O'Brien and Repatriation Commission - [2000] AATA 453

DECISION AND REASONS FOR DECISION [2000] AATA 453

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/215

VETERANS' APPEALS DIVISION )

Re Paul William O'BRIEN
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member Dwyer Mr A Argent, Member Assoc. Professor Maynard, Member

Date8 June 2000
PlaceMelbourne

Decision 1. In respect of the entitlement decision of the Repatriation Commission, made 8 August 1996 and affirmed by the Veteran's Review Board on 17 November 1998: (i) the Tribunal by consent varies the decision to provide that lumbar spondylosis is a war-caused disease, with effect from 22 February 1996. (ii) the Tribunal affirms the decision that tension headaches are not a war-caused disease. 2. In respect of the assessment decision of the Veteran's Review Board made 17 November 1996: (i) the Tribunal by consent varies the decision to provide that pension be assessed at 80% of the General Rate under s 22 of the Veterans' Entitlements Act 1986 ("the Act"), taking into account lumbar spondylosis, with effect from 22 February 1996. (ii) the Tribunal decides that that Mr O'Brien is not entitled to the Special Rate of pension under s 24 of the Act or the Intermediate Rate of pension under s 23 of the Act.

(Sgnd) Joan Dwyer
Senior Member
VETERANS' AFFAIRS - claim for lumbar spondylosis and tension headache - whether war-caused - evidence of headaches during service - no hypothesis consistent with template in SoP - SoP's failure to accept tension headache during period of tense operational service - Tribunal suggests SoP be reconsidered - claim for tension headache rejected
SPECIAL RATE PENSION - claim for increase in disability pension - whether incapacity from war-caused injury or disease, is of such a nature, of itself alone, to render veteran incapable of undertaking remunerative work - Tribunal not satisfied - no entitlement to special rate pension
PRACTICE AND PROCEDURE – request that SoP for tension headache be reviewed
Veterans' Entitlements Act 1986 ss 9(1)(e), 24(1) and (2), 28

