PETER CASSADY and REPATRIATION COMMISSION
[2009] AATA 462
•24 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 462
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0755
VETERANS' APPEALS DIVISION ) Re PETER CASSADY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal The Honourable Justice N. Mushin, Presidential Member
Brigadier C. Ermert (Retd), Member
Date 24 June 2009
PlaceMelbourne
Decision The Tribunal sets aside the reviewable decision and in substitution decides that the applicant is entitled to a service pension at the special rate with effect from 21 May 2007. (sgd) N. Mushin
Presidential Member
VETERANS’ AFFAIRS – service pension – whether veteran entitled to pension at the special rate – generalised anxiety disorder ‑ veteran resigned from work at aged 60 – re‑structuring at work ‑ whether war-caused condition prevents veteran from engaging in remunerative work – alone test
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Alexander (2003) 75 ALD 329
REASONS FOR DECISION
24 June 2009 The Honourable Justice N. Mushin, Presidential Member
Brigadier C. Ermert (Retd), MemberINTRODUCTION
1. The applicant, Peter William Cassady, served in the Australian Army, including operational service in Vietnam. The respondent has accepted that the applicant suffers from certain disabilities arising out of that service, as a result of which he receives a pension at 80 per cent of the general rate.
2. The applicant was engaged in full-time employment as a motor mechanic for nearly 40 years. He resigned from his employment in 2007. He sought the payment of his pension at the special rate. That would require that his retirement was brought about exclusively by war-caused injuries or disease and no other factor. The respondent refused the applicant's claim, as a result of which the applicant applied to the Veterans Review Board ("VRB"). The VRB affirmed the respondent’s decision and the applicant now seeks a review of that decision from the Tribunal.
3. The applicant asserts that his retirement was brought about solely by his war‑caused injuries or disease, being a generalised anxiety disorder which resulted in his being unable to cope with various aspects of employment. This application turns on that assertion.
CREDIBILITY
4. During this hearing, we heard oral evidence from three witnesses. They were the applicant, his wife and his treating psychologist. All the witnesses were called in the applicant's case. They were examined in chief by Counsel for the applicant and cross-examined by the respondent's advocate.
5. We find that all three witnesses were thorough and truthful in the entirety of their evidence. We have no reason to doubt the credibility of any of them. While the respondent's advocate was critical of the psychologist, criticism to which we will refer below, there was no reason to doubt his credibility.
6. In addition, we were referred to a number of other documents, the makers of which were not called to give oral evidence. Again, we have no reason to doubt the contents of those documents, to which we will also refer below.
BACKGROUND AND EVIDENCE
7. The applicant was born on the 27 August 1946 and is presently aged 62 years. He has lived in Warrnambool throughout his life. He completed year 9 at school.
8. The applicant commenced a five-year apprenticeship as a motor mechanic when he left school. He worked with the same employer for approximately 6 months after the completion of his apprenticeship and then obtained employment as a mechanic at the Rural Ambulance Service of Victoria ("the Ambulance Service").
9. The applicant was conscripted into the Australian Army. He deferred being called up for national service until he completed his apprenticeship and was called up on 2 October 1968. He served in Vietnam from 16 September 1969 until 20 August 1970, when he returned to Australia. He was discharged from the Army on 1 October 1970 and returned to his previous occupation with the Ambulance Service. His work in Vietnam was as a motor mechanic, repairing vehicles in the field.
10. The applicant married his first wife in approximately March 1968. Their first child was born shortly prior to his departure for Vietnam. Two further children were born of that marriage following his return from Vietnam. All three children are independent adults. They have children of their own who are grandchildren of the applicant.
11. The applicant's wife died tragically in 1998.
12. The applicant married his present wife, Yvonne, in July 2008. Mrs Cassady was born on 4 February 1949 and is presently aged 60 years. The applicant and Mrs Cassady commenced a de facto relationship at some time after the death of the applicant's first wife, with whom she had been a very close friend and who she had known for most of their lives. The applicant and Mrs Cassady lived in a de facto relationship for approximately eight years prior to their marriage. Mrs Cassady has independent adult children by her previous marriage.
13. Because of the length and depth of her relationship with the applicant and his first wife, Mrs Cassady was able to provide us with information with regard to the applicant's health, as it is relevant to the present proceedings, for the periods prior to and after his Army service. We were most impressed with her evidence.
