O'Leary and Repatriation Commission - [2000] AATA 836

DECISION AND REASONS FOR DECISION [2000] AATA 836

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1141

VETERANS' APPEALS DIVISION )

Re Kevin James O'LEARY
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

Date18 September 2000
PlaceSydney

Decision The decision under review is affirmed.

..............................................
M T Lewis,
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – whether war-caused PTSD was the reason the Applicant ceased work as a cartoonist – whether depressive disorder can be included under diagnosis of PTSD - low motivation - whether Applicant entitled to pension at the Intermediate Rate – whether Applicant entitled to pension at the Special Rate

Veterans' Entitlements Act 1986 ss 23, 24

REASONS FOR DECISION

18 September 2000 Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 20 December 1997 that continued payment of disability pension to Kevin James O'Leary ("the Applicant") at eighty percent of the General Rate. The Veterans' Review Board affirmed that decision on 24 June 1998. The Applicant lodged an application for review by this Tribunal on 19 August 1998
The Applicant is seeking payment of pension at the Special (Totally and Permanently Incapacitated) Rate, pursuant to s24 of the Veterans' Entitlements Act 1986 ("the Act"). He lodged an application for increase in disability pension on 5 December 1997.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of the Applicant –

Statement of the Applicant dated 19 September 1999 (exhibit A);
Reports of Dr G Altman, psychiatrist, dated 12 January 1999 and 22 January 1999 (exhibit B);
Report of Dr M Baz, occupational health physician, dated 26 February 1999 (exhibit C);
Statement of Jim Russell, Managing Director, General Features Pty Ltd. dated 16 September 1999 (exhibit D);
Clinical notes of Dr G Altman (exhibit E);
Loss of earnings statement of the Applicant (exhibit F).

The following documents were tendered on behalf of the Respondent –

Report of Dr R Lewin, psychiatrist, dated 24 January 1999 (exhibit 1);
Report of Professor A Breslin, thoracic physician, dated 8 March 1999 (exhibit 2);
Report of Dr M Burns, occupational physician, dated 17 March 1999 (exhibit 3);
Applicant's income tax returns for the financial years 1994/5, 1995/6, 1996/7, 1997/8, 1998/9 (exhibit 4).

The Applicant gave oral evidence at the hearing. Dr Baz and Dr Altman gave oral evidence, called by the Applicant. Dr Lewin and Dr Burns were called by the Respondent to give oral evidence.
The Applicant's war-caused disabilities are bilateral sensorineural hearing loss with tinnitus, and post traumatic stress disorder ("PTSD") and alcohol abuse. Asthma has been rejected as a war caused condition.
the relevant legislation
Intermediate rate of pension
23. (1) This section applies to a veteran if:
(aa)…
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) …
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) …
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind;
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking – if the veteran is undertaking, or capable of undertaking, that work for 20 or more hours per week.
(3) For the purposes of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(b) …
Special rate of pension
24. (1) This section applies to a veteran if:
(aa) …
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) …
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) …
    (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 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 applicants evidence

