Oliphant and Repatriation Commission
[2004] AATA 969
•17 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 969
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1118
VETERANS’ APPEALS DIVISION ) Re THOMAS OLIPHANT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M.A. Griffin Date17 September 2004
PlaceSydney
Decision The decision under review is VARIED in that the rate of pension to be paid to Mr Oliphant as from 25 October 1999 is at the Special Rate of Pension as per section 24 of the Veteran’ Entitlements Act 1986 but in all other respects the decision under review is affirmed.
[Sgd] M.A. Griffin Member
CATCHWORDS
VETERANS’ AFFAIRS – application for pension at the special rate – post traumatic stress disorder – anxiety disorder with alcohol dependence – retrenched from job – alone test – genuinely seeking employment
Veterans’ Entitlements Act 1986 s24
Hall v Repatriation Commission (1994) 33 ALD 454
Banovich v Repatriation Commission (1986) 69 ALR 395
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren [2003] FCA 888
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
17 September 2004 M.A. Griffin 1. This is an application for review of a decision of the Repatriation Commission (“the Respondent”) made on 27 November 2000 and affirmed by the Veterans’ Review Board (“VRB”) on 13 May 2003 which assessed Mr Oliphant’s pension at 100 per cent of the General Rate under the Veterans’ Entitlements Act 1986 (“the Act”). In this application Mr Oliphant seeks pension at the special rate provided for in section 24 of the Act.
2. At the hearing Mr Oliphant was represented by Ms N. Rudland of counsel. Mr N. Bunn, an advocate with the Department of Veterans’ Affairs appeared for the Respondent. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) and the exhibits tendered during the hearing. Mr Oliphant gave evidence and Dr Haik, consultant psychiatrist, gave evidence for the Respondent.
Issues
3. The Respondent concedes that Mr Oliphant satisfies section 24(1)(a) of the Act, “in that he has been assessed at 100% of the General Rate” (exhibit R2 para 6).
4. However, the Respondent contends that Mr Oliphant does not satisfy section 24(1)(b) because he is “not totally and permanently incapacitated from his accepted disabilities alone sufficient to render him incapable of undertaking remunerative work for more than 8 hours per week” (exhibit R2 para 7).
5. The Respondent also contends that Mr Oliphant does not satisfy section 24(1)(c) of the Act, in that he “was not prevented, through his psychiatric disabilities, from undertaking his last paid employment” (exhibit R2 para 8).
6. Furthermore, the Respondent contends that “Mr Oliphant is not entitled to the ameliorating provisions of 24(2)(b) of the Act, “in that he has not been genuinely seeking remunerative employment” (exhibit R2 para 9).
Evidence
7. Mr Oliphant was born on 9 October 1949; he is 54 years of age. He left school at age 15 and worked as an apprentice carpenter for six months and then as an apprentice in a joinery shop for two and a half years. His employer went out of business and Mr Oliphant went to work making windows. He said this job was poorly paid and he decided to volunteer for National Service.
8. Mr Oliphant served in the Army for two years from 1969 to 1971, including a tour of Active Service in South Vietnam as an artillery gun-number. Following his discharge from the Army, he was employed in a variety of manual occupations including working as a general hand in a brickworks, as a disc grinder for an abrasives manufacturer, in a paint shop, in a printing business and as a bricklayer’s labourer. His last employment was as a sheet metal worker with Hastie Air Conditioning, erecting metal duct work. He held that position for about six years until he was retrenched along with many other staff in 1992.
9. Mr Oliphant said he was called back by Hastie “to do little jobs” four or five times over the following couple of months and then the work ceased entirely. He said he “looked for work everywhere but nobody wanted a 43 year old with a hearing problem”. He said he looked for sheet metal jobs in the newspaper and also for other positions such as a factory hand. He said there were no jobs, there was an economic downturn at the time and “they wanted young guys”. Mr Oliphant said he sought assistance from the Government employment service. A copy of his Commonwealth Employment Service JobStart card dated 16 July 1993 is at T14 page 65.
