Noonan and Repatriation Commission - [2001] AATA 680

DECISION AND REASONS FOR DECISION [2001] AATA 680

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/875

VETERANS' APPEALS DIVISION          )
           Re      Robert Francis Noonan
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member

Date30 July 2001
PlaceSydney

Decision      The Decision under review is set aside and in substitution therefor the Tribunal decides that Mr Noonan's Disability Pension should be assessed at 80 per cent of the General Rate from and including 3 May 1999.
  ..............................................
  Ms S M Bullock
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - Assessment – Post Traumatic Stress Disorder - Chronic Bronchitis - Special Rate

LEGISLATION

Veterans' Entitlements Act 1986 ss 24, 29, 120

AUTHORITIES

Forbes v Repatriation Commission (2000) 101 FCR 50
Re Cavell v Repatriation Commission (1988) 9 AAR 534
Re Ambrose v Repatriation Commission (1993) 29 ALD 875

REASONS FOR DECISION

30 July 2001 Ms S M Bullock, Senior Member and Dr P D Lynch, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by Robert Francis Noonan of a decision made by the Repatriation Commission ("the Commission") on 27 September 1999 (T2). The Commission's decision was affirmed by the Veterans' Review Board ("the Board") on 19 April 2000 (T13).
A hearing was held in Sydney before the Tribunal. Mr Noonan was represented by Ms A Toliopoulos, Advocate with the Veterans' Advocacy Service, Legal Aid Commission of New South Wales. The Respondent, the Commission, was represented by Ms M Doggett, Departmental Advocate. Mr Noonan provided oral evidence to the Tribunal, as did Dr M Burns, Occupational Physician. Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1 – T14) and the following Exhibits:

Exhibit Number    Description Date
A1      Report and Supplementary Report of Dr M Burns, Occupational Physician         28 August 2000 25 October 2000
A2      Report by Dr M Burns, Occupational Physician 12 April 2001
A3      Applicant's written submission and final submission in reply. 27 April 2001 4 June 2001
R1      Clinical notes of Dr G Altman, Consultant Psychiatrist various
R2      Letter from Telstra Payroll Service Officer to the Respondent 7 September 2000
R3      Report of Mr D Cipriani, Clinical Psychologist    25 October 2000
R4      Report of Mr T K Hawkins, Vocational Psychologist     6 October 2000
R5      Spirometry Report by Dr P Collett, Respiratory Physician.     14 January 2001
R6      Respondent's written submission 23 May 2001

Issues

The issues in this matter are:
(a)What is the correct assessment of Mr Noonan's rate of pension for his accepted war-caused conditions of post traumatic stress disorder and chronic bronchitis?
(b)If Mr Noonan's disability is assessed at 70 per cent of the General rate or more, does he qualify for an earnings-related pension at the Special rate?

Legislation

A decision in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").
The assessment of pensions requires the application of subsection 120(4) of the Act which requires the Tribunal to decide all relevant assessment matters to its reasonable satisfaction. The Tribunal must decide the rate of pension applicable on the balance of probabilities. As relevant, subsection 120(4) of the Act states:
"…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

…"

The method of assessing Mr Noonan's incapacity is undertaken by reference to the "Guide to the Assessment of Rates of Veterans' Pensions" ("The Guide"). The Guide is given force by section 29 of the Act.
The Special rate is an earnings-related pension and is dealt with under section 24 of the Act which as relevant states:
"…
(24) Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14for 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) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(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) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(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.
…"

Background

The following information is provided by way of background and the information contained within is not in dispute.

Mr Noonan was born on 20 September 1946. He is married with a daughter and a son.
Mr Noonan served in the Australian Army. He enlisted in 1964 and was discharged in 1970. Mr Noonan was principally a gunner and a radio operator in the artillery in Vietnam. He served for ten months in Vietnam, two years in Malaya and 12 months in Singapore.
Mr Noonan first qualified for Disability Pension from 27 January 1994.
Mr Noonan worked between 1971 and November 1997 with Telstra.
On 3 May 1999, Mr Noonan lodged an application to the Department of Veterans' Affairs for an increase in Disability Pension for his accepted conditions of post traumatic stress disorder and chronic bronchitis. He wrote:
"…
1. PTSD. I feel that my nervous problems are much worse now than ever before. I chose to take (sic) redundancy package from Telstra because my nerves were really bad. I threatened to shoot my boss and had numerous arguments with fellow workers and supervisors for no apparent reason…I am having great difficulty in coping with everyday life, and my family situation is very strained. My wife and I sleep in separate rooms and I get depressed. My daughter has moved out of the family home and my son totally ignores me. Consequently I don't know where my life if going.
2. Chronic Bronchitis. I am still coughing up a lot of phlegm and get short of breath and have trouble walking any distance" (T3, p6).
On 27 September 1999, the Commission refused Mr Noonan's claim for an increase in Disability Pension beyond 60 per cent of the General rate. The Commission assessed Mr Noonan's combined impairment rating at 30 points with a lifestyle rating of two points (T2).
Mr Noonan lodged an application for review to the Board on 19 November 1999 (T11). On 19 April 2000 the Board affirmed the Commission's decision (T13).
On 8 June 2000, Mr Noonan lodged an application for review to the Tribunal (T1).