Starcevich v Repatriation Commission (1987) 14 ALD 160

REASONS FOR DECISION

8 June 2000 Mrs Joan Dwyer, Senior Member Mr A Argent, Member Assoc. Professor Maynard, Member

background

This application for review covers entitlement in respect of conditions of lumbar spondylosis and tension headache. It also deals with the assessment of the rate of pension payable to Mr O'Brien in respect of conditions accepted as war-caused.
The Veterans' Review Board ("the VRB") on 17 November 1998 affirmed a decision of the Repatriation Commission made 8 August 1996 rejecting claims for lumbar spondylosis and tension headache to be accepted as war-caused diseases under s 9 of the Veterans' Entitlements Act 1986 ("the Act"). The Tribunal is reviewing the rejection decisions of the Repatriation Commission as affirmed by the VRB.
On 17 November 1998 the VRB also set aside a decision of the Repatriation Commission assessing the rate of pension payable in respect of accepted conditions of sensori-neural hearing loss, tinea and post traumatic stress disorder. It substituted a decision that pension be assessed at 50% of the general rate from 22 February 1996 and at 70% of the general rate from 4 May 1998. Under s 175(1)(c) of the Act the Tribunal is reviewing the decision of the VRB as to assessment. The VRB also considered whether Mr O'Brien was entitled to special rate of pension in respect of the period from 4 May 1998 when he had been found to be entitled to pension at the rate of 70% at the general rate. It concluded that he was not entitled to pension at the special rate provided for under s 24 of the Act, because he was not prevented from engaging in remunerative work by reason of his accepted disabilities alone. The VRB found that the rejected disabilities of lumbar spondylosis and tension headache, and also the closure of the Noarlunga Plant of Metro Meat International ("Metro Meat"), where he had worked as a slaughterman, contributed to his incapacity for remunerative work.
Mr D De Marchi, a solicitor, appeared for Mr O'Brien. Mr K Rudge an advocate with the Department of Veterans' Affairs appeared for the Repatriation Commission. Mr O'Brien gave evidence as did Mrs O'Brien. Evidence on behalf of Mr O'Brien was also given by Dr Stone, who is an occupational and rehabilitation physician. Dr Kenny, a psychiatrist, gave evidence on behalf of the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") together with the exhibits tendered during the hearing.
lumbar spondylosis
The preparation of this case by the Department of Veterans' Affairs was unusual. A great deal of work was performed in order to test Mr O'Brien's recollection of an occurrence which he claimed had occurred while he was rendering operational service in Vietnam in 1971. Mr O'Brien claimed that when being "medivaced" from the field due to abdominal pain, his back was jarred when the litter which was being used to winch him to the helicopter became unevenly balanced and he had to be lowered to ground level. The Department of Veterans' Affairs sought three reports from military historian Major Tilbrook. Finally, Major Tilbrook confirmed Mr O'Brien's account of the occurrence when he had been jolted or jarred while being airlifted from an area of thick jungle to a field hospital at Nui Dat.
Even after the third report from Major Tilbrook confirmed that the incident occurred as described by Mr O'Brien, entitlement in respect of lumbar spondylosis was not conceded. The Repatriation Commission required that Mr O'Brien give evidence indicating the nature and duration of his symptoms so as to establish compliance with the factor in paragraph 1(a) of the relevant SoP for lumbar spondylosis, Instrument No. 105 of 1995 as amended by Nos. 334 and 358 of 1995.
After Mr O'Brien gave evidence as to the effects of the incident when he was "medivaced" out of the jungle, the parties asked for a short adjournment. When the hearing resumed the Tribunal was informed that the parties agreed that the condition of lumbar spondylosis be accepted as war-caused with effect from 22 February 1996, and that from that date Mr O'Brien was entitled to 80% of the general rate of disability pension. We will give effect to that agreement in our decision.
tension headache
Although Mr O'Brien did not abandon the claim for tension headache, Mr De Marchi conceded that the Tribunal could not uphold that claim because Mr O'Brien could not meet the only factor in the relevant SoP, factor (a) in paragraph 1 of Instrument No. 259 of 1995. Paragraph 1 reads as follows:
1.Being of the view that there is sound medical-scientific evidence that indicates that tension headache and death from tension headache can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping Forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), that the factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting tension headache or death from tension headache with the circumstances of that service, is:
(a)inability to obtain appropriate clinical management for the tension headache
Paragraph 3 of the SoP restricts it to situations such as s 9(1)(e) of the Act which provides:
9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
. . .
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
There is evidence that Mr O'Brien suffered headache during service. His medical records show (T docs p25) that on 17 June 1971, when serving in Vietnam, he attended a regimental aid post reporting frontal headaches on and off for three to four weeks. The note reads:
Frontal headache on & off for 3-4/52, usually 1-2/week, but one started yesterday am and still present. H/aches usually only in morning, bilateral & no associated symptoms. Difficulty sleeping, appetite poor 3-4/52. Says he had similar headaches aged 12 when had a rh-fever & St Vitus dance. Is "browned off" o/E NAD. Probably functional Reassured
The Tribunal has difficulty understanding why the SoP does not accept the condition of tension headache as war-caused, where its onset was during a period of tense operational service. The Tribunal has referred to "tension headache" in a number of standard medical texts. Harrison's Textbook of Medicine 14th ed. does not mention tension or stress as a cause or precipitating factor. It explains that "Patients may report that the head feels as if it is in a vise or that the posterior neck muscles are tight." It does however add that "anxiety or depression [may] coexist with tension headache." On the other hand, Adams and Victor, Principles of Neurology 5th ed. p155–161 states that tension headache is "provoked by fatigue and nervous strain and associated with depression worry and anxiety." Similarly the Oxford Textbook of Medicine 3rd ed. 1996 V3 at p4026–7 discusses "the emotional basis" of tension headache and describes "overwork, lack of sleep, or an emotional crises" as "obvious preceding cause[s]." The author also comments on symptoms being "worse when the victim is tired or under pressure at work, and in face of personal or domestic stresses." Finally, Brain's Diseases of the Nervous System 10th ed. at p129, states that tension headache "is often found in association with anxiety states." Those extracts would seem to suggest that the stress and anxiety of operational service could, as a reasonable hypothesis, be a provoking factor for the disease of tension headache.
We would have thought there would be a reasonable hypothesis that once a pattern has developed of reacting to tension with a headache, the recurrence of those headaches after service is attributable to service. Because of the effect of s 120A of the Act we are not free to decide that, in the opinion of the Tribunal, it is a reasonable hypothesis that Mr O'Brien's ongoing headaches since service are attributable to his service. We must reject the claim to have tension headache found to be war-caused because the hypothesis raised is not consistent with the template found in the SoP (as explained in Repatriation Commission v Deledio (1998) 49 ALD 193 at p206). We do however suggest that the SoP be reconsidered. It seems to us to give insufficient recognition to the concept of tension headache resulting from the stress and anxiety of demanding war-service.
special rate pension
Mr O'Brien, in his claim lodged 22 May 1996, gave the following history of employment since service.
From (year) To (year) Type of work Name and address of employer