14. The applicant swore that prior to his call-up to the Army, he -
…had a normal childhood having been raised on a dairy farm with caring parents, attending a local primary and then secondary (technical) school. I enjoyed the usual country pursuits, including spending time at the local river swimming and being involved with water craft.
His evidence persuades us that there was nothing exceptional in his upbringing or his physical or psychological health prior to his call-up to the Army.
15. Mrs Cassady confirmed the applicant's evidence referred to in the previous paragraph. She swore that -
Peter was a happy go lucky young man when I first knew him.
16. We accept the applicant's evidence that he has -
…had ongoing and worsening problems with my mental health since Vietnam. …
I seem not to be able to get things right, am often argumentative, feel victimized and closed in, such that I avoid contact with people. I lost confidence and am often over reliant on my wife.
17. Mrs Cassady swore:
On Peter's return he seemed to be very quiet and found it hard to simulate (sic) into every day life. He went back to work immediately and did not speak about Vietnam very much at all. I know his wife found the relationship difficult at times as Peter became quite moody and seemed to ‘just manage’ his everyday life. He kept to himself a lot more than before he had been away. He had been approached by ‘someone’ in Warrnambool on his return who told him ‘he was a child killer’ because of his service; hence he seemed to retreat even more. Over the years Peter never spoke about his experiences openly.
18. The oral evidence of the applicant and Mrs Cassady was in accordance with that which is quoted in the previous paragraphs. It presents a picture of a person who, prior to his Army service, particularly his service in Vietnam, was a normally adjusted, happy-go-lucky person; a person who suffered a very significant change to his psychological health from his wartime experiences. By virtue of the way in which this matter has been conducted and, in particular the respondent's acceptance of the applicant's claims for a relevant pension, that fundamental proposition is not an issue before us.
19. Over the years, the applicant found it increasingly difficult to cope with his employment as a motor mechanic. He was bad-tempered, intolerant and argumentative. However, those traits were exacerbated by an event which occurred in his workplace commencing in approximately 2000. The motor mechanical requirements of the Ambulance Service at Warrnambool were in relatively small compass and therefore meeting those requirements locally was regarded as being inefficient. The decision was taken to amalgamate them with the requirements of the local Country Fire Authority ("CFA"). The resultant single mechanical workshop appears, on all the evidence, to have been a failure. The two groups of mechanics from the different organisations did not appear to accept each other, which resulted in considerable friction. The former manager of the combined organisations took stress leave as a result of which the applicant was in effective charge of the group. Despite submissions to the contrary, we do not regard the departure of the former manager as being relevant for present purposes.
20. The applicant did not cope with the change referred to in the previous paragraph at all well. He became increasingly moody, intolerant and argumentative. He often hid himself away to avoid conflict. Part of that conflict consisted of allegations by each group against the other of improper borrowing, or even stealing, of tools. The applicant took at least one such allegation against him very badly, thereby contributing to a further deterioration in his psychological health.
21. In approximately 2000, Mrs Cassady persuaded the applicant to seek professional assistance for his mental condition. He consulted a psychiatrist on one occasion. While it is not necessary to set out the details of that consultation, we accept the evidence of the applicant and Mrs Cassady that the applicant's dealings with the psychiatrist were most unsatisfactory. There is no evidence to suggest that the applicant is to be criticised for that.
22. The Ambulance Service records the applicant as having resigned from his employment on 20 May 2007. We are satisfied that the applicant's decision to resign was made very quickly indeed. Mrs Cassady swore that the applicant had told her of his intention immediately before he gave effect to it. However, the applicant made the decision to resign his employment much earlier than the date on which it actually took effect.
23. The applicant commenced long service leave, which he augmented with annual leave, in June 2006. On 4 July 2006 he wrote to the Ambulance Service advising that it was his -
…intention to resign my position as Fleet Maintenance Officer in the Warrnambool workshop after I have exhausted my long service leave and other leave which is owing to me.
24. At the time of his retirement, the applicant was aged 60 years. By virtue of his age, upon his retirement he received an Invalidity Service Pension together with a lump sum superannuation benefit of nearly $360,000. He drew down the sum of $126,000 with which to discharge the mortgage on the home he owned with Mrs Cassady and he also paid off money owing on their car. At the time of the last statement of his superannuation benefits the applicant had a credit amount of slightly less than $200,000.