The Applicant was born on 2 September 1940 and at the time of his application for increase he was aged 57 years. The Applicant originally enlisted in the Navy in 1955 and served for 8 years. That service is not at issue in these proceedings. He then served in the Army from 13 July 1964 until he resigned his permanent commission as a Major in 1985 and joined the Army Reserve.
The Applicant had full-time duties in the Army Reserve, undertaking the same things he had been doing as a regular Army officer. He continued that work in the Army Reserve until mid 1990. At that time, while remaining in the Army Reserve, he joined the Defence Housing Authority. The Applicant gained several qualifications whilst in the Army, including a certificate in electrical engineering and three associate diplomas in management, engineering and logistics through the Melbourne Institute of Technology.
On 1 July 1990 the Applicant was appointed as an Assistant Manager, Defence Housing Authority, Home Management Centre at Moorebank, which was established in 1989. He said that he had been sent to that job because of his experience in the Army, including his local knowledge of the Holsworthy/Ingleburn areas to deal with existing housing, sewers, roads etc. The Applicant continued in that position until 1993 when he was offered a redundancy. He said he was having a lot of trouble with the Authority, both from Canberra and particularly with other staff at Moorebank with whom he had numerous conflicts. He sought to get the Authority to adopt a serial correspondence system similar to that which existed in the Defence Force, which did not get support from the Housing Management Centre or from Canberra. He said that he spent a lot of time arguing with people about the best way to write a letter.
The Applicant said that while an officer in the Army he had been commended on a number of occasions and he thought he was a "reputable and a nice guy" with a sense of humour. However, when he got to the Defence Housing Authority he found that the conflicts did not match his experience in the Army and he became quite frustrated. He said that the first Manager of the Defence Housing Authority saw him as a threat because he challenged the Manager's competence. The second Manager had no military experience and did not fit into the ethos. Indeed, the Applicant was the only member of the Moorebank Housing Centre office who had had any military experience. The Applicant said that he "became rather sensitive to being criticised". He became withdrawn and uncooperative but he was not aware of it at the time. By the end of his time at Moorebank he did not want to go to work there. For the last six months while at the Defence Housing Authority he was at Hurstville, but he could not stay there indefinitely. He enjoyed himself there and got on well with the boss and staff.
The Applicant had been told in early 1992 that his position would be made redundant and he would have to look elsewhere in the Public Service for employment. At the time he was working long hours without payment of overtime and was frustrated that they were not achieving any of the objectives set by the group. He said that alternative positions available at the ASO6 level were either of no interest to him or geographically inappropriate. He did not want a job that required him to do clerical work in an office all the time.
The Applicant accepted the redundancy as an opportunity to avoid the frustration of his employment at the Defence Housing Authority and to do something on his own. He had been working part-time for a number of years before he left the Defence Housing Authority, developing a style and technique as a cartoonist and humorist illustrator. He said he was quite well-known as a caricaturist in New South Wales. He was earning money from this part-time work, but because he was working rather long hours at the Authority he said he "didn't get into it too enthusiastically". However, he said "whenever I wanted to work there always seemed to be things for me to do". He estimated that he commenced his first professional drawings about 1985 while still in the Regular Army. Those quite well known in the field have encouraged him in his work, including Jim Russell who writes the comic strip "The Potts".
After the Applicant left the Housing Authority he worked as a cartoonist, humorist, illustrator and caricaturist, and was "moderately successful". However, at that stage he could not market himself and got "less and less motivated towards seeking lots of work". He said that he had become well known and became the secretary of the Black and While Artists Club, comprising 600 to 700 full practising members. He was involved in this capacity from the early 1990's for nearly two years. Towards the end of his term as secretary he became ill with asthma, and did not stand again because he was in hospital with asthma. He was finding the task of secretary too difficult. It was taking him most of the day to perform the tasks and it stopped him from "going out and doing a paid route". He said that "it was just getting me down, sitting on a computer most of the day, writing letters and several hundred at a time, that sort of thing". He felt that his professional work should have improved because of the introduction of computers, scanners etc., but he found that he was doing less. He said it was a skill, like playing a musical instrument, that one needed to practice diligently and regularly. He felt he was losing his sense of humour and gregarious outlook on life, which was an essential attribute for a cartoonist or illustrator. He said of the work of a cartoonist/illustrator "if you don't get it right, you don't get the work and I was getting less and less". He thought the quality of his work was dropping off and he "was not motivated to turn up in the first place". He had "lost a lot of interest in the things that I used to hold dearly" and did not like travelling in trains and particularly at night or with crowds in trains.
When the Applicant first started working at the Defence Housing Authority he had every intention of remaining there as he felt it was an ideal position for him. He said that he had no intention of ever retiring as a cartoonist, and referred to Jim Russell and Eric Joliffe, both aged in their 90s and still working actively as cartoonists.
When the Applicant left the Defence Housing Authority he was unsuccessful in his application for a few managerial jobs. He had intended "to make a living" out of his work as a cartoonist. He said that this was "largely curtailed" by the onset of his psychiatric condition causing a lack of motivation, exacerbated by his role with the Black and White Artists Club.
The Applicant said that the best year he had as a cartoonist was about 1985 when he earned $9,000. He also said that whatever he got "was a supplement to my DFRDB pension, which is relatively comfortable". He noted that his DFRDB pension was tax free. The Applicant agreed that he was working about 20 hours per week, both voluntary and paid, while a committeeman of the Black and White Artists Club. He had also done voluntary work for the RSL for a few years, and had undertaken a TIP course through them that related to Veterans' pensions and welfare.
When the Applicant was asked how he occupied his time after 1993 when he was not "doing some sort of work" he said –
Just did things around the house. I suppose you could consider me as being sort of semi-retired but I sort of kept on looking for work but I couldn't find any because I wasn't marketing myself properly, I suppose. I was getting the odd jobs, you know, you might do half an hour or so a day. As I said, I didn't really need to get 40 hours work in and only supplementary money I was after. My wife was working.
The Applicant undertook an assessment of his lifestyle through the Vietnam Veterans' Association that resulted in a referral to Dr Altman, psychiatrist, whom he has been consulting for the last four years. Originally he saw Dr Altman monthly, but more recently it has been bi-monthly.
The Applicant described the degenerative problem in his neck as more of an inconvenience than a problem. He noted that sitting at a computer "is probably the worst thing", and "any lengthy period of drawing" was a problem.
The Applicant said that his hand tremor affected his ability to draw. It caused him to use a ruler to draw a straight line rather than drawing it freehand, which is the proper way to do it. This reduced his ability to go into as much fill and detail as he might otherwise have done.
Two years ago the Applicant withdrew his name as a cartoonist from the Yellow Pages. That was the only marketing he ever did. Most of the jobs were either word of mouth or through other members of the Open Whack organisation. The last time he did a job was "several weeks ago". He added "I've got one now but it's only drawing a caricature of the local station master. I'm not working professionally at all". He said that the last time he worked professionally was about two years ago (in 1997).
The Applicant was taking medication for his asthma, and Lovan, prescribed by Dr Altman. He said he rarely took sleeping tablets that have been prescribed. The last he took was 7 or 8 months ago. However he said his sleeping was "not good". Dr Altman referred the Applicant to Dr Joffey about two years ago, because he woke in the morning "never feel[ing] refreshed after a sleep". Sleep apnoea was diagnosed and a CPAP machine was provided.
The Applicant said that by June 1997, when he lodged his application for increase in pension (the subject of this review), his mood and motivation had become worse than when he left work and he was getting to the point where he was not able to work. He had set himself a target "that I could put a lot into 20 hours", but by June 1997 he could not do that. This coincided with the period September/October 1997 when he ceased the committee work with the Black and White Artists Club. In cross-examination he denied that he gave up the committee work because of his asthma. He said he gave it up because of his motivation.
The Applicant explained that full membership of the Black and White Artists Club involved receiving all or a major part of one's income from doing art. From 1985 he said he had been a full member and although he had not paid his dues for 1999 "to all intents and purposes" he was still a full member.
The Applicant provided a written statement dated 19 September 1999 (exhibit A) in which he said –
I have been undergoing treatment with Dr Altman for P.T.S.D. for some four years during which time my condition has worsened markedly. Several factors are involved. I am unable to concentrate on a subject for any reasonable period and am poorly motivated. This also results in not being able to meet deadlines and poor customer relations.
Despite continuing medication, I suffer from depression and mood swings which lead to conflict with others and very low tolerance and an increased dependence on alcohol and isolation.
From an outgoing personality and active lifestyle I have now become depressed, lack in self confidence and unable to work or engage in personal activities.
After the conclusion of the hearing the Respondent lodged a copy of the Applicant's income tax returns for the years ending 1994, 1995, 1996, 1997 and 1998. These show the following taxable incomes –
1994$52,193 – of which $1,005 was shown as business income before the deduction of expenses, and the remainder was earnings from the Defence Housing Authority, superannuation pension and interest.
1995$23,320 – of which $4,310 was business income before deduction of expenses, and the remainder was superannuation pension.
1996$25,934 – of which $6,140 was business income before deduction of expenses, and the remainder was superannuation pension.
1997$45,305 – of which $2,185 was business income before deduction of expenses, and the remainder was NRMA Life Ltd. and superannuation pension
1998$28,029 – of which $3,005 was business income before deduction of expenses, and the remainder was superannuation pension.