1978 SELF EMPLOYED. DRIVER/SALES SELF

1979 BAR WORK DRIVER NYNGAN R.S.L. N.S.W. SELF EMPLOYED

1985 SELF EMPLOYED SALES SELF

1985 1990 SALES REP ALLEN'S SWEETS REGENCY PK S.A.

96 SLAUGHTERMAN METRO MEAT NOARLUNGA S.A.

Mr O'Brien said in his claim that he was not employed as at the date of the claim, namely May 1996. He gave as the reason: "closed down no work". In answer to question 22 "have the disabilities you are claiming affected your employment at any time?" he answered "yes" and explained:
HEADACHES ) BACK PROBLEM ) unable to work as Slaughterman.

Mr O'Brien also lodged an application for an increase in disability pension on 22 May 1996. He stated that his accepted disabilities had got worse. His accepted disabilities as at 22 May 1996 were only sensori-neural hearing loss and tinea. Post traumatic stress disorder was not accepted as war-caused at that time. It was claimed on 22 May 1996 and accepted by the Repatriation Commission on 8 August 1996 with effect from 22 February 1996 (T10 p44).

The Tribunal also received in evidence a work history which Mr O'Brien had prepared prior to the commencement of the hearing. It was sent to the Tribunal with a letter from Mr De Marchi dated 4 August 1999. It reads as follows (A1):
WORK HISTORY SINCE LEAVING THE ARMY IN 1971
Vineyard hand: 3 months
Laborer/Knifehand/Slaughterman: 2 Years
Self Employed: (Selling orange juice) 4 Years Mr. Juicy
Moving around Australia: 1 Year
Dole for eight months on return to McLaren Vale
Self Employed (selling Pies, Pasties and Cakes) BALFOURS 6 Years
Sales Rep for Allen's Sweets: 6 Years
Slaughterman: 6 Years Metro Meat International.
Did not work for three months: Dole
Vineyard hand: 5 months
Have not worked since January 1997
The brief work histories do not provide a description of the duties performed in the various positions. Those matters were not amplified during the hearing. Nor do they give the reason why Mr O'Brien ceased a particular employment, for instance his sales positions. Nor did we receive evidence clarifying the dates of the last employment as a vineyard hand. The T documents do not include any statement as to the nature of the work as a vineyard hand, nor any confirmation from the employer as to the fact that Mr O'Brien did work as a vineyard hand, nor as to his earnings, or the reason why he ceased work.
The respondent submitted that Mr O'Brien was not entitled to payment of pension at the special rate provided for in s 24 of the Act. That section, so far as relevant, provides as follows:
24 Special rate of pension
(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) 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.

The operation of s 24(1)(b) is affected by s 28 which provides:

28 Capacity to undertake remunerative work
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 incapable 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 professional skills, 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).

Once the respondent had conceded that lumbar spondylosis is a war-caused disease, and that Mr O'Brien is entitled to payment at 80% of the general rate with effect from 22 May 1996, he satisfied s 24(1)(a).
As to s 24(1)(b), Mr O'Brien claimed that he gave up work at the vineyard because of his PTSD and his lumbar spondylosis, and that the incapacity due to those conditions was "of such a nature, as of itself alone" to render him incapacitated to the extent required by s 24(1)(b).
The evidence does not establish the dates of the vineyard work. In A1, as stated above, Mr O'Brien referred to his vineyard work as prior to January 1997. In Exhibit A4, Dr Stone set out a history of Mr O'Brien finishing at the vineyard in July 1997. That history is also contained in the reports of Mr Hadley (A3) and Dr Kenny (R4). Exhibit R11 p30 contains a report of Dr Michael Reid dated 2 May 1997 based on consultations from July 1996 and including "a long consultation with Mr O'Brien on 11 April 1997". There is no reference in that report to work in a vineyard although if the five months of work ceased in July 1997, Mr O'Brien would have been working at the vineyard when he saw Dr Reid on 11 April 1997. The history under the heading "specific issues" reads as follows:
As Mr. O'Brien did not present to me until July of 1996 and Metro Meat Noarlunga plant closed in late March of 1996 I can only offer an opinion regarding Mr. O'Brien's capability to perform his work on Mr. O'Brien's report of his symptoms. From what Mr. O'Brien tells me it is my opinion that he would not have been capable of performing the full normal duties of a slaughterman without incurring considerable pain to himself. Accordingly, from what I have been told by the patient he would have been partially incapacitated to perform his normal duties as a slaughterman at the time of the closure of the Noarlunga plant.

