Pannell and Repatriation Commission - [2002] AATA 427

DECISION AND REASONS FOR DECISION [2002] AATA 427

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/244

VETERANS' APPEALS DIVISION       )
           Re      ROGER McINTOSH PANNELL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date3 June 2002
PlaceAdelaide

Decision In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is entitled to the Special Rate as and from 26 October 1998.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - special rate - sub-paragraphs 24(1)(c) and 24(2)(a) of the Veterans' Entitlements Act 1986 considered - alone test - whether applicant ceased work because of non war-related back condition.

Veterans' Entitlements Act 1986 s.24
Cavell v Repatriation Commission (1988) 9 AAR 539

REASONS FOR DECISION

3 June 2002 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mr Roger McIntosh Pannell (the applicant) for review of a decision of a delegate of the respondent dated 12 January 1999 (T31) as affirmed by a decision of the Veterans' Review Board made on 8 May 2001 (T2) refusing to increase the applicant's pension beyond 100% of the General Rate to the Special Rate of pension.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T42), together with five exhibits, three lodged by the applicant (Exhibits A1–A3) and two lodged by the respondent (Exhibits R1 and R2). In addition, the Tribunal heard evidence from the applicant and Dr Diana W. Cross, General Practitioner, also gave oral evidence at the request of the respondent. The applicant was represented by Mr Christopher Swan, of counsel, and the respondent was represented by Mr Greg Doube, a departmental advocate.
The issue before the Tribunal is whether or not the applicant satisfies the criteria for the Special Rate of pension pursuant to the provisions of section 24 of the Veterans' Entitlements Act 1986 ("the Act"). The respondent concedes that the applicant satisfies the first criterion for the Special Rate pension, sub-section 24(1)(a) in that he is in receipt of pension at 100% of the General Rate, and the second criterion, sub-section 24(1)(b), in that incapacity from his war caused conditions does now render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. However, the respondent does not concede that the applicant satisfies the third criterion, sub-section 24(1)(c) of the Act.
Sub-section 24(1)(c) of the Act requires that it is the veteran's war-caused injury or disease which has not only led to the veteran not being able to work, but has also meant a loss of salary, wages or earnings for the veteran. It focuses on whether there are reasons other than war-related injuries or diseases preventing the veteran from working. Sub-section 24(1)(c) provides as follows:
"24 Special rate of pension
(1) This section applies to a veteran if:
…
(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
…"
The Tribunal in arriving at its conclusion has taken the evidence as a whole into account including submissions of both counsel. Briefly the facts are that the applicant was born on 23 January 1949 and is currently aged 53 years. He left school at the age of 16 years and obtained a variety of jobs as farmhand, general hand and worker.
At the age of 20 years he was called up into the Army on National Service for two years, on or about 14 October 1969. In March 1971 he was posted to Vietnam and served there for about eight months. Prior to going to Vietnam he married his first wife. This marriage lasted for approximately six years when they then separated. He subsequently married a second time. During his service in Vietnam he suffered a severe injury to his left ankle, chronic irritable bowel syndrome, psoriasis and bilateral hearing loss. He returned to Australia in October 1971. Each of these disabilities has been accepted by the respondent whereas a lumbar spondylosis claim has been rejected. The Post Traumatic Stress Disorder ("PTSD") disability was realised and accepted by the respondent after the applicant's return to Australia. This was not a noticeable disability at the time of actual service in Vietnam. The applicant was discharged from the Army within a week and a half of returning to Australia. The applicant stated in his evidence that he suffered pain to his back as a result of jumping off an army truck whilst in Vietnam. There were no records of this incident hence the respondent's rejection of the lumbar spondylosis claim.
On return to civilian life the applicant undertook a variety of jobs including with Mingbool Pastoral Company, Elders, Ansett Agricultural Sales, Hage Tractors and Farm Machinery, Tracquip Farming and Peter Whitehead Pty Ltd. He had joined Peter Whitehead Pty Ltd as a salesman in either late 1992 or early 1993. In late February 1994 whilst in the course of his employment and driving a motor vehicle in a paddock he had an accident when he hit a deep drain causing pain to his head, neck, forehead, nose and to his lower back.