Evidence of Mr Noonan

Mr Noonan told the Tribunal that for two years before enlisting in the Army, he worked at the then Post Master General's Department, training to be a technician.
During Mr Noonan's Army service, he stated that he served for two years in Malaya, 10 months in Vietnam and 12 months in Singapore.
In the Army, Mr Noonan noted that his duties principally involved being a gunner, a driver and radio operator.
Mr Noonan's initial employment, post-war, with the Post Master General's Department was as a technical officer. He had to pass a number of exams, such as a technician's exam also undertook technical college courses while working on the job, as well as numerous, quite specific, in-service training courses. Mr Noonan noted that his service in the Post Master General's Department which later became Telecom and then Telstra, included positions in Network Engineering, in the Internal Audit Section and at the time of his cessation of work in November 1997, in the Information Technology Section.
From the Network Engineering Section, Mr Noonan moved into Internal Audit. He had found that it was very stressful in the Engineering Section and he was able to obtain the position in Internal Audit as a promotion. He did not know anyone in the Internal Audit section and was working with approximately 30 clerical staff. Mr Noonan described himself at that time as being a "Big fish in a little pond".
In terms of further training, Mr Noonan found that as the work within the internal audit section was not as stressful, he commenced an external studies university course from New England University in the form of a Bachelor of Arts, Computer Science. The Course was of four years duration, although Mr Noonan was able only to complete approximately one and a half years of the course. Mr Noonan decided to leave his studies because of rumours of redundancy which were causing him a great deal of stress. He therefore discontinued the University degree course and subsequently was transferred to the Information Technology section of Telstra. Mr Noonan explained to the Tribunal that he deliberately moved from his position in Internal Audit because of his concerns over rumours of redundancy. In his position in the Information Technology Section, which commenced in about 1995, he found the job very stressful with a great deal of pressure.
In the Information Technology section, Mr Noonan noted that his first work performance report was good but his last performance report indicated that he may not have been performing to expectation. Mr Noonan stated that during the last two years of his employment, he would come home from work and spend the entire weekend, "flat on my back" not recovering until Monday. Mr Noonan had available to him a flex day once per fortnight and he would always take this on a Monday as this gave him a longer recovery period from the stress of the previous week before he had to return to work on the following Tuesday.
Mr Noonan noted in evidence that he had talked to his supervisor earlier on in his time in the Information Technology section, asking that his supervisor provide him with feedback if there were any concern about Mr Noonan's not handling the work. Mr Noonan told the Tribunal that the people in the section were very nice and he did not want to cause any difficulties for them by doing something "stupid". Mr Noonan's supervisor told Mr Noonan that he was doing well despite Mr Noonan's expressing his feelings of stress.
During his work history, Mr Noonan noted a number of examples indicative of his stress and the presence of symptomatology of his post traumatic stress disorder. Mr Noonan noted that in 1989, he threatened to shoot his boss. This supervisor had been discussing an issue with Mr Noonan, when Mr Noonan became angry and reached for an imaginary gun with which he was going to shoot his supervisor. Subsequently, Mr Noonan took a week off work, consulted his local doctor and was prescribed medication which made him feel like a "zombie". When Mr Noonan returned to work, he put in for the first vacancy he could get which was in fact into the Internal Audit section.
This 1989 incident was not isolated, Mr Noonan stated. There was another occasion when he flew off the handle over an employee who was procrastinating in his work. This employee subsequently left. Another incident occurred when Mr Noonan found out about an engineer who was undertaking some illegal activity during the course of his work with Telstra. Mr Noonan stood up to this particular engineer and that employee also subsequently left Telecom.
While working in the Information Technology section, Mr Noonan learnt that the multi-national corporation IBM was going to take over that section. As he saw it, Mr Noonan had three options which were:
i. Accept voluntary redundancy
ii. Move to employment at IBM
iii.Seek redeployment elsewhere with Telstra
In relation to the option of working at IBM, Mr Noonan told the Tribunal that he had a phobia about working for multi-national companies. He stated that he would find this stressful and would probably have to start at the bottom again.
In relation to redeployment, Mr Noonan believed that while officially Telstra employees were being offered redeployment, unofficially, the word was that no such redeployment would be available. Mr Noonan noted that between 1996 and 1997, there were 400 redundancies offered in Telstra and there were only four people who were redeployed.
Mr Noonan told the Tribunal that he did not really see that he had much choice other than to accept the voluntary redundancy. Mr Noonan explained that there were financial considerations impacting on his decisions because he did not wish to jeopardise his superannuation and risk not receiving a superannuation pension. Apparently, Mr Noonan's father had some difficulties with such issues. Mr Noonan stated that he was told that he could work for IBM and retain his Telstra pension.
From Mr Noonan's evidence, the Information Technology section consisting of 16 people, had the majority of those employees, 12 in number, transferred to work at IBM. Those employees were a variety of ages. Four of the people in the Information Technology section took voluntary redundancy.
After Mr Noonan decided to take redundancy, his previous supervisor told him to keep in touch and he would be happy to supply him with work. Mr Noonan also received papers from an agency "head-hunter" asking him to complete an employment questionnaire, with a view to finding him employment. Mr Noonan did not complete these papers. Further, Mr Noonan told the Tribunal that he did not look for employment although he did flip through the papers from time to time to find out how much computer technicians were earning.
Mr Noonan stated that a consideration for him at the time of his ceasing work was that he did not want to face starting work again. Mr Noonan stated it was not worth the stress of working to earn a few more dollars.
Initially, he thought he would be financially all right and did not make any plans for his future. Mr Noonan stated that he did go to Centrelink to enquire about his situation but found he was not qualified for any benefits because of his assets. On further questioning, it was not clear to the Tribunal whether or not Mr Noonan had specifically gone to enquire about employment issues or whether this occurred at a time when he had gone with his wife who was enquiring about an Age Pension.
Mr Noonan described for the Tribunal his consumption of alcohol. Towards the later stages of his employment, he stated that he would drink during lunch, particularly on Wednesdays and may have returned to work under the influence of alcohol. Particularly on Thursdays and Fridays, he would drink at a nearby hotel in Surry Hills, either with work colleagues or alone. On some occasions he would become so intoxicated that he would end up sleeping at the Hotel and then going back to work the next day. Usually on Friday evenings, he would return home after his drinking session at the Hotel. Most usually, Mr Noonan would drink from 4.30 or 5pm sometimes up until 11pm. Mr Noonan was never chastised at work about his drinking habits and indeed, noted that there was a culture of alcohol consumption at Telstra at that time. Mr Noonan estimated that he would be regularly intoxicated twice a month at that time.
Mr Noonan still consumes alcohol but his wife will not allow him to drink at home. He goes out on Friday evening and has been doing so for the past five or six years. Mr Noonan meets a former work colleague, the colleague's brother and grandfather. He often becomes intoxicated on these occasions and gets home somehow by either bus or train.
Although Mr Noonan stated in evidence that initially he thought he would see how he went following his acceptance of the voluntary redundancy, he later said in evidence that he felt he was on the "scrap heap, retired". Mr Noonan reiterated that he did not have any particular plan of action and had not had one since 1964. He thought that he could deal with things as they came.
In relation to Mr Noonan's symptoms of post traumatic stress disorder, he stated that he is aggressive, "he rants and talks very loud". Mr Noonan described his heart racing and often he experiences pain in his heart. Further, Mr Noonan noted that he frequently "seizes up", and becomes "mentally stuck". There have been occasions when he has been so stressed that he found himself unable to read and thought that he was going blind.
Mr Noonan told the Tribunal that he and his wife sleep in separate rooms. Mr Noonan described his relationship with his wife as being characterised as a "permanent truce". Mr and Mrs Noonan frequently fight and yell at each other but then Mr Noonan "shuts up and walks away". Mr and Mrs Noonan shop together and they speak mainly in Malay to each other. Mr Noonan describes his wife's accent and conversation as being characterised by "delightful expressions". Mr and Mrs Noonan discuss the welfare of their children. Mr Noonan stated that he does not have a good relationship with either his daughter or son. Mr Noonan's daughter moved out of the house some years ago and is married. Mr Noonan's son moved out from the parental home only very recently. Prior to that, Mr Noonan's relationship with his son was very poor. He stated that his son would spend most of his time in his room. While there are arguments between Mrs Noonan and her children, Mr Noonan stated that she seems to have a better relationship and appreciation of their children than he does.
A typical day for Mr Noonan involves waking up at approximately 8am, although this can be as early as 4am, which occurred on the day of the hearing. Mr Noonan goes to bed at 11pm or midnight. In the mornings, he eats breakfast, smokes approximately six cigarettes, reads the paper and plays with the dog by throwing a frisbee. Lunch is at approximately noon and either Mrs Noonan prepares lunch or Mr Noonan makes a sandwich. He will then watch a midday movie if available or otherwise read, do a crossword or play solitaire. Often Mr Noonan will accompany Mrs Noonan shopping. In the evening, Mr Noonan watches the 6pm news and then watches the "SOAP programs". Mr Noonan stated that he undertakes some of the outside duties while his wife's responsibility is principally for the inside household duties. He will mow the lawn, but because his property is so large, he cannot do this all at one time. Mr Noonan stated that he has to rest frequently. Mr Noonan stated that he does not take the dog for a walk nor undertake any exercise. He may attempt duties such as painting, but can only work for approximately two hours in a day because he becomes very tired, loses patience and concentration.