25. Mrs Cassady had become increasingly concerned about the applicant's psychological health. Fortuitously, a sergeant in the Army who served in Vietnam with the applicant and had remained a good friend visited Mr and Mrs Cassady from Perth early in 2006. With some assistance from that sergeant, Mrs Cassady persuaded the applicant to seek professional help from a psychologist, Mr Kingsley. In March or April 2006 Mrs Cassady spoke to Mr Kingsley about the applicant and with the applicant's agreement, made an appointment for the applicant to consult him. That consultation first occurred in April 2006. The applicant has continued to consult Mr Kingsley to the present time on an approximately fortnightly basis, with the exception of the period between 13 December 2006 and 6 November 2007 during which there was no consultation. We refer to the evidence of Mr Kingsley below.
26. Since he finished work and commenced leave, the applicant and Mrs Cassady have taken three holidays. First, they spent several days in Queensland. Secondly, between 11 November 2007 and 15 January 2008 they visited Mrs Cassady's family in the United Kingdom. Thirdly, more recently they travelled to Vietnam. With regard to that last trip, the applicant swore that he was most apprehensive about it at first but thoroughly enjoyed it.
27. On 30 January 2007 the applicant sought an increase in his pension. On 4 May 2007 the respondent increased the applicant's pension to 80 per cent of the general rate. In doing so, the respondent accepted that the applicant’s generalised anxiety disorder had become worse.
28. The applicant applied to the VRB for review of the respondent's decision referred to in the last paragraph. That application was heard by the VRB, which delivered its decision on 26 October 2007. The VRB affirmed the decision under review, as a result of which the applicant retained his pension at 80 per cent of the general rate.
29. On 25 February 2008 the applicant lodged an application for review of the respondent's decision. In those circumstances, it is not necessary for us to set out the reasons for decision of the VRB.
30. Mrs Cassady swore the following with regard to the applicant's present psychological health:
Peter relies on me for most things; if it was up to him things would just slide by. He is of no help doing household chores and can become instantly angry for no apparent reason. He has improved over time and seems to cope a little better these days. He still will not drive over a pot hole in the road and becomes very agitated when driving. He has never complained over the years about his illness and felt he was normal and coping as well as it could be. As his partner and wife for a number of years I could certainly tell he was not acting ‘normally’. He is not a complainer at all and keeps his feelings and thoughts to himself. He was always punctual and worked to the best of his ability but as mentioned earlier managed for most of the time to keep to himself.
31. Mrs Cassady's oral evidence confirmed her written evidence quoted in the previous paragraph. She placed considerable emphasis on two particular factors. The first of those was the applicant's feeling of obligation to maintain his family. The second was his ability and tendency to hide himself away, thereby enabling himself to avoid becoming involved in conflict. She expressed the view that but for those two factors the applicant may well have retired earlier than he did.
THE RELEVANT LEGISLATION
32. It is common ground that subsection 24(1) (“the subsection”) of the Veterans' Entitlements Act 1986 ("the Act") is the relevant legislation in this matter. It provides:
24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran. (Emphasis added)
THE COMMON LAW
33. The subsection has been the subject of judicial consideration. In Flentjar v Repatriation Commission(1997) 48 ALD 1 at 4-5 Branson J, with whom Beaumont and Merkel JJ agreed, held in relation to paragraph (c) of the subsection:
…
In my view the issues before the tribunal in this case were 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?
34. The word only in paragraph 3 of the quote in the last paragraph is at the heart of this matter. It has been considered in two other authorities. The first of those is Forbes v Repatriation Commission (2000) 101 FCR 50 in which RD Nicholson J held at 55 and 57:
In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 Burchett J agreed with Davies J in Re Easton and Repatriation Commission (1987) 6 AAR 558 at 570-571 the word "alone" should not have substituted for it other words in the absence of ambiguity. He saw the requirement of the word "alone" as it appears in s 24(1)(c) as requiring a practical decision whether the veteran's loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well. He regarded that as a decision not to 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.
…
The applicant's case requires the Tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the Tribunal in the light of the words used in the first limb of s 24(1)(c). The question whether the veteran by reason of the war-caused condition "alone" has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptual environment identified in the applicant's case. Furthermore it is consistent with the application by a Tribunal of a common sense approach "with an eye to reality".
35. In Repatriation Commission v Alexander (2003) 75 ALD 329 Spender J held at 332 and 334:
Section 24(1)(c) is a "sole cause" requirement: the subsection contains the requirement that incapacity from war-caused injury or war-caused disease or both "alone" prevents a veteran from continuing to undertake remunerative work that the veteran was undertaking.