10. Mr Oliphant said he received a “service pension and gold card” in “late 1992 or early 1993, I can’t remember”. He said he was told by a Returned Services League pension officer that he would lose the pension and the card if he got a job. He said he didn’t stop looking for work. He said the economic slump continued “for years”.
11. Mr Oliphant said he makes his own beer and consumes five or six large bottles a day. He said he is a loner and does not get along with people. He lives with his de facto partner in her Housing Commission home. They have been together for some 13 years and have two children under the age of 13. He said his relationship with his partner is strained and she also suffers from post traumatic stress disorder (PTSD). Mr Oliphant said he had been a heavy drinker since leaving the Army and his employment history and social life have been characterised by inter-personal conflict. He said he only related well with other Vietnam veterans and that he first sought counselling for his emotional problems in 1987.
12. Mr Oliphant said “I’ve taken classes at Saint John [St John of God Hospital Richmond NSW] about self esteem, anger management, PTSD and alcoholism. PTSD is a horrible thing. It puts you in a shell. It put me in a shell. I’m trying to break out. I’m doing the best I can under the circumstances with me family. I’m keeping my head above water”. Mr Oliphant said he has no friends. He breeds budgerigars which he finds relaxes him. He spends time with an elderly neighbour who also makes home brew. He said “we just talk about general things; I don’t go in deep with him”.
13. Mr Oliphant described a history of drunkenness and personal conflict in several of his work environments over many years. The T documents contain statutory declarations from friends and work associates attesting to his heavy drinking over many years. One of these is from his foreman at Hastie who states “At times I felt it was necessary to isolate Mr Oliphant from other employees as his mood swings would upset other men…He had a hearing problem…I thought that he would have a hard time for future employment due to the sudden change in his personality at random times without warning” (T13 p.58).
14. The Respondent has accepted that the following of Mr Oliphant’s disabilities are related to his service: malaria; otitis externa; bilateral sensori-neural deafness; PTSD and anxiety disorder with alcohol dependence. The disabilities of musculo-skeletal chest pain and scalp folliculitis were rejected.
15. The T documents contain a record of Mr Oliphant reporting problems of “tension, nerves, anxiety” since at least May 1987 (Tp.15). Dr Prabhu, his local doctor, recorded a “major diagnosis” of “Depression – Anxiety” in July 1993. In November 1993 he was seen by Dr Pickering, consultant psychiatrist, at the request of the Department of Veterans’ Affairs (“the Department”). Dr Pickering reported at exhibit R3:
“There was no evidence of emotional types of disorder that one would normally relate to war service. He did however suffer from what appears to be significant alcoholism with a history of drinking to the exclusion of food at times. This was certainly consistent with what appears to be a dysmnesic syndrome of mild to moderate degree. This dysmnesic syndrome would not interfere with his ability to perform fairly basic tasks but would impair his ability to learn new skills. As such it could affect his employability. This dysmnesic syndrome ought to be further investigated with a full battery of neurodiagnostic tests performed by a clinical psychologist…His alcoholism and subsequent dysmnesic syndrome cannot be held to be specifically related to his experiences in Vietnam. He did not begin heavy drinking, by his own admission, until two years after his return from Vietnam. He also does not suffer from anxiety, depression, or a PTSD which one would expect to be present if the alcoholism were secondary to the psychological stresses of military combat”
16. There is no evidence before the Tribunal of the further investigation with a full battery of neurodiagnostic tests, as recommended by Dr Pickering. However, in the following year Dr Prabhu recorded a major diagnosis of chest pain and anxiety and a minor diagnosis of depression. In 1995, Dr Prabhu made the same diagnosis of depression and anxiety. He recorded “Depression – due to unable to work – unable to get job” (Tp.22).