As a result of that incident he saw Dr D.W. Cross, general practitioner, at the Hawkins Medical Clinic who gave him some pain killers. The applicant stated in his evidence that he returned to work after about 14 days but was put on light duties because of his back. The applicant stated in his oral evidence that on 17 May 1994 (Exhibit A2) he stopped work because of his PTSD and irritable bowel syndrome.
The applicant also made a claim for compensation arising out of the motor vehicle accident. In August 1998 the applicant settled his compensation claim and received by way of redemption an amount of $49,500 for income maintenance together with a residual disability assessment of 25% for disability of his lower back and 15% for his left leg. He applied for a service pension in August 1998 and which was approved. However, his compensation settlement was means-tested resulting in a preclusion period being set and his actual receipt of a service pension took effect in about mid-1999. This enabled him to work up to eight hours per week.
The applicant stated that after he received the redemption he did casual work of about one day a week to one day a fortnight. Such work included that of painting houses, concrete work and treatment of salt dampness. He further stated that in all instances he needed to work near a toilet because of his irritable bowel syndrome. He emphasised that it was this disability together with his PTSD that were the principle reasons for his ceasing employment and whilst he continues to suffer a back problem this was in no way a contributing factor.
dr d.w. cross
The applicant consulted Dr D.W. Cross, general practitioner, on a number of occasions. In her report dated 21 February 1996 (T14), Dr Cross stated that she first saw the applicant on 17 May 1994 who gave her a history of his "very low back pain" and who could not recall at that point any particular injury that had caused it. She further stated that he later recalled that when driving a "ute" on a farm visit some months earlier he had hit a drain in a paddock and had quite a severe jolt. This was the incident previously referred to above. She also referred him to Mr Michael Hone, Orthopaedic Specialist, who in turn referred the applicant to Mr David Hall, Orthopaedic Surgeon. Mr Hall felt the back symptoms related to an annular tear or symptomatic disc degeneration in addition to a local coccygeal injury. Dr Cross also stated that in the last six months his back complaint has remained about stationary and that he is learning to live with it. She further stated that at that time he still used a walking stick for security and that he finds that he cannot walk more than half a mile without needing to rest because this seems to cause some aching in the right hip as well as aggravation of low back pain.
Dr Cross also referred to his lack of work and that the applicant was exploring other options for employment but that other problems separate from his back have surfaced which have influenced his inability to find work. She stated that his back problem together with a lack of work had brought on a depression for which he sought psychiatric assistance from Dr Peter Furze.
In a report dated 27 March 1997 (T16/84) in answer to a question when the veteran last worked and his reasons for ceasing work Dr Cross stated that the applicant ceased work in mid-1994 because of lumbosacral disc degeneration but since then PTSD has become overt and is now an equally disabling reason why he cannot work. In this same report (T16/83) she described his back symptoms:
"Low back pain radiating to (L) buttock and thigh all the time.
Episodes of spasm rendering him immobile temporarily and general stiffness restricting him most of the time.
…
Restricts (severely) bending, over-extension, twisting etc.
Necessitates frequent changes of posture/position.
…"
Dr Cross also stated therein to question 7(c) (T16/85) in reference to the applicant's war-caused disabilities by themselves being sufficient to limit his ability to work that he could not work more than eight hours per week and that such was permanent "although some amelioration of PTSD may occur in time with ongoing" treatment. She also stated that he could not work more than 20 hours per week. These comments were reiterated by her in a further report dated 20 November 1998 (T26/145).
In her oral evidence, Dr Cross confirmed that the applicant had ceased work as a result of working as a salesman and having to drive on bumpy roads. She further stated that the applicant had told her that he had had low back pain increasing over several months in early 1994. She also stated that the applicant had seen another doctor at the clinic about his back in February 1994 but this doctor (Dr Winter) did not record the circumstances of the pain. Dr Cross stated that after several consultations with her and Mr Hone the applicant in June 1994 attempted a return to work. She stated that as it was a quiet time of the year he did office work at the rate of two hours per day and undertaking as much as he could manage. After that the applicant returned to see Mr Hone and he underwent an epidural procedure in September 1994.