Those discrepancies as to when Mr O'Brien worked in the vineyard raise a question as to whether he was in fact employed in a vineyard at any time after the Noarlunga plant closed. That issue was not explored with Mr O'Brien during the hearing.
The respondent had obtained a file of documents (R11) relative to a workers' compensation claim Mr O'Brien had made against his employer Metro Meat in July 1996 seeking compensation for a bilateral shoulder disability sustained in the course of his employment. Exhibit R11 establishes that Mr O'Brien eventually received weekly payments in respect of the whole period from 26 March 1996 to 24 November 1996. In the final settlement he also redeemed his entitlement to future weekly payments for a lump sum of $69,000.00. He also received a lump sum of $17,520.60 for loss of function of the shoulders and scarring.
Mr O'Brien in his evidence denied that his shoulder injuries interfered with his capacity for work while he was at the vineyard. Mr O'Brien said that it was his back which had affected his physical capacity to work at the vineyard (trans. p17). He said, 'The shoulder wouldn't bother me at all." He agreed that he had had an operation on his left shoulder in July 1998, and that he had a similar condition in his right shoulder although less bad. But he said that his shoulders did not affect him while he was working in the vineyard. He said he was mainly training young grapevines and occasionally doing some spraying. He indicated that he was performing movements with his arms for the training of the new shoots and the spraying, but that none of it was at a height where it caused him any pain. He said the vines were only three or four months old and therefore had not spread out. He did not say what would have happened when the vines grew higher. He said he only worked at the vineyard for five months and then gave it up, because of the effects of his accepted PTSD and his lumbar spondylosis.
Mr O'Brien said that there are many vineyards in the area where he lives around McLaren Vale, South Australia and so there would be opportunities to obtain work in the wineries or vineyards. He said that the reason he had not done so was (trans. p18-19):
I had a lot of problem with just coping with the environment, they were constantly sending Asians to work out there, which I had a hell of a job coping with. I have got nothing against Asians but for some reason they – I can't seem to relate to them very well. Why do you think that is?---I feel a bit guilty about shooting some of them, I suppose, not then but back in Vietnam, and I've always had a problem with it.
Mr O'Brien had said that in 1987 after a Vietnam Veterans' March he had started having constant dreams about Vietnam and waking up of a morning sweating. He said of his five months working at the vineyard (trans. p19):
I would go to work thinking that I would be okay, but I would just run out of energy, I was tired all the time because I wasn't sleeping of a night. I spent most nights walking around the house rather than sleeping.
The symptoms of PTSD which Mr O'Brien mentioned, with some prompting from his solicitor, were problems with having Asian people around him, difficulty sleeping at night and irritability and argumentativeness. Mr O'Brien explained that as well as the fact that Asians worked at the vineyard he was troubled by tractors moving around which sounded like tanks and made him think of what had happened in Vietnam.
Dr Stone, in his report of 27 August 1999 (A4), expressed the opinion that Mr O'Brien was unable to work more than eight hours a week due to his accepted conditions including the lumbar spondylosis. In cross-examination he agreed with Mr Rudge that the shoulder problems would have been significant if Mr O'Brien was still working in the meat works, but said he did not consider them significant except for work at or above shoulder height. He agreed that if Mr O'Brien could perform the work in the vineyard because it was below shoulder height, he might also be able to do bench work as long as it did not require compression through the shoulder and elevation and allowed Mr O'Brien to vary his posture as required.
Dr Kenny in his report of 4 August 1999 (R3 p7) placed emphasis on Mr O'Brien's history of consistent employment even after 1987 when he started to suffer from PTSD. He also noted that Mr O'Brien, when he saw him on 3 August 1999 was still engaged in pursuing the compensation claim against Metro Meats in respect of his shoulder injuries. It was Dr Kenny's opinion that Mr O'Brien was not incapacitated for work due to war-caused injury or disease alone. He wrote:
But this man has held a lot of jobs for reasonable periods of time. I note that he has a significant shoulder problem and that he's currently on compensation as a result of that.