17. In April 1997 Mr Oliphant was seen by Dr Gurr, consultant psychiatrist, at the request of the Department. Dr Gurr in a brief report stated (exhibit R3):
“…I was not able to scale him on the scale provided [GARP] as the definition says on page 48 says that the scale should not be used to rate anxiety or depression associated with then presence of organic disease unless a formal psychiatric diagnosis has been made. Mr Oliphant’s stress arises secondary to his organic hearing disorder, as he has arguments with his wife because he does not hear all she says. This increases his anxiety and is probably also the reason for his short term memory problems when he was working”
18. In 1999, Dr Law, consultant psychiatrist, saw Mr Oliphant on two occasions on referral from Dr Prabhu and concluded (T p.35):
”Mr Oliphant suffers from a moderate degree of anxiety disorder, alcohol dependence and probably an early dysmnesic syndrome
…I do not think he is capable of open employment of more than 8 hours in a week now”
19. Dr Law saw Mr Oliphant again in February 2001 shortly after Mr Oliphant had an altercation with a neighbour resulting in police involvement. Dr Law recorded “Mental examination revealed he was clearly anxious and distressed” (Tp.53). Dr Law completed a Guide to the Assessment of Rates of Veterans’ Pensions (GARP) worksheet noting that Mr Oliphant had “PTSD, alcohol dependence, dysmnesic syndrome” as accepted conditions at that time. Dr Law commented that Mr Oliphant was “[t]otally unable to work owing to disturbance by various symptoms” (Tp.54).
20. Dr Law saw Mr Oliphant again in May 2001 and recorded “Mental examination revealed that he had remained distressed and anxious…He is now most probably totally and permanently unfit for work, owing to the persistence of his post-traumatic stress disorder symptoms” (Tp.60).
21. Mr Oliphant has been admitted on at least two occasions to the Medical Centre at St John of God Hospital for specialist treatment of his PTSD and anxiety related alcohol dependence. Dr Westerink, consultant psychiatrist and medical director, reported in July 2001 “Mr Oliphant has just repeated 4 weeks in-patient treatment for his Vietnam war related Post Traumatic Stress Disorder…Mr Oliphant has severe Vietnam war related Post Traumatic Stress Disorder. There is no argument about that. He has not been able to work since 1992 because of his Post Traumatic Stress Disorder…the retrenchment was the final straw precipitating his inability to work because of his Post Traumatic Stress Disorder” (Tpp.61-62).
22. In June of the following year, Dr Westerink wrote (Tp. 63):
“He has Post Traumatic Stress Disorder caused by the Vietnam War which is not disputed by the Department [of Veterans’ Affairs]. He stopped work around 1992 when he was retrenched from his work as a sheet metal worker
…In 1992 his local doctor became aware of him being anxious and depressed but his local doctor is not a psychiatrist and the diagnosis of Post Traumatic Stress Disorder was not made at the time.
He tried to find other work but did not manage to find another job.
On the balance of probabilities his Post Traumatic Stress Disorder at the time was already bad enough for him not to be able to function properly as a regular member of the work force. Again on the balance of probabilities he was in 1992 not able to work solely because of his Post Traumatic Stress Disorder.
It has been my experience, and that of most of my colleagues, and it has been expre3ssed at conferences by Professor Alexander McFarlane that a very high percentage of people prefer to work rather than not to work”.
23. Mr Oliphant saw Dr Burns, an occupational physician on 3 March 2003 at the request of the Department. Dr Burns reported (Tp. 84):
“I do not believe that Mr Oliphant would be capable of working for even eight hours per week at the current time. This would substantially due (sic) to his Post Traumatic Stress Disorder and his anxiety disorder with alcohol dependence. I do not believe that his musculoskeletal chest pain would give him any difficulty. This would probably have been the case for the last two or three years at least…
It is not possible to say whether he was unfit to work back in 1993…There is no contemporary medical evidence available for that time. I am thus unable to conclude that he is currently unable to work solely due to his accepted disabilities but I cannot state that this may have been the case in 1993”.
24. Dr Burns refers to having received and read the “T documents”. However, it is not clear from the covering letter to Dr Burns from the Department exactly what historical material was provided to him (Tpp.79-80).