It was after this that Dr Cross issued work medical certificates for WorkCover for low back pain. She stated that she did not give any medical certificates for PTSD. She was unaware that he had PTSD issues until 1995 when the applicant mentioned he had been seeing a psychologist in Adelaide. When asked during examination-in-chief by the respondent's representative, Mr Doube, whether the applicant ceased work due to his war-caused conditions alone, Dr Cross stated that the applicant ceased work in relation to his back complaint. She stated that he had tried to work two hours per day but that this was not successful and then his depression and PTSD came to the fore. She also stated that his back complaint caused a flare-up of his depression. She then reiterated that the issue which could not get him back to work was his back problem and the duties he could not do. Dr Cross stated in relation to the years 1997-1998 that she saw the applicant a number of times mostly related to his PTSD and various "bits" of paperwork from the Department of Veterans' Affairs and Social Security rather than his back.
During cross-examination, Dr Cross agreed that the applicant's war-caused problems were significant but stated that he had learned to work around them, for example, as to his irritable bowel syndrome he carried with him toilet paper. Whilst she had observed as at 28 February 1995 that he was "down" she was not aware prior to this time of any psychiatric problems.
dr r.a. mackle
The Tribunal notes that Dr Mackle, medical practitioner, from the same clinic as Dr Cross, wrote two letters, one dated 2 August 1999 (T42/192) and the other dated 3 February 2000 (T41/188). In the earlier letter he wrote that having examined the applicant on 2 August 1999 the applicant was fit to return to his usual occupation. In the letter of 3 February 2000, he wrote that the applicant suffered from a bowel disorder which had been troubling him and resulted in the applicant requiring time off from work. He also wrote that he had changed the applicant's medication which may alleviate the situation and allow the applicant a return to work.
mr m.r. hone
Mr Michael R. Hone, Orthopaedic Surgeon, in his report dated 12 July 1994 (Exhibit R2) stated, inter alia, that the applicant was suffering from a lumbo-sacral disc lesion and that he may have had some degenerative changes before the recent aggravation. Mr Hone also stated that when he saw him on 8 June 1994, being about three months after the accident, the aggravation had probably settled but that the applicant was suffering from spasm of the lumbar spine which had been caused by the injury. He further stated that he diagnosed the applicant's problem as lumbo-sacral disc lesion which the applicant has had for a long time. He also stated that the applicant had some degenerative changes which he had "aggravated a month ago when being bounced around in his utility".
Mr Hone was further of the view that the disability is the result of an aggravation of a pre-existing condition of degenerative changes in the L4-5 and lumbo-sacral discs. He stated that the pre-existing problem did not cause the applicant any pain but the work-related aggravation has caused the applicant pain in the back and left buttock and that the incapacity for work is caused by the aggravation of the pre-existing condition. Mr Hone stated that there were no other contributing factors. In his opinion the applicant's treatment should be by way of physiotherapy in order to restore function to the back. Mr Hone also referred the applicant to another Orthopaedic Surgeon, Mr David Hall.
mr d.j. hall
In his report dated 16 November 1994 (Exhibit R2) Mr Hall, Orthopaedic Surgeon, stated that the applicant had no problems with his back prior to the injury suffered in the accident in the course of his work in February 1994. He also stated that the applicant had told him that his employment had been terminated on the day before the consultation on 14 October 1994. He assessed the applicant's symptoms as likely to be related to an annular tear or symptomatic disc degeneration in addition to a local coccygeal injury. He further stated that the applicant should look for light duties on a permanent basis. He expected the applicant to suffer a permanent residual physical impairment in relation to the lumbar spine of the order of twenty to thirty percent. He first saw the applicant about eight months after the accident.
In his report dated 30 June 1997 (Exhibit R2) Mr Hall stated that there had not been any improvement in the applicant's condition and that there had been deterioration since last seeing him in January 1995. He stated that he would assign a permanent residual physical impairment in relation to the lower back and lumbar spine of twenty-five percent of which five percent was for the lower back due to pre-existing degeneration and the balance of twenty percent of impairment due to the work injury. He also stated that the applicant may be able to perform very light duties in limited hours sitting down provided he is able to move around from time to time.