Mr Noonan described his being very physically active and fit in 1986 and 1987 when he participated in a corporate cup fun run. Mr Noonan and his group came second in the race and after this he undertook the Canadian Airforce Exercise Training Programs. He did this exercise every now and again until the early 1990s.
Mr Noonan had also tried to play golf more recently, but found that he did not like mixing with people and found it very difficult because other golfers wished to have a chat with him.
Mr Noonan was referred to Dr G Altman, Consultant Psychiatrist, by his General Practitioner, Dr L Leong. This occurred in about August 1994. In his report to Dr Leong dated 24 August 1994, Dr Altman opined that Mr Noonan suffers from a chronic post traumatic stress disorder with major depression and alcohol abuse. He opined that the level of impairment was 30 points though it may go to 45 points. Dr Altman noted that Mr Noonan was experiencing some problems at work although he stated that he wanted to stay on at Telecom. Dr Altman noted that Mr Noonan's treatment included his taking anti-depressant medication, working through his traumatic experiences and also having supportive psychotherapy and cognitive-behavioural therapy as required (Exhibit R1, pp19-22).
Mr Noonan noted that he sees Dr Altman every two or three months for approximately 30 minutes. Mr Noonan noted that it helps him greatly talking through his problems with Dr Altman. Mr Noonan is afforded considerable benefit and relief from the time he spends with Dr Altman. Initially, Mr Noonan did not think he had any psychological problems and thought the problems were with everyone else. Mr Noonan acknowledged that he had not seen Dr Altman between April 1997 and July 1998, despite his employment having ceased in November 1997. Mr Noonan also did not see Dr Altman following the July 1998 consultation until May 1999. Mr Noonan stated that Dr Altman is very busy and it is often difficult to see him. At the time of hearing, he was going to see Dr Altman within the next few weeks.
Mr Noonan stated that he does not like taking medication for his post traumatic stress disorder because it causes side effects such as nausea, aggression and impotence. He is currently not taking any medication for this condition.
In relation to his chronic bronchitis, Mr Noonan noted that he takes the medication, "Brondecon" as needed. He has a 500ml bottle of cough mixture which he purchased a year ago and has used half of this. Mr Noonan noted that he gets more coughs and colds in winter and coughs up phlegm more than a dozen times a day. There would be approximately a quarter to a third of a cup of sputum each day.
In relation to his sleep apnoea, Mr Noonan stated that Dr Altman had referred him to be tested for this condition. Mr Noonan stated that he snores at night and his wife can hear him even though she sleeps in the next room. Mr Noonan stated that he does not need to have naps during the day but he wakes up feeling very tired. On average, he estimated he would sleep five to six hours per night. Initially, Mr Noonan did not want to try the "CRAP" machine which may possibly assist his breathing while asleep, but at hearing, he stated that he would now be prepared to try this device.
Mr Noonan noted that he does not go out socially apart from the Friday night meeting at the hotel with his friend and his friend's relative. He did attend a 30 year Vietnam reunion on the Gold Coast in 1998, where, he stated to the Tribunal, he drank for 40 hours. Mr Noonan enjoyed this reunion immensely but has not noted any difference in his symptoms of post traumatic stress disorder. Once a week Mr Noonan also visits or speaks to his mother and younger brother, who lives with their mother. Their relationship is fine, Mr Noonan noted, because they do not see each other very often. Mr Noonan has another brother whom he described as the "genius", with whom he has contact from time to time.
When Mr Noonan's wife was away in Malaya for six months, Mr Noonan was able to cope living alone, he told the Tribunal. He either made sandwiches or went to the local Fairfield Club for his meals.
MEDICAL AND OTHER EVIDENCE
Dr M Burns, Occupational Physician
Dr Burns has provided three reports concerning Mr Noonan, dated 28 August 2000 and 25 October 2000 (Exhibit A1) and 12 April 2001 (Exhibit A2).
Dr Burns' initial assessment of Mr Noonan was that he has a post traumatic stress disorder which should be rated from Chapter 4 of the Guide at 35 impairment points, with chronic bronchitis being rated from Tables 1.2 and 1.4 of the Guide at 13 points. The combined impairment rating initially noted by Dr Burns was 43 points. Further, in relation to lifestyle, Dr Burn opined that the appropriate rating is that of four points. Dr Burns concluded in his initial report that following his discussion with Mr Noonan, he was not convinced that Mr Noonan's post traumatic stress disorder was the only reason that he chose to leave work in November 1997. Dr Burns opined that the post traumatic stress disorder was probably the major reason, but the decision was made easier since he was financially secure. If Mr Noonan had not had this degree of financial security, Dr Burns opined that Mr Noonan would have continued to try and work. Dr Burns believed that Mr Noonan's decision to leave work in 1997 was a reasonable decision as if he had continued to work, his psychological symptoms would have increased over time. At the time of the initial report in August 2000, Dr Burns opined that Mr Noonan's symptoms were reasonably stable. Dr Burns concluded that post traumatic stress disorder was the substantial cause of Mr Noonan's inability to return to work for eight hours per week and further, he believed it unlikely that Mr Noonan's condition would ever improve or that he would be able to return to a worthwhile job.
In his subsequent report of 25 October 2000, Dr Burns corrected his previous report, noting that Mr Noonan did not walk the dog, though he used to previously and that Mr Noonan only did some of the housework. For the report of 25 October 2000, Dr Burns had interviewed Mrs Noonan. As a result of this discussion, Dr Burns' opinion was that Mr Noonan has a significant psychological problem which is partially controlled. If Mr Noonan attempted to return to work, Dr Burns opined that his condition would deteriorate. Dr Burns reiterated his opinion that the substantial reason for Mr Noonan being unable to work was his post traumatic stress disorder. In his most recent report of 12 April 2000 (Exhibit A2), Dr Burns confirmed his assessment of post traumatic stress disorder at 35 points, but in relation to chronic bronchitis, concluded that the appropriate rating was 25 points. This then provided a combined impairment rating of 50 points with a lifestyle rating remaining at four points, providing a Disability Pension at 90 per cent of the General rate. Dr Burns noted he had not altered his previous opinion that Mr Noonan was unfit to work due to his post traumatic stress disorder.
At hearing, Dr Burns opined that cognitively, Mr Noonan is fit, but mentally he is unfit in relation to work. Dr Burns noted that Mr Noonan had been progressively isolating himself at work and was coping with the work situation by avoiding conflict. Dr Burns noted that there was no evidence in the family of a history of psychological or psychiatric problems. Mrs Noonan had also noted a change in Mr Noonan since Vietnam.

46.In relation to sleep apnoea, Dr Burns opined that this condition does not necessarily cause anxiety but may cause the person to want to sleep more. Dr Burns did not take a history of this from Mr Noonan.