25. Mr Oliphant saw another occupational physician, Dr Rosenthal, on 2 October 2003. Dr Rosenthal completed a GARP assessment of Mr Oliphant. Mr Bunn referred me to an apparent discrepancy in that assessment. At page 4 of that assessment at question 2 for PTSD, against point 4.4, Dr Rosenthal gave a rating of 0 points. Whereas under the lifestyle rating at question 3 table 22.4, Dr Rosenthal gave a rating of 4 points. Dr Rosenthal was not required by the Respondent for examination and his report was admitted into evidence without objection. In addition to the numerical ratings that he gave, Dr Rosenthal gave his written opinion about Mr Oliphant. He stated (exhibit A1):
“In his current state Mr Oliphant would not be able to work for even eight hours per week. He continues to be significantly affected by his PTSD, anxiety and depression. He tolerates other people very poorly and is frequently in conflict. He would not be able to concentrate sufficiently even to perform any of his previous work activities. In my opinion he is not fit to work eight hours per week….
There is very little information regarding his chest pain…In hindsight it may be that his chest pains related to his anxiety, depression and Post Traumatic Stress Disorder. In my opinion there is no contribution of his non accepted disabilities on his capacity to engage or obtain employment”.
26. Mr Oliphant saw Dr Haik, consultant psychiatrist, at the request of the Department on 2 October 2003. Dr Haik reported (exhibit A4):
“Mr Oliphant has used alcohol excessively since his adolescence and he might be regarded as suffering from Alcohol Abuse. His use of alcohol would appear associated with his Anxiety Disorder. There is little evidence that his accepted disabilities prevent him from undertaking paid work…Based upon the absence of sufficient symptomatic criteria for Post Traumatic Stress Disorder, it can be argued that Mr Oliphant does not presently suffer from this disorder…It is plausible that because he had the support from the first woman with whom, he had established a relationship since his marriage ended in 1977, he was unwilling to extend himself to find employment…One suspects that Mr Oliphant has always been a man with a low frustration tolerance who was easily angered…His symptoms are more aligned to a diagnosis of Anxiety Disorder and not to Post Traumatic Stress Disorder…As clinical onset is generally defined as the actual report of symptoms and the seeking of treatment, the onset for Mr Oliphant was in 1987”.
27. Dr Haik concluded his report with the opinion that Mr Oliphant had not been genuinely seeking remunerative employment because “He has the pension and has been accommodated in his de facto’s Department of Housing dwelling”. Dr Haik reiterated these opinions in his oral evidence.
28. Cross examined by Ms Rudland, Dr Haik said he had not treated any patients with PTSD in the previous two years. He was asked if he saw any patients with PTSD in his practice. He said “none at all, it is a fairly rare condition, caused by major trauma and not something we have in this country” or words to that effect. Dr Haik said he saw Mr Oliphant on one occasion for two hours. Dr Haik said in his opinion based on thirty years of psychiatric practice, that Mr Oliphant “is not the type who would give up a pension to go to work” or words to that effect. He was asked whether seeing a patient on an on-going basis gave him a deeper insight into that patient’s condition. He said “from the first visit I am very certain about who the person is, they then have to relinquish the problem. They have to learn how to stop shooting themselves in the foot” or words to that effect. He was asked if he ever changed his initial opinion of a patient. He said “If a person gets better I am going to have to change my opinion”. The Tribunal asked Dr Haik if he had ever treated anyone with PTSD. He said “never but I have seen two people who had it. One was a clerk in Rwanda. The other was a policeman who saw heads blown off etc”.