In a report dated 24 September 1997 (Exhibit R2) Mr Hall confirmed that in his opinion the applicant had a permanent residual physical impairment in relation to the lower back and lumbar spine of twenty-five percent.
dr l.s. coats
Dr L.S. Coats, Orthopaedic Surgeon, saw the applicant on 10 March 1997 some three years after the accident. In his report dated 18 March 1997 (Exhibit R2) he stated, inter alia, that the applicant feels very anxious and worries what will happen to his back and if it will get worse. He further stated that the applicant presents with a very difficult problem and that there was a definite discrete and acute episode of trauma which has apparently altered the applicant's life and since which the applicant has not been able to really undertake much activity at all. He also stated that there are some signs which suggest a definite anatomical abnormality as well as the acknowledged stress syndrome. Dr Coats further stated that the applicant has a permanent ongoing disability and in particular a very significant disability of the lower back equalling 35% of the function of that region.
dr a. munyard
In his report dated 23 June 1999 (T35) Mr A. Munyard, Orthopaedic Surgeon, stated, inter alia:
"Clinically his back had a good range of movements. Straight leg raising was full, reflexes, power and sensation were normal.
It appears that his lumbar spine is not really a major problem for him at all. His post-traumatic stress does appear to be. The problem with his left ankle is only intermittent and does not really worry him to any major degree.
It appears that without his medication his post-traumatic stress syndrome is a major problem for him."

dr g. wright

Dr Munyard's view was supported by Dr Graham Wright, Occupational Physician, who in his report dated 2 August 2000 (T38) stated, inter alia, as follows:
"Physical examination was unremarkable. He had a good range of movement of his back.
…
With regard to the non accepted disability of lumbar spondylosis, there appears to be no clinical abnormality. His movements are good. There is no pain on palpations. There are no non organic signs, and in the extremities there are no neurological signs.
…
Mr Pannell's recollection of the events from February 1994 until about 1997/1998 cannot be relied on. On the basis of the history, I am unable to confirm the history of his back injury, or the reasons for leaving work.
…
His apparently excellent back function now is quite remarkable in the context of the history of severe back pain and disability. It is speculative, but it is possible that his back injury was not severe, and that there was significant interaction between his pain and psychological factors."

dr g. graham

In his report dated 12 June 1996 (Exhibit R2), Dr G. Graham, Occupational Physician, stated that the applicant complained at the date of the consultation on 6 June 1996 of constant pain in his low back which was worse when walking too far or sitting for too long. Dr Graham further stated that the applicant also experiences pain which gives him the sensation of needing to use his bowels. After examining the applicant he was of the opinion that the applicant was suffering from a discogenic problem in his lumbar spine with a possible contribution from a left PIV joint as well as a muscular contribution. He stated that the applicant's low back is affected by the disability. He also stated that it was difficult to envisage the applicant carrying out any form of useful work at the current time relevant to his back but that it is possible that the applicant could do some work as a sales representative if this did not involve any bending, lifting, sitting or standing for too long. However, the problems relating to the applicant's bowels would make it difficult to carry out any job.
dr d.e. cullum
Dr D.E. Cullum, Occupational Physician, in his report dated 23 October 1996 (T13) stated, inter alia, that the applicant saw Dr P. Furze, psychiatrist, as a result of suffering from PTSD from his war service. Dr Cullum further stated that the applicant's main complaints concerned his back and of pain in the left of the lower back, radiating into the left buttock and that the applicant does not have any real pain down the leg but it is more of a bruised numbness and burning feeling but that the back pain is much worse than any leg pain. He considered the applicant to have a permanent residual disability.
mr h. robertson

Mr Hal Robertson, physiotherapist, of the Work Assessment Centre, saw the applicant some two and a half years after the accident and about two years after he ceased work. In his report of 8 January 1997 (Exhibit R2) he stated that when he saw the applicant the applicant walked with the use of a walking stick in the left hand. He stated, inter alia, that a left limp was noted which was more pronounced after prolonged walking and when changing direction. He further stated that the applicant was willing to attempt all tests asked of him, but was restricted in most, due to poor control of his back symptoms or due to safety factors.