The Applicant provided extracts from his invoice book for the period August 1993 to the time of the hearing, as evidence of his earnings from his occupation as a cartoonist (exhibit F), summarised as follows –
July/December 1993 $270
1994$1,365
1995nil
1996$1,847
1997$2,772
1998$1,745
January/August 1999 $1,795
Dr Altman, the Applicant's treating psychiatrist, provided two reports for the purpose of these proceedings, dated 12 January 1999 and 22 January 1999 respectively (exhibit B). In those reports Dr Altman opined that as a result of the Applicant's PTSD with associated major depression and alcohol abuse alone, he was totally and permanently unfit to work eight or more hours per week. Dr Altman also considered that the Applicant should receive the "T&PI" disability pension. In his oral evidence he said that up to 90 percent of his practice consisted of treating veterans with PTSD.
In his report dated 20 November 1997 (T28) Dr Altman had opined that the Applicant was unfit for work of more than 20 hours per week. He also considered at that time that the Applicant "should be placed on the Intermediate Rate Disability Pension". Although Dr Altman's report of 20 November 1997 was addressed to the Applicant's treating general practitioner it would appear that it was provided to support the Applicant's application for increase in pension. Dr Altman noted in that report that the Applicant had recently written to him in the following terms –
Several months ago I applied for a review of my disability to the Department of Veterans Affairs. I did this because I have found it increasingly harder to work and maintain good quality in my work output. Not only does this reflect on my lifestyle, it has increased my frustration and my ability to meet deadlines which are vital to my employment.
I am finding it harder to concentrate and remain motivated and this is reflected in my drawing. There are times when I am better able to work but mostly I just cannot get moving and find it easier to have a drink and wait for the mood to pass. Often it doesn't.
I just can't sit down and do a full days work as I used to and, being self-employed this is disastrous because work is just not getting done.
As a result I'm not meeting deadlines and were I in the employ of a company it would be understandable that I would probably get fired, being self-employed I can hardly do this to myself.
I have not been sleeping well, and wake feeling listless and unmotivated. I tend more and more to lapse into self centred moods in which I have a preoccupation to anger and frustration, leading to rather morbid thinking patterns. I stress that I am not suicidal, but can easily flare up at others and minor things.
My fears are twofold. Firstly that I cannot attract financial reward for work that I used to be good at doing because I am not doing it well enough, and secondly that I am losing my verve for life that I once thrived on. I dread the idea of not being able to remain active but can freely admit to becoming rather unable to do much anymore.
I believe that your support in advising the Department of my inability to do more than several hours work each week would be justified and would appreciate your endorsement of this".
In his oral evidence Dr Altman said that the Applicant's symptoms included anxiety, depression, irritability, impaired concentration, lack of motivation, and lack of confidence. These symptoms affect his work as well as his marital and social life. He considered that while lack of motivation was not a symptom of PTSD it was a common psychiatric symptom. Dr Altman was not aware of the cause of the Applicant's hand tremor, and considered that he should be referred to a neurologist for investigation. However, he agreed that it could be a symptom of anxiety. It is not clear from Dr Altman's evidence that he had been aware of the Applicant's hand tremor; at least, he had not given consideration to its aetiology.
Dr Altman considered that in 1996 the Applicant was "moderately severely affected" by his PTSD, and by 1997 "it was more severe than moderately affected". At that stage Dr Altman thought that the Applicant was well enough to work between eight and twenty hours per week. He said that in December 1998 he wrote in his clinical notes that the Applicant was "for the TPI". By July 1997 Dr Altman noted that the Applicant was getting behind with his work as secretary of the Black and White Artists Association. Dr Altman recalled that the Applicant "was struggling for a long, long time" to keep working on a part time basis, but eventually he was not functioning. Dr Altman said "I know him well and work has been an ongoing struggle for a very long time". He considered that the Applicant was chronically depressed, which was particularly difficult in the Applicant's type of work. Dr Altman said "I used to see him month after month after month and he wasn't getting anywhere". Dr Altman opined that the Applicant would never return to working more than eight hours per week.
Dr Altman noted that the Applicant was still abusing alcohol. In August 1999 he recorded that the Applicant was drinking on a daily basis between three and nine beers a day or one to two and a half bottles of wine per day.
Dr Altman noted the Applicant's history that he used to experience nightmares until about 15 years prior to his first consultation in May 1996. He had recorded in his clinical notes that the content of the Applicant's nightmares was "mostly not war related … but at times they are". Dr Altman was unable to identify when the first symptoms of PTSD occurred. He said that when the Applicant left the structured life of the Army he could not cope. He said that the Applicant's work environment was –
…. just stirring him up. It's fuelling his PTSD, unfortunately, because he is not well enough. So I think it's keeping him too stirred up. I believe the medication is one aspect, getting him out of the workforce I believe is another aspect of his overall management, getting him off alcohol would be an important part. As I said, unfortunately, in my experience when veterans are still working they don't want to give up the grog. I have the highest success rate of getting people off alcohol when they have stopped working. I wish I could do it the other way around but I just don't seem to be able to. The other thing is then I would try – I would look at his war traumas and expose him in imagination to his war traumas. I think he would probably be a reasonable candidate for going on to an in-patient program or an outpatient program for PTSD. Often what happens in this situation, people have problems in living, so they have problems in marital relationships and so on. So I would look at those as they emerged. Unfortunately, what happens a lot of time, when their claims go in – and I know it is not the intention that it should work like this but I think it is just, I have to say, almost a factor of what happens in reality – that when people have got claims going on, and especially with the nature of that, veterans that get PTSD, they get pretty preoccupied and it just becomes all pervasive, that often the veterans just can't concentrate on other aspects. They are so worried about what is going to happen to them and the legal aspects of it that all their energy just goes into that. I find that talking about his war traumas at this stage and going into great depth is putting energy into a lost cause at this stage anyway. ….