…
If the non-service related conditions were a factor in preventing [the applicant] from continuing to undertake remunerative work, albeit those conditions were "of secondary importance", the "alone" requirement of s 24(1)(c) would not be satisfied.
36. As we have noted, we have had the benefit of significant expert evidence in this matter to which we now turn.
THE EXPERT EVIDENCE
Dr John Cronin
37. The applicant was referred to Dr Cronin, a consultant psychiatrist practising in Melbourne, by his general practitioner. Dr Cronin had only one consultation with the applicant, that being on 14 December 2006. Dr Cronin provided a written report to the respondent dated 30 April 2007. After setting out the history which he took from the applicant, particularly relating to the difficulties in the workplace referred to above, Dr Cronin wrote:
…
His condition has become more evident since 30 June 2004 as a result of changed working conditions. He was previously able to hide his incapacity as he was loosely supervised from a distance and have a colleague who was able to cover-up for him. This was no longer the case when work structures changed and there was an increase in his symptoms.
Mr Cassady is receiving treatment in the form of regular psychological therapy and antidepressant medication. This is appropriate for him, and it may be that he would benefit from a period of more intense psychological therapy. I would expect this would help him become less angry and irritable. However I think the major therapeutic gain is going to come from him stopping work, as I do not consider he is likely to regain the capacity to work eight hours a week or more. I consider that this incapacity arises solely from his psychiatric condition.
Dr Carol Newlands
38. Dr Newlands is a consultant forensic psychiatrist practising at East Geelong. The applicant was referred to her by the respondent for assessment and report. The applicant first consulted Dr Newlands in 2006, as a result of which Dr Newlands reported to the respondent on 14 August 2006, that report being evidence before us. The applicant's second consultation with Dr Newlands was on 23 June 2008, in respect of which we have before us a report to the respondent dated 10 July 2008. As with Dr Cronin, Dr Newlands was not called as a witness in this matter.
39. Dr Newlands noted that she was -
…asked to assess Mr Cassady, in light of his seeking an increase in his Disability Pension to the TPI/Special rate.
40. Dr Newlands' comprehensive report set out the relevant history of the applicant. She referred to his irritability and other issues relating to his mood. Dr Newlands expressed her view as to the applicant's diagnosis as follows:
I believe the appropriate diagnosis for Mr. Cassady's psychiatric condition is that of a Generalised Anxiety Disorder. In addition, he does have some personality traits which cause him difficulties. These include the need for things to be in their place and to be organised, and for him to feeling in control and doing well. These do not of themselves amount to a psychiatric disorder, but are rather traits of obsessionality.
41. The respondent sought an opinion from Dr Newlands as to whether the applicant's psychiatric condition prevented him from undertaking remunerative work for more than 20 hours per week. She expressed the following views:
…My reason for suggesting that he is no longer able to undertake a full or even a part-time role, is relevant to his obvious irritability, his difficulty in working with others, his need to hide away from people, and his difficulty even in answering the phone at times. He also appears to be extremely sensitive, and feels himself to be the target of others (sic) criticisms. If he were to return to the workforce, it is likely that these symptoms would be heightened.
…
On enquiring as to why Mr. Cassady ceased work, he detailed information as given above. I also note that he felt himself accused of removing or taking a particular piece of machinery. However, he himself described feeling that he was judged, which of course relates to that, not feeling that he was good enough, being niggly towards other co-workers, and not getting on with people in general. I note however, that he was not making errors and was not accused of such.
I note that Mr Cassady is a qualified mechanic, and one wonders whether he could undertake a similar role elsewhere. However, he would probably require retraining if he were to work on other vehicles, and it seems likely that he would perceive others to be judging him in whatever circumstances. Indeed, he even believed he was being judged when he mows his own lawns.
Hence, it is likely that this would prevent him from obtaining reasonable employment, or at least maintaining it.
…
42. The respondent sought clarification from Dr Newlands with regard to a number of matters in her report. On 21 August 2008, by another report which is evidence before us, Dr Newlands responded to the further questions asked by the respondent. The essential points of clarification were as to whether the symptoms or traits were part of the generalised anxiety disorder and if so, the extent to which they might have prevented him from undertaking remunerative work. Dr Newlands wrote:
… it is notable that obsessional traits of themselves are often useful, and can be quite productive in the workplace, in that an organised and controlled environment often functions well. Should things become out of control however, an individual suffering from Generalised Anxiety, may often display a heightened anxiety.