Mr Robertson also stated (Exhibit R2):
"Any task requiring back extension, ie kneeling, overhead work, carrying, further aggravated his back symptoms. This was consistent with reduced back extension and marked aggravation of his symptoms with this movement in the Physical Examination Findings."
This report is significant in that Mr Robertson assessed the applicant's back as at the time of examination. Among other things he also stated that the applicant demonstrated poor quality of movement in a number of tasks including the applicant's back being guarded during most tests. He further stated that the applicant had some limited functional capabilities which included poor control of his back symptoms. After considering the applicant's work strengths and physical work restrictions he recommended that the applicant has the physical capabilities to undertake very light work that allows for frequent position changes and restricts lower and above shoulder height tasks. He further stated that the applicant is best suited to working shorter shifts or from his home, where he can frequently change position as required.
dr p. furze
Dr Peter Furze, psychiatrist, had seen the applicant on four occasions between 24 March 1995 and 18 July 1995 having been referred to him by Dr D. Cross. A report dated 25 July 1995 (T10) stated, inter alia:
"… Mr Pannell is not a particularly skilled historian and is given to a degree of avoidance in dealing with psychologically traumatic events and feelings, making history taking a protracted and a problematic process.
…
Mr Pannell has a range of problems and these have included the loss of his job as a fertiliser salesman in recent years. (This occurred after a work-related vehicle accident in which Mr Pannell injured his spine.) As a result of this accident he has had chronic back problems over the last 18 months with disc damage in the mid-lumbar region and with chronic pain. There are questions about the possibility of further surgery and he has experienced considerable disability as a result of this back injury with unavoidably negative consequences for his psychological state."
In further considering this report of Dr Furze it would be appropriate to again reiterate that the applicant's PTSD is an accepted war service disability. Therefore, the Tribunal accepts Dr Furze's description of the applicant in his report wherein he noticed the applicant to have recurring and distressing recollections of a traumatic event during service in Vietnam. He further stated that more particularly the applicant has intense psychological distress on exposure to such things as films about Vietnam.
In addition, Dr Furze was satisfied that the applicant satisfied the criteria for dysthymic disorder with depressed mood for most of the day (and most days more than not) over the last several years, with poor appetite, over-eating, insomnia, low energy, low self-esteem, poor concentration and feelings of hopelessness. There was little doubt in his mind that the applicant suffers a psychiatric illness requiring psychiatric treatment and that the experience of the war death of a friend in Vietnam was causally implicated. He further stated that the overlap of dysthymia into PTSD was a problem of competing categories. In his view the applicant suffers from significant psychological problems. However, he also stated that he believed that establishing the current level of disability is difficult given that there are ongoing pain and physical limitations from his back hence all of these factors make it difficult to assess occupation.
submissions of the applicant
Mr Swan submitted on behalf of the applicant that the central issue in this matter is whether or not the applicant meets the sub-section 24(1)(c) "alone" test, that by reason of his incapacity from his war-caused disabilities alone, the applicant is unable to work and his inability to work is not due to other matters.
Mr Swan submitted that the real issue remains the applicant's reason for leaving work in 1994. It was submitted that it was PTSD which caused him to leave work in 1994. Mr Swan submitted that it was clear that the applicant had an ongoing back problem between the years 1994 to 1998 but that by 1999, the applicant's back had ceased to be any problem. It was further submitted that during 1994, the applicant had numerous attendances upon Dr Cross with various attempts at treatment, but a vast number of those attendances were merely to get certificates and to assist in the resolution of his workers' compensation claim. It was submitted that there were very long periods between certain medical certificates which suggested that the applicant's back condition had plateaued.
Mr Swan submitted that Dr Cross was aware that the applicant had been seeing a psychologist through the Vietnam Veterans' Association and in April 1995 Dr Furze became involved. It was submitted that in hindsight, one could factor in the depression/psychiatric condition as the reason for the applicant's leaving work in 1994. Mr Swan submitted that the letter from Alwyn Goetz dated 11 October 1997 (Exhibit A3) describing the circumstances of the applicant's leaving work in 1994 indicated that the applicant came into Mr Goetz's office in an "upset and distressed manner, this being the result of stress and frustration of being unable to return to normal duties after extended physiotherapy and treatment for what at the time seemed like an innocent back injury". It was submitted that upset and distress are evidence of PTSD and that it was therefore open to the Tribunal to find that it was the applicant's psychiatric condition that pulled him out of the workforce.