… I often don't like to, if I can, admit people at this stage because I feel it is just a waste. If we have to get them through a crisis - someone is going to jump off the Harbour Bridge - by all means they have to come into hospital, but otherwise just along the line of the principle that I was mentioning before. To put a lot of energy in now when someone has got a claim and worried about their TPI or the intermediate rate, that is where their energy is, that is where their thoughts are and here we are trying to tell them about 'live like this', 'do this', and the guy is not interested, … he is worried about his TPI or his intermediate rate. So that is why the timing I think is not the best when someone is sort of preoccupied with legal goings on.
Dr Altman has prescribed Lovan for the Applicant, an anti-depressant medication, the side effects of which include irritability and anxiety, insomnia or somnolence, headache, and alimentary tract upsets. Dr Altman had not noted that the Applicant had experienced any side effects. Through most of 1998 the Applicant was also prescribed Lumen to help him to sleep.
Based on the history he obtained from the Applicant about his symptoms, Dr Altman disagreed with the opinion of Dr Lewin that the Applicant did not suffer from PTSD and that his symptoms began only about 5 years previously. He noted that Dr Lewin considered the Applicant's depression was not too bad. However Dr Altman considered that Dr Lewin could have been misled about the level of the Applicant's depression because he was taking anti-depressant medication at the time. He considered that Dr Lewin's comment that the Applicant showed some emotion and laughed, and that he showed no vegetative or melancholic symptoms, could reflect that the anti-depressant medication had masked his depression and he also thought the Applicant generally "played down" his symptoms.
In contrast to his previous evidence, Dr Altman said in his oral evidence that when he last saw the Applicant many of his symptoms, including nightmares, were still there. The Applicant avoided thoughts associated with his Vietnam service, but Dr Altman did not consider this was denial. He said that if one asks the Applicant directly about his symptoms he did not deny them. He concluded from reading Dr Lewin's report that Dr Lewin did not question the Applicant about his specific symptoms.
In response to direct questioning from the Tribunal Dr Altman considered that the Applicant suffered from PTSD rather than from an adjustment disorder arising from his changed work environment in 1992. He considered that in 1992 the Applicant was not adjusting to the work environment because of his PTSD. In support of his diagnosis he noted that the Applicant's condition did not improve after he left work, which would be expected if he suffered from an adjustment disorder related to his new role as a public servant rather than as an officer in the Army. He considered the Applicant's history was more in keeping with PTSD –
because just about every veteran I see doesn't adjust to their work environment. You know, they would have arguments with their bosses, colleagues, workmates, people under them.
Dr Altman did not consider that the Applicant's sleep disturbance arose only from his sleep apnoea. However he also said –
All I can say is when I last asked him, I just asked him generally, I didn't focus on it, I just wanted to still see if he was presenting with PTSD and he told me that he is not sleeping well. Whether it's because of the sleep apnoea or the PTSD I haven't gone into that detail.
In respect of the Applicant's anxiety, the Tribunal put the following questions to Dr Altman –
With regard to anxiety, you said earlier that one of the side effects of Lovan was anxiety? ---- Yes.
Is it possible that the medication is actually causing some of the symptoms rather than alleviating his condition? --- It's possible but highly unlikely over all because, firstly, there has been an improvement over all in his depression. I would have documented here that it was useful. For example, on 22.7.96 I've got there: some improvement, less depressed. Then on 20.8.96 I've got there … it has helped. He said he is perhaps a little more confident, he is less irritable, he is more communicative. Then I am putting there side effects nil. I am asking him if he has developed new symptoms. Just in my system I usually ask people what they are on at the beginning of the interview and whether they feel they are getting any bad side effects. He is not reporting side effects or new symptoms that he didn't have before. As I said, in what he is reporting to me is that he hasn't developed new symptoms which he didn't have before….
Dr Lewin, consultant psychiatrist, provided a report on behalf of the Respondent (exhibit 1). He found no evidence of PTSD and noted that the Applicant's clinical signs and symptoms did not conform to the diagnostic criteria for PTSD. He noted that there was no history of ongoing symptoms prior to the last five years approximately. He also considered that alcohol abuse appeared to be a fairly recent problem, which he attributed largely to inactivity and loss of any meaningful role in the last five years of his life. He noted a pattern of daily drinking only in the last few years. He identified anxiety and depressive symptoms of fairly recent origin, associated with the change in his life circumstances. Dr Lewin noted that –
Mr O'Leary does not report anxiety symptoms or post traumatic symptoms of anxiety prior to 1992. Indeed, he reports that he functioned well and maintained his high level of functioning through increasingly complex positions until he took his retirement. He told me that, almost without exception, his performance reviews were very complimentary.
In his oral evidence Dr Lewin said that the diagnosis of PTSD could account for the Applicant's presentation of symptoms relating to anxiety and depression but he did not consider that diagnosis addressed the issue adequately. Dr Lewin considered that the Applicant had low grade depressive symptoms and a change in his drinking pattern over the last five years approximately. He said that it is "quite possible" that the Applicant has developed a post traumatic stress disorder in the last few years, but he found no clear evidence of PTSD prior to the time the Applicant left the Army, and he considered that to be unusual. Dr Lewin considered that the change in the Applicant's clinical status was related to what was happening in his life at the time he left the Army rather than what happened to his life more than 20 years earlier. He considered that it was much more likely that the symptoms the Applicant described over the previous four or five years were related to his retirement and change in status.
Dr Lewin said that it was a "reasonable possibility" that the onset of the Applicant's symptoms were delayed because he was cocooned in the social structure of the Army for some time after his Vietnam service, but it was not the most likely explanation. He believed this was a "fairly unlikely" explanation particularly as the Applicant described a distinguished career and not that of a man crippled with a hidden emotional disorder. Dr Lewin said that –
Generally speaking, the person who has a dark secret struggles and manages to keep a tenuous control over life perhaps by using alcohol, perhaps by over-control - obsessional over-control - but this is a man who describes a clear career path; an evolving successful career.