Dr Kenny, in his report, concluded (p8) that he had a lot of reservations about what proportion of Mr O'Brien's symptomatology was genuinely due to his war service and how much antedated the war service, and would have been inevitable in the light of other difficulties such as illness and difficulty with schooling in childhood. Dr Kenny accepted that Mr O'Brien had a post traumatic stress disorder of relatively mild to moderate severity which had been markedly accentuated by the Vietnam march, and by other non-Vietnam related matters such as two experiences of a friend and a relative suiciding. However, Dr Kenny concluded at p8 "I simply do not accept that he's completely unfit for employment on the basis of war-caused disabilities." Dr Kenny wrote that from the way Mr O'Brien presented he did not accept that his post traumatic stress disorder caused the attitude problems and difficulties in dealing with people which he said made him cease work at the vineyard and made him currently unable to work. Dr Kenny wrote that he did not believe that Mr O'Brien was motivated to continue in employment when he left the vineyard. He suggested that the compensation process in which he was engaged may have played a part in that. Dr Kenny concluded at p11 of his report:
I am in no sense denying but that he had sufficient traumatic experiences to cause a post traumatic stress disorder. I accept that he has a post traumatic stress disorder but in my view it is relatively mild and I believe other factors have contributed considerably to his situation.
In his evidence Dr Kenny repeated that he was of the view that Mr O'Brien could work 20 hours a week or more. But he said he accepted that if he slept badly and had dreams about incidents in Vietnam he could have trouble working a full day. He said that it was his view that Mr O'Brien should be capable of a reasonable range of employment and for a reasonable number of hours.
The Tribunal notes that Mr O'Brien managed to go on working full-time for something like nine years after his sleep problems arose in March 1987. He worked for six years as a slaughterman at Metro Meat until it closed in March 1996, and prior to that for six years as a sales representative for Allen's Sweets. As the post traumatic stress disorder was diagnosed in 1997 but had apparently been present since 1987, we are satisfied that it does not render Mr O'Brien incapable of undertaking remunerative work, although we accept that it may create some difficulties for him working in situations where he meets many Asian people. Mr O'Brien said at trans. p20:
While I was working I didn't miss very many days work, I was fairly conscious of working, I liked the work, so I wouldn't have any problem there.
Mr O'Brien's evidence that his shoulders were not a significant problem while he was working in the vineyard was contradicted to some extent by the medical reports in exhibit R11. They provide the basis on which Mr O'Brien was paid compensation in respect of injury resulting from his employment by Metro Meat for total incapacity for work from 26 March 1996 to November 1999, until that entitlement was redeemed by payment of a lump sum.
The medical records of Dr Reid, Mr O'Brien's treating local doctor, also cast considerable doubt on Mr O'Brien's evidence that his back was his only physical problem while he worked at the vineyard. If Mr O'Brien did work at the vineyard it would have been for five months between August 1996 and July 1997.
Mr Rudge in cross-examination took Mr O'Brien and the Tribunal to the clinical notes of Dr Reid, (R6). On 10 July 1996 Dr Reid wrote that Mr O'Brien's biggest problem at that time was his shoulders and that they were causing "painful continuous ache disturbing sleep." On 11 September 1996 Dr Reid noted of the shoulders "hurts all the time". On 2 April 1997 he noted, "arms still a problem." In June 1997 the notes say, "shoulder same old", and again "shoulder, up last night late. Resigned that eventually is going to have arthroscopy." There are other references to both shoulder and back problems in the notes between March 1996 and July 1997. Mr Rudge pointed to references to "shoulders unchanged" right through to March 1998 where there is an entry "shoulders unchanged terrible". In March 1998 Dr Reid noted, "recognises needs an arthroscopy repair". Those notes show that Mr O'Brien's shoulder problems were troublesome from September 1996 to June 1997 which, on the history he gave Dr Stone, Mr Hadley and Dr Kenny, is shortly before he ceased work at the vineyard. Even if the vineyard work ceased in January 1997 the notes document ongoing shoulder problems in the preceding months. We find that in his evidence Mr O'Brien did not accurately describe the ongoing effect of his shoulder problems on his capacity for work after March 1996. We find that those shoulder problems did play a part in Mr O'Brien's incapacity for work after March 1996, both because of ongoing pain and because of interference with sleep.
Dr Stone's report (A4) and evidence also contain a history of ongoing shoulder problems. He recorded Mr O'Brien as having told him that the left acromionectomy in July 1998 improved the movement of the left shoulder but did not help the pain, and that he had problems with both shoulders if he carried anything or when reaching at shoulder height. Mr O'Brien told Dr Stone that he coped with driving by keeping his elbows tucked in or supported, and that he required power steering.