In addition, he likes things to be in their place, which is part of being organised, and he likes to feel he is doing well. This of itself, may be partly an obsessive trait, or it may indeed be part of his anxiety, in that he feels distressed if he is not performing to his best.
I would point out however, that I have only suggested these are traits, and not part of an Obsessive Compulsive Disorder. I do not believe he suffers from a (sic) Obsessive Compulsive Disorder.
…
His personality traits would not prevent him undertaking any work, be it 8 or 20 hours a week. Indeed, such traits may assist in the workplace, as mentioned above, in that an organised and controlled workplace often functions is much better than one which is chaotic.
43. In her report dated 14 August 2006 referred to above, Dr Newlands assessed the applicant under the Guide to the Assessment of Rates of Veterans’ Pensions, 5th Ed (GARP) as having a score of 29 points. She was asked to advise on the appropriate present assessment. In her report dated 21 August 2008 Dr Newlands expressed a caveat that she had not specifically directed her questioning to those rating scales. However, she expressed the view that the present assessment would appear to be 36 points.
44. In detailing her current assessment of the applicant pursuant to the GARP, under the heading of Occupation Dr Newlands wrote:
In this area Mr. Cassady had shown some reduction in capacity since his last visit, in that he had left the workplace since he had come to dislike going to work, perceived himself to be criticised, and was aware that he was "hiding away" in his office so as to not mix with colleagues. He had also found himself being intolerant of those around him, and he had therefore retired by mutual agreement. Nonetheless, it would appear that this was brought about due to increasing tension in the workplace, and difficulties for him in coping with those around him. I thus believe his psychiatric symptoms played a role in his loss of the original job. (Emphasis added)
45. Dr Newland's report quoted in the previous paragraph suggests a view that the applicant's psychiatric symptoms were not the exclusive cause for his resignation from his employment. She differentiated between the diagnosis of generalised anxiety disorder and personality traits and discounted the latter as being a contributing factor to the applicant's resignation.
Mr Murray Kingsley
46. We have already referred to Mr Kingsley as being the applicant's current treating psychologist. Mr Kingsley's report is dated 28 February 2009. Mr Kingsley gave his evidence in this application by telephone. Accordingly, we did not have the opportunity of observing him. However, as he appropriately conceded, he became frustrated with some of the questioning of him by the advocate for the respondent, an attitude which was, in our view, unreasonable. The degree to which Mr Kingsley appeared effectively as an advocate of the applicant, at times tarnished his evidence but not to the extent that we question his credibility. We discuss that further below.
47. The applicant first consulted Mr Kingsley several months prior to giving the Ambulance Service written notice of his intention to retire upon completion of his long service leave. Mr Kingsley wrote of the timing of the notice:
…
It was obvious to the writer that Mr Cassady had remained at work for some years after his coping strategies had all but disappeared.
…
The decision to leave work was unspoken but clearly evident in both his attitude to his workplace and in his highly symptomatic presentation. The writer believed at the time that Mr Cassady presented with the full constellation of symptoms sufficient to warrant a provisional diagnosis of chronic Posttraumatic Stress Disorder.
The writer was of the opinion that Mr Cassady was unable to satisfactory perform his duties.
48. In his oral evidence, Mr Kingsley acknowledged that the appropriate diagnosis of the applicant’s psychological health was generalised anxiety disorder rather than post-traumatic stress disorder. He readily acceded to the psychiatric evidence in that regard.
49. In seeking the report from Mr Kingsley, the applicant’s solicitor asked his opinion with regard to -
… the degree to which you believe that the veteran's work capacity is affected by his accepted psychiatric disability of ‘anxiety disorder’ and specifically whether he is ‘incapable of undertaking paid work of more than 8 hours per week’
In response, Mr Kingsley wrote:
It appears that Mr Cassady remained at work through a high sense of duty to his family. It is reasonable to conclude that this ‘pressure’ was related to the sudden loss of his wife. In the opinion of the writer Mr Cassady is unable to work solely because of his Anxiety Disorder and he is clearly not capable of satisfactorily performing the duties related to paid work for more than 8 hours per week. Furthermore, if the writer were his advocate, then serious consideration needs be given to those who remain at work in the face of severe disability versus those who have the ‘sense’ to quit, and the question needs to be asked as to whether the former ought to be penalised in terms of entitlements because of their high moral stance on the matter of providing for their family.