Submissions
29. Ms Rudland pointed to the consistency in the medical evidence of Drs Prabhu, Law, Westerink and Rosenthal that Mr Oliphant’s accepted disabilities have had a severe impact upon his capacity to work. She said that that evidence remained unchallenged because the Respondent had not sought to question any of those doctors. She submitted that the Respondent’s expert physician Dr Burns provided similar evidence. She said apart from Dr Burns, the other three doctors had all seen Mr Oliphant as treating doctor on many occasions. She contrasted this with the two hour examination on one occasion by Dr Haik. She submitted that the Tribunal should give greater weight to the treating doctors’ opinions. Ms Rudland referred to the history of Mr Oliphant’s emotional disturbance since 1987 and the statutory declarations of friends and his foreman. Ms Rudland referred to the decision of Spender J in Hall v Repatriation Commission (1994) 33 ALD 454 and submitted that “realistically Mr Oliphant’s capacity to gain and obtain work had been severely impinged upon”. She submitted that at the date of the application for pension Mr Oliphant’s accepted disabilities rendered him incapable of undertaking work for more than eight hours per week.
30. Mr Bunn for the Respondent pointed out that Drs Burns and Rosenthal had only seen Mr Oliphant on one occasion as Dr Haik had done. He referred to T5 p.16 where Dr Prabhu in 1994 said Mr Oliphant was not permanently unemployable. He referred to the apparent inconsistencies in the two GARP ratings given by Dr Rosenthal and suggested that less weight should be given to that report as a consequence. He said that neither Dr Burns nor Dr Rosenthal had addressed the issue of capacity to work in 1992 or 1993. He said that Dr Haik was the only one to address this issue of capacity in the early 1990s. He referred to Dr Haik’s opinion that Mr Oliphant is capable of working now with the same symptoms that he had when working in the early 1990s.
31. Mr Bunn referred to the opinions of the doctors that the probable loss of his pension and “gold card’ was a reason not to get work. Mr Bunn submitted it was for this reason and not due to incapacity that Mr Oliphant did not undertake continuing employment and thus did not satisfy section 24(1)(c). He also submitted there was no work available because of Mr Oliphant’s age and the economic downturn at the time. He submitted that the ameliorating provision of section 24(2)(b) was not available because on the evidence Mr Oliphant had not been genuinely seeking work since 1993.
Consideration of Issues
32. The special rate of disability pension is payable to those veterans who satisfy the requirements of s 24 of the Act. It is not in dispute that Mr Oliphant satisfies the requirements of s 24(1)(a). The issue for determination in the case is whether Mr Oliphant also satisfies the requirements of s 24(1)(b) and (c).
33. Subsection 24(1)(b) relevantly requires that the veteran be “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”.
34. I have given very careful consideration to the written medical reports and the oral testimony of Dr Haik. The reports of Drs Gurr and Pickering are of little assistance to me. They apparently saw Mr Oliphant only once each but Dr Gurr was sufficiently concerned about Mr Oliphant’s mental condition to recommend a full battery of neurodiagnostic tests. Dr Haik gave a forceful opinion that Mr Oliphant was essentially malingering and did not have PTSD. However he confirmed the accepted anxiety disorder and suggested a clinical onset date of 1987. Drs Prabhu, Law, Westerink, Burns and Rosenthal all confirmed the PTSD and anxiety disorder. Dr Westerink was of the opinion that the PTSD was in place at the time of Mr Oliphant’s retrenchment in 1993 and that it was the reason for the chest pain. All of these doctors were of the view that Mr Oliphant was incapable of undertaking work for more than eight hours per week because of his accepted disabilities. Both Dr Rosenthal and Dr Burns saw no causative involvement of any non-accepted disabilities in this incapacity. In all the circumstances, I find that Mr Oliphant satisfies the requirements of section 24(1)(b).
35. I turn therefore to consider whether or not the requirements of section 24(1)(c) of the Act are also satisfied. In Forbes v Repatriation Commission (2000) 58 ALD 394 R D Nicholson J said of this provision:
“That paragraph is best understood by dividing it into its two limbs and relating those limbs to the relevant portions of what follows in s 24(2).