If Mr Noonan was forced to return to work, Dr Burns opined that Mr Noonan's stress levels would be intolerable and his motivation would also be a problem. Having been out of the workforce, Dr Burns opined that Mr Noonan has learnt to cope with his level of anxiety.
At the hearing, Dr Burns changed his Chapter 4 assessment under the Guide in relation to Mr Noonan's rating for "Social Interaction" from five to three points, taking into account Mr Noonan's attendance once a week with friends at a local hotel.
Accordingly, Dr Burns opined the following ratings were appropriate, "Subjective Distress" 10; "Manifest Distress" 10, "Functional Effects" 3; "Occupation" 5; "Domestic Situation" 5; "Social Interaction" 3; "Leisure Activities" 3; "Current Therapy" 3; providing an impairment rating of 35 points for post traumatic stress disorder.
In relation to Mr Noonan's chronic bronchitis, Dr Burns acknowledged that a deconditioned person is likely to experience shortness of breath and tiredness as reported by Mr Noonan. Dr Burns opined that it is difficult to assess a person's physical condition if Mr Noonan does have significant deconditioning. Dr Burns noted it is hard to assess what proportion of the thirteen points he had initially assigned to Mr Noonan's chronic bronchitis was related to deconditioning and which was related to the chronic bronchitis. Dr Burns acknowledged that the thirteen points is probably an over estimation. Dr Burns stated that he would defer to a respiratory physician's opinion in relation to this matter. This was particularly so in light of Respiratory Physician, Dr P Collett's opinion of 9 August 1994, in which he noted that Mr Noonan did not have chronic obstructive airways disease or emphysema. While Dr Collett noted Mr Noonan had daily sputum production, there was no significant respiratory dysfunction apart from that symptom. Mr Noonan's complaint of dyspnoea on moderate exertion was undoubtedly due, Dr Collett opined, to poor physical condition rather than lung disease (T2, p2E).
While Dr Burns noted in his most recent report of 12 April 2001, a higher rating for chronic bronchitis, following Dr Collett's recent spirometry of 14 January 2001, Dr Burns made no reference to his previous discussion at hearing of the issue of deconditioning nor of the fact that on Dr Collett's assessment, Mr Noonan's DLCO was normal and there was no indication of airflow obstruction.
In relation to Mr Noonan's discussion about his reasons for not moving to IBM for employment, Dr Burns acknowledged that Mr Noonan's stress and worrying about starting in a new position were normal and further, there were concerns about superannuation and philosophical issues about working for a multi-national company. While acknowledging this, Dr Burn's pointed out that he had stated in his reports that there were other reasons for his not continuing work apart from his post traumatic stress disorder, but Dr Burns still believed that the post traumatic stress disorder played a major role. Dr Burns did not see any reason to change the lifestyle rating.
Dr Burns noted that Mr Noonan did not tell him of the thirteen to fifteen months gap in his seeing Dr Altman, particularly at the time he had accepted the redundancy. Dr Burns told the Tribunal he found it surprising that Mr Noonan did not continue to see Dr Altman at that time.
Dr P Collett, Respiratory Physician
On 14 January 2001, Mr Noonan underwent spirometry testing. Dr Collett reported that the FEV1 and FVC are near the lower limit of the normal range and the FEV1/FVC ratio was normal. There was only slight improvement in spirometry after taking a bronchodilator, Dr Collett reported. Mr Noonan's total lung capacity, residual volume and functional residual capacity are mildly reduced and Dr Collett noted that the DLCO is normal.
Dr Collett opined that Mr Noonan has mild restriction of lung volumes of uncertain clinical significance. There was normal gas transfer capacity which indicated normal pulmonary parenchymal and normal pulmonary vascular function. The spirometry did not indicate airflow obstruction, Dr Collett concluded (Exhibit R5).
Dr G Altman – Consultant Psychiatrist
On 8 November 1999, Dr Altman reported to Mr Noonan's General Practitioner, Dr Leong, that Mr Noonan still suffered from a war-related post traumatic stress disorder with associated major depression and alcohol abuse. This condition was in the severe category and Dr Altman noted an impairment rating of 50 points as a result of Mr Noonan's post traumatic stress disorder. As of 8 November 1999, Dr Altman opined that Mr Noonan was totally and permanently unfit for work and should be on a "TPI Pension" (T11, p36).
Dr Altman noted that Mr Noonan suffers from nightmares on a fortnightly basis. In addition, Mr Noonan suffers from recurrent intrusive distressing thoughts and continues to be a loner and to suffer from sleep disturbance. Dr Altman noted Mr Noonan's concentration is poor and he is irritable and generally hypervigilant. Dr Altman noted that Mr Noonan ceased work in November 1997 and prior to this, he was having significant problems at work. Dr Altman noted that Mr Noonan was totally stressed out most of the time and had a few incidents including wanting to kill his boss. Dr Altman noted that Mr Noonan was stressed from about 1990 onwards and that he took time off for stress two or three times a year. Dr Altman noted his discussions with Mr Noonan's advocate, Mr L Blok, who told Dr Altman that Mr Noonan:
"…took the redundancy from Telstra because his nerves were really bad and he threatened to shoot his boss and numerous (sic) arguments with fellow workers and supervisors…"

Dr Altman noted that Mr Noonan had been married since 1969 and that there had been a question of his divorcing but this has diminished. He noted that Mr and Mrs Noonan sleep in separate rooms and if they kept out of each other's way, then everything was all right. Dr Altman reported that Mr Noonan spent time watching television, cutting the lawns, doing odd jobs about the house, playing on the computer and going shopping on a weekly basis. Dr Altman noted Mr Noonan's hobbies of making model aeroplanes and involvement in electronics have diminished, as has his playing of golf.
Mr D Cipriani – Consulting Clinical Psychologist
Mr Cipriani reported on 25 October 2000 having met with Mr Noonan on 6 October 2000 (Exhibit R3).
Mr Cipriani noted that Mr Noonan developed post traumatic stress disorder as a result of his Vietnam service and that Mr Noonan also had a dependence on nicotine and alcohol. Mr Cipriani opined that these problems and symptoms did not prevent Mr Noonan from continuing to improve his computer skills while at Telstra nor to remain in employment until 1997, when he accepted a redundancy. Mr Cipriani regarded Mr Noonan as employable on at least on a part-time basis, particularly in the field of information technology and in a range of other positions, such as clerical work and in sales and service positions involving limited contact with customers and colleagues. If it had not been for the redundancy, Mr Cipriani believed that Mr Noonan would have been able to continue working at Telstra until retirement age, particularly as he was able to move between various Telstra departments when he had conflict with colleagues. Mr Cipriani opined that the main reason Mr Noonan left Telstra was because of the involuntary redundancy, although he acknowledged that Mr Noonan did have conflict with colleagues. During Mr Noonan's employment at Telstra, Mr Cipriani opined that post traumatic stress disorder was not a substantial factor and he reiterated that Mr Noonan could have continued to work until retirement age. Mr Cipriani noted that Mr Noonan had not sought any work since 1997 and currently survives on his superannuation income and a lump sum pay-out.
Mr Cipriani noted that Mr Noonan acknowledged to him that he is capable of undertaking physical work which would not expose him to too much stress, although he had no plans to enter the workforce at the time of Mr Cipriani's examination. Further, Mr Cipriani opined that he doubted that any prospective employer would recognise any post traumatic stress disorder symptoms, were Mr Noonan to apply for a position. (Exhibit R3).
Mr T K Hawkins – Vocational Psychologist
Mr Hawkins provided a report in relation to his assessment of Mr Noonan undertaken on 6 October 2000 (Exhibit R4).
Mr Hawkins concluded that Mr Noonan presented as a man with significant cognitive abilities which would equip him for many skilled jobs. On a purely cognitive basis, Mr Hawkins noted that Mr Noonan's chances of employment were considerable. Further, Mr Hawkins opined that Mr Noonan has significant retraining potential and could contemplate university studies. Mr Hawkins noted that Mr Noonan had been unemployed at the time of interview for 36 months and Mr Noonan had stated that he had no intention of returning to the workforce. It is Mr Hawkins' opinion that Mr Noonan left the workforce not purely because of his psychological condition, but because there was an opportunity to cease work and still retain a reasonable income for the future.
Based on his assessment, Mr Hawkins opined that even with the accepted conditions of post traumatic stress disorder and chronic bronchitis, Mr Noonan is capable of working in his previous job or in jobs such as: a meter reader; general clerk; telecommunications technician; insurance investigator; private investigator; radio operator; customs inspector; desk top publisher; store person; word processing operator; or, as a computer support technician.
Mr Hawkins opined that there was no significant evidence to suggest that Mr Noonan was prevented from working from 1997 to 6 October 2000, the date when Mr Hawkins assessed Mr Noonan.
Mr Hawkins noted that Mr Noonan's symptomatology is not apparent and he has curtailed his alcohol use. In such circumstances, Mr Hawkins further opined that Mr Noonan has the ability to be trained for a professional position where the symptomatology associated with post traumatic stress disorder could be accommodated. Mr Hawkins opined that there are good prospects for employment in Mr Noonan's case. Mr Noonan had, however, chosen not to seek alternative employment.
SUBMISSIONS
Noting the most recent report of Dr M Burns, Occupational Physician, Ms Toliopoulos submitted that the issue before the Tribunal is whether or not Mr Noonan is eligible to be paid Disability Pension at 90 per cent of the General rate. Based on Dr Burns' assessment of 12 April 2001, Ms Toliopoulos submitted the following ratings as appropriate:

Impairment                Impairment rating
Post Traumatic Stress Disorder    35 points
Chronic Bronchitis   25 points
Combined Impairment        51 points (rounded to 50)

In relation to lifestyle rating Ms Toliopoulos submitted that from Chapter 22 of the Guide, the impairment ratings are as follows:
  Personal Relationships  4
Mobility  2
Recreational and Community Activities      4
Domestic and employment activities           4
An impairment rating of 50 (rounded) with a lifestyle rating of 4, provides a Disability Pension at 90 per cent of the General rate with affect from 3 May 1999.
Ms Toliopoulos submitted that Mr Noonan is, as a result of his accepted disabilities, incapacitated for remunerative work. Ms Toliopoulos contended that the reason that Mr Noonan took redundancy and did not continue with IBM was "due to the fact that he was already experiencing difficulties with work."
Ms Toliopoulos also referred the Tribunal to the fact that Mr Noonan had been referred to Dr G Altman, Consultant Psychiatrist, in 1994. This arose out of several stress episodes at work, one of which involved Mr Noonan's being tempted to kill his supervisor.
Ms Toliopoulos submitted that between 1994 until 1999, Mr Noonan was seeing Dr Altman every three months. The difficulty for Mr Noonan was that the medication he took caused unacceptable side effects. Since 1999, Mr Noonan had been seeing Dr Altman every month.
Mr Noonan had not looked for work since November 1997. While Mr Noonan had said in the past that he was financially secure, in evidence to the Tribunal, he stated that he was suffering a loss of salary or wages that he would not have been suffering if it had not have been for his war related incapacity. Therefore, Ms Toliopoulos submitted that Mr Noonan met the requirements of subsection 24(1)(c) of the Act.