When he interviewed the Applicant he presented as an out-going, intelligent, confident person, who was in command of himself, as evidenced in his demeanour and career path. Dr Lewin was left with the impression that the Applicant was a person who had developed over the years rather than one who was stunted in some way. Hence, he considered the proposition that he suffered from PTSD was possible but unlikely.

In cross-examination Dr Lewin said that he spent about ten percent of the one and a quarter hour interview discussing the Applicant's Vietnam service, and the bulk of the examination concentrated on "the medical and psychiatric history". He also said "on the basis of the information available" he adhered to his opinion in his report, viz.
When one considers the nature of his twelve months service in Vietnam, there does not appear to be any single specific incident where Mr O'Leary was confronted with overwhelming fear or terror.

He was then referred to another section of his report (p3) in which he said –

He spent most of his twelve month period at Vung Tau. His duties involved mine clearance, ordinance disposal and disposing of booby traps. He told me that he assisted other more specialised servicemen in this work. He told me that the worst incident occurred when he was under rocket attack and he also referred to an incident where he was checking allied vessels for mines when a junk approached them in the dark at high speed. Mr O'Leary noted, "That just frightened the hell out of me".
He was not seriously wounded but he reports that he had a number of shrapnel wounds from rocket fragments. He pulled small shards of aluminium from his skin and continued with his usual duties. He told me he did not report these matters at the time.
Mr O'Leary also reported that he had "an absolute dread of land mines". He was present when several mines exploded but was not injured.

Dr Lewin admitted in cross-examination that he was not aware whether the land mine explosions that the Applicant described had injured others. In response to questions from the Tribunal he said he was not aware of the Applicant observing people getting killed or wounded, or of seeing corpses. He also accepted that if such was the case it could have been the scenario for a pathological stress reaction, and in such circumstances it would be reasonable for him to perceive that as a threat to his personal security. In such circumstances he agreed that heavy drinking while the Applicant was on service in Vietnam would not be unusual.

However, Dr Lewin considered that the long period between the Applicant's war service and when his PTSD symptoms presented contradicated the likelihood of there having been a masked emotional disorder due to his war service during the period after service when he was in the "protected" environment of the Army. Dr Lewin conceded, however, that if the Applicant did have a low grade PTSD, untreated and masked because of the supported environment in which he worked, then he would have been more vulnerable to subsequent stresses in his life.
In respect of the Applicant's alcohol history, Dr Lewin noted in his report (p7) –
When I review the alcohol history, it appears that he drank quite heavily during his year of service in Vietnam. He reports that he used alcohol intermittently after this but did not appear to develop any serious problems.

In cross-examination Dr Lewin acknowledged it was "quite conceivable that [the Applicant] used alcohol to help him control emotional distress at that time". In response to questions from the Tribunal Dr Lewin said that the resumption of the Applicant's heavy drinking after he left work was more likely a response to the unhappiness in his life at the time when as a result he lapsed back into a habit of drinking as a "learned association".

Dr Lewin noted that lack of motivation can be associated with a depressive condition, when associated with other symptoms of depression. He was aware that the Applicant had been prescribed a number of anti-depressant medications by Dr Altman since 1996. At the time of Dr Lewin's consultation he noted that the Applicant had low grade depressive symptoms, and he agreed it was reasonable to assume that these could have been masked by anti-depressant medication.
Dr Lewin had noted a history of deterioration in the Applicant's depression over the previous four or five years, with alcohol abuse. He said that the causal relationship between depression and alcohol abuse can go both ways.
Dr Baz, occupational physician, examined the Applicant on 15 February 1999 and provided a report dated 26 February 1999 (exhibit C). She considered that the Applicant was significantly disabled as a result of PTSD and alcohol abuse. The Applicant dated his psychiatric problems from the time of his move from the Department of Defence to the Defence Housing Authority about 1989. She noted that although he left the Defence Housing Authority following a redundancy offer he had considerable difficulty coping with his work because of the effects of PTSD.