The first limb of s 24(1)(c) reads:
"(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…”
…”
That limb must be read subject to the application of s 24(2)(b) which reads:
"(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 second limb of s 24(1)(c) reads:
“(c) …
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”
This is to be read in conjunction with s 24(2)(a) which provides:
(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 … .”
36. The Full Federal Court in Flentjar v Repatriation Commission (1997)48 ALD 1 at [4-5] observed that when considering the requirements of s 24(1)(c) the questions that the Tribunal must answer are as follows:
“1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act.
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
37. In the above questions, the reference to ‘remunerative work’ refers to the type of work in which Mr Oliphant had engaged and not to his last form of employment, or to a particular job with a particular employer: see Banovich v Repatriation Commission (1986) 69 ALR 395. I find that Mr Oliphant had worked in a variety of manual labouring jobs.
38. In relation to the second of the Flentjar questions, the answer is essentially provided by the finding that has been made in relation to the requirement of s 24(1)(b). The overwhelming weight of expert medical evidence, particularly from the treating psychiatrists, is that the accepted disabilities prevent Mr Oliphant from continuing to undertake the type of work in which he had previously been engaged, or indeed, in any type of work.
39. In relation to the third of the Flentjar questions, it is clear from authorities such as Repatriation Commission v Hendy (2002) 76 ALD 47 and Repatriation Commission v Van Heteren [2003] FCA 888 that the Tribunal is “required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work. … the decision maker is required to consider the effect, contribution to, and relevant weight to be attached to any or all of those factors during the assessment period.”:
40. It has been suggested that other factors including Mr Oliphant’s age, chest pain, time out of the workforce and reluctance to lose his pension and “gold card’ have prevented Mr Oliphant from continuing to undertake work.. Mr Oliphant himself referred to employers wanting “younger guys”. However, I do not consider that Mr Oliphant’s age of 50 at the date of assessment or of 54 now, or his time out of the workforce are factors preventing his employment. Dr Burns and Dr Rosenthal have discounted the chest pain. I had the benefit of observing Mr Oliphant giving his oral evidence. He was open and cooperative if somewhat blunt in his responses. I am satisfied he is a witness of truth. I am satisfied he tried to obtain work after he was retrenched but could not do so.
41. As to section 24(2)(b) Spender J in Hall at 461 said: “It seems to me that the question of whether a veteran has been “genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek” has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade”. I am satisfied on the evidence from Drs Law and Westerink that Mr Oliphant was permanently incapacitated at the relevant time and effectively unable to seek or participate in employment. In all the circumstances, I find that the accepted disabilities are the only factors preventing Mr Oliphant from continuing to undertake work.
42. The answers to Flentjar questions 2 and 3 are yes, thereby raising the fourth question and this brings section 24(2)(a) into consideration. The Respondent relies on the fact of Mr Oliphant’s retrenchment as being the answer to this point. I do not accept that argument in this case. It is correct that Mr Oliphant lost his last job for reasons unrelated to his disabilities. However, that is not the reason that he has ceased to engage in remunerative work. Following Repatriation Commission v Smith (1987) 15 FCR 327, I have attempted an assessment of what Mr Oliphant would probably have done if he had none of his service disabilities. On the evidence I am satisfied that Mr Oliphant has not ceased work for reasons other than his accepted disabilities. I am also satisfied that Mr Oliphant is not incapacitated or prevented from working for some other reason. I find that Mr Oliphant is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of his war caused disabilities.
43. Having regard to the whole of the material in evidence I find that Mr Oliphant does meet the criteria for the grant of pension at the special rate.
Decision
44. The decision under review is VARIED in that the rate of pension to be paid to Mr Oliphant as and from 25 October 1999 is at the Special Rate of Pension as per section 24 of the Act but in all other respects the decision under review is affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of M.A. GRIFFIN
Signed: A. Krilis
AssociateDate/s of Hearing 6 April 2004
Date of Decision 17 September 2004
Counsel for the Applicant Ms N Rudland
Solicitor for the Applicant Ms A. Aitken
Solicitor for the Respondent Mr N. Bunn
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