50. Mr Kingsley's oral evidence was in accordance with his written evidence quoted above. He described the applicant as being a person who copes with everything - hail fellow well met. He has a very low level of insight and when first seen by Mr Kingsley acted almost as though he didn't understand what he was saying. His presentation fluctuated over time. There had been a very significant improvement over the first 12 months of his consultation and the applicant then went on the various trips described above.
51. In his cross-examination of Mr Kingsley, the respondent's advocate explored the issue of the role of the conflict at the applicant's workplace in his ultimate decision to retire. He challenged Mr Kingsley for not having taken a history of the conflict at the workplace and suggested that that amounted to a deficiency in his evidence. As we have already found, Mr Kingsley accepted the psychiatric diagnosis of the applicant's illness as being generalised anxiety disorder. That diagnosis was common ground before us. It was also common ground that that illness was war-caused. Mr Kingsley formed the view that the applicant was unable to undertake employment because of that illness. From that point, the question of whether the illness was the sole cause or whether there were other factors which were not war-caused contributing to that inability is a matter of fact for the Tribunal on the basis of all of the evidence. Accordingly, we find that Mr Kingsley's failure to take a history from the applicant relating to his experiences in the workplace does not detract from the gravamen of his evidence.
THE PARTIES’ CASES
52. It is common ground that the only issue before us in this matter is the applicability of the word "alone" in paragraph (c) of the subsection. The respondent conceded that the applicant complied with subparagraph (a)(i), in that he had already been accepted as being entitled to a pension of 80 per cent. Likewise, the respondent conceded that the applicant had been rendered incapable of undertaking remunerative work for periods aggregating more than 8 hours per week in terms of paragraph (b) of the subsection and therefore complied with it.
53. As previously noted, the real issue between the parties in this matter is whether the applicant's war-caused injury or disease was the only factor which prevented the applicant from undertaking the remunerative work as required by paragraph (c). We now turn to the competing submissions on that issue.
The Applicant’s case
54. Counsel for the applicant submitted that the applicant's generalised anxiety disorder was the only cause of his resignation from employment and that the other factors which were submitted on behalf of the respondent to be relevant to that resignation were no part of the cause.
The Respondent's case
55. At paragraph 17 of the respondent's Statement of Facts and Contentions, the advocate for the respondent asserted that the applicant was -
… not prevented from undertaking remunerative work by war-caused disabilities alone. The respondent submits that Mr Cassady decided to retire at 60 years of age. Retirement decision and the availability of Age Service Pension and Superannuation are other reasons effectively preventing remunerative work.
56. During his final submissions, the advocate for the respondent submitted that there were other factors, in addition to those referred to in the previous paragraph, which supported the contention that the war-caused disabilities were not the only factor in the applicant's resignation. He submitted that the applicant had worked in the same capacity with essentially the same employer for 38 years without taking any time off work for illness or similar cause. The applicant resigned when he was 60 years old and his considerable superannuation benefits had become available to him. Those benefits, together with the Age Service Pension, were considerable incentives to retirement. The applicant had created a pleasant lifestyle for himself, as witnessed by his holidays in Queensland, the United Kingdom and Vietnam.
57. The respondent's advocate strongly emphasised the difficult circumstances in the workshop in which the applicant was employed following the amalgamation of the Ambulance Service with the CFA. We have described those circumstances above. The advocate submitted that the added pressure of the applicant having become the manager of the workshop, following the departure on stress leave of the previous manager, together with the tensions between the two groups of employees with regard to removal of tools had placed added pressures on to the applicant which were exclusive of his war-caused disabilities.
DISCUSSION
58. The ultimate question which we must decide is whether the applicant’s cessation of work is to be attributed solely to his war‑caused injury or disease. In that regard, it is common ground that he suffers from generalised anxiety disorder which is war‑caused. The question of whether the other factors relevant to his workplace at the time of his resignation impinge on that decision is fundamental to our decision. In particular, the issue of the impact, if any, of the conflict in the workplace, together with the availability of the financial means to enable him to retire in relatively comfortable circumstances may be seen as causes of that retirement in addition to his psychological diagnosis. We turn to a discussion of those matters.