Dr Baz noted that the Applicant's ability to work as a self-employed cartoonist, illustrator and caricaturist was significantly limited by his PTSD. Marked depression would significantly impinge on his ability to organise his work, undertake appropriate marketing, complete tasks in a timely manner, and relate appropriately to clients. His depression also affected his ability to attend work regularly and sustain an appropriate work effort. Dr Baz noted that the Applicant's irritability and increasing difficulty with social relationships could cause difficulty in his work that required good interpersonal skills. In her oral evidence she said that Dr Altman's diagnosis appeared to be consistent with the information provided to her by the Applicant.
Dr Baz did not consider that alternative types of work, utilising the Applicant's human resource, management and engineering skills, would be suitable for him because of his depression, social withdrawal and irritability. Positions of lower responsibility involving routine clerical or administrative tasks would be unsuitable because it would be likely to aggravate his depression and he would be unlikely to attend such work regularly.
Dr Baz considered that the Applicant's hearing loss would contribute to his difficulty in the workplace but it would not, on its own, preclude him from his usual type of work.
In respect of his non-accepted disabilities, Dr Baz considered that the Applicant's cervical spondylosis could be managed with good ergonomic design in the workplace, and by taking appropriate breaks and changing posture. The Applicant also had a lower back problem that she considered could be managed without affecting his ability to undertake the work he had been doing.
Dr Baz said that shortness of breath, associated with the Applicant's asthma, was likely to occur walking to or from work where there were many steps, but the condition was not sufficiently severe to prevent him from working. In her oral evidence she said that it would prevent him doing heavy work but not the sort of work he had been doing. She noted that his asthma was now well controlled with appropriate medication.
Dr Baz opined that the Applicant is unfit to perform his work as a cartoonist, or other work he has previously undertaken for which he has appropriate skills and experience, as a result of his accepted disabilities, for eight or more hours per week.
In her oral evidence Dr Baz said that the Applicant would have difficulty adjusting to a new work environment. She noted that this had probably happened when he moved from the Department of Defence to the Defence Housing Authority. She said that at the time he was offered the redundancy he was also irritable and having arguments with his co-workers which she related to his psychiatric disability. She considered that his low motivation in his work as a caricaturist was caused by depression which was part of his PTSD. She also noted that this work required a lot of personal projection and confidence. Dr Baz also said that the Applicant suffered from anxiety which in particular involved crowds and contact with other people which made the task of marketing himself quite difficult.
Dr Baz said that she did not attempt to diagnose the Applicant's psychiatric condition. She merely assessed his disability in relation to his psychiatric symptoms. However, she considered that his symptoms were consistent with PTSD, but they were also consistent with a generalised anxiety disorder with depression.
Dr Baz agreed with Dr Altman's assessment of the Applicant's work fitness. She also considered that the Applicant's sleep apnoea had no significant impact on his ability to work. Dr Baz attributed the Applicant's lethargy more to his depression than to his sleep apnoea. She noted Dr Breslin's opinion that the Applicant suffered from mild sleep apnoea.
Dr Baz considered that because of the Applicant's inability to organise his work and stick to deadlines, which she saw as part of his depression and anxiety, he would not be able to perform as secretary of his professional association.
Dr Baz said that she understood the Applicant had intended to develop a cartoon business when he accepted the redundancy from the Defence Housing Authority, and she also noted that he was having relationship problems while he was there in 1992. She did not know whether the cartoon business was expected to be the equivalent of a full-time position. She said that because of his psychiatric condition she did not think he would have remained working at the Defence Housing Authority much longer "if he had wanted to". Dr Baz considered that even if the Applicant had stayed in his job at the Defence Housing Authority he is likely to have experienced the deterioration in his PTSD that Dr Altman has described.
Dr Baz noted that the Applicant's hand tremor had not been investigated. However she considered that it was probably related to his alcohol consumption and anxiety. She said that if his only problem was his hand tremor and he was working as an illustrator there were medications that he could use to minimise the hand tremor. The fact that such medication had not been used suggested to Dr Baz that his doctor considered that the hand tremor was part of his psychiatric disability. She considered the hand tremor to be "fairly mild" and she noted that people with a mild hand tremor could be quite dexterous. However, in cross-examination she noted that tremor was a side-effect of the medication the Applicant was taking for asthma which caused tremor if he was taking too much. She noted that neither Professor Breslin nor Dr Burns noted that the Applicant suffered from a hand tremor.
Dr Baz understood that the Applicant gradually reduced the work he was doing but she did not obtain any history as to when he stopped working. She considered that by the time she saw him in February 1999 he was unfit to work more than eight hours per week. She said she would rely on Dr Altman's reports to assess when his fitness was limited to part time work of up to 20 hours per week. She said that some time between 1997 and 1999 the Applicant became unfit to work eight or more hours a week.
Associate Professor Breslin, thoracic physician, examined the Applicant on behalf of the Respondent and reported on 8 March 1999 (exhibit 2). Professor Breslin noted that the Applicant suffered from late onset bronchial asthma which commenced when he was aged about 32 years. He noted that the Applicant's asthma was "moderately troublesome" but his lung function was reasonably good when taking Ventolin. Asthma did not prevent him for working. He was only symptomatic on strenuous exertion, which was not required in his occupation. From a respiratory point of view he considered that the Applicant was able to work full-time in any work other than heavy manual work, and he would be able to work as a sketcher.
Dr Burns, occupational physician, examined the Applicant on 17 March 1999 and provided a report (exhibit 3). Dr Burns did not consider that the combination of the Applicant's psychological problems and his hearing loss was sufficiently severe to force him out of the workforce. Dr Burns noted that the Applicant chose to take a voluntary redundancy from the Defence Housing Authority and that he could have remained working there if he wished. He noted that the Applicant's subsequent self-employment as a cartoonist and caricaturist was "very part time" and it was "never going to provide him with a full time income". Dr Burns noted that over the last three years the Applicant has chosen not to put his advertisements in the Yellow Pages and has become "almost totally retired". Dr Burns considered that the Applicant's asthma as well as his PTSD and alcohol abuse would not have forced him out of work if he had desired to continue it. He would be able to return to work as a caricaturist if he wished but Dr Burns considered that the Applicant did not have any motivation to do so.
In his oral evidence Dr Burns said that the Applicant suffered from a moderate degree of asthma which affected his physical capacity but it would not affect his capacity to work except if he "was required to do something of a physical nature". In particular it would not affect his work as a cartoonist. In respect of his hearing loss, the Applicant had a noticeable hearing deficiency in large groups. He would have difficulty in a group of people or with a fair degree of background noise, but he should have no difficulty in a quiet location on a one-to-one basis. His tinnitus was more of an aggravation, which, when severe, may affect his ability to concentrate.
In respect of the Applicant's psychiatric condition Dr Burns said it was possible to see alcohol abuse as a symptom of PTSD. He considered the Applicant's alcohol intake, which fluctuated a fair amount over the period, to be "relatively high" ever since his Vietnam service. Dr Burns noted that the Applicant was having "some degree of confrontation" with the people with whom he worked in 1992. However he considered that in 1992 the Applicant did not have "a major breakdown" but he wanted to do things his way and that conflicted with other people. Dr Burns concluded that this was indicative of "some symptomatology then", but it did not get severe enough for the Applicant to seek treatment until 1996. Dr Burns concluded that there had been a gradual deterioration over a number of years, and it was hard to identify when the condition became more severe.
Dr Burns noted that the Applicant suffered from sleep apnoea that caused lethargy and lack of energy during the day over the previous three or four years. He agreed that the lethargy could have been caused by sleep apnoea or PTSD.