It was submitted that although the Tribunal does not have an exact date for the applicant entering his employer's office and announcing his intention to quit, the relevant time was around October-November 1994. Mr Swan submitted that clearly if the relevant date for leaving work was the date on which the applicant saw Dr Cross for the first time, namely 17 May 1994, then the sole reason for leaving work at that time was not PTSD. However, if the Tribunal considered the applicant's date of leaving work to be when he entered Mr Goetz's office in or about October-November 1994, then this would be consistent with the cause being PTSD.
submissions of the respondent
Mr Doube submitted on behalf of the respondent that the facts in this case were undeniably clear. The applicant was working prior to an accident in 1994 when he injured his back. Prior to this he had been working capably even though his irritable bowel syndrome meant that he had to take precautions. After his back injury, his irritable bowel syndrome continued to be the same. Mr Doube submitted that in February 1994 the applicant injured his back and then in May 1994 his injured back caused him major problems such that he remained off work for a long time. He returned to work in August-September 1994 for four to five weeks on light duties but he continued to have significant problems and was unable to cope, so he ceased work and has not returned to work since.
Mr Doube submitted that when the applicant ceased work in October or November 1994, he quit because of his back and was then on workers' compensation payments for his back until mid-1998, at which time he took the lump sum redemption option. Mr Doube submitted that Dr Cross's notes indicated that as at 12 August 1994 the applicant was on light duties and a further entry in her notes dated 31 October 1994 indicated that the light duties had failed. Mr Doube drew the connection with this entry and the incident with Mr Goetz occurring on or about 31 October 1994.
Mr Doube submitted that in 1995 the applicant applied for a service pension on the grounds of permanent incapacity. At the time the applicant did not receive the service pension because he was getting workers' compensation payments. Mr Doube submitted that when the applicant was granted the service pension, he was not granted it solely because of his war-caused conditions but predominantly because of his non war-caused back condition, as the service pension looks purely at the veteran's inability to work for whatever reason. It was submitted that at the time the applicant applied for the service pension he only mentioned his back problem but when it was granted it was on the basis of all of his medical conditions.
Mr Doube submitted that the applicant did undertake some occasional work whilst receiving the service pension. However, it was submitted that this work was not permanent remunerative work as the applicant was aware that the pension was means-tested and so therefore did not work very often.
It was submitted that the applicant's evidence was that he had seen Dr Munyard in June 1999 at which time his back was giving him no significant problems. However, until late 1998, the applicant still needed a walking stick for his back problems. Mr Doube further submitted that Dr Cross was quite clear that when the applicant ceased work in 1994 it was because of his back problems and although he tried a return to work he could not cope because of his back problems and this caused him frustration and an exacerbation of his symptoms. It was further submitted that at the time of the applicant ceasing work, Dr Cross made no mention of any psychiatric problems. Therefore, taking the applicant's case at its highest, the applicant could only argue that possibly PTSD was a factor contributing to him choosing not to persevere with the return to work. Mr Doube reiterated that the test is whether PTSD alone caused him to cease work, rather than the predominant or major reason and that it would be stretching it to argue that it was PTSD alone which caused the applicant to cease work in 1994.
It was submitted that Dr Cross stated that the applicant's back problems plateaued over time but Mr Doube highlighted the fact that in 1996 in one of her reports (T14/7), written two years after the applicant's motor vehicle accident, Dr Cross stated that he was still using a walking stick, which would indicate that his back condition was still severe. In addition the applicant stated that he still used a walking stick in 1998. Therefore, it only appeared that the applicant's back condition was resolving from late 1998. At that time the applicant was on the service pension and was not seeking work.