59. The legislation requires us to make this decision on the balance of probabilities. In considering that decision, we must have regard to all the available evidence. The first aspect of that evidence is that of the applicant and Mrs Cassady. Both of them, and particularly Mrs Cassady, were convincing witnesses. They readily acknowledged the role of the conflict in the applicant's workplace together with the availability of the financial means by which the applicant was able to retire. However, they were both clear in their position that the applicant's psychological health was the only cause of the decision to retire.
60. The applicant's case is supported by Dr Cronin and Mr Kingsley. Dr Cronin, who was consulted by the applicant only six months after his decision to retire and to whom he was referred by his general practitioner, was quite clear in his view that this incapacity arises solely from his psychiatric condition.
61. Despite our criticism of the evidence of Mr Kingsley, he maintained his clear position which was in accord with the opinion expressed by Dr Cronin. Mr Kingsley has been, and remains, the applicant's treating psychologist.
62. By contrast, Dr Newlands evidence does not support the applicant's case. In her report of 10 July 2008, she expresses the view that the applicant’s feeling of being judged and criticised for taking machinery contributed to his decision to retire. In her report dated 21 August 2008, she states that the applicant’s retirement was brought about due to increasing tension in the workplace and difficulties for him in coping. Accordingly, Dr Newlands’ position is that problems in the applicant’s workplace contributed to his decision to retire.
63. In coming to a conclusion as to whether the applicant’s decision to retire was solely brought about by his war-caused injuries, we must assess the whole of the evidence before us, being from the applicant, Mrs Cassady and the experts discussed above. We also form our own views of the strengths and weaknesses of the evidence arising out of our observations of the witnesses who were called to give evidence.
64. Regrettably, neither the evidence of Dr Cronin nor Dr Newlands was tested before us. That is of particular significance in this matter because, in their written reports, they expressed contrary views. As a result, we are not able to make findings preferring any aspect of the evidence of one of them over the evidence of the other. Accordingly, it must be treated with some caution. That does not mean that we discard the evidence. However, as we have previously discussed, we were particularly impressed by the persuasive evidence of the applicant which is strongly corroborated by Mrs Cassady and supported by Mr Kingsley, all of whom were cross-examined.
65. As contemplated by the authorities quoted above, we must take a commonsense approach ‘with an eye to reality’. Such an approach leads us to the conclusion that the applicant resigned from his employment because of his generalised anxiety disorder which, rather than having as a contributory factor the unhappiness in his workplace, exacerbated that unhappiness. In particular, we are satisfied that he did not retire earlier because of what was described by several witnesses as being his sense of duty towards his family and the need to remain the breadwinner.
66. Likewise, the availability of resources by way of a pension and a significant superannuation benefit only made the decision to retire possible rather than being a cause of that decision. In that regard, we note that at the time of the applicant’s decision to retire Mrs Cassady was still employed on a full-time basis and accordingly, financial pressures were lessened. Further, both Mr and Mrs Cassady swore, and we accept, that their finances were never a matter of concern for them.
67. Both section 24(1)(c) of the Act and the fourth question in Flentjar (referred to above) require that before acceding to the applicant's application we must be satisfied that he is suffering a loss of salary, wages or earnings which he would not be suffering if he were free from the war-caused condition. The advocate for the respondent did not make any submission asserting that the applicant was not suffering such a loss. In our view, that was an appropriate course as the evidence is clear that the applicant has suffered, and continues to suffer, such a loss.
68. The respondent submitted that the last day of the applicant's employment was 20 May 2007 and that an earnings-related pension could not be paid before 21 May 2007. The applicant made no submission on this issue. We find that 21 May 2007 is the effective date for the payment of the special rate of pension to the applicant.
CONCLUSION
69. We conclude that the applicant's retirement was solely caused by his war‑caused injury, being his generalised anxiety disorder. Therefore, the Tribunal sets aside the reviewable decision and in substitution decides that the applicant is entitled to a service pension at the special rate with a date of effect of 21 May 2007.
I certify that the sixty‑nine [69] preceding paragraphs are a true copy of the reasons for the decision herein of
The Honourable Justice N. Mushin, Presidential Member
Brigadier C Ermert (Retd), Member(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing 25 May 2009
Date of Decision 24 June 2009
Counsel for the Applicant Mr G. Moore
Solicitor for the Applicant Peter J. Liefman
Solicitor for the Respondent Mr K. Rudge, Department of Veterans’ Affairs
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