Ms Toliopoulos asked the Tribunal to consider that since leaving work, Mr Noonan's stress levels have decreased. Dr Burns' evidence reinforced the submission that since Mr Noonan had ceased work, his level of irritability and anxiety had improved slightly. Dr Burns further noted that Mr Noonan was no longer interested in looking for work as he believed that a return to work would increase his psychological problems. Dr Burns agreed that a return to work in a stressful situation would be intolerable for Mr Noonan. Ms Toliopoulos asked the Tribunal to accept Dr Burns opinion that Mr Noonan's decision to accept the involuntary redundancy in 1997 was a reasonable one because if he had continued at work, his psychological symptoms would have increased over time.
Ms Toliopoulos further referred the Tribunal to Dr Burns' subsequent conclusions after having talked with both Mr and Mrs Noonan, that Mr Noonan had significant psychological problems which, although currently controlled, would result in a deterioration if Mr Noonan were to attempt to return to work. Dr Burns reiterated his view that the substantial reason for Mr Noonan's not being able to work was his post traumatic stress disorder.
From page 4 of Dr Altman's clinical notes (Exhibit R1, p19), Dr Altman noted in a report of 24 August 1994 to Mr Noonan's General Practitioner that Mr Noonan was experiencing some problems at work but he wished to remain at Telecom. Dr Altman noted at that time that in general Mr Noonan was coping at work but he had a tendency to take sick days when he was stressed out. Dr Altman further noted (at Exhibit R1 p26) that Mr Noonan tended to change work whenever he was stressed. Dr Altman reported four instances of severe personality conflict with people at Telecom at that time. Dr Altman concluded (at T11, p38) that as a result of his post traumatic stress disorder, Mr Noonan was as at 3 November 1999, now totally and permanently unfit to work and should be placed on a TPI pension. In relation to the reports of Mr Hawkins, Vocational Psychologist and Mr Cipriani, Consultant Clinical Psychologist, Ms Toliopoulos submitted that both these professionals were non-medically qualified people and the Tribunal should take into account the reports of Dr Altman, Mr Noonan's treating psychiatrist as well as the reports of Dr Burns. Specifically in relation to Mr Hawkins' report, Ms Toliopoulos submitted that he provided unrealistic scenarios in relation to the type of work Mr Noonan could undertake, particularly with his post traumatic stress disorder and alcohol abuse.
The Tribunal was referred to Cavell v Repatriation Commission (1988) 9 AAR 534 in which Burchett J noted Tribunals' almost "scholastic insistence upon analysis of the concept of singularity" in relation to the alone test. Burchett J noted:
"….The tendency of that is to distract the tribunal from its true task – to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality and as a matter in which commonsense is the proper guide."
…"
The Tribunal was further referred to Re Ambrose and Repatriation Commission (1993) 29 ALD 875. While Ms Toliopoulos accepted that there are clear factual distinctions between Mr Noonan's case and that of Mr Ambrose, there are parallels, she submitted, in relation to the approach to be taken in cases in which an applicant adopts a particular course of action due to health problems, but moreover due to their perception that they are old. In that case, Mr Ambrose had left work and moved to Noosa. The Tribunal decided that the principal reason for Mr Ambrose's retirement was his medical condition. It found that Mr Ambrose had not wished to retire but had done so in order to avoid dismissal. This decision left Mr Ambrose in a less satisfactory financial position. The Tribunal found that while Mr Ambrose's living in Noosa presented an attractive circumstance, that was not the reason for Mr Ambrose's retirement. The Tribunal further noted that while Mr Ambrose could have obtained clerical work in Noosa, he did not do so. Further, Mr Ambrose had not taken up a job offer as a bus driver because he believed the responsibility too great given his medical condition. Hence, that Tribunal found that Mr Ambrose met the requirements of subsection 24(1)(c) of the Act.
Ms Toliopoulos concluded that as at the application date, Mr Noonan satisfied all relevant provisions of section 24 of the Act. He should, on the Applicant's submission, be assessed at 90 per cent of the General rate and Mr Noonan should accordingly be granted Special rate from 3 May 1999. At that date, as a result of his post traumatic stress disorder, Mr Noonan was unfit to perform the work he had experience in. Further, Ms Toliopoulos submitted that based on Dr Burns' reports, Mr Noonan had significant psychological problems which are partially controlled. If he were to attempt to return to work, Dr Burns believes his health would deteriorate. Dr Burns asserts that the reason for being unable to work is post traumatic stress disorder. This is also the view of Dr Altman.
Ms Doggett, for the Commission, submitted that in relation to the assessment of Mr Noonan's accepted disabilities under the Guide, specifically in relation to post traumatic stress disorder, the tables in question are Tables 4.2, 4.4, 4.5 and 4.6.
In relation to Table 4.2, Ms Doggett submitted that the appropriate rating is not ten impairment points as opined by Dr Burns, but rather an impairment of six points. This rating reflects that Mr Noonan coped well with providing evidence to the Tribunal and his distress and preoccupation with his symptoms were not obvious. Further, Ms Doggett submitted that during evidence to the Tribunal, Mr Noonan provided no evidence that people apart from his immediate family had observed his distress and pre-occupation. A rating of six points is also more in keeping with the observations of Mr Noonan's General Practitioner, Dr Leong, (at T4, p13) in which Dr Leong in a Medical Impairment Assessment for post traumatic stress disorder noted that Mr Noonan's distress is sometimes apparent or his pre-occupation with symptoms is sometimes noticeable to astute observers. Further, Mr Hawkins, Vocational Psychologist, noted that Mr Noonan did not display any significant physical or emotional distress, and was friendly and talkative.
In relation to Table 4.4, Ms Doggett submitted that the correct rating should be two points to take into account the objective evidence provided by Telstra that Mr Noonan had on average one sick day every few months. Mr Noonan's longest period of sick leave was in June 1991 when he had three days leave for an operation to his scalp. Ms Doggett further noted Mr Noonan's success on merit in obtaining a position in the Information Technology section in 1995.
In relation to Table 4.5, Ms Doggett submitted that the appropriate rating is three points. While acknowledging that there was disagreement and conflict between Mr Noonan and his wife, Ms Doggett submitted that Mr and Mrs Noonan have developed methods of avoiding or minimising that conflict. In relation to the relationship between Mr Noonan and his son and daughter as being characterised by significant conflict, Ms Doggett noted that Mrs Noonan also experiences conflict with their children and therefore it would be artificial to describe the difficulties Mr Noonan has with the children as being purely a manifestation of his post traumatic stress disorder. Further, Ms Doggett submitted that the rating for Table 4.5 given by Dr Burns does not take into account the relationship Mr Noonan has with his mother and sibling. Ms Doggett submitted that Table 4.5 is more appropriate to consider the domestic situation referring to family members, not just Mr Noonan's relationship with his children and his wife. If the Tribunal did not accept the Respondent's submission on this matter, then Ms Doggett submitted that Table 4.6 which concerns "Social Interaction" should then have a reduced rating. The Respondent submitted the correct rating for Table 4.6 should be three points to reflect Mr Noonan's ability to relate to a diverse range of people including Dr Burns, Mr Cipriani and the Tribunal. Mr Noonan is able to deal with people in different roles, to follow the thread of conversations and to restrict conversations to an appropriate topic and also respond suitably. Mr Noonan also has a long-term relationship with the friends he visits on Friday nights at a club. The Respondent submits that the appropriate ratings for Mr Noonan's post traumatic stress disorder is ten + six + three + three + three which provides a total of 25 points.
In relation to chronic bronchitis, Ms Doggett submitted that Mr Noonan has daily sputum as a result of his chronic bronchitis but he does not have chronic obstructive airways disease or emphysema. Ms Doggett relied on the report by Dr Collett dated 9 August 1994 (T2A, pp2D-2H) and the recent spirometry report from Dr Collett dated 14 January 2001 (Exhibit R5). Ms Doggett submitted that the opinion of the Respiratory Physician, Dr Collett, should be preferred over the opinion of Occupational Physician, Dr Burns.
Accordingly, Ms Doggett submitted that the use of Table 1.4 is not appropriate in the circumstances, for assessing Mr Noonan's chronic bronchitis. Referring to the discussion in Chapter 1 of the Guide, which requires analysis of the reliability of the spirometry, including consistency with previous spirometric readings and the recognition that not all respiratory conditions can be assessed using lung function tests, Ms Doggett noted that Mr Noonan's maximal expiratory flow (MEF25/75) has decreased from 114 per cent in August 1994, to 102 per cent in August 2000, to 72 per cent in January 2001. Mr Doggett submitted that this inconsistency, in addition to Dr Collett's opinion that there is no airflow limitation, is sufficient reason to exclude the most recent reading. Ms Doggett submitted that the use of Table 1.2 is inappropriate in Mr Noonan's circumstances because, as Dr Collett noted in 1994, Mr Noonan's poor physical condition was the reason for his dyspnoea on exertion. Ms Doggett noted that during cross-examination, Dr Burns conceded that he had not incorporated deconditioning into his assessment of Mr Noonan or into the analysis of the exercise tolerance results. Further, in evidence, Dr Burns had also conceded that the DLCO reading in the 1994 spirometry of 95 per cent was a normal reading and that it suggests that the consideration of fitness levels was appropriate in Mr Noonan's assessment.
Mr Noonan's hearing had been adjourned so that updated spirometry could be obtained and then referred to Dr Burns for his opinion. Unfortunately, in Dr Burns' supplementary report he did not address the issue of DLCO readings and fitness levels, even though he had been provided with updated spirometry material. Ms Doggett submitted that given the improved DLCO reading in January 2001 of 97 per cent, the dyspnoea that Mr Noonan experiences on exertion results from his physical unfitness rather than any lung disease. Accordingly, Ms Doggett contended that the appropriate impairment table for rating Mr Noonan's chronic bronchitis is Table 1.10 "Cardiorespiratory Impairment: Lower Respiratory Tract." Ms Doggett noted that the appropriate rating is two points to reflect Mr Noonan's evidence that he uses a bronchodilator intermittently.
Ms Doggett submitted that the combined impairment rating for Mr Noonan's accepted conditions is 27 points. In relation to a lifestyle rating, Ms Doggett submitted that the appropriate ratings are:
personal relationships       3
Mobility         0 or 1
recreational and community activities     3
Domestic activities   1
Employment activities        2