Mr Doube submitted that sub-section 24(1)(c) of the Act is a two-part test and in the second part of the sub-section, it was necessary to imagine the applicant without his war-caused conditions and what his salary or wages would be. It was submitted that sub-section 24(2)(a) was a qualification on this, that there was deemed to be no loss of salary or wages if the veteran had ceased to engage in remunerative work for reasons other than his incapacity from war-caused conditions or if the veteran was incapacitated from engaging in remunerative work for some other reason. It was submitted that the applicant ceased work because of his back condition and was incapacitated because of it and therefore he could not be considered to be suffering from a loss of wages. It was submitted that therefore the applicant does not satisfy the second part of sub-section 24(1)(c) of the Act.
Mr Doube submitted that sub-section 24(2)(b) was also relevant in that it states that where a veteran has not been engaged in remunerative work but 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. It was submitted that the applicant had conceded in this case that he had made no genuine attempts to engage in remunerative work in that the applicant's occasional work was aimed at maximising his income whilst still keeping his service pension at the full rate.
Mr Doube referred the Tribunal to the large amount of medical reports provided in this case and submitted that for the applicant to qualify for the special rate, it must have been war-caused conditions alone that caused the applicant to cease work. Mr Doube submitted that it was not PTSD or irritable bowel syndrome but the back problem alone that caused him to cease work. At best, it could only be said that the applicant might have had an underlying psychiatric condition, however, it was not sufficient that such an underlying condition contributed to the applicant ceasing work.
applicant's submissions in reply
Mr Swan referred the Tribunal to the matter of Cavell v Repatriation Commission (1988) 9 AAR 539 where Burchett J stated in relation to the "alone" test that the Tribunal's task is:
"… to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
Mr Swan submitted that if the Tribunal found that the applicant stopped work because of his back problem then the applicant could not succeed. It was submitted that there was no dispute that the applicant suffered from PTSD and that the report of Dr Furze, psychiatrist, dated 22 September 1997 (T20/96) established that PTSD was the applicant's reason for leaving work. Dr Furze had stated:
"This man injured his back in a motor vehicle accident in February 1994 suffering damage to lower lumbar and coccygeal spine, resulting in ten months off work, while treatment was performed (Wakefield Hospital). Mr Pannell was medically cleared to return to work by Dr Diana Cross (LMO Mt. Gambier), this clearance was accepted by WorkCover and he returned to light work in early 1995. This man remained at work for three weeks. During this time he had insurmountable problems with anger, low frustration levels and intolerance dealing with people (a central part of his job) and the situation resulted in his refusing to return to work, (because of his emotional problems) and his employer then terminated his employment because of this refusal."
Mr Swan submitted that the applicant was quite happy physically to stay on his rehabilitation programme and the applicant had stated during his oral evidence that he would have been a fool to throw in his job because of his back condition because he was being paid. It was therefore the applicant's psychiatric condition that caused him to cease work.
respondent's submissions in reply
Mr Doube submitted that Dr Furze was completely reliant upon what the applicant had told him about his reasons for his inability to work and therefore his report does not meet the other factual medical evidence before the Tribunal. Mr Doube further referred the Tribunal to the report of Dr Wright (T38/178) which stated that the history that the applicant gave did not meet the medical facts in this case.
discussion and findings
The Tribunal, as previously mentioned, has taken all of the evidence into account including the medical evidence and submissions of both counsel. Taking into account its assessment of the medical evidence and in particular that of Dr Cross and Dr Munyard the Tribunal finds that the applicant by reason of his war-caused PTSD and irritable bowel syndrome is unable to continue to engage in remunerative work that he was undertaking. The Tribunal is further satisfied on the medical evidence and so finds that the PTSD is a dominant factor and that he is not prevented from doing any work, even if it be light duties, due to a back condition. In light of these findings, and with the respondent conceding sub-sections 24(1)(a) and (b) of the Act, the Tribunal finds that the applicant is qualified to receive pension at the Special Rate as and from 26 October 1998.
For the reasons outlined, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is entitled to the Special Rate as and from 26 October 1998.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE.
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  29 April 2002
Date of Decision  3 June 2002
Counsel for the Applicant        Mr Christopher Swan
Solicitor for the Applicant         Swan Lawyers
Counsel for the Respondent    Mr Greg Doube
Solicitor for the Respondent    DVA