.
It is not open to the Tribunal under the head of this application to amend the diagnosis of generalised anxiety disorder. However it is open to the Respondent, through its powers pursuant to s31 of the Act, to change the diagnosis to PTSD if it considers that that is the preferable diagnosis for the Applicant's war-caused psychiatric condition. In passing, the Tribunal notes that during the hearing the Respondent's advocate pressed the issue of the Statement of Principles in respect of PTSD, and appeared to require that to be met. However, this claim was lodged prior to the date when the Statement of Principles applied. If the Respondent chooses to change the diagnosis to PTSD the Tribunal would assume that compliance with the PTSD Statement of Principles is not required.
For the purpose of this review, however, the task of the Tribunal is to consider the level of impairment that arises from the Applicant's psychiatric condition that hitherto has been diagnosed as generalised anxiety disorder. As the Tribunal is reasonably satisfied, whatever the preferable diagnosis, that the psychiatric condition accepted as war-caused and diagnosed at the time as generalised anxiety disorder, is still suffered by the Applicant, then it is that condition, however diagnosed, that must be assessed. The diagnosis is no longer of real concern to the Tribunal if it is satisfied, as it is, that the symptoms suffered by the Applicant relate exclusively to the condition that has already been accepted as being war-caused.
Before leaving this issue, the Tribunal also notes that Dr Lewin concedes that the Applicant suffers from an anxiety disorder, for which he assesses 10 impairment points. The conduct of the Respondent at these proceedings, however, was certainly to challenge the existence of any war-caused psychiatric disability suffered by the Applicant. It was apparent that the Respondent was not comfortable with the decision of the VRB of 24 May 1995 that accepted generalised anxiety disorder as a war-caused condition. The Respondent had an opportunity to seek review of that decision by this Tribunal, but failed to do so. It is unfortunate that the Respondent, under the head of this application, seeks to have the Tribunal revisit whether the Applicant suffers from a war-caused generalised anxiety disorder. It is not open to the Respondent to revisit that decision in an attempt to have the Statement of Principles in respect of PTSD applied to it.

When one considers the Respondent's statement of facts and contentions, provided to the Tribunal and the Applicant on 16 July 1999, just a few weeks before the first day of hearing of this matter, there was no indication that the Respondent intended to take the approach that it did at the hearing. Moreover, at the commencement of the hearing it was suggested to the Tribunal that as well as the Applicant having a war-caused generalised anxiety disorder he may also have a condition of PTSD which is not war-caused and/or a personality disorder, and that the latter conditions may be the reasons why he was unable to work. It was not until the second day of the hearing in December 1999 and in the subsequent written submissions of the Respondent, that it became quite clear to the Tribunal that the Respondent was in effect attempting to re-litigate whether the Applicant's psychiatric condition was war-caused. It is apparent from the report of Dr Lewin that the Respondent put questions to him that related to entitlement. This is inappropriate in a matter such as this that is exclusively related to assessment and which assumes the war-relatedness of his accepted disabilities.
The Tribunal notes a thinly veiled negative attitude of Dr Lewin to "people I encounter in this particular jurisdiction" (transcript 3 December 1999, p56, line 20). This sort of comment leads the Tribunal to limit the weight to be given to his evidence. The Tribunal notes also that when Dr Lewin is provided with the same evidence as Dr Altman and Dr Herron had about the Applicant's experience of stressors on service, Dr Lewin came to a different conclusion from the others about the significance of those stressors. In fact Dr Lewin appears to discount the individual's subjective response to a stressor, and relies completely on some objective notion of stressful event. In his oral evidence he was unable to recall whether a subjective component could be taken into account in determining a stressful event in accordance with DSM IV.
What is the General Rate of disability pension payable to the Applicant?
The Tribunal must consider the assessment as at the application date, that being 17 February 1997.
The Tribunal notes the detailed basis of Dr Lewin's assessment of 10 impairment points for generalised anxiety disorder (report of 26 October 1998 – exhibit 1) and rejects this as being quite inconsistent with the Applicant's evidence, which the Tribunal accepts. Dr McEwin provided an assessment of 35 impairment points, but he did not show how this was achieved against the eight specific tables. It is difficult, therefore, to rely on this assessment. If the Respondent based its submission of 30 impairment points for generalised anxiety disorder on the basis of Dr Altman's 1994 assessment, then it is three years out of date. It is not clear how the Respondent reached the assessment of 30 impairment points in its submission. The Tribunal notes that Dr Altman assessed 45 impairment points for generalised anxiety disorder on 27 May 1997 (T21, p83), but that would have been an assessment using GARP IV, which was relevant at that time. The Tribunal is now required to use GARP V in making its decision.
With respect, the Tribunal agrees with the submission for the Respondent, that Dr Altman's "enthusiasm" has blunted his professional objectivity to the point where he has become an advocate for veterans' claims. The Tribunal has given careful consideration to the details provided by Dr Altman in the worksheet dated 4 December 1998 attached to his report of 18 January 1999 (exhibit D) in the context of the Applicant's evidence to the Tribunal. On the oral evidence of the Applicant, and taking into account the Applicant's tendency to understate his problems, the Tribunal finds that Dr Altman's assessment of 6 for Tables 4.3 and 4.7 is inflated, and that both these assessments should be reduced to 5. Recalculating the score, the Tribunal finds that the impairment rating for generalised anxiety disorder is 48 rather than 50.