Averaging the lifestyle rating, Ms Doggett submitted that the appropriate lifestyle is two points.
A combined impairment rating of 27 points with a lifestyle rating of two provides a Disability Pension at 40 per cent of the General rate. In such circumstances, Ms Doggett submitted that there was no qualification for a Special rate of pension under the provisions of section 24 of the Act. If the Tribunal did consider Mr Noonan's disability was of 70 per cent or more, Ms Doggett submitted that Mr Noonan did not satisfy subsections 24(1)(b) and 24(1)(c) of the Act.
In relation to subsection 24(1)(b), Ms Doggett submitted that the Respondent relies on the report of Mr Cipriani in which he opined that Mr Noonan was employable at least on a part-time basis particularly in the field of information technology and in a range of clerical, sales and service positions with little contact with customers and colleagues.

91.Ms Doggett referred the Tribunal to Mr Noonan's oral evidence in relation to his employment at the Information Technology section in which his supervisor had told him that his work was satisfactory. This was in the context of Mr Noonan is seeking feedback as to his work and his not wanting to do anything "stupid".

Ms Doggett noted that while Mr Noonan may have been experiencing feelings of stress, he was capable of performing his duties. Further, Ms Doggett submitted that there had not been a serious deterioration in Mr Noonan's post traumatic stress disorder and on balance, it was submitted that Mr Noonan's accepted disabilities alone did not prevent Mr Noonan from undertaking remunerative work.

93.In relation to subsection 24(1)(c), Ms Doggett submitted that Mr Noonan ceased work for reasons other than his accepted disabilities. Noting Mr Noonan's evidence, he was faced with three choices at the time IBM was going to take over the Information Technology section of Telstra. Mr Noonan could have accepted the position with IBM, he could have sought redeployment within Telstra or he could have accepted a redundancy package. Ms Doggett noted that Mr Noonan did not wish to work for IBM because it was a large multi-national company and because he would be starting from the bottom again. A further reason related to his transferring to IBM was its not being financially advantageous to him. These reasons, Ms Doggett submitted, had nothing to do with Mr Noonan's post traumatic stress disorder. In relation to redeployment, Mr Noonan had stated that he had been told that the chances for redeployment were poor, noting that out of four hundred people only four had been redeployed. Ms Doggett noted that it was clear that Mr Noonan's chances of redeployment or lack thereof have nothing to do with his post traumatic stress disorder.