Mr Rudge read to Dr Stone extracts from Dr Kenny's report (R3) of 4 August 1999, in which Dr Kenny said that he simply did not accept that post traumatic stress disorder caused Mr O'Brien the difficulties in dealing with people which led him to cease work, and that he did not accept that Mr O'Brien's accepted disabilities alone would prevent him from working more than 20 hours per week. Dr Stone replied that Dr Kenny's opinion, as he was a consultant psychiatrist, would have to take precedence over his own. Dr Stone also agreed that the fact that Mr O'Brien had been able to tolerate working at the Noarlunga Meat Works for six years, until March 1996 with approximately 500 employees indicated that he had been able to tolerate a working environment.
In view of Mr O'Brien's consistent work history from 1987 to 1996, while suffering from PTSD, and from lumbar spondylosis and his other less significant war-caused diseases, we do not accept that his incapacity from war-caused injury or war-caused disease or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight or 20 hours a week. We find that were it not for Mr O'Brien's shoulder problems, and for the fact that the meat works had closed, he could have continued working as a slaughterman. He said there was one Asian man working at the meat works but he worked in a different area. Mrs O'Brien said she thought her husband's sleep problems were the reason he did not go on with the vineyard work. Those problems, in so far as they are related to PTSD, on the evidence, have been in existence since 1987 and did not prevent Mr O'Brien working at the meat works. We find on the basis of Dr Reid's clinical notes that during the period Mr O'Brien claimed to have worked at the vineyard shoulder pain also interfered with his sleep.
Dr Kenny was of the opinion that Mr O'Brien would manage to work 20 hours or more a week. We accept that opinion. There is no evidence that Mr O'Brien's war-caused conditions created any problems for him in his work at Metro Meat or in his prior work as a salesman. For the purposes of s 28 of the Act Mr O'Brien had experience as a slaughterman and as a salesman. His capacity to engage in those kinds of remunerative work has not been lost because of incapacity from war-caused injury or war-caused disease alone. The closure of the Noarlunga plant and the shoulder injuries are the reason Mr O'Brien ceased working as a slaughterman. There was no evidence as to why Mr O'Brien could not return to work as a salesman. His work history shows 17 years of work in sales between 1972 and 1990. There was no explanation given as to why Mr O'Brien would not still have the capacity to engage in remunerative work in sales. He said that he had a difficulty working in an area where there are many Asians working or where there is noise from tractors. That may mean he can not work in a vineyard, but work in sales would not necessarily create similar difficulties.
We have not overlooked the statement of Mr Bentley (T docs p18). He writes that Mr O'Brien had two weeks work experience with him but his performance was unsatisfatory. There was no evidence from Mr Bentley nor evidence from Mr O'Brien about that work experience. The work was with Southern Vale Mechanical which is not work for which Mr O'Brien has "vocational, trade and professional skills, qualifications and experience." We do not find that statement on its own assists us in making a decision as to Mr O'Brien's incapacity for undertaking remunerative work within the meaning of that term in s 24(1)(b) and s 28.
We prefer the evidence of Dr Kenny to that of Dr Stone. Dr Stone did not explain why, although Mr O'Brien's incapacity from war-caused conditions (including the lumbar spondylosis) did not prevent him working full-time throughout the period 1987 to 22 March 1996, when the meat works closed, it would now, of itself alone, prevent him working more than eight or 20 hours a week.
The lack of explanation as to that issue and the receipt of weekly payments of compensation for incapacity for work due to shoulder problems in respect of the period from March 1996 until the entitlement was redeemed in November 1999, mean that we cannot find that incapacity from war-caused disease, alone, renders Mr O'Brien incapable of undertaking remunerative work for periods aggregating more than eight, or even 20, hours a week. We do not find that Mr O'Brien's incapacity from war-caused injury or disease is, or itself alone, such as to render him incapable of undertaking remunerative work as required by either s 24(1)(b) or s 23(2)(b) of the Act.