Dr Burns noted that over the last three years the Applicant had lost motivation and removed his advertisement from the Yellow Pages. Dr Burns considered that the lack of motivation was related either to sleep apnoea or PTSD, or both, but he could not differentiate. He considered that the Applicant was able to function at a reasonable level when he took the voluntary redundancy in 1992 because he accepted the position of secretary with the Black and White Cartoon Association. The Applicant told Dr Burns that in one of the years after 1992 he earned up to $4,000 for his cartooning work, which Dr Burns considered to be a "reasonable" earning from cartoon work unless one is employed by a major newspaper. Dr Burns concluded, therefore, that the Applicant had a degree of capacity when he first left the Defence Housing Authority. Dr Burns added that since that time the Applicant lost motivation and went from part-time work to ceasing altogether. He said it was hard to say exactly what was the "total cause" of the Applicant ceasing work altogether – it seemed to be a mixture of things. Dr Burns said that in the Applicant's current "demotivated" state it would be very unlikely that he would be able to work 8 hours a week. He said that because the Applicant's condition was currently untreated "it is very difficult to say how good he could get in his best state".
It was drawn to Dr Burns' attention at the hearing that his oral evidence was somewhat different from the opinion he provided in his report (exhibit 3). He said that at the time of the consultation he believed that the Applicant's PTSD had been in existence "for a number of years". He said he is now prepared to agree that it was probably present in 1992 when the Applicant decided to take the voluntary redundancy, it was present when he was an office bearer for the Black and White Cartoonists Association, and he was functioning at a reasonable level at that time. Dr Burns considered that the Applicant's PTSD was not sufficiently severe at that stage to have forced him out of work by itself. He then said –
When it comes to his demotivated state at the current time I am uncertain as to what component is PTSD and what component is associated with his sleep apnoea, and therefore I will clarify that to say to the extent that at the moment I'm not – I can't say categorically that it is his PTSD that is keeping him off work, but I can't categorically say that it isn't.
Dr Burns understood that about two thirds of all people with PTSD remain at work. Therefore he considered that such people could be treated quite adequately without being required to give up work. Hence he did not agree with Dr Altman's evidence that part of the Applicant's treatment of his PTSD was to give up work. Dr Burns also noted, however, that since 1992 the amount of work the Applicant had been doing was "relatively small" and that when he had been working full-time he had earned more from cartoon caricature work than he had earned in any of the years since he gave up his full-time work with the Defence Housing Authority. Hence, he concluded that the Applicant could have continued with his cartoon and caricature work and therefore he was "uncertain that it was required for him to give up work altogether".
Dr Burns agreed that the Applicant needed to give up alcohol if his PTSD was to be treated. He agreed that if Dr Altman's suggestion that for the Applicant's PTSD to be managed he should receive a Special Rate (TPI) pension meant that he was provided with a degree of financial security then he would probably agree. Dr Burns also considered that at this stage the Applicant has reached a degree of permanent impairment associated with his psychological problems, but he questioned how much of his current impairment was associated with lack of motivation associated with his sleep apnoea and lethargy. Because Dr Burns could not assess that, he was unable to say whether the Applicant's overall condition is permanent until he has some treatment for sleep apnoea.
Dr Burns said that he came to the conclusion that the Applicant had ceased employment when he stopped advertising in the Yellow Pages and no longer continued looking for work. The Tribunal alerted Dr Burns to the Applicant's evidence about his earnings in 1997, 1998 and 1999. Dr Burns concluded that if the Applicant was spending only a few hours a week completing this work then he considered that the Applicant was working "relatively efficiently". From the Applicant's evidence it was not clear how long it took him to complete the work for which he received payment and Dr Burns considered this was a crucial component in assessing the significance of the amount of work the Applicant was in fact continuing to undertake. In respect of the Applicant's lack of motivation to finish his work, Dr Burns considered that this "can be due to a whole series of different issues" and in the Applicant's case he has two "potentially good reasons for lack of motivation", those being his psychological condition and sleep apnoea.
consideration of evidence, submissions and findings of fact
The Respondent tendered the Applicant's Taxation Returns from 1994 to 1999 (exhibit 4) some months after the oral evidence was taken. The Tribunal then received written submissions on behalf of the Applicant on 24 May 2000, and on behalf of the Respondent on 21 July 2000.
It was submitted for the Applicant that he has demonstrated attempts to work as a cartoonist after leaving the Defence Housing Authority, but his accepted disabilities have made work impossible. The main reason he cannot work is that he lacked motivation and drive, he was irritable and cranky, and lacked concentration. On the evidence of Dr Baz the Applicant's depression, lack of motivation, and irritability dated from the time he had difficulty coping with his job at the Defence Housing Authority. Dr Baz considered that while the Applicant had the ability to work self-employed as a cartoonist, illustrator and caricaturist, he was significantly limited by his PTSD, and in particular his quite marked depression, in undertaking that work.
It was submitted for the Respondent that the Applicant ceased work with the Defence Housing Authority in circumstances where, if he was so minded he could have continued work in another capacity. Further, his work as a cartoonist, which is said to represent his capacity to undertake remunerative work, has never been more than a part-time undertaking. On the basis of Dr Burns' evidence that the usual price of a cartoon is $400 to $500, it was submitted that the Applicant has not produced cartoons and similar works in any great volume since 1985.
The Tribunal notes the Applicant's evidence that in respect of his work as a cartoonist when he took the redundancy, he had set himself a target "that I could put a lot into 20 hours". While this infers a goal of part-time work, that of itself is not an obstacle to his work as a cartoonist being accepted as his remunerative work. It is clear from his income tax returns that he was earning an income from a cartoonist business. The Tribunal finds on the evidence that work as a cartoonist, humorous illustrator and caricaturist is the remunerative work that the Applicant was undertaking at the relevant time, and the fact that he took a redundancy from the Defence Housing Authority in 1992 is not relevant.
The Tribunal finds on the evidence that the Applicant was not coping well with his job at the Defence Housing Authority when he took the redundancy in 1992, and at that stage it is likely that his PTSD was impacting negatively on his work capacity. That is not to say, however, that at the time he ceased work there he was unfit for that work or work as a cartoonist.
Despite monthly or bimonthly consultations with Dr Altman since 1996 during which a range of anti-depressant medication was prescribed, Dr Altman noted that the Applicant's condition had been getting worse and that, although he was struggling with part time work for "a long time", "eventually he was not functioning". At the same time Dr Altman did not consider it appropriate to move into more comprehensive treatment for the Applicant's PTSD until this litigation had been finalised.
Dr Lewin doubted that the Applicant suffered from PTSD but agreed it was a "possibility". Dr Lewin diagnosed a low-grade depressive illness. It was submitted for the Respondent that Dr Lewin's diagnosis of low-grade depression and alcohol abuse was consistent with Dr Altman's diagnosis of PTSD with major depression and alcohol abuse, taking into consideration that there was some success with Dr Altman's treatment regime. The Tribunal is unable to accept the Respondent's submission.
In light of the evidence before the Tribunal it is necessary to consider whether the Applicant's psychiatric condition causing his inability to work is the same as that which was accepted as war-caused and diagnosed as PTSD.
The Tribunal notes from its experience in many matters such as this, that Dr Lewin frequently provides an opinion that a person does not suffer from PTSD, despite that condition already having been accepted as due to war service. This appears to be one such matter where the Respondent, on the basis of an opinion from Dr Lewin, questions the diagnosis of the condition from which the Applicant suffers.
The Tribunal also notes that Dr Lewin challenged whether the Applicant's accepted disability of alcohol abuse was actually associated with his war service. However, he accepted that it was reasonable to conclude that the Applicant commenced abusing alcohol on war service as a result of the Applicant's war experiences in Vietnam.
The Applicant has an accepted disability of alcohol abuse. It is not open to the Tribunal under the head of this application to find that his alcohol abuse is not related to his service. These factors should be kept in mind by the Respondent when seeking a medical report from an expert, and in turn the Respondent's expert should confine himself to the parameters of the request for an opinion made by the Respondent.
Additionally, when Dr Altman gave his evidence before the Tribunal, he attempted to make an adjustment to the diagnosis of PTSD by adding "with associated major depression". The Respondent's solicitor submitted that major depression is a separate diagnosable condition, and cannot therefore be included under the head of the accepted disability PTSD. It is not enough for Dr Altman to opine, as he has done, that the Applicant now suffers from PTSD with associated major depression. As the diagnosis of major depression is a separate diagnosis, the Tribunal could only take its effects into account if it had already been included as a war-caused condition. The only psychiatric condition that the Tribunal can take into account in determining whether the Applicant is entitled to payment of pension at the Intermediate or Special Rate is PTSD, excluding, for a moment, the issue of alcohol abuse.