In relation to Mr Noonan's decision to accept a redundancy, this was the most financially sensible option available to him as stated in evidence. Mr Noonan would be in a position to live comfortably on an income arising out of the redundancy, from his superannuation and from his pension.
Ms Doggett relied on Mr Noonan's oral evidence that he could have obtained another position through application and interview. Further, Ms Doggett continued that on balance, the Tribunal could not be satisfied that Mr Noonan was incapable of performing his duties when he ceased employment, when he so recently had been found suitable for a position of some complexity and seniority.
Mr Noonan's clear evidence was that he also did not seek re-employment after ceasing with Telstra. His former supervisor had invited him to keep in touch if he was interested in looking for work and he had also been invited to complete an employment questionnaire outlining his qualifications. Mr Noonan chose not to do this. Mr Noonan's evidence was that at the time he did not want a job. He had never registered with an employment agency or Centrelink and part of the reason was he felt no one would employ him at his age.
In relation to the ameliorating provisions contained within subsection 24(2) of the Act, Ms Doggett submitted that these do not apply as Mr Noonan had not sought employment since ceasing with Telstra and there is no evidence that he is being prevented from doing so because of his accepted disabilities.
Further, Ms Doggett submitted that Mr Noonan's accepted disabilities were not the substantial reason behind his being unsuccessful in obtaining employment. In this regard, the Tribunal was referred to Mr Hawkins' report in which he stated that Mr Noonan did not present as a man with significant disabilities or barriers to employment. This is particularly so as Mr Hawkins noted Mr Noonan's solid work background and the fact that Mr Noonan's psychiatric condition was not overtly apparent and that he would not be disadvantaged in interviews unless he deliberately detailed his condition.
In relation to Mr Noonan's emphasis on the episode where he described reaching for an imaginary gun to shoot his supervisor, Ms Doggett pointed out that this incident occurred between 1989 and 1991. Following this incident, Mr Noonan continued to be employed in full-time work at a level of seniority for at least another six years. Ms Doggett submitted that this incident is of little importance when considering incapacity from post traumatic stress disorder some eight or nine years later.
Ms Doggett further submitted that it was significant that Mr Noonan did not consult Dr Altman at all between April 1997 and July 1998, particularly considering his employment ceased in November 1997. Ms Doggett submitted that this is indicative that Mr Noonan's psychiatric condition was not severe during this period. Ms Doggett further contended that at a time when it would be expected that a high level of clinical support would be required to assist Mr Noonan with his decision to cease employment, Mr Noonan did not consult with his treating psychiatrist for approximately 15 months. Indeed, Ms Doggett noted that after a consultation with Dr Altman in July 1998, Mr Noonan did not consult with Dr Altman again until May 1999 when he lodged his application for an increase in Pension. Ms Doggett concluded in her submission that the Tribunal should affirm the decision under review.
FINDINGS
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, the legislation and case law.
The Tribunal first deals with the assessment of the correct rate of pension for Mr Noonan's accepted conditions of post traumatic stress disorder and chronic bronchitis.
Post traumatic stress disorder
Post traumatic stress disorder is assessed under Chapter 4 of the Guide. The Tribunal finds the following ratings are appropriate.
104. Table 4.1                  Subjective distress  Impairment – 10 points
The Tribunal finds Mr Noonan has feelings of anxiety, lacks motivation, has nightmares once a fortnight and suffers lack of concentration. These symptoms are frequently experienced and the Tribunal finds from the evidence that Mr Noonan often finds it difficult to distract himself. This impairment rating is reached by the Tribunal not only taking into account Mr Noonan's evidence to the Tribunal but also the reports of Dr Altman and Dr Burns, which also included evidence from Mrs Noonan.
105. Table 4.2                  Manifest distress  Impairment – 10 points
The Tribunal finds that Mr Noonan is pre-occupied with his symptoms and his distress is obvious to casual observers. While the Tribunal notes the Respondent's submission that Mr Noonan was very capable in the provision of evidence to the Tribunal, the Tribunal observed for itself indications of aggression and excessive irritability when matters close to his post traumatic stress disorder were being discussed. Mr Noonan is aggressive, irritable and uses excessive alcohol. He complains of night sweats.
106. Table 4.3                  Functional effects  Impairment – 2 points
The Tribunal considers that Mr Noonan's post traumatic stress disorder does not cause anything other than a moderate interference with function in some everyday activities. The Tribunal notes that Mr Noonan was able to survive on his own for six months while his wife was in Malaysia and he can basically care for himself and go to the shops. The Tribunal concludes that the impairment is greater than a minor interference in some everyday activities and hence a rating of two is the most appropriate.
107. Table 4.4                  Occupation  Impairment – 5 points
The Tribunal considers that this is the correct rating as it takes into account that Mr Noonan's accepted conditions caused difficulties at his work which had some impact on his cessation of employment. It was not the only reason but it did have an impact.
108 Table 4.5                   Domestic situation  Impairment – 5 points
The Tribunal considers this rating appropriate to reflect the continual conflict between the family members principally between Mr and Mrs Noonan and between himself and his son and daughter. While the Respondent notes Mr Noonan's ability to get on well with his mother and brothers, the Tribunal considers that this contact once per week is remote and is not taking into account the intimate contact which occurs within the domestic context. While the Tribunal notes that there is conflict between Mrs Noonan and her children, the Tribunal accepts on all of the evidence, not just Mr Noonan's, that the conflict between Mr Noonan and his immediate family is more concentrated and extreme.
109. 4.6  Social Interaction  Impairment – 5 points
The Tribunal considers that there is a substantial reduction in Mr Noonan's social interaction. He does not form new interpersonal relationships and relates only to his close family members and one set of friends who are long term friends. He is otherwise aggressive with people and does not have a great ability to react in social situations such as golf or at the supermarket.

110. 4.7 Leisure Activities Impairment – 3 points
Mr Noonan still goes out once per week on a Friday night with his long term friend and associated family members. Mr Noonan is able to undertake crossword puzzles, watch television, play solitaire and read.
111. 4.8 Current Therapy Impairment – 3 points
This rating is appropriate to reflect that Mr Noonan has psychiatric treatment in the form of psychotherapy at an outpatient level with Dr Altman.

Applying the processes of Chapter 4, the Tribunal considers that the appropriate rating is 10 + 10 + 5 + 5 + 5 equals 35 points.
CHRONIC BRONCHITIS
There is a dispute as to the correct rating for this condition. The Tribunal notes that in 1994, Dr Collett, Respiratory Physician, noted the significant impact of Mr Noonan's poor physical condition on his breathlessness and moderate exertion. Dr Burns at hearing, conceded that the impairment rating he had earlier assessed at 13 points was an overestimation and he should take into account the factors of deconditioning. Dr Burns was unable to apportion the rating between the chronic bronchitis and deconditioning.
Following further spirometry undertaken by Dr Collett on 14 January 2001, Dr Collett noted a mild reduction of lung volumes with DLCO normal and a mildly reduced residual volume and functional residual capacity. Dr Collett concluded that Mr Noonan has mild restriction of lung volumes of uncertain clinical significance and the spirometry did not indicate airflow obstruction (Exhibit R5).
Mr Noonan's evidence to the Tribunal is clearly that he is unfit and noting Dr Collett's previous report and the opinion expressed at hearing by Dr Burns, the issue of deconditioning must be taken into account. Unfortunately, Dr Burns did not further consider this issue once he had been provided with the more recent spirometry results of 14 January 2001.
The Tribunal notes the explanatory notes in Chapter One of the Guide concerning Cardiorespiratory Impairment. At page 20 of the Guide, under "Measurements of lung function", it is noted that the nature of spirometry must be appropriate and consistent with the known conditions affecting the veteran and should also be consistent with other information such as old spirometry. There should be no unexplained inconsistencies between the various reports. The Guide further notes that if the nature of the spirometry cannot be reconciled with other relevant information, then the spirometry may need to be repeated or the veteran referred to a Respiratory Physician for clarification. This is what occurred with Mr Noonan when he was referred to Dr Collett in January 2001.
The Tribunal concludes that Dr Collett's opinion in relation to the deconditioning as it was in 1994 is equally relevant in 2001 and the Tribunal notes Dr Burns' evidence at hearing which supports such a finding. Accordingly, the Tribunal agrees with the Respondent that the inconsistency in relation to the maximal expiratory flow in addition to Dr Collett's opinion that there is no airflow limitation, are sufficient reasons to exclude this reading. Further, the Tribunal notes that the DCLO reading in January 2001 has improved since 1994. This supports a finding that the dyspnoea Mr Noonan experiences on exertion results from his physical unfitness or deconditioning, rather than any lung disease. Accordingly, noting the evidence and the requirements of Chapter One of the Guide, the Tribunal considers that the Table appropriate for rating Mr Noonan's chronic bronchitis is Table 1.10 concerning "Cardiorespiratory Impairment: Lower Respiratory Tract". The appropriate rating under Table 1.10 is five points to cover regular use of bronchodilator medication and the production of at least a quarter to a third of a cup of sputum a day, which is at least 50ml of sputum required for a rating of five points.
The combined impairment rating of 35 points and five points from Scale 18.1 produces a combined impairment of 38 points rounded to 40 points.

LIFESTYLE EFFECTS

Table 22.1 Personal Relationships Impairment – 4 points
The Tribunal consider that Mr Noonan's relationship with his wife, son and daughter is markedly affected and he is only able to maintain a relationship with his friends who he meets on Friday night and his mother and siblings. Very little other time is spent socialising.
Table 22.2 Mobility Impairment – 2 points

The Tribunal considers that Mr Noonan's combined incapacities have a mild effect on his mobility. He has, for example, slowed down in pace in terms of undertaking such activities as the lawn mowing and doing household chores. The impact on mobility is greater than that described for an impairment rating of one.

Table 22.3 Recreational and Community Activities Impairment – 4 points

Mr Noonan does not play golf any more or undertake any other sporting activities. He is restricted to non-active interests such as watching television or reading.