That finding means that Mr O'Brien is not entitled to Special Rate Pension. It is therefore not necessary for us to decide whether Mr O'Brien satisfies the requirements of s 24(1)(c) of the Act. However we consider he would have difficulty satisfying that provision too. He last worked as a slaughterman at Metro Meat on 22 March 1996. He then claimed weekly payments of compensation for total incapacity for work due to left and right shoulder injuries and was eventually paid until November 1999, when he redeemed his entitlement to future weekly payments and received a lump sum payment. Those facts raise considerable doubt about whether Mr O'Brien can establish either that it was incapacity from war-caused injury or disease or both, alone, which prevented him continuing to undertake remunerative work that he was undertaking, or that he is, by reason thereof, suffering a loss of salary or wages. Clearly the closure of the Noarlunga Plant and probably also the shoulder injuries played a part in preventing Mr O'Brien continuing to work as a slaughterman.
Mr De Marchi submitted that the Tribunal should have regard only to the last work Mr O'Brien had done, namely the work in the vineyard. He relied on Starcevich v Repatriation Commission (1987) 14 ALD 160 as establishing that proposition. In fact the Full Court of the Federal Court in Starcevich, while emphasising that a beneficial approach is appropriate, explained that this allowed the Commission to have regard, not only to the last remunerative work the veteran was undertaking, but also to work he had been undertaking prior to that last remunerative work.
However even if we were to consider s 24(1)(c) in relation to the vineyard work, first there is the problem that we have not accepted Mr O'Brien's evidence that the shoulder injuries played no part in any problems he had with the work at the vineyard. As we have already said the lack of evidence confirming that employment makes it impossible to know whether it ceased in January or July 1997. But whichever of those dates is relevant, Mr O'Brien had a claim in for compensation for incapacity for work due to shoulder injuries at that time. He had not yet undergone the surgery on the left shoulder which took place in July 1998. We consider he would not have undergone that surgery if he did not have ongoing shoulder problems. Those problems are documented in his treating doctor's notes throughout the period when he might have worked in the vineyard both as causing pain and as interfering with sleep.
A further problem arises in respect of the requirement in s 24(1)(c) that in order to qualify for the special rate of pension a veteran must show that he is suffering a loss of "salary or wages, or of earnings on his . . . own account, that [he] would not be suffering if [he] were free of incapacity" from war-caused injury or war-caused disease. There are two problems facing Mr O'Brien in this issue.
First, there is no evidence before the Tribunal showing that Mr O'Brien had any earnings from work at the vineyard. There is no employer's statement, no payslip and no tax return referring to earnings from the vineyard. Mr O'Brien himself gave no evidence on the topic. As pointed out above there was not even evidence of the dates of the employment. Secondly there is a question as to whether Mr O'Brien could be said to be "suffering a loss of salary, or wages . . . that [he] would not be suffering if [he] were free of incapacity" from war-caused injury or war-caused disease, or both alone, during a period when he was claiming and eventually received weekly payments of compensation for incapacity that was not due to war-caused injury or disease. It is not necessary for the Tribunal to decide those issues but they would make it difficult for the Tribunal to be satisfied that Mr O'Brien has at any time been suffering a loss of salary, or wages that he would not be suffering if he were free of incapacity from war-caused disease.
The Tribunal finds that Mr O'Brien is not entitled to Special Rate Pension.
The decisions under review will be varied to provide:
1.In respect of the entitlement decision of the Repatriation Commission, made 8 August 1996 and affirmed by the Veteran's Review Board on 17 November 1998:
(i) the Tribunal by consent varies the decision to provide that lumbar spondylosis is a war-caused disease, with effect from 22 February 1996.
(ii) the Tribunal affirms the decision that tension headaches are not a war-caused disease.
2.In respect of the assessment decision of the Veteran's Review Board made 17 November 1996:
(i)the Tribunal by consent varies the decision to provide that pension be assessed at 80% of the General Rate under s 22 of the Veterans' Entitlements Act 1986 ("the Act"), taking into account lumbar spondylosis, with effect from 22 February 1996.
(ii)the Tribunal decides that that Mr O'Brien is not entitled to the Special Rate of pension under s 24 of the Act or the Intermediate Rate of pension under s 23 of the Act.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer Senior Member, Mr A Argent, Member and Assoc. Professor Maynard, Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  14 March 2000
Date of Decision  8 June 2000
Counsel for the Applicant        Nil
Solicitor for the Applicant         Mr D De Marchi
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Mr K Rudge