The Tribunal finds that the Applicant's depression, whether it be a major depression or low-grade depression, is a separately diagnosable condition and, according to the DSMIV is not considered a symptom of PTSD. Having considered all the evidence the Tribunal also finds that the Applicant continues to suffer from PTSD which, on the evidence of Dr Altman, has not been treated and moreover treatment for PTSD has been delayed pending the outcome of these proceedings. This raises a question whether the Applicant's PTSD is permanently incapacitating, that has not been answered to the Tribunal's satisfaction.
The Tribunal finds on the evidence that the Applicant is not motivated to pursue his career as a cartoonist. The Tribunal is not reasonably satisfied that his low motivation a symptom of his PTSD.
The Tribunal notes that it is open to the Applicant to make a new claim for a depressive disorder. The Tribunal notes in passing that the Applicant's PTSD was accepted on 25 September 1996, and that his psychiatric symptoms have been of a similar nature throughout the period since 1996. It is also open to the Respondent to review the appropriateness of the diagnosis of PTSD pursuant to s31 of the Act.
Notwithstanding that Dr Altman has been the Applicant's treating psychiatrist since 1996, the Tribunal has considerable difficulty in accepting his opinion. On the basis of Dr Altman's evidence the Tribunal finds that apart from prescribing a variety of anti-depressive medication over the period of his consultations, he has delayed commencing comprehensive treatment for the Applicant's PTSD until the litigation regarding Special Rate pension has been concluded. On the evidence, Dr Altman has obviously been very active in supporting the Applicant's claim, first for Intermediate Rate pension, and subsequently for Special Rate pension. The Tribunal finds that Dr Altman's professional opinion has been seriously flawed because of the way he has conducted himself in pursuing a higher rate pension for the Applicant, and little weight can be given to it.
There are many hurdles for the Applicant in succeeding in his application. It is clear that he meets the requirements of s23(1)(a) and s24(1)(a). That is not at issue. In respect of s23(1)(b) and s24(1)(c) the Tribunal is not reasonably satisfied that the Applicant's incapacity to work is permanent, as he has not undergone specific treatment for his PTSD. Moreover, the Tribunal finds that the Applicant has not been motivated to seek work but nonetheless he has continued to perform some work as a cartoonist. The Tribunal is reasonably satisfied that if the Applicant sought appropriate work in his field he would have a capacity to undertake that work for at least 20 hours per week.
There are insurmountable hurdles for the Applicant in s23(1)(c) and s24(1)(c), his poor motivation being but one. As his poor motivation is not part of his PTSD he fails the "alone" test.
The Tribunal notes the submission for the Respondent, relying on the opinion of Dr Burns, that the Applicant's sleep apnoea and consequential fatigue was responsible for his lack of motivation. The Tribunal finds that while it is possible that sleep apnoea has caused or at least contributed to his lack of motivation, because the sleep apnoea is only mild and because the Applicant has been chronically depressed since 1996, it is more probable than not that his lack of motivation is of psychiatric origin.
The Tribunal finds, on the basis of the Applicant's tax returns and extracts from his invoice book, that he has not demonstrated loss of earnings in respect of either s23(1)(c) or s24(1)(c). The Tribunal finds that, on the Applicant's evidence, after he ceased full-time employment with the Defence Housing Authority he was working about 20 hours per week, both voluntary and paid. His work included voluntary work as the Secretary of the Black and White Artists Club, some paid work as a cartoonist, and voluntary work as a pensions and welfare officer for the RSL. His evidence was that he planned to work for 20 hours per week.
The Tribunal finds that after leaving the Defence Housing Authority, although the Applicant has been employed in remunerative work as a cartoonist, this was in the context of his being semi-retired. His case is that his psychiatric condition has worsened over the years since 1992 when he ceased full-time work. The Tribunal notes that his earnings from work as a cartoonist for the financial year ending 1994 was $1,005. That increased in 1995 to $4,310, and increased yet again in 1996 to $6,140. His income from that source then decreased for the financial year ending June 1997 to $2,185, prior to the lodgement of his application for increase in December 1997. From the evidence the Tribunal finds that the Applicant ceased his involvement as secretary of the Black and White Artists Club at the end of 1996. His evidence was that this was because he could not cope with that role any longer and that his psychiatric condition was deteriorating. However, his income then increased to $3,005 for the financial year ending June 1998. Moreover, for an eight month period from January to August 1999 his invoice book showed an amount that was higher than for the whole of the calendar year 1998. At the same time it was the opinion of Dr Baz that by February 1999 his condition had deteriorated to the point where he was unable to work for eight or more hours per week. That is, at a time when his condition had allegedly deteriorated he had undertaken more work than in the previous year. While leaving aside the very small income derived from his work as a cartoonist from the time he left the Defence Housing Authority in 1992, it is significant that these figures, taken comparatively, do not demonstrate loss of earnings.
The Tribunal had considered the issue of loss of earnings with some caution because of the low level of remuneration that the Applicant has received from his work as a cartoonist ever since he left his full-time work. It is a poor and inadequate benchmark against which to consider loss of earnings. It is raised here merely to note the Tribunal's concern that the Applicant has a problem in establishing loss of earnings, in addition to the other hurdles that he has not been able to meet in various parts of s23 and s24.
The Tribunal has taken into account the Applicant's request that he be given the benefit of the ameliorating provisions of s23(2)(b) and s24(2)(b) of the Act, but notes that those provisions also bring their own problems for the Applicant. The fundamental problem for the Applicant in pursuing work as a cartoonist has been his lack of motivation. This is not related to his war-caused disabilities, and indeed his lack of motivation, and not his war-caused disabilities, is the substantial cause of his loss of earnings.
The Tribunal affirms the decision under review.

I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr M E C Thorpe.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 and 22 September 1999
Date of Decision  18 September 2000
Solicitor for the Applicant         Ms A Toliopoulos
  Veterans' Advocacy Service
Solicitor for the Respondent    Mr R Wallis
  Department of Veterans' Affairs