Table 22.4 Domestic activities Impairment – 2 points

The Tribunal considers the appropriate rating is 2, to reflect Mr Noonan's ability to carry out accustomed tasks but noting his difficulty with heavier tasks.

Table 22.5 Employment Activities Impairment – 4 points

The Tribunal considers that the appropriate rating is 4 to reflect that Mr Noonan is unable to work full time in his normal occupation or having to change the hours or type of work because of his accepted conditions.
Applying the requirements of Chapter 22 of the Guide, the average lifestyle rating is considered appropriate at four points.

A combined impairment of 40 points with a lifestyle rating of four produces from Scale 23.1 a Disability Pension at 80 per cent of the General rate from 3 May 1999.
As the Tribunal is satisfied that Mr Noonan has a disability pension at 70 per cent of the General rate, it must consider his qualification for any earnings-related pension at the Special rate as provided for in Section 24 of the Act. The Tribunal does not consider that the Intermediate rate is relevant to Mr Noonan's circumstances, nor is he qualified for the Extreme Disablement Adjustment.
As conceded by the Respondent and accepted and found by the Tribunal, Mr Noonan meets the requirements of subsection 24(1)(aa), (aab) and (a).
Subsection 24(1)(b) requires that the veteran must be totally and permanently incapacitated from war-caused disability which must of itself alone be responsible for the veteran being unable to work for more than eight hours per week.
The Tribunal finds that at the time Mr Noonan accepted his redundancy, he was not incapable of undertaking work for more than eight hours per week. The Tribunal considers that Mr Noonan's post traumatic stress disorder alone did not render him incapable of working in the terms described. He ceased work because of the redundancy. At the time the redundancy was offered, he was obviously suffering from some effects of post traumatic stress disorder but there was no indication at that time that he would have to leave work because of that condition. It was the impact of the redundancy itself which caused Mr Noonan to consider his position. The Tribunal cannot find any evidence to support a proposition that had the voluntary redundancy not occurred, Mr Noonan would probably not have been continuing in his work. Mr Noonan was not asked to leave work and in fact had good work reports although he noted a report closer to the time of redundancy which was not as positive as the previous one. The Tribunal considers that Mr Noonan had the skills and capacities to undertake a number of positions in Information Technology or clerical fields. If the effects of the post traumatic stress disorder had been apparent, the Tribunal does not consider that Mr Noonan would have been offered further work by his supervisor or indeed, offered redeployment or a further position in IBM. Other people took the positions in IBM out of his section. Twelve people accepted the IBM positions and four people accepted the voluntary redundancy. The Tribunal does not consider that Mr Noonan meets the requirement of Section 24(1)(b) of the Act, as the Tribunal does not consider that it was Mr Noonan's post traumatic stress disorder alone which was responsible for his incapacity to work.
In relation to subsection 24(1)(c) this requires that war-caused disabilities alone prevent the veteran from continuing to undertake remunerative work that he was undertaking and that there is a loss in remuneration because of his impairment. Section 24(1)(c) is ameliorated by the provisions of subsection 24(2) of the Act. Subsection 24(2) of the Act relates to a veteran who is less than 65 years and provides that while the veteran may have ceased work for other reasons besides his or her accepted condition, if he or she has been genuinely trying to engage in work, then qualification for the Special rate may be possible if the substantial reason for being unable to work is related to the accepted disabilities.
The Tribunal finds that Mr Noonan ceased work because of a combination of factors which included the offer of voluntary redundancy, post traumatic stress disorder, his wish not to work for a multi-national company and because it would not have been financially advantageous to accept an offer of work in IBM, principally because of Mr Noonan's concerns about his superannuation.
Mr Noonan stated that when he accepted the voluntary redundancy he thought he would be financially secure and he was going to see how he went. He then faced having to pay for his daughter's wedding which caused a significant financial impact. Mr Noonan had been offered work by his former supervisor and had been sent an employment questionnaire by an employment consultant with a prospect of further employment. Mr Noonan chose not to pursue either of these opportunities. Further, Mr Noonan quite clearly did not register for employment with an employment agency. The Tribunal notes Mr Noonan's evidence, and the evidence of Dr Altman that at the time of his cessation of work he was clearly severely affected by post traumatic stress disorder and was stressed by the work at the Information Technology section. In such circumstances, the Tribunal notes as very significant the fact that despite such stress and concern, Mr Noonan did not consult Dr Altman between April 1997 and July 1998. This period covered the period in November 1997 when Mr Noonan ceased work. Mr Noonan's evidence was indeed that he did not discuss with Dr Altman his decision to cease work. Following Mr Noonan's consultation with Dr Altman in July 1998, after he had left work, he did not then consult Dr Altman until May 1999 when he was submitting his claim for an increase in pension.
The Tribunal finds that there is an inconsistency between the submissions in relation to the severity of Mr Noonan's post traumatic stress disorder and its symptoms with Mr Noonan's evidence that Dr Altman assisted him greatly, yet Mr Noonan did not feel the need to consult with Dr Altman at the time that conceivably he would have been at his most stressed and vulnerable during November 1997.
The Tribunal finds that Mr Noonan did not consider applying for other jobs or accepting opportunities for employment which came his way because it was not to his financial advantage. This finding does not deny the impact of the symptoms of Mr Noonan's post traumatic stress disorder. However, given that Mr Noonan did not genuinely seek to obtain work, the Tribunal does not consider that subsection 24(1)(c) can be ameliorated by the provisions of subsection 24(2) of the Act. The Tribunal notes the decision in Cavell (supra) which urges decision-makers to make practical decisions not based on philosophical decisions but with an eye to reality. The facts of Mr Noonan's case are that he ceased work for reasons other than his post traumatic stress disorder and as he told the Tribunal, he did not apply for employment or follow opportunities which came his way. Further, Mr Noonan referred to his age as impacting on his ability to obtain employment. Dr Altman, in expressing his views as to Mr Noonan's eligibility for the Special rate of pension, does not refer to the other reasons relating to Mr Noonan's cessation of employment. Dr Altman in expressing his psychiatric opinion has not discussed Mr Noonan's other reasons for cessation of employment, namely financial consideration and Mr Noonan's expressions of personal choice of not wishing to work for a multi-national company or to seek redeployment. Further, he has not noted Mr Noonan's concerns about the impact of his age on obtaining further employment.
While Dr Burns notes that he is aware of other reasons impacting upon Mr Noonan's accepting the voluntary redundancy, he opined that the post traumatic stress disorder was the substantial reason that Mr Noonan ceased work. Dr Burns and Dr Altman in expressing their opinions did not have to consider the complexities of subsection 24(1)(c) and subsection 24(2) of the Act. The Tribunal on the other hand, must deal with qualification for special rate under the Act. The Tribunal can accept that Mr Noonan was nervous about working for IBM and was concerned about the impact of his post traumatic stress disorder. The Tribunal must also consider however, the evidence concerning the financial aspects of Mr Noonan's decision to cease work and not accept other work. The Tribunal finds that Mr Noonan, while being nervous about accepting other employment apart from IBM, had uppermost in his mind, the consideration of the financial impact of obtaining further employment.
In all of the circumstances, the Tribunal finds that Mr Noonan does not meet the requirements of subsections 24(1)(b) or 24(1)(c) of the Act. Accordingly, the Tribunal determines that Mr Noonan is not eligible for payment of pension at the Special rate.
In all the circumstances and for the reasons set out above, the Tribunal sets aside the decision under review and substitutes its decision that Mr Noonan is eligible for payment of Disability Pension at 80 per cent of the General rate with effect from and including 3 May 1999.

I certify that the 136 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock and Dr P D Lynch

Signed: .....................................................................................
Stella Vaughan, Associate

Date of Hearing 6 March 2001
Date of Decision 30 July 2001

Solicitor for the Applicant Ms A Toliopoulos, Advocate, Veterans' Advocacy Service, Legal Aid Commission of NSW

Advocate for the Respondent Ms M Doggett, Departmental Advocate