The Tribunal notes that Dr Altman's worksheet was dated 4 December 1998, almost two years after the application date. Consideration was given by the Tribunal to reducing some of the other scores that seemed to be marginally high, on the basis that the Applicant's condition has deteriorated since he ceased work. However, there was insufficient specific evidence before the Tribunal to inform that level of detailed comparative assessment, and therefore the Tribunal decided to use the impairment rating of 48 as correct at the application date, that being the best evidence available. It should be noted, however, that whether one accepts Dr Altman's assessment of 45 impairment points under GARP IV which he made in May 1997, or the Tribunal's adjustment to his 1998 assessment some 18 months later, the outcome is virtually the same, and certainly either assessment leads to the same general rate assessment.
Taking into account the evidence before the Tribunal and the parties' submissions, it is common ground that the impairment rating for the Applicant's hearing loss is 10 and for vitiligo is 5, and the Tribunal so finds.
Using the Combined Values Chart in GARP V, the combined impairment rating is calculated at 55.
The Tribunal notes the careful and detailed submissions made on behalf of the Applicant to justify a lifestyle rating of 5. However, no reference was made to the self-assessment of lifestyle provided by the Applicant at the time he lodged his application for increase (T17) which identified an average lifestyle rating of 3.5, which is then rounded to 4. Noting that the commencement of the assessment period is 17 February 1997, even allowing for an understatement of his problems, which the Applicant is prone to do, the Tribunal is unable to find that his assessment was so understated at that time to justify increasing the average rating to 5, particularly when the average rating of 4 is achieved on his self-assessment only by rounding up. The difficulty that the Tribunal has with the reasoning of the Applicant's advocate is that it takes no account of a deterioration in the Applicant's conditions after the application date, yet the evidence is that his condition has slowly deteriorated since he left work. Taking all these factors into account, the Tribunal finds that an average lifestyle rating of 4 is appropriate for the Applicant at the application date and at least until he ceased work in early June 1997.
An impairment rating of 55 and lifestyle rating of 4 provides a general rate assessment of 90 percent, and the Tribunal so finds. The Tribunal also finds that this is the appropriate general rate assessment at least until the date the Applicant ceased work.
Is the Applicant entitled to Special Rate pension?
The Applicant ceased work at J A Bradshaw Pty Ltd on 2 June 1997. He has not worked since he left Bradshaws. As at 3 June 1997 he was entitled to payment of at least 70 percent of the general rate, and therefore he meets the requirements of s24(1)(a) of the Act.
The Tribunal finds on the evidence of Dr Altman, Dr Gunter, and Dr Moore, and taking into account the slightly more guarded opinion of Dr McEwin, that the Applicant is totally and permanently incapacitated because of his accepted disability diagnosed as generalised anxiety disorder. That disability renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. In considering the issue of "remunerative work" to which reference is made in s24(1)(b) the Tribunal has had regard to paras. (a), (b) and (c) of s28 of the Act. Within the scope of s28, the Tribunal finds that the work the Applicant was performing prior to ceasing work and since 1975 was the sort of work to which he was most suited, not only because of his skills, qualifications and experience, but because he was able to work alone. The latter factor was very important because of his tendency to become aggressive, irritable and abusive. Until a period shortly before he ceased work he also had a manager who understood the Applicant's psychological difficulties, left him to work on his own and tolerated his behaviour. The problems in his employment emerged soon after there was a change in manager who did not have the same tolerant and non-provocative qualities.
The Tribunal also finds that the Applicant is prevented from continuing to undertake the remunerative work that he was undertaking because of his war-caused conditions alone, and by reason of his generalised anxiety disorder he is suffering a loss of salary or wages that he would not be suffering if he was free of that incapacity. The Tribunal finds that there is no other psychiatric condition, other than the Applicant's accepted psychiatric disability, that prevents him from working. The Tribunal finds that, but for that condition, the Applicant would continue to have been employed at Bradshaws until his retirement. There is no evidence that he was planning retirement at the time he ceased work at the age of 56 years. Dr Lewin's assumption that the Applicant ceased work in order to move to the North Coast is totally without foundation, and the Tribunal rejects this. The Tribunal notes the opinion of Dr McEwin regarding the Applicant's age and the state of the labour market. These are not relevant issues because they would not have prevented the Applicant from continuing in his remunerative work. The only factor that prevented him continuing in his remunerative work was his psychiatric condition.
Having made these findings, the Tribunal does not intend to consider the issues relating to the ameliorating provisions of s24(2)(b) of the Act. The Applicant is entitled to payment of pension at the Special Rate with effect on and from 3 June 1997. The decision under review will be set aside.
I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of S M Lewis and
Dr P D Lynch.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  5 August 1999 and 3 December 1999
Date of Decision  23 June 2000
Solicitor for the Applicant         Mr R Sherlock, Veterans' Advocacy Service
Solicitor for the Respondent    Ms M Doggett, Ms S Breuer and Mr J Sylvester,
  Department of Veterans